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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. 185 OF 2015 (On appeal against the judgment dated 12.03.2015 passed by the Election Tribunal, Rawalpindi in Election Petition No. 284/2013) Ch. Hamid Hameed … Appellant VERSUS Barrister Abdullah Mumtaz Kahlon and others …Respondents For the Appellant: Mr. Tariq Mehmood, Sr. ASC Syed Najam-ul-Hassan Kazmi, Sr. ASC For the Respondent (1): Dr. Babar Awan, Sr. ASC Mr. Muhammad Hanif Khatana, ASC Syed Rifaqat Hussain Shah, AOR Assisted by: Mr. Farooq Awan, ASC and Barrister Adil Kahloon Date of Hearing: 10.05.2016 JUDGMENT FAISAL ARAB, J.- In the General Elections that were held on 11.05.2013, the appellant was declared returned candidate from the National Assembly constituency NA-66-III City Sargodha. The respondent No. 1, who was runner up filed Election Petition before the Election Tribunal under Section 52 of the Representation of the People Act, 1976 alleging corrupt and illegal practices on the part of the appellant. It was also alleged that the appellant in his nomination form has concealed his ownership/interest in Koh-e-Noor Textile Cotton Mills situated in Pipplan, District Mianwali. The Tribunal after framing Civil Appeal No. 185/2015 2 2 issues and recording evidence of the parties, accepted the Election Petition on the ground of concealment of asset. Appellant’s election was declared void and fresh election in the constituency was ordered. Being aggrieved by such decision the appellant filed the present appeal. 2. Learned counsel for the appellant Mr. Tariq Mehmood submitted that appellant’s election was declared void on the ground that the appellant had concealed his ownership/interest in Koh-e-Noor Textile Cotton Mills though he was never an owner of the said mills. He submitted that the appellant is in the business of purchasing old machinery and equipment as well as the material of old buildings that are to be demolished. He further explained that apart from purchasing old machinery and equipment as well as the material of old buildings of the said mills, the appellant alongwith his other two partners entered into a contract with the owner of the said mills to launch a project on the land of the mills. The purpose of the project was to carve out plots and then sell them to the general public. He submitted, the appellant never become owner of the land of the mills, he only made investment. 3. Learned counsel for the respondent No. 1, Dr. Babar Awan in rebuttal argued that there was sufficient evidence on record to establish that the appellant became owner of Koh-e-Noor Textile Cotton Mill which fact he ought to have declared in his nomination form but he concealed the same. Learned counsel referred to various documents on record to demonstrate that the appellant became one of the owners of Koh-e-Noor Textile Cotton Mills. He drew our attention Civil Appeal No. 185/2015 3 3 to a complaint lodged by the appellant with DPO Sargodha wherein he alleged fraud on the part of one Ghulam Abbas Khan, who while acting as attorney of the original owner of the mills, Khaqan Hassan Najeeb, sold plots and misappropriated the sale proceeds that fell to the share of the appellant. He then took us to the FIR that was lodged pursuant to such complaint at Police Station N Area, District Sargodha under Section 406 PPC on 5.2.2012. He also referred to partnership agreement executed on 19.7.2001 among the appellant having 37.5% share and two other persons namely Javed Iqbal having 25% share and Mian Munir Ahmed having 37.5% share. The partnership deed shows that three partners had agreed to make investment in the project mentioned above. The owner of the mills agreed to launch the project which was to be supervised by his nominee Ghulam Abbas Khan. He was made responsible to sell the plots and deposit the sale proceeds in bank which amount was then to be shared amongst all the stakeholders according to their respective shares. After sale of the plots, the appellant alleged misappropriation of his share on the part of Ghulam Abbas Khan, which led to filing of the complaint and FIR No. 54 at Police Station N Area, Sargodha under Section 406 PPC on 5.2.2012. 4. It is an admitted position that title of Koh-e-Noor Textile Cotton Mills remained with Khaqan Hassan Najeeb till the finalization of the project. From the record of the criminal proceedings, it is evident that the appellant only alleged misappropriation of his share in the project that apparently remained unpaid. Thus the whole transaction with regard to the sale of the plots was nothing but an Civil Appeal No. 185/2015 4 4 investment in a project, object of which was materialized when plots were carved out, sold and transferred to the purchasers through execution of sale deeds that were executed by Ghulam Abbas Khan on the strength of power of attorney executed in his favour by Khaqan Hassen Najeeb. Hence, from the above, it is apparent that neither on or before 30.06.2013 the appellant became owner of Koh-e-Noor Textile Cotton Mills. The appellant only made an investment along with his two other partners in a project which came to an end with the sale of the plots and only for the misappropriation of appellant’s share in the sale proceeds, criminal proceedings were initiated against Ghulam Abbas Khan. Had the project failed even then the appellant would not have become owner in the land in question as in such eventuality also he would have only claimed return of his investment plus damages and nothing more. So the question of concealment of ownership in Koh-e-Noor Textile Cotton Mills does not arise. The finding of the Election Tribunal in these circumstances is not sustainable in law. 5. The above are the detailed reasons of our short order of even date whereby we allowed this appeal and set aside the impugned judgment. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 10th of May, 2016 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED. MR. JUSTICE IJAZ UL AHSAN. MR. JUSTICE QAZI MUHAMMAD AMIN AHMED. Civil Appeal No.188 of 2019 Against judgment dated 15.01.2019 of the High Court of Sindh, Bench at Sukkur, passed in Election Petition No.S-01 of 2018. Nida Khuhro. Appellant(s) Versus Moazzam Ali Khan and others Respondent(s) For the Appellant(s): Sardar M. Latif Khan Khosa, Sr. ASC. Ch. Akhtar Ali, AOR. For Respondent No.1: Mr. Salah-ud-Din Ahmed, ASC. Date of Hearing: 01.08.2019. O R D E R IJAZ UL AHSAN, J-. The Appellant calls into question a judgment dated 15.01.2019 of an Election Tribunal of the High Court of Sindh, Bench at Sukkur. Through the impugned judgment, an Election Petition bearing No.S-01 of 2018 filed by the Appellant was dismissed. 2. Briefly stated the facts necessary for disposal of the lis in hand are that the Appellant contested General Election, 2018 alongwith Respondent No.1 and others. Respondent No.1 was declared as the Returned Candidate. The Appellant sought a declaration from the Election Tribunal that the nomination papers of Respondent No.1 were invalid inter alia on the ground that he had filed a false declaration of assets. As such, it was prayed that the election of Respondent Civil Appeal No.188 of 2019 . 2 No.1 was void and the Election Commission of Pakistan may be directed to hold fresh election in the constituency (PS-11, Larkana-II). Respondent No.1 contested the petition and filed a written statement denying all allegations levelled in the petition. The Election Tribunal framed as many as 7 issues and put the parties to trial. Such trial culminated in dismissal of the petition through the impugned judgment. Hence, this appeal. 3. The learned counsel for the Appellant submits that concealment of assets by Respondent No.1 was sufficient to warrant his disqualification and annulling his election notification as a member of the Provincial Assembly in view of the law laid down by this Court in the case of Speaker, National Assembly of Pakistan v. Habib Akram (PLD 2018 SC 678). He further maintains that besides nomination papers and false declaration, the sworn affidavit submitted by Respondent No.1 with his nomination papers provided additional grounds for his disqualification and also warranted contempt proceedings against him as per declaration of this Court in the aforenoted judgment. The learned ASC submits that Respondent No.1 is a seasoned politician and could not be granted the benefit of ignorance of the legal requirements of full and truthful disclosure of assets or bona fide mis- statement of his assets. He maintains that Respondent No.1 had not only mis-declared his own assets but also suppressed agricultural properties/assets of his dependent children (minor sons). He has emphasized the fact that the mala fide of Civil Appeal No.188 of 2019 . 3 Respondent No.1 is conspicuous from a deliberate mis- statement made by him in his nomination papers, declaration of assets and sworn affidavit clearly inferring that he was not an honest and sagacious person. The learned counsel further submits that on account of his acts and omissions, Respondent No.1 had rendered himself liable for the constitutional disqualification as envisaged in Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 (‘the Constitution”) as well as provisions of the Election Act, 2017 (“the Act”) including Section 156 thereof. He maintains that wilful concealment by Respondent No.1 having been proved without any lawful justification for the same, there was no burden cast upon the Appellant to establish mala fides in the matter. He points out that the precedent cases relied upon by the Election Tribunal were entirely distinguishable and the Tribunal fell in error in dismissing the election petition. He further maintains that the ratio of cases reported as Muhammad Jamil v. Munawar Khan (PLD 2006 SC 24), Khaleefa Muhammad Munawar Butt v. Hafiz Muhammad Jamil Nasir (2008 SCMR 504), Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema (2016 SCMR 763), Muzafar Abbas v. Muhammad Ahmed Ludhianvi (PLD 2017 Lahore 394) and Imran Ahmed Khan Niazi v. Muhammad Nawaz Sharif (PLD 2017 SC 692) being squarely applicable to the case of Respondent No.1 should clearly have resulted in his disqualification and ouster from the Provincial Assembly. He finally submits that the judgment of the Election Tribunal suffers from patent errors of law and runs Civil Appeal No.188 of 2019 . 4 contrary to the settled law declared by this Court from time to time in its various pronouncements noted above. It was therefore unsustainable. 4. On the other hand, learned counsel for Respondent No.1 has vigorously defended the impugned judgment. He submits that the original allegations of the Appellant were based upon misunderstanding of the property documents of Respondent No.1. He maintains that the only ground urged by the Appellant before the Election Tribunal was that Respondent No.1 just disclosed 61 acres of agricultural land in Deh Khedkar, District Larkana whereas he owns 140.24½ acres of land in the said Deh. In this regard, the learned counsel submits that Respondent No.1 in his nomination papers disclosed 61 acres of agricultural land in Deh Khedkar, District Larkana, 622 acres in Deh Raju Dero, District Khairpur and one Otaq/Bethak in Mohallah Waleed, Larkana. With great vehemence, the learned ASC submits that the explanation of Respondent No.1 for not mentioning the remaining portion out of 140.24½ acres of land admittedly recorded in his name in the relevant revenue records was that a part of the remaining land approximately 16 acres had been acquired by the Government of Sindh whereas the rest was (although nominally in his name or in the name of his minor children) actually is in the beneficial ownership, control and possession of his father. The learned counsel contends that Respondent No.1 had correctly declared the full extent of all immovable properties that are Civil Appeal No.188 of 2019 . 5 actually in his direct ownership, control and possession. He has not committed any illegality by not declaring the land that was only nominally in his name but was actually and beneficially owned, controlled and possessed by his father. The learned counsel has drawn our attention to the relevant land revenue bills and receipts showing that the same were being issued and paid in respect of land in his possession, ownership and control. The remaining land was being cultivated by his father who was receiving revenue bills and paying the same in relation thereto. He maintains that there is no dispute regarding authenticity of the said documents. The learned ASC further submits that the land in question disclosed by him was ancestral property that devolved on Respondent No.1 through a family settlement and any omission to declare the same in the nomination papers could not be fatal for his case. The learned counsel argues that there could not have been any ill intent or motive behind the omission of Respondent No.1 to mention the said land in the nomination form. He maintains that Respondent No.1 had declared 683 acres of agricultural land in his nomination form. He would gain no conceivable incremental advantage or benefit from hiding a few acres of land specially when the same was admittedly not even purchased by him but devolved on him and his children through a family settlement. He also maintains that Respondent No.1 was contesting election for the Provincial Assembly for the first time and was not fully aware of the requirement to be fulfilled in declaration of his assets. The learned ASC has emphasized that the Appellant Civil Appeal No.188 of 2019 . 6 seeks not the rejection of a nomination paper but the voiding of an election. Under Section 156 of the Election Act, 2017 (“the Act”), an election can only be declared void if the nomination of the Returned Candidate was invalid or procured or induced by any corrupt or illegal practice. He maintains that there is a higher test than that prescribed for rejection of a nomination paper and mere incorrectness in any of the particulars is not sufficient to void the election. The learned ASC maintains that in order to void an election it must be shown that mis-statement in the nomination form is of a kind to justify an inference of corrupt practice. It must be established that the candidate intentionally made a false statement/declaration or if a statement was made in the circumstances so as to rule out the likelihood of a bona fide error. He relies on Muhammad Hanif Abbasi v. Imran Khan Niazi (PLD 2018 SC 189), Shakeel Awan v. Rasheed Ahmed (PLD 2018 SC 643) and Muhammad Asif v. Muhammad Usman Dar (2018 SCMR 2128). He finally submits that the ratio of the judgments relied upon by the learned counsel for the Appellant in support of his contentions is not attracted to the facts and circumstances of the present case. 5. We have heard the learned counsel for the parties and examined the available record with their assistance. At the very outset, we have noticed that Respondent No.1 did not disclose his entire landholding in Deh Khedkar, District Larkana which admittedly consists of 140.24½ acres. Out of the said holding he only declared 61 acres but did not Civil Appeal No.188 of 2019 . 7 disclose the rest which according to him had been transferred in his name by way of a family settlement agreement executed in 2014. He also admits that the holdings of his minor sons were also not disclosed in the relevant documents. Respondent No.1 attempted to explain away his failure to disclose the said assets by stating that after the demise of his paternal grandmother, the land that stood in her name was distributed amongst her legal heirs i.e. Munawar Ali Abbasi and others. At that point in time, a family settlement with regard to the entire land was entered into. In consequence, Respondent No.1 and his minor sons received substantial land. This was duly transferred in their respective names. It was further submitted that only that part of the land was disclosed in the nomination papers and other related documents which had been transferred and was in the possession of Respondent No.1. The rest was not disclosed because it was under the control and supervision of his father who was allegedly the real beneficiary of the said land. He was supervising and overseeing its cultivation and also paying land revenue on the same. This situation had allegedly existed since the private partition dated 17.10.2014. Admittedly, the family partition was duly implemented in all revenue records and the respective shares of all beneficiaries of the family partition were duly reflected in all requisite records as owners. 6. On the basis of facts and circumstances narrated hereinabove and in view of the admission on the part of Civil Appeal No.188 of 2019 . 8 Respondent No.1 that there was failure on his part to disclose certain assets, the only question requiring determination by us is whether such disclosure was required under the law. If so whether the explanation offered by Respondent No.1 is legally acceptable so as to provide a defence against the rigours of disqualification under the Election Act, 2017 and more importantly Article 62(1)(f) of the Constitution. 7. Perusal of the record indicates that the affidavit filed by Respondent No.1 alongwith his nomination papers admittedly does not disclose all assets owned by him. Form “A” is the nomination paper whereas form “B” is the statement of assets and liabilities, which are available on the record. We also notice that the nomination papers are accompanied by a declaration which is required to be sworn under oath and was indeed sworn as such by Respondent No.1, pursuant to a judgment of this Court in the case reported as Speaker, National Assembly of Pakistan v. Habib Akram (PLD 2018 SC 678). The candidates were required by this Court to submit affidavits disclosing all assets. In paragraph 8 of the said judgment it was clarified that failure to file such affidavit before the Returning Officer would render the nomination papers incomplete and liable to rejection. In addition, if the affidavit or any part thereof was found false then it shall have consequences as contemplated by the Constitution and the law. The judgment also provided that since the affidavit was required to be filed in pursuance of the orders of this Court, if any false statement was made therein, Civil Appeal No.188 of 2019 . 9 it would also entail such penalty as is of filing a false affidavit before this Court. Admittedly, Respondent No.1 filed such affidavit which was not true and was patently deficient insofar as it failed to accurately disclose all assets of Respondent No.1. 8. Section 137(4) of the Act provides that where a Member submits a statement of assets and liabilities which is found to be false in material particulars, he may, within 120 days from the date of submission of the statement be proceeded against for committing the offence of corrupt practice. While it is correct that the Returning Officer has been given the power to allow correction of mistakes, errors and omissions in the nomination papers within a specified time but in the instant case no attempt was made to correct such omission at any stage. 9. Section 156 of the Act provides the grounds for declaring election of a Returned Candidate as void. Grounds “a” and “c” stipulate that: “(a) the nomination of the returned candidate was invalid or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice”. 10. In terms of Section 137(4) of the Act reproduced above, submission of a statement of assets and liabilities, which is found to be false in material particulars constitutes corrupt practice. More importantly, the declarations given by Respondent No.1 under solemn affirmation as part of his Civil Appeal No.188 of 2019 . 10 nomination papers, and the affidavit submitted by him pursuant to the judgment of this Court in the case of Speaker, National Assembly ibid also exposes him to disqualification not only under the provisions of the Election Act but also under the provisions of Article 62(1)(f) of the Constitution. By reason of making a false statement under oath, Respondent No.1 ceases to be qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) because he cannot be termed as righteous and honest. The false statement having been made in the nomination papers, in the statement of assets and in the affidavit exposes Respondent No.1 to serious legal consequences under the law as well as the Constitution. 11. The learned counsel for Respondent No.1 has taken great pains to argue that the explanation for non- disclosure of some of his own assets and those of his minor children to the effect that the said land although in Respondent No.1’s name was actually under the control and possession of his father who was the real beneficiary and was also paying the land revenue as evidenced by receipts of land revenue paid to the concerned authorities by his father should be accepted by this Court. He stressed that the explanation is reasonable and plausible. 12. We are unfortunately unable to agree with the contention of the learned counsel for Respondent No.1. It is clear and obvious that: Civil Appeal No.188 of 2019 . 11 (i) The land in question was transferred in favour of Respondent No.1 as far back as 2014 by way of a written family settlement which was duly implemented in all revenue records; (ii) It is not the case of Respondent No.1 that he did not know about such transfer or that such transfer was undertaken without his knowledge or consent; (iii) By reason of the family settlement and its implementation in the revenue records, the name of Respondent No.1 appeared and continues to appear in all records as the owner of the property; (iv) The proprietary rights, title and interest in such property clearly vest in him; (v) A part of such land was admittedly acquired by the Government of Sindh and there is no denial of the fact that compensation determined by the Land Acquisition Collector was received by Respondent No.1 as owner; and (vi) The fact that the father of Respondent No.1 may be administering his land as his agent or nominee and may also be receiving the benefits/income derived from the said land may reflect a mutual family arrangement. It does not detract from the fact that Respondent No.1 is the owner of the said land which constitutes his asset. All proprietary rights, title, ownership and interest in the said land vest in him. He has the power to sell, alienate and dispose of such properties without any legal or Civil Appeal No.188 of 2019 . 12 procedural restriction, hitch or hindrance in his way. 13. The mere fact that land revenue may have been paid by the father of Respondent No.1 also does not improve his case. We have specifically asked the learned counsel for Respondent No.1 who would be liable to pay land revenue and other public dues against the said land in case there was default in payment of the same. He has hesitatingly admitted that the person liable to pay such defaulted amounts would be Respondent No.1. Even in terms of provisions of Section 74 of the West Pakistan Land Revenue Act, 1967 the land revenue and all other Government dues payable against a particular piece/tract of land are recoverable from a person whose name appears as owner of such land in the revenue records. This is irrespective of who may be cultivating or allegedly receiving its benefits as an agent or nominee of the real owner. It is also significant to note that Respondent No.1 neither produced his father as a witness before the Election Tribunal nor produced any other credible evidence to establish his half hearted plea of Benami ownership, other than revenue payment receipts which were found by us to be insufficient to establish his plea. 14. The learned counsel for Respondent No.1 has also emphasized the fact that a bonafide error or mistake of fact or law may be condoned and save a person from being hit by the rigours of Election Laws as well as the Constitution. In this regard, he has referred to Muhammad Asif v. Muhammad Civil Appeal No.188 of 2019 . 13 Usman Dar (2018 SCMR 2128) and Shakeel Awan v. Rashid Ahmed (PLD 2018 SC 643). 15. As far as the case of Khawaja Muhammad Asif (supra) is concerned, in paragraph 9 of the said judgment it was held as follows: “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 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 of 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.” 16. It is clear from perusal of the afore-noted paragraph that no set formula can be fixed with regard to any omission to list an asset in the nomination papers and make Civil Appeal No.188 of 2019 . 14 a declaration of dishonesty and impose the penalty of lifetime disqualification. It has been held that 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. In the same vein, in the case of Malik Shakeel Awan (ibid), while summing up the law on this aspect of the matter, Sh. Azmat Saeed, J (in his majority opinion) held as follows: “3. Even otherwise, the present lis pertains to the validity of a judgment of the Election Tribunal challenged through the instant appeal under Section 67(3) of the Representation of the People Act, 1976 (RoPA) while through the question raised a very wide net has been cast encompassing also the jurisdiction of this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 as well as the impact of various provisions relating to qualifications and disqualifications of Members of the Parliament and the Provincial Assemblies. Several of the questions raised obviously do not arise at the lis at hand, while the other have been answered definitively by this Court in its various judgments. 4. In our legal system, law evolves brick by brick and from judgment to judgment. If the judgments pertaining to electoral disputes rendered by this Court are carefully read, objectively understood and the ratio thereof correctly identified, it would be clear and obvious that principles of law, in this behalf, appear to have been settled and consistently applied to the facts of each individual case. The difference in outcome, if any, is the result of difference in the facts of each case. Such principles of law do not require any further clarification on hypothetical considerations. The confusion, if any, is not in the judgments. 5. This Court, for that matter any court, seized of a lis is required to decide the same rather than to embark upon an academic exercise. We cannot shy away from adjudicating upon the lis that comes before the Court without attempting to ascertain and identify the principles of law as developed through the interpretative process of the previous judgments of this Court and apply the same to the facts of the case.” 17. Therefore, we have no hesitation in holding and reaffirming that this Court is indeed also a “Court of Law” which can issue a “declaration” within the purview of Article 62(1)(f) of the Constitution. Any other interpretation would be absurd and illogical. It would amount to holding that this Civil Appeal No.188 of 2019 . 15 Court despite being the highest Court of the land is not a “Court of Law” within the meaning of Article 62(1)(f) of the Constitution. Surely the legislature when framing the Constitution (Eighteenth Amendment) Act, 2010 could not have intended to introduce such a blatant and glaring absurdity in as important a document as the Constitution of the country. 18. It was further held in the said case as follows: “13. Where a misstatement or an inaccuracy or concealment is established, the candidate/member would always have the opportunity to offer an explanation. Such explanation may or may not be found acceptable. Such is the ratio of the judgment of this Court rendered in the case reported as Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others (2016 SCMR 733). In the said case, an Election Petition filed before the Election Tribunal. In the proceedings, it stood established that a criminal case registered against the candidate was not mentioned in his nomination papers as required. Such candidate offered an explanation which was accepted by this Court by way of the aforesaid judgment which is incidentally authorized by my learned brother Qazi Faez Isa, J., and I too was a Member of the said Bench. The said view i.e. in case of concealment, discrepancy and misstatement in the nomination papers an explanation thereof may be given by the candidate/member, which may or may not be accepted by the court. And only, if such explanation is found tenable no penal consequences would follow. The question of “strict liability” does not arise with regard to misstatements in the nomination papers. Such view was also followed in the judgments of this Court reported as Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) and Muhammad Hanif Abbasi. v. Imran Khan Niazi and others (PLD 2018 SC 189). No departure has been made by this Court in the cases reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and 9 others (PLD 2017 SC 265 and PLD 2017 SC 692). In the aforesaid case, the concealment of assets in the nomination papers filed by the Respondent in the said proceedings was established through an admission. At no point of time any explanation was offered, in this behalf. Therefore, the question of accepting or rejecting such explanation did not arise. Even in the Review Petition, no explanation was offered. However, an oblique reference in hypothetical term was only made. This aspect of the matter was dealt with and adjudicated upon by this court in the judgment passed on such review reported as Mian Muhammad Nawaz Sharif and others v. Imran Ahmed Khan Niazi and others (PLD 2018 SC 1). Reference, in this behalf, may be made to para 11 of the said judgment. The relevant portion thereof is reproduced hereunder: Civil Appeal No.188 of 2019 . 16 11. The argument that the omission to disclose assets could possibly be unintentional in the circumstances of the case would have been tenable had the petitioner been a novice or a new entrant in business and politics. But where he has been neck deep in business and politics ever since early 80’s it is unbelievable that he did not understand the simple principle of accounting that his accrued and accumulated salary of six and a half years was his asset and liability of the company he was an employee of. Even otherwise, this argument cannot be given much weight when it has not been pleaded by the petitioner that the omission to mention the asset was accidental, inadvertent or unintentional. ….” 19. It may also be noted that in the case of Malik Shakeel Awan (ibid), the entire holding of the Respondent in the said case had been disclosed in the form of revenue records and other related documents and this Court came to the conclusion that a simple mathematical exercise revealed that as per the details provided by the Respondent in his nomination papers at page 79 he owned 1081 kanals and 17 marlas of land and in the grand total it had been incorrectly mentioned as 983 kanals 17 marlas. This error appeared to have crept into the printed nomination papers. The miscalculation between the area of agricultural land owned by the Respondent scribed in the printed form and as mentioned item wise in the details of the nomination papers was self evident. Further, the Respondent in the said case perhaps declared a little more land than as alleged by the Appellant thus he could hardly be accused of concealing any asset especially so as a portion of the land appeared to be undivided share in various Khasra numbers. It was in the peculiar circumstances of the said case that the explanation offered by the Respondent was found to be reasonable and logical. Consequently, the conclusion drawn by the Election Civil Appeal No.188 of 2019 . 17 Tribunal in that case that there was no concealment of agricultural land in the nomination papers filed by the Respondent was found to be based upon a correct and judicious appreciation of the evidence available on the record and in accordance with law as laid down by this Court. 20. As opposed to the above, in the instant case, there was neither any accidental error nor omission in the nomination papers of Respondent No.1 in the present case. There was no error of calculation either. Further, the declarations repeatedly given were given under solemn affirmation which has its own sanctity and solemnity. The consequence of filing a false affidavit with the nomination papers have clearly and unambiguously been spelt out in the judgment of this Court in the case of Speaker, National Assembly of Pakistan (ibid). Further, the explanation offered by Respondent No.1 neither appeals to reason nor logic especially so where the Respondent being the scion of a well off, educated political family and having free access to legal advice (if he so desired) could have sought clarification of any ambiguity that may possibly have existed in his mind, although in our opinion there was no ambiguity either in the law or in the specific facts and circumstances of this case. In addition, the fact that Respondent No.1 was aware of the extent of his ownership and the benefits of the same. He actually received compensation in Millions of Rupees for a portion of his holding acquired by the Sindh Government which shows that Respondent No.1 was fully aware of his Civil Appeal No.188 of 2019 . 18 rights, title and interest in the property and enjoyed full freedom to exercise proprietary rights thereon without any let or hindrance. 21. In the afore-noted context, reference may usefully be made to Hassan Nawaz v. Muhammad Ayub (PLD 2017 SC 70), where it was held as follows: “7. An honest and truthful declaration of assets and liabilities by a returned candidate in his nomination papers furnishes a benchmark for reviewing his integrity and probity in the discharge of his duties and functions as an elected legislator. His statement of assets and liabilities along with other financial disclosures contemplated by Section 12(2) of the ROPA provide the Election Commission of Pakistan and the general public with a picture of both his wealth and income. Such disclosures are crucial for demonstrating the legitimacy and bona fides of the accrual and the accumulation of economic resources by such a candidate. In other words, the said disclosures show the returns received from his economic- activities and can indicate if these activities may be tainted with illegality, corruption or misuse of office and authority. This important aspect of the financial disclosures by a contesting candidate has been noticed by this Court in Muhammad Yousaf Kaselia v. Peer Ghulam (PLD 2016 SC 689). 8. We, therefore, observe that any plausible explanation that exonerates, inter alia, mis-declaration of assets and liabilities by a contesting candidate should be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an elected or contesting candidate. 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. The above purpose and object comes across clearly in Muhammad Yousaf Kaselia v. Peer Ghulam (PLD 2016 SC 689): “…………………………………………………………… …………………………………………………………….. non- disclosure of any liability is to be met with penal action in the same manner as non-disclosure of any asset. It is for that reason that in a number of recent judgments, this Court has treated inaccurate disclosure of proprietary and financial resources to be fatal to the election of a returned candidate. In Muhammad Ahmad Chatta. v. Iftikhar Ahmad Cheema (2016 SCMR 763), the failure by a returned candidate to disclose a presumed inactive bank account and in Shamuna Badshah Qaisarani v. Civil Appeal No.188 of 2019 . 19 Muhammad Dawood (2016 SCMR 1420) the omission by a lady returned candidate to disclose her agricultural land claimed to be transferred to her brothers without evidence of the mutation were held to annul their elections.” 22. Likewise in the case of Sher Baz Khan Gaadhi v. Muhammad Ramzan (2018 SCMR 1952), it was held by this Court as follows: “Constitution of Pakistan- ---Art. 63(1)(c)---Representation of the People Act (LXXXV of 1976), S. 12(2)(a)---Candidate contesting General Elections— Nomination papers, rejection of—Dual citizenship— Submitting false affidavit with respect to dual citizenship— Record indicated that the respondent-candidate submitted his nomination papers on 10.6.2018 and filed the relevant affidavit in such regard on 11.6.2018. Two days later, he renounced his foreign citizenship on 13.6.2018. On the day the respondent filed his nominated papers he had not renounced his foreign citizenship and was a foreign citizen. Even, if it was assumed that the application of renunciation of foreign citizenship had been filed earlier, no disclosure of the same had been made by the respondent in the relevant column of the affidavit. Respondent had filed a false affidavit and made a false declaration on oath, therefore, he was disqualified from contesting elections. Appeal was allowed accordingly. Constitution of Pakistan- Art. 62(1)(f)—Representation of the People Act (LXXXV of 1976). S. 12(2)(a)---Candidate contesting General Elections — Nomination papers, rejection of — Failure to disclose expenses incurred on foreign travel — Affidavit that had to be submitted along with nomination papers required a candidate to disclose his foreign travels during the last three years and the costs incurred thereon. Respondent-candidate crossed out the column on the affidavit requiring details of such travels and their costs. Report submitted before court by the relevant Authority showed that the respondent had a rich travelling history during the last three years. Respondent did not deny his travel history but tried to argue that at the relevant time he was a foreign national and thus not required to disclose his travel history. Such argument could not be accepted by the court. Respondent deliberately concealed his travel history in the relevant affidavit at the time of filing his nomination papers. Respondent concealed material facts under oath which he was required to disclose in his nomination papers/affidavit, therefore, he was disqualified from contesting elections. Appeal was allowed accordingly.” 23. In the case of Muhammad Nawaz Sharif v. Imran Ahmed Khan Niazi (PLD 2018 SC 1), while dealing with the similar proposition this Court held as follows: “9. The argument that even if it is assumed that unwithdrawn salary constitutes an asset, omission to Civil Appeal No.188 of 2019 . 20 disclose it involving a violation of sections 12 and 13 of the Representation of Peoples Act calls for the rejection of nomination papers or at its worst, removal of the petitioner from the public office and not his disqualification in terms of section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution is devoid of force when the petitioner deliberately concealed his assets and wilfully and dishonestly made a false declaration on solemn affirmation in his nomination papers. It is not something to be looked at with a casual eye and outlook. It is not only a legal duty but a qualifying test for the candidates who in the later days preside over the destiny of the people. This duty has to be performed without a taint of misrepresentation. This test has to be qualified without resorting to unfair means. Any concession at this stage or any leniency to the candidates or the person elected would be a prelude to a catastrophe in politics, which has already had enough of it. Since it is already touching the extreme, extreme measures have to be taken. The culture of passing the candidates by granting grace marks has not delivered the goods. It has rather corrupted the people and corrupted the system. This aspect of the case has been beautifully highlighted in the case of Rai Hassan Nawaz v. Haji Muhammad Ayub and others (PLD 2017 SC 170) by holding as under: 7. An honest and truthful declaration of assets and liabilities by a returned candidate in his nomination papers furnishes a benchmark for reviewing his integrity and probity in the discharge of his duties and functions as an elected legislator. His statement of assets and liabilities along with other financial disclosures contemplated by section 12(2) of the ROPA provide the Election Commission of Pakistan and the general public with a picture of both his wealth and income. Such disclosures are crucial for demonstrating the legitimacy and bona fides of the accrual and the accumulation of economic resources by such a candidate. In other words, they said disclosures show the returns received from his economic activities and can indicate if these activities may be tainted with illegality, corruption or misuse of office and authority. This important aspect of the financial disclosures by a contesting candidate has been noticed by this Court in Muhammad Yousaf Kaselia v. Peer Ghulam (PLD 2016 SC 689).” 24. In the case of Imran Ahmed Khan Niazi v. Muhammad Nawaz Sharif (PLD 2017 SC 692), this Court held as follows: “2. It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No 1 Mian Muhammad Nawaz Sharif is not honest in terms of section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).” Civil Appeal No.188 of 2019 . 21 25. In the case of Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema (2016 SCMR 763), the question of mens rea or absence thereof was examined by this Court and it was authoritatively held as follows: “a) Representation of the People Act (LXXXV of 1976. ---- Ss. 12(2)(f) & 76A---Nomination papers, rejection of---Non- disclosure of Bank account and properties belonging to spouse---When the case record established that returned candidate neither submitted statement regarding assets of his spouse nor disclosed one of his Bank accounts at the time of filing nomination papers, the Election Tribunal should not have dismissed the election petition on the grounds that mens rea was not proved and that Government exchequer had not suffered any loss on account of such non-disclosure. Supreme Court declared election of returned candidate as void.” 26. The cases decided by this Court which had somewhat similar facts obligate a person to truthfully and faithfully disclose all his moveable and immovable assets and those owned by his spouse(s) and dependent(s). In this regard, reference may be made to Shamuna Badshah Qaisarani v. Muhammad Dawood (2016 SCMR 1420), wherein it was held as follows: “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, Bahawalpur 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 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 Mouza Bairoot Mandhawani, Tribal District Khazi Khan (owned by husband of the appellant) and (ii) land measuring 263 kanals 14 marlas situated in Mora 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, Wasavawala, Layyah (owned by the appellant) were not disclosed in the nomination papers. Consequently, the election of the appellant was declared void and fresh elections Civil Appeal No.188 of 2019 . 22 were ordered to be held in the constituency. Against such decision, the present appeal has been filed. 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 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 motu 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 purposes of' the present proceedings, the manner is provided in section 76A of the Representation of the People Act, 1976.” 27. In the case of Khaleefa Muhammad Munawar Butt v. Hafiz Muhammad Jamil Nasir (2008 SCMR 504), this Court refused to interfere in a case where the learned High Court had disqualified a candidate for failure to declare the amount received by him as part payment of the sale consideration of his property in pursuance of an agreement holding that till such time that the sale had been completed he continued to own the property and was under a legal obligation to disclose the same as a part of his assets. Civil Appeal No.188 of 2019 . 23 28. On the basis of material available on record, we are satisfied that : (i) Respondent No.1 concealed his own assets as well as those of his dependent minor children in his nomination papers; (ii) He filed a false affidavit, which in itself entails serious legal consequences. A detailed inquiry or investigation is not required in the matter in view of admission of non disclosure by Respondent No.1. It is trite that admitted facts need not be proved; (iii) We are also satisfied that there was no bona fide mistake, mathematical error or clerical mistake in preparing and filing the nomination papers and the affidavit filed in compliance of the order of this Court in Speaker, National Assembly of Pakistan’s case ibid; and (iv) The explanation offered for the admitted concealment/misdeclaration neither appeals to reason nor logic. We have unfortunately been unable to persuade ourselves to accept it. 28. After considering the arguments advanced by learned counsel for the parties, having carefully examined the record and the case law cited at the bar, we find that the judgment of the Election Tribunal dated 15.01.2019 is unsustainable and runs contrary to the ratio decidendi of the law enunciated by this Court in the judgments cited above. Therefore, for reasons recorded above, this Appeal is allowed and the impugned judgment dated 15.01.2019 passed by the Election Tribunal of the High Court of Sindh, Bench at Sukkur is set aside. In consequence, the Election Petition bearing No.S-01 of 2018 filed by the Appellant is accepted. It is declared that nomination of Respondent No.1 (Moazzam Ali Khan) was invalid. As a result, his declaration as a Member of the Provincial Assembly of Sindh issued vide notification dated 07.08.2018 is annulled. He shall immediately cease to be a member of Civil Appeal No.188 of 2019 . 24 the Provincial Assembly. The Election Commission of Pakistan is directed to hold fresh elections in the constituency (PS-11 Larkana-II) in accordance with law. JUDGE JUDGE JUDGE Announced in open Court at Islamabad on ___________ 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 MAZHAR ALAM KHAN MIANKHEL CIVIL APPEALS NO.188 TO 193 OF 2020. (Against the judgments dated 07.02.2018, 20.06.2019, 19.09.2019, 21.11.2019, 30.10.2019 and 24.10.2019 passed by the Peshawar High Court, Peshawar and Peshawar High Court, Abbottabad Bench in Writ Petitions No.2243-P/17, 4328-P/18, 1472-A/18, 4595-P/17, 3952- P/18 and 4397-P/2019). Province of K.P. through Chief Secretary, Peshawar and others. (in CAs.188, 189, 192 & 193 of 2020) Government of K.P., Ministry of Finance through Secretary Finance Department, Peshawar and others. (in CA.190/2020) Government of K.P., through Secretary Culture and Museum Department, Peshawar and others. (in CA.191/2020) …Appellant(s) Versus Farasatullah. (in CA.188/2020) Muhammad Adeel Qureshi and others. (in CA.189/2020) Waqif Khan. (in CA.190/2020) Mst. Samina Behram and others. (in CA.191/2020) Sajid Khan and others. (in CA.192/2020) Raheel Ahmad and others. (in CA.193/2020) …Respondent(s) For the Appellant(s): Mr. Zahid Yousaf Qureshi, Addl. A. G. KP. Mian Saadullah Jandoli, AOR (absent) Mr. Shafiullah, Deputy Director (Legal). CIVIL APPEALS NO.188 TO 193 OF 2020. 2 Mr. M. Imran, Deputy Director, Agriculture Mr. M. Arif, L.O., Archaeology. Tauheed Iqbal, A.D. and M. Ilyas Khan (Sr. Statistician) For the Respondent(s): Mr. Khalid Rehman, ASC. (in CA.189/20) Mir Afzal Malik, ASC (in CA.193/20) M.Adeel Qureshi, Sajid Khan, and Ehtasham (all in person) Nemo (in other cases). Date of Hearing: 15.07.2020. JUDGMENT IJAZ UL AHSAN, J.- Through this single judgment, we propose to decide Civil Appeals No.188, 189, 190, 191, 192 and 193 of 2020 as common questions of law are involved in this matter. 2. Leave to appeal was granted by this Court vide its order dated 02.03.2020 which for ease of reference is reproduced below: “Learned Additional Advocate General, KP contends that the respondents, who were holding the LLM Degree have claimed M.Phil allowance by filing of a writ petition on the basis of equivalence. He contends that such being the matter relating to the terms and conditions of service, the writ petition filed by the respondents in the Peshawar High Court was patently barred in terms of Article 212 of the Constitution and the High Court was not competent to entertain the writ petition. He further contends that the M.Phil allowance was given specifically to the employees CIVIL APPEALS NO.188 TO 193 OF 2020. 3 who possessed M.Phil Degree and such allowance could not have been extended to the holders of the LLM Degree for he reason that the concerned Notification did not provide for the same and neither did the University Grants Commission nor the Higher Education Commission have any jurisdiction to grant the benefit to the government employees, for that, their jurisdiction is only to the extent of granting equivalence, and even after granting the equivalence, whether the allowance is to be paid or not to be paid to certain employees, only the Government is competent to make policy on that, which policy could not be interfered with by High Court while exercising its writ jurisdiction. 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, the office is directed to fix the same expeditiously, preferably, after three months.” 3. The main controversy involved in these appeals relates to notification dated 14.07.2016 issued by the Secretary, Government of Khyber Pakhtunkhwa Finance Department through which an allowance @ Rs.2500/- per month was granted to the employees who held M.Phil degrees. The said notification was challenged by the Respondents before the Peshawar High Court praying that the Respondents may also be granted the M.Phil allowance because they held qualification which were equivalent to M.Phil, these included employees having LLM degrees and MS degrees in Agriculture etc. The High Court allowed the petitions and directed the CIVIL APPEALS NO.188 TO 193 OF 2020. 4 Appellants to grant M.Phil allowance to all employees who held any degree equivalent to M.Phil i.e. LLM and MS in Agriculture from the date of acquiring such degree. The High Court based its judgment on a letter of the University Grants Commission (UGC) dated 23.08.2000 stating that Master of Law degree was equivalent to M.Phil. 4. The learned Additional Advocate General, Khyber Pakhtunkhwa submits that in the first place University Grants Commission and Higher Education Commission do not have the mandate either to interpret notifications issued by the various Governments nor to direct or advise the Government to give financial benefits on the basis of equivalence certificates as has been done by it vide its letter dated 23.05.2017. He maintains that the mandate of Higher Education Commission in terms of Section 10 of the Higher Education Commission Ordinance, 2002 is to grant equivalence certificates only for the purposes of determining academic equivalence with reference to time spent in pursuing a degree or for getting admission for further education. Further, he maintains that even according to its own position as reflected in its letter dated 28.11.2016 an equivalence certificate issued by the Higher Education Commission does not guarantee admission in a University for further education and determination of suitability in relation to job requirements which decision rests with the concerned University and employing agency and that Commission has no role in such matters. He further maintains that the law CIVIL APPEALS NO.188 TO 193 OF 2020. 5 does not confer any power in the Higher Education Commission to recommend payment of allowances or other financial benefits. He argues that the learned High Court misdirected itself and misinterpreted not only the law but also its purpose, scope and intent and its reliance on different certificates/letters issued by the Higher Education Commission in granting relief was clearly misplaced. 5. The learned counsel for the Respondents, on the other hands, submits that once the Higher Education Commission grants an equivalence certificate to any qualification/degree, the holder of such qualification/degree automatically becomes entitled to grant of allowances/benefits which have been granted to holders of equivalent degrees/qualifications. It is further argued that the Governments of the Provinces of Punjab, Sindh and Balochistan have issued similar circulars and provided similar allowances and it is only the Government of Khyber Pakhtunkhwa which is refusing to do so. This constitutes discrimination and the High Court is justified in bringing the situation at par with other Provinces. 6. We have heard the learned Additional Advocate General, Khyber Pakhtunkhwa as well as the learned counsel for the Respondents. 7. It is clear and obvious to us that the language of impugned notification dated 14.07.2016 is clear and unambiguous and does not admit of any other interpretation. CIVIL APPEALS NO.188 TO 193 OF 2020. 6 For ease of reference, the relevant portion of the notification in question is reproduced below: “Subject: GRANT OF M.PHIL ALLOWANCE @ 2,500/- PER MONTH. Dear Sir, The Competent Authority, is pleased to decided that, all those who acquires / possesses the degree of M.Phil recognized by the H.E.C. shall be allowed M.Phil allowance @ 25% of the existing amount of Ph.d allowance (@Rs.2,500/- per month) with effect from 01.07.2016 subject to the following conditions: a) M.Phil allowance will not be admissible to those who are getting Ph.D allowance @ Rs.10,000/- per month. b) M.Phil allowance will not be admissible to those who have already got the benefit of advance increments possessing on / acquiring M.Phil degree prior to 01.12.2001 under Finance Department circular letter No.FD(SR-I)/1-67/82 dated 24.08.1983”. 8. A plain reading of the notification makes its abundantly clear: 1) The intent of the Competent Authority is to grant M.Phil allowance @ of existing amount of Ph.D allowance @ Rs.2500/- per month; 2) The allowance in question is not admissible to those who are already getting Ph.D. allowance @ Rs.10,000/- per month; CIVIL APPEALS NO.188 TO 193 OF 2020. 7 3) The M.Phil allowance is specifically meant for persons who hold M.Phil degrees which are recognized by the Higher Education Commission; 4) It is not expressly or by implication mentioned in the notification in question that the allowance will be payable to all who hold an “M.Phil or equivalent degree”. 9. The intent and purpose of the Competent Authority in granting the incentive is clear and unambiguous and there is no room to read something into the notification which is not there. The learned counsel for the Respondents has not been able to convince us that holders of equivalent degrees should also be held entitled to the M.Phil allowance which was clearly not the intention of the notification. We notice that the High Court was called upon to interpret the meaning and scope of the notification however it exceeded its jurisdiction by reading additional words into the notification which under the facts and circumstances of the present case was neither necessary nor required. 10. The learned counsel for the Respondents has heavily relied on a letter dated 23.05.2017 issued by the Higher Education Commission, the relevant portion of the letter is reproduced below: “4. According to above referred Office Memorandum of Govt. of Pakistan, Finance CIVIL APPEALS NO.188 TO 193 OF 2020. 8 Division, the M.Phil allowance is granted to those only who acquire/possess the degree of M.Phil recognized by the HEC. However, in view of the above mentioned clarification, all those who have M.Phil or MS degrees (18 years schooling) should be eligible to draw the allowance @ Rs.2500/- per month”. 11. We are at a loss to understand how and under what authority of law has the Higher Education Commission advised that all those who hold M.Phil or MS degrees should be eligible to draw Higher Education Commission allowance @ Rs.2500/- per month. There is neither power nor authority under the Higher Education Ordinance to issue any such letter or clarification as the mandate of Higher Education Commission is limited only to academic matters and determining equivalence for academic reasons. 12. We are therefore of the view that the Peshawar High Court erred in law in relying upon letters issued by the Higher Education Commission/University Grants Commission (defunct) which was clearly beyond its mandate in granting relief to the Respondents. 13. We are also not impressed by the argument advanced by the learned counsel for the Respondents that the notification in question is discriminatory in nature in so far as it does not grant equal financial benefits to holders of equivalent degrees. Further, it is discriminatory because similar allowances have been granted by different Provinces which have been denied to the Respondents. As far as the CIVIL APPEALS NO.188 TO 193 OF 2020. 9 first argument is concerned, the same is misconceived. There is intelligible differentia between holders of M.Phil degrees and those who do not hold such degrees. Holders of M.Phil degrees in different disciplines constitute a class by themselves and can be granted incentives without offering similar incentives to holders of equivalence certificates from HEC. To hold otherwise would in effect negate and nullify the very concept of the rule of “intelligible differentia”. A class of employees who hold M.Phil degrees have been earmarked for grant of an allowance which has specifically been called and termed as “M.Phil allowance”. All those who fulfil the requirement of the notification have been granted the allowance and are entitle for the same. It is not the case of the Respondents that some of them have M.Phil degrees and have been refused or that the employees holding degrees other than M.Phil have been allowed the such allowance. In the absence of the aforenoted situations the argument of discrimination must fail. 14. As far as the second argument in support of discrimination that similar allowances are being offered in other Provinces is concerned, the Respondents have produced some notifications issued by the Governments of Punjab and Government of Sindh to support their contention. However, perusal of the notifications produced before us shows that the language and terminology used in the said notifications is materially and substantially different from the one used in the notification issued by the Government of Khyber CIVIL APPEALS NO.188 TO 193 OF 2020. 10 Pakhtunkhwa which is under challenge before us. There being no similarity between the two sets of notifications, the question of discrimination and the arguments in support thereof is misconceived. Even otherwise, if certain actions have been done in a certain Province(s) within the powers available to them under the Constitution, it is not necessary that the same be replicated in all other Provinces. Reference in this regard may usefully be made to S.M.C. No.15 of 2010 and C.M.As. Nos.2689, 3244 of 2010 and CMAs. Nos.5383, 3068 of 2011 (Suo Motu action regarding Regularization of the Contract Employees of Zakat Department as well as appointment of Chairman of Central Zakat Council (2013 SCMR 304) wherein it was held as follows: “17. As regards the question of discrimination, it may be pointed out that each Province is empowered and entitled to make its own decision regarding the subjects that fall within their respective domain in accordance with their own circumstances. A decision by one Province another regarding the matter cannot be cited as ground for discrimination if another Province does not take the same decision. To hold otherwise would be an intrusion into the provincial economy of the Provinces. Now that the subject of Zakat and Ushr is within the domain of the Provinces, it is up to each Provincial Government to decide the terms and conditions of the petitioner’s services”. 15. We are therefore in no manner of doubt that the Peshawar High Court incorrectly dealt with the question of treating letters issued by the Higher Education Commission as the very basis for its direction for payment of M.Phil CIVIL APPEALS NO.188 TO 193 OF 2020. 11 allowance to other employees whose degrees had been declared equivalent in academic terms to an M.Phil degree. Such interpretation is clearly against the intent, purpose and plain language of the notification which could not have been done and the High Court clearly exceeded its jurisdiction in doing so. Further, having not found any discrimination on any of the grounds asserted by the learned counsel for the Respondents, we are of the view that the judgment of the High Court is not sustainable on that ground either. 16. For the reasons recorded above, these appeals are allowed and the judgments dated 07.02.2018, 20.06.2019, 19.09.2019, 30.10.2019, 24.10.2019 and 21.11.2019 of the Peshawar High Court are accordingly set aside. 17. Above are the reasons of our short order dated 15.07.2020. For ease of reference, the short order is reproduced below: “We have heard the learned counsel for the parties so also the respondents who have appeared in person. We are informed by Court Associate that all respondents are served. The respondents who have not appeared are proceeded ex-parte. For reasons to be recorded, these appeals are allowed and the impugned judgments passed by the High Court are set aside.” Chief Justice Judge Judge ISLAMABAD. 15.07.2020. 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 SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM CIVIL APPEAL NO.1890 OF 2002 (Against the judgment dated 24.8.2001 of the High Court of Sindh, Karachi passed in Constitution Petition No.D-1807/1999) Government of Sindh through Secretary & Director General, Excise & Taxation and another …Appellant(s) VERSUS Muhammad Shafi etc. …Respondent(s) For the appellant(s): Mr. Qasim Mirjatt, Addl. A.G. Sindh For respondent No.1: Mr. M. Bilal, Sr. ASC For respondent No.3: Mian Qamar-uz-Zaman, ASC Raja Abdul Ghafoor, AOR Date of hearing: 16.03.2015 JUDGMENT MIAN SAQIB NISAR, J.- This appeal, with the leave of the Court dated 23.12.2002, involves two primary propositions, namely:- a) Whether under Section 4(a) of the Urban Immovable Property Tax Act, 1958, the property owned by the Evacuee Trust Property Board which is in possession of respondent Muhammad Shafi, is exempted from the tax? b) Whether the learned High Court had rightly applied the principle of law discussed by this Court in the case of Mehran Associates Ltd. Vs. Commissioner of Income Tax, Karachi {(1992) 66 Tax 246(S.C.Pak)}? C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 2 :- 2. Brief facts of the case are:- the property(ies) in question bearing Nos. RC 1/12 and RC 10/12 were admittedly owned by respondent No.3/Evacuee Trust Property Board (The Board). The Board leased out these properties to respondent No.1, Muhammad Shafi, for a period of 30 years with the right to raise superstructure (construction) over the said land/plot and to let out the constructed property (the property). And upon expiry of the lease period, such constructed property was to revert back to the Board, forming part of its ownership. The appellant is the property tax department, which claims property tax on the property on the ground that as the property has been leased out by the Board, therefore it does not fall within the exemption category, as has been provided (granted) to the Federal Government properties under the law. This action/demand of the appellant when challenged by respondent No.1 has been declared contrary to law by the learned High Court vide impugned judgment dated 24.8.2001. Leave in this case was granted on the two points, referred to in the preceding part of this judgment. 3. In order to appreciate the arguments made before us, it is expedient to reproduce the provisions of Sections 3 and 4 of Urban Immovable Property Tax Act, 1958 (The Act) and the clauses 1, 2, 3, 9, 11, 13 and 16 of the lease agreement dated 30.7.1983 (the lease deed) which read as under:- Relevant sections of the Act “3. Levy of tax. (1) Government may by notification specify urban areas where tax shall be levied under this Act. Provided that one urban area may be divided into two or more rating areas or several urban areas may be grouped as one rating area. (2) The tax shall be charged, levied and collected at the rate of twenty percent of the annual value of the lands and buildings. C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 3 :- (3AA)The tax under sub-section (2) shall also be levied and collected on buildings and lands used partly or exclusively for industrial purposes in the industrial areas of Dhabeji Gharo and Kotri as are within urban area. [(3B)*****] [(4) *****] (5) The tax shall be due from the owner of buildings and lands. 4. Exemptions.— The tax shall not be leviable in respect of the following properties, namely:— (a) buildings and lands, other than those leased in perpetuity, vesting in the Federal Government; (b) buildings and lands other than those leased in perpetuity. (i) Vesting in any Provincial Government and not administered by a local authority; (ii) Owned or administered by a local authority when used exclusively for public purposes and not used or intended to be used for purposes of profit; (c) . . . . . . . . . . . . . . . . . . . . . . . . (d) . . . . . . . . . . . . . . . . . . . . . . . . (e) . . . . . . . . . . . . . . . . . . . . . . . . (f) . . . . . . . . . . . . . . . . . . . . . . . . (g) . . . . . . . . . . . . . . . . . . . . . . . . Relevant clauses of the lease deed are:- (1) That the lease money payable by the Lessee has been fixed on the basis of assessment of rent made in the year 1964 at Rs. 4,000/- per month subject to enhancement by 25% after every five years. (Increase in rent) (2) That the lease period is 30 years with effect from 30th July, 1983 after the expiry of this period the property alongwith the superstructure etc. shall vest in the Lessor and become the property of the Evacuee Trust Property Board without payment of any compensation whatsoever to the Lessee. The C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 4 :- period of lease can be extended by the Lessor for another period of 30 years on such terms and conditions as laid down by the Lessor and agreed upon by the Lessee. (fixed term and return of property) (3) That the Lessee shall pay the lease money at the rate of Rs.4,000/- per month with effect from 1.1.1964 and the arrears shall be paid by the Lessee in 36 monthly installments. (9) That the Lessee shall be entitled to raise new construction (Commercial/residential, permissible) on the plot but only with the prior approval of the Chairman, Evacuee Trust Property Board, and the local competent authority. (11) That the Lessee shall have no right to sublet or sublease the demised property or any portion thereof except with the prior approval of the Administrator concerned and the period of lease/tenancy so granted shall not exceed the period of lease specified in this Agreement i.e. 30 years. The Administrator shall decide the question of approval within seven days. (13) That the Lessee shall have no right to mortgage, alienate or in any manner encumber the property except the right granted by the Agreement of Rent our or Lease out the premises. (16) That in case of breach of any of the conditions as aforesaid the lease shall be liable to be cancelled by the Lessor and the eviction shall be caused under the provisions of the Evacuee Trust Properties (Management and Disposal) Act, 1975. (termination clause) 4. It has been argued by the learned Additional Advocate General, Sindh that as the lease deeds, executed for an initial period of thirty years, could also have been extended for a further period of thirty years, the lease of the property to respondent No. 1 was, in fact, a lease in perpetuity and, therefore, the tax was leviable thereupon. It is submitted that the property vested in respondent No.1/lessee, who has raised his own superstructure, and consequently, the view set out C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 5 :- by the Courts below that it falls within the exempted properties is erroneous and illegal. The learned counsel for respondent No. 3/Board, however, by making reference to Section 6 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 and also Article 165 of the Constitution of the Islamic Republic of Pakistan, 1973 has submitted that Provincial legislation cannot levy tax upon the properties owned by the Federal Government. 5. Heard. Before resolving the proposition(s) in hand, we may like to mention that the charging section in a fiscal statute, as per the settled law, demands its strict interpretation and application in so far as the revenue is concerned, but where it is susceptible to two possible interpretations, it should be liberally construed in favour of the tax payer/citizen; particularly, where there is substantial doubt about the true import and application of a charging section, it (the doubt) should be resolved in favour of the tax payer/citizen1. Anyhow, from the relevant provisions of the Act, provided above, there seems wee room for holding otherwise than that the properties which are owned by the Federal Government are exempted and thus cannot be subjected to property tax. In the instant case, it is not disputed by the appellant that the property is owned by the Board and if it was not leased out (allegedly in perpetuity), it would fall within the ambit of the Federal Government properties and shall be exempted from property tax under Section 4 of the Act. 6. The ancillary proposition which would arise in the matter shall be, whether the properties in question have been leased out by respondent No.3 to respondent No.1 in perpetuity or not as it has 1 (1992) 66 Tax 246 SC Pak C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 6 :- been specifically mandated in Section 4 that the exemption shall not be available to those property(ies) which have been given in perpetuity even by the Federal Government. 7. In order to explore whether the present lease is a lease in perpetuity, we have examined the provisions of the Act and find that neither it defines the same (lease in perpetuity) nor any other part of it throws some light on this subject. Therefore, in order to ascertain the meaning and the concept thereof, we have looked at the Transfer of Property Act, 1882 (TPA), which is the general law dealing with, inter alia, the subject of leases. In this law, lease has been defined in Section 105 of the TPA, which reads as:- “A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing or value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.” With respect to how a lease is made, Section 107 of the TPA prescribes as below:- “107. Leases how made. A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the Government may, from time to time, by notification in the [official Gazette], direct that leases of C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 7 :- immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.” 8. In Section 105 ibid, though there is a mention of a lease in perpetuity, we feel handicapped and are unable to ascertain its true meaning as neither the exact connotation thereof, nor the concept, factually and/or legally, of such lease (lease in perpetuity) can be spelt out and unfolded therefrom. Thus for the purposes of elucidating and comprehending such a lease, it shall be appropriate to give the key word/expression perpetuity, its ordinary meaning. Franklin language master (dictionary) defines it as endless time, eternity, the quality or the state of being perpetual. According to Oxford Dictionary, perpetuity means, the State or quality of lasting forever. The expression perpetuity has been defined in the Black’s Law Dictionary as “the state of continuing forever; an inalienable interest; an interest that does not take effect or vest within the period prescribed by law”. 9. From the above, it is clear that the word perpetuity, without much difficulty and improvisation, can also be construed in the sense of permanence and therefore a lease in perpetuity can be held to be a transaction of immovable property which is irreversible or non-returnable. But the question is how it should be ascertained and adjudged if a particular lease is in perpetuity or otherwise. To our mind, in this regard, no precise criteria can be fixed. This is so especially for the period prior to the coming into force of the TPA and the Registration Act, 1908, because in those days (prior to the two enactments) leases were usually made orally and due effect was given in the revenue record in different expressions. The determination of the aforementioned question for leases executed during such time, thus, C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 8 :- would revolve around the terms and conditions orally settled between the parties and so proved, including the interpretations of the entries in the revenue record, the conduct of the parties while dealing with the property, the object and the nature of the lease including the entitlement of the lessee to raise structure over the property and also the terms relating to the payment of rent and its periodical enhancement thereof etc. Multiple factors would be relevant in this regard (note: in view of and subject to the provisions of Section 117 of the TPA, this opinion should not be construed to relate to agricultural properties; even otherwise the subject matter of the present case is Urban Properties and, therefore, we are confining ourselves to that effect only). After the enforcement of the two enactments referred to above, however, the question of determination of whether a lease is one in perpetuity or not stands simplified. Section 17 of the Registration Act ibid mandates certain instruments to be compulsorily registerable and Sub-Section (d) of Section 17 provides in the list of such documents “a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent”. The effect of non-registration of such instruments is provided by Section 49 of the Registration Act in the manner:- “49. Effect of non-registration of documents required to be registered. No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall – (a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, to or in immovable property, or (b) confer any power to adopt, unless it has been registered.” Similarly it is clear from Section 107 of TPA that a lease of any property beyond one year could only be effected by a registered instrument (note:- subject to the exemption qua other leases orally made coupled with C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 9 :- delivery of possession). This is the express and unequivocal mandate of the law. It is settled principle of law that where law requires an act to be done in a particular manner, it has to be done accordingly and not otherwise. At this point, we may also add that if an act is done in violation of law, the same shall have no legal value and sanctity, especially when the conditions/circumstances which may render such an act invalid have been expressly and positively specified in law (see Section 49 ibid). 10. Be that as it may, to further shed light on the above proposition, we deem it proper to discuss relevant legal material and case law available on the subject and to start with, the comments made in the book titled Transfer of Property Act, 9th Edition by Mullah; (a renowned law scholar and researcher of the Subcontinent) may be referred to. The author while dealing with the subject opines:- “Leases in perpetuity. – In India, such a lease is created either by an express grant or by a presumed grant. Such leases are generally agricultural leases or they are leases executed before the Transfer of Property Act. As s 107 of the Transfer of Property Act excludes the Agricultural lease from the operation of the Act. Express grant Words which suffice by themselves to import permanency are – miras or mirasdar; mourasi; mulgni; nirantar; patnr, so also, words indicative of a heritable grant such as Ba Farzandan or Naslan bad Naslan. The words istemari mourasi mokurari in a lease mean permanent and heritable. The tenancy created by a taluka putta is presumed to be permanent unless there are indications to the contrary in the surrounding circumstances. On the other hand, the following words are not per se sufficient to import permanency of tenure Paracudi and Ulavadi Mirasidar; Mokarari; Istemari Mokarari; Kyam and Saswatham Mukkaddami. But these words do not exclude the notion of permanency, and when they occur, their effect is a matter of construction having regard to the other terms of the instrument, C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 10 :- the object of the lease, the circumstances under which it was granted and the subsequent conduct of the parties. Such considerations may show that a bemiadi lease, that is, a lease without, a term, is a permanent lease. Where a contract of lease provided that the tenant was to continue in possession as long as he paid rent, it was a tenancy for the lifetime of the tenant and not a permanent tenancy. But a tenancy, though permanent in its inception, ceases to be permanent, if the tenant executes rent deeds for a specified period and admits his ability to ejectment and enhancement of rent (emphasis supplied by us).” In the commentary on TPA by Shaukat Mehmood, while analyzing various case laws, mostly from Indian Jurisdiction, the author has remarked as under:- “Where the terms of a lease showed that if was (a) a lease for building purposes; (b) it was to enure, in the first instance for a period of thirty years; (c) the lessee had a right to continue to enjoy all the rights under the lease even after the expiry of the initial period of thirty years; (d) the rent was fixed and the lessor had no right to increase it in any manner; (e) the rights of the lessee were heritable and transferable and the lessee was allowed to construct a pucca structure thereon and even after the death of the original lessee his heirs were allowed to continue without demur and rent was accepted from them. It was held that in view of the terms of the lease as a whole and taking into account the conduct of the parties, the lease was intended to be a permanent lease.” In a case reported as Lala Suraj Bhan and others Versus Hafiz Abdul Khaliq (AIR 1941 Lahore 195) it has been held “even if the tenancy is at its inception a permanent tenancy, it becomes no longer a permanent tenancy if the tenant or his predecessor-in-title executes rent deeds for specified periods of time and admits his liability to ejectment and enhancement of rent”. (See also AIR 1927 PC 102, which has relevance to the point). C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 11 :- In Bejoy Gopal Mukherji Versus Pratul Chandra Gose (AIR 1953 SC 153), it has been held:- “The question of permanency of the tenancy was not, therefore, directly or substantially in issue. We find ourselves in agreement with the High Court that the permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation. The fact of enhancement of rent in 1859 may be a circumstance to be taken into consideration but it does not necessarily militate against the tenancy being a permanent one, as held by the Privy Council in the case of an agricultural tenancy in Shankarrao v. Sambhu, A.I.R. 1940 P.C. 192(B). The principle of that decision was applied also to non-agricultural tenancies in Jogendra Krishna v. Sm. Subashini Dassi, A.I.R. 1941 Cal. 541(C). In Probhas Chandra v. Debendra Nath, 43 Cal. W.N. 828 (D) also the same view was taken. We, therefore, hold that the plea of res judicata cannot be sustained. [4] Shri N. C. Chatterjee then contends, relying on the decisions in Rasamoy Purkait v. Srinath Moyra, 7 Cal. W. N. 132 (E); Digbijoy Roy v. Ata Rahman, 17 Cal. W. N. 156(F); Satyendra Nath v. Charu Sankar, A.I.R. 1956 Cal. 100(G) and Kamal Kumar v. Nanda Lal, A.I.R. 1929 Cal. 37(H) that the tenancy in this case cannot be regarded as a permanent one. The decisions in those cases have to be read in the light of the facts of those particular cases. The mere fact of rent having been received from a certain person may not, as held in 7 Cal. W. N. 132(E) (supra) and 17 Cal. W. N. 156 (F) (supra), amount to a recognition of that person as a tenant. Mere possession for generations at a uniform rent nor construction of permanent structure by itself may not be conclusive proof of a permanent right as held in A.R.P. 1929 Cal. 37 (H) (supra) but the cumulative effect of such fact coupled with several other facts may lead to the inference of a permanent tenancy as indicated even in the case of A.I.R. 1936 Cal. 100 (G) (supra) on which Shri N. C. Chatterjee relies.” In Bastacolla Colliery Co. Ltd. Versus Bandhu Beldar and another (AIR 1960 Patna 344), it was held that the mere fact that a building has been erected on a leased land and portions of the same C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 12 :- have been sold off to others who also have built structures thereupon will not enable Court to hold the lease to be one in perpetuity. In the same judgment, it was held that if the meaning of the words used in the deed is not ambiguous, the Court has to confine itself to the words used in the lease instrument for deciding in support or otherwise of a permanent lease. From our jurisdiction, we have a judgment reported as Abdul Hafeez alias Bacha Meah Versus Arshad Ali Chaudhry and others (PLD 1967 Dacca 145), in which it has been held:- “It is evident from the terms of the lease, as stated above, that it is a lease for a fixed term and not a lease in perpetuity. A lease in perpetuity is unknown to English law. In this country a lease in perpetuity can be created by an express grant to that effect or by a necessary presumption raised by the terms of a grant and by an unambiguous and long possession. In this particular case there can be no manner of doubt that the lease was for a fixed period and not a lease in perpetuity within the meaning of the Transfer of Property Act.” In Dr. Aman Ullah Khan Versus Province of NWFP through Secretary, Finance, Government of NWFP Peshawar and 2 others (1994 MLD 2329), where a time had been fixed for the determination of lease, it was ordained that such (lease) cannot be said to be a lease in perpetuity in the following terms:- A “lessee in perpetuity” in the light of the actual connotation of the word and also in light of Dictionary meaning of the word perpetuity, means and refers to a state of being perpetual; endless time: duration for an indefinite period; something lasting for ever; an agreement whereby property is tied up, or rendered inalienable, for all time or for a very long time. The petitioner- plaintiff seems to be intelligently advised when one looks at the rent deed or deeds on file which he executes with the Municipal Committee for a period of one year only. By no stretch of any C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 13 :- possible imagination the rent deed executed by the petitioner can be termed as deeds of a “lease in perpetuity”……So far as his construction of the superstructure is concerned, this by itself does not make him an absolute owner. It was for the Municipal Committee to have made him, through writing a “lessee in perpetuity” of the land as well as the superstructure. Only then Dr. Amanullan petitioner would be or would have been liable to pay the tax of the land as well as the superstructure, being “lessee in perpetuity” and hence owner within the meanings of section 2(e) and 3(3) of the Act (Urban Immovable Property Tax Act, 1958).” 11. From the analysis of the legal material on the subject and the case law, referred to above, we are of the considered view that no hard and fast rules can be laid down so as to determine what exactly is a lease in perpetuity and the answer to this question depends upon the facts and circumstances of each case. But we have conspicuously noticed one single most important factor in relation to this subject matter which is that in none of the materials/decisions have the provisions of the TPA or the Registration Act been adverted to or the effect of such mandate of law been considered. But these provisions unmistakably, in our opinion, are of great importance and relevance and are foundational for determining whether a lease is one in perpetuity or otherwise. From the reproduced part of the two statutes above, it is abundantly and unequivocally clear that no lease in Pakistan (note: subject to Section 117 of the TPA and leaving aside for the time being even Section 17 (d) of the Registration Act relating to agricultural properties) can be effected beyond the period of one year except by a registered instrument and if any lease is not so accomplished, it has no legal validity and sanction beyond the period of one year and would neither create nor purport to create any lease for the period exceeding one year (see Section 49 ibid). Therefore, on C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 14 :- account of this clear mandate and compulsion of law, no lease which is not in consonance with these imperative provisions can at all be said or held to be permanent in nature under any circumstances whatsoever. It shall be ridiculous and ludicrous to conceive and hold, on account of the said law, that a lease which is for a period of less than one year is one in perpetuity only for the reason that the instrument of lease or even verbal stipulation between the parties enables the lessee to raise some structure of permanent nature or the lease is capable of being renewed or could be further transferred to a third party. 12. Therefore, in our view, if the lease is through an unregistered instrument, there is no question at all about it being in perpetuity. But where it has been created by a registered lease document, determination of whether it is permanent in nature or not, will depend on the interpretation of the lease deed. Such interpretation shall obviously be done keeping in view the known rules for the interpretation of the statues as a contract between the parties is a piece of private legislation and the primary function of the law is facultative leaving the parties to make their own contract on terms of their choice. It is treated as a piece of private legislation and the function of the Court is merely to resolve a dispute arising between the parties for the actual operation of the contract2. Therefore from the language of the lease document, when it is clear that the tenancy is for a fixed period of time, even if it (the deed) contains a clause for renewal, but such renewal is left at the option of the lessor, the lease cannot be held to be permanent in nature. The fact that the lessee has been allowed to raise construction over the 2 Interpretation of Contract, Second Edition by M.A. Sujan C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 15 :- property of a permanent nature and to even sub-let/sublease the same specifically where the same is subject to the consent/approval of the lessor, by itself shall not be a factor for holding a lease to be one in perpetuity. It may be pertinent to mention here, that for construing a contract of lease in ascertaining its permanency or not, object for which the lease has been granted shall also be germane and important. Where a lease of the property has been given by the lessor to the lessee for a particular and a specific purpose, but no time is fixed, for all intents and purposes it shall be an object specific lease, which means that the purpose/object should be considered as the time/period fixed by the parties for the determination of the lease and thus the moment the purpose is achieved and accomplished, the purpose shall be held to have extinguished (come to an end). Therefore, the lease which at its very inception may have been perceived to have some overtones of permanency in its nature, regardless of whether a period has been fixed or not, such lease even if construed to be permanent on the basis of its object/purpose initially, shall automatically come to an end when the object of the lease is extinguished; even if the lessee under the terms of lease has raised the construction as such structure shall either be treated as an accretion to the original leased out property and would go to the lessor or the lessor has to compensate the lessee for such construction, but this depends upon the facts and circumstances of each case and on the basis of the terms and conditions settled between the parties. The point which needs emphasis is:- that once the purpose of the lease is finally achieved and the purpose for which the property was leased out comes to an end, the lease which may at its inception C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 16 :- have some colors of perpetuity shall also end with it and the lease shall then be rendered to be that of “holding over” entitling the landlord to determine/terminate the lease and ask for the vacation of the leased property. 13. Now, reverting to the facts and circumstances of the present case, for the purposes of evaluating if the lease in question is perpetual or otherwise. We have conspicuously noticed that in clause 2 of the lease deed, the period of lease has been mentioned to be thirty years with effect from July, 1983 and on the expiry of the lease period the superstructure raised by the lessee (respondent No.1) shall vest with the Board without payment of any compensation whatsoever to the lessee. This condition is quite cardinal and pivotal for determination of the nature of the lease, in that, it is not perpetual, rather the return of the superstructure in the ownership of the Board makes the lease in the nature of a Build, Operate and Transfer (BOT) contract. Besides, respondent No.1 is not free to raise construction at his own free will, but only with the prior approval of the Chairman. The subletting/sub-lease of the constructed property has also been subjected to the approval of the concerned Administrator and in any case, such sub-lease cannot travel beyond the period of thirty years i.e. the original lease period. The rights of the lessee have been restricted in that, he shall neither mortgage nor alienate or encumber the leased out property. Moreover, it is clearly and unequivocally stipulated that breach of any of the conditions of the lease shall make the lease liable to be cancelled at the prerogative of the lessor and the lessor shall have authority to evict the lessee under the provisions of Evacuee Trust Properties (Management and Disposal) Act, 1975. C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 17 :- When all these stipulations of the lease deed are read as a whole, these militate against the concept of lease in perpetuity. Only for the reason that there is a clause for renewal for a further period of thirty years, regardless of whether renewal has been factually granted or not, which otherwise seems to be the exclusive privilege of the Board and respondent No.1 cannot claim it as a matter of right, this lease cannot be held to be one in perpetuity. We are thus of the considered view that the instant lease inter se the Board and respondent No.1 is not in perpetuity and, therefore, the appellant has no lawful authority to demand/levy property tax from the said respondent in terms of the provisions supra. Besides the judgment reported as Mehran Associates Ltd. (supra) is distinguishable on its own facts. It may be pertinent to mention here that in the same, the question of ownership of lease property was being considered, conceived and dilated upon in light of the law on income tax and not vis-à-vis the specific provisions of Section 4(a) and the concept of lease in perpetuity which has been now elucidated comprehensively in this opinion. 14. Before parting with this judgment, it may be mentioned that as we have decided this appeal on points having nexus to the leave granting order, we therefore deliberately refrained ourselves from making any comments regarding points raised by the learned counsel for the Board in relation to Section 6 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 and also Article 165 of the Constitution of the Islamic Republic of Pakistan, 1973 which (points) shall be considered in some other appropriate case. Moreover, this opinion shall also neither apply nor be relevant for the grants and the leases pertaining to and made in the cantonment areas, or border C.A.1890 of 2002 & C.M.A.776 of 2003 (1) -: 18 :- areas etc., as we do not have the privilege and advantage of examining such transactions and the relevant law, the rules and the policies applicable thereto and under which those (leases) have been given. 15. In light of the law discussed above, we do not find any merit in this appeal, which is hereby dismissed. JUDGE JUDGE JUDGE Announced in open Court on at Approved for reporting Ghulam Raza/*

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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 Iqbal Hameedur Rahman Civil Appeal No. 194-P of 2010 (on appeal from the judgment of Peshawar High Court, Peshawar, dated 24.11.2008 passed in C.R No.1575/2004) Mst. Saadia …Appellant VERSUS Mst. Gul Bibi …Respondent For the appellant: Mr. Abdul Sattar Khan, ASC. Mr. M. Ajmal Khan, AOR. For the respondent: Mr. Muhammad Shoaib Khan, ASC. Mr. Muhammad Zahoor Qureshi, AOR. Date of hearing: 15.12.2015 JUDGMENT Anwar Zaheer Jamali, C.J. – In respect of a house as detailed in the heading of the plaint in Suit No.32/1, bearing No.923, situated at Mohallah Shah Faisal Kochi Bazar, Chowk Nasir Khan, Peshawar City (hereinafter referred to as “suit house”), on 21.1.2002, respondent through her brother and special attorney had instituted a suit for declaration and permanent injunction against the appellant with the following prayer:- )ا(  � ىر� ك�ا ن� �� � ر� �� � را�ا ى�دٰ923 ب�ا � ً�� تادو� ہدو�  و ��� ن� ل� ہ��� ��� �ا� ��� ��ا � ن� ً�� � � � ن� ��� ،� �� �ار�������ًً�� ������� ن� ��� ك� راز�� �� � ہ�� � �او فؤ�ا���� ہر� ��� �� �و�� � �رو� ���� C.A No.194-P/2010. 2 2/8/1995  �� �ا � � �او روا � �� � ��� ن� � � �� روا � ��� و ����� ۔� � ز� � �� ��� ��� و �� � ��� ن� � د� � ر� � ����� )ب ( � �� �اود ���ا � رو� دا� ى�د��� ٰ ��� و �� � ��� ن� � د� ہو � ر� �� � �� ف��� ۔�ر ع� و ز�� � �� �ا� �د � �� � � سا روا �� ����� 2. The claim of respondent in respect of the suit house was based on two gift deeds dated 21.7.1986 and 02.8.1995, Ex.PW-1/1 and PW-1/2 respectively. As per the earlier gift of 1986, purportedly Mst. Fehmida Begum wife of Abdul Majeed Khan, who owned the suit property through registered deed dated 17.1.1977, had gifted the suit house to her brother Mirza Rab Nawaz, who was husband of the respondent, while by second gift deed dated 02.8.1995, said Mirza Rab Nawaz had purportedly gifted the suit house in favour of his wife, the respondent. 3. In her written statement, the appellant categorically denied such claim of respondent and disputed the genuineness of both the purported gift deeds produced and relied upon by the respondent to establish her title over the suit house. She also disclosed other relevant facts about the legal heirs/brothers of Mst. Fehmida Begum, and her own relationship with the respondent, being her only paternal niece (daughter of her deceased husband’s brother). The appellant further disputed the maintainability of the suit on various legal grounds, as shown in the plaint. 4. Upon divergent pleadings of the parties, as noted above, the trial Court of learned Civil Judge, Peshawar, framed six issues, out of which issue No.5 was the crucial issue for determination, which related C.A No.194-P/2010. 3 to the genuineness or otherwise of the two purported gift deeds Ex- PW1/1 and PW1/2, relied by the respondent to claim her exclusive title over the suit house. 5. At the stage of evidence, the respondent had examined five witnesses including herself while the appellant had examined only her mother in law and attorney. Besides, another witness was examined by the Court as CW-1/1, who was the handwriting expert, to whom Ex-PW1/1 and some other documents purportedly bearing signatures/thumb impression of Mst. Fehmida Begum were sent for comparison of her signature/thumb mark over Ex-PW1/1. 6. The Civil Judge, Peshawar at the conclusion of proceedings in the suit, vide judgment dated 30.7.2004 decreed the suit in favour of respondent. This judgment was challenged by the appellant through an appeal under section 96, CPC filed before the Court of 2nd Additional District Judge, Peshawar on 29.9.2004, which was dismissed by the first appellate Court vide its judgment dated 18.11.2004. 7. These concurrent findings of the two Courts below were then challenged by the appellant in Revision Petition No.1575/2004, filed before the Peshawar High Court, Peshawar on 15.12.2004, which was finally heard and dismissed vide impugned judgment dated 24.11.2008. Against these concurrent findings of the three Courts below, when Civil Petition for leave to appeal was filed by the appellant, leave was granted in terms of the order dated 06.4.2010, which reads as under:- C.A No.194-P/2010. 4 “A suit for declaration and perpetual injunction was filed by Mst. Gul Bibi (respondent) against Mst. Saadia (the petitioner). Respondent/plaintiff on the basis of un-registered Hiba claimed to be owner in possession of the suit property. Also pleaded that petitioner (real niece of the real owner of the house) had no right or interest in view of Hiba. Contesting written statement was filed by the petitioner. Issues were framed. Evidence was recorded by the learned trial Judge. The suit was decreed and appeal of the petitioner-defendant was dismissed. Her Civil Revision also failed before the High Court. Hence the present petition for leave to appeal. 2. Learned ASC for the petitioner raised the following questions:- (i) As to whether the two Hiba namas could be legally relied upon without due registration in accordance with Section 17 of the Registration Act. And as to whether un-registered Hiba-namas were admissible under Section 49 of the Registration Act ibid; (ii) Whether the learned Courts below should have legally examined the above questions even if petitioner had failed to properly raise the same in her written statement or in the memo of appeal; and (iii) As to whether the respondent/plaintiff succeeded in proving execution of Hiba namas and making of Hiba thereof in terms of law; 3. The above questions require consideration, leave is granted.” 8. We have heard the arguments of learned ASC for the appellant. He has briefly stated relevant facts of the case forming background of this litigation, particularly with reference to the legal heirs of Mst. Fehmida Begum, wife of Abdul Majeed, the original owner of suit house vide registered deed dated 17.1.1977, who died issueless, having five brothers, Mirza Mushtaq, Mirza Nisar, Mirza Abdul Latif, Mirza Nazir Ahmed and Rab Nawaz. Learned ASC submitted that out of C.A No.194-P/2010. 5 them, three had died issueless, while it was only Mirza Nisar, the fourth brother, who had one daughter Mst. Saadia, the present appellant, who was minor at the time of death of Mst. Fehmida Begum. But in order to deprive her of her legitimate claim in the suit house, being the only descendant from the brothers of Mst. Fehmida Begum, two fraudulent, fabricated and forged gift deeds were prepared/managed. He argued with vehemence that surprisingly both these deeds were attested by four witnesses each, but except one, no other marginal witness of the gift deeds Ex-PW1/1 was examined nor it had been registered to give some credibility or authenticity as to the time of execution of such gift deeds, which could otherwise be easily fabricated and prepared at any time after the demise of original owner Mst. Fehmida. As regards the possession of suit house, he argued that possession of the suit house all along remained jointly with the family of Mst. Fehmida Begum till her death and thereafter with her brothers, including the father of the appellant, when she was a minor, therefore, question of delivery of possession also remained unproved. He further argued that judgments of all the three Courts below suffer from misreading and non-reading of evidence, so much so, that even the original Hibanamas Ex-PW1/1 and PW1/2 were not proceeded before the Court to prove their authenticity, whereas the witnesses were confronted with their photostat copies, which were not admissible in evidence, irrespective of the fact whether any objection to this effect was raised or not. C.A No.194-P/2010. 6 9. Conversely, the learned ASC for the respondent strongly supported the concurrent findings of the three Courts below on the plea that there was no instance of any misreading or non-reading of evidence and the two documents i.e. Exhibit PW1/1 and PW2/2, being not objected to, were also proved in accordance with law. He further argued that there was ample evidence available on record to show that Mirza Nisar, father of the appellant, maintained strained relations with Mst. Fehmida, the original owner of suit house, therefore, she had gifted the suit house exclusively in the name of her other brother, Rab Nawaz vide Gift Deed dated 21.7.1986. However, when the learned ASC was confronted with the contents of the two Gift Deeds i.e. Exhibit PW1/1 and PW2/2, he did not dispute that both these documents were unregistered and the respondent has no plausible explanation for seeking their attestation from four witnesses for each, out of whom only one relating to Ex-PW1/1 Hakeem Alauddin was examined, but even he did not confirm the signature or thumb impression of Mst. Fehmida over the alleged Gift Deed. He further conceded to the position that no document regarding the death of other attesting witnesses of these documents were placed on record to support the oral assertion of respondent that they all had died before the stage of evidence in the suit. 10. We have carefully considered the arguments advanced by the learned ASCs for the parties and perused the material placed on C.A No.194-P/2010. 7 record including the original R&Ps of Suit No.3271 of 2002. According to the admitted facts of the case Mst. Fehmida was the exclusive owner of the suit house through registered Sale Deed dated 17.1.1977. She had five brothers, Mirza Mushtaq, Mirza Nisar, Abdul Latif, Nazeer Ahmed and Rab Nawaz, and she died issueless. Although, no exact date of her death has come on record, but one thing is clear that before the institution of declaratory suit by the respondent in the year 2002, the two purported Gift Deeds in her favour had not seen the light of the day in any manner/government record. In addition to it, as per admission of the respondent in her statement before Court, except Mirza Nisar all other brothers of late Mst. Fehmida used to live in the suit house till her death somewhere in the year 1989-90. Moreover, PW/2 Muhammad Younus, who is stated to be the marginal witness of Exhibit PW1/2, had also clearly affirmed the fact that the purported gift in favour of the respondent allegedly made by her husband, Rab Nawaz, was not signed by him in presence of any person. Further scrutiny of evidence adduced by Respondent reveals that admittedly appellant was the only surviving legal heir of Mst. Fehmida from her five brothers, she was minor at the time of her death and when she became major and agitated her claim over the suit house, respondent came out with the story of two Gift Deeds to legitimize her exclusive claim over the suit house. A man may lie but circumstances do not. In our opinion, the pleadings of the parties and the evidence brought on record from both the sides reveal that judgments of all the three Courts below suffer C.A No.194-P/2010. 8 from patent misreading and non-reading of evidence inasmuch as the Courts failed to appreciate the true effect of non-production of original gift deeds alongwith the plaint as per the requirement of Order VII, Rule 14, CPC, even at evidence stage, and non-examination of attesting witnesses of the two Gift Deeds. More so, when the evidence of PW/1, PW/2 and PW/3, was also of no help to the case of Respondent to prove the authenticity or genuineness of the documents Exhibit PW1/1 and PW2/2, who respectively deposed as under:- PW-1 Hakeem Allauddin: “Mst. Fehmeeda Khatoon was ill and was lying on bed. After three-four days of my visit Rabnawaz brought a written document duly thumb impressed and signed by Mst. Fehmeeda Khatoon and thereafter I alongwith the other marginal witnesses signed the same. Rabnawaz had got the signed document individually at different time from the marginal witnesses.” PW-2 Muhammad Younas: “Rabnawaz has not signed the said document before me but the signature marked-A is his signature as I am well acquainted with his signature.” PW-3 Muhammad Sherin: “It is correct that Rabnawaz has not signed the deed in my presence. Volunteered that he had already signed the same.” 11. Beside, the evidence of these three witnesses the evidence of other two witnesses i.e. PW-4 Gul Bibi/respondent and PW-5 Shah Nadir further reveal that they were interested witnesses installed for the purpose of justifying the execution and genuineness of the two documents i.e. Ex-PW1/1 and PW1/2. However, they also failed as their evidence was not confidence inspiring enough to prove the execution of these two documents. Similarly the evidence of Hand Writing Expert was of no avail as all the documents sent to him; firstly, came from the C.A No.194-P/2010. 9 possession of the respondent; secondly, the comparison of Photostat copies with the originals was not warranted by law; and lastly such exercise was not a conclusive proof about the genuineness of Ex- PW1/1. We, therefore, find much force in the arguments of the learned ASC for the appellant that concurrent findings of the three Courts below suffered from misreading and non-reading of evidence, which resulted in miscarriage of justice to the appellant, thus open to interference. 12. At the cost of repetition, we may observe that the claim of respondent over the suit house is based on and subject to the validity of both documents Exhibit PW-1/1 dated 21.7.1986 and PW-1/2 dated 02.8.1995, thus, the execution of these two documents was to be proved independently. In other words even if the execution of first document Exhibit PW-1/1 was presumed as valid and genuine, still the validity and genuineness of the other document Ex.PW-1/2 was to be proved independently, but the respondent did not even bother to produce this original document in Court. 13. Had it been a case of genuine gift in favour of respondent then there was no justification for the respondent to withhold production of these documents for such a long period before filing the suit against the appellant when all the attesting witnesses as per her claim except PW/1, have expired. In this regard, mere oral assertion of the Respondent about the death of attesting witnesses of the two C.A No.194-P/2010. 10 documents had not absolved her of the legal burden to prove their death with some documentary evidence or atleast by examining some other independent witnesses in this regard. It also smacks of some foul play that instead of following usual practice of having two attesting witnesses of documents Ex-PW1/1 and PW1/2, these documents contained attestation by four witnesses at a time and for this reason too possibility of manipulation/substitution/subsequent addition of other two witnesses cannot be ruled out. 14. Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift “offer”, “acceptance” and “delivery of possession”. Reverting to the facts of the present case, we find that neither PW-1 Hakeem Alauddin, who was the only witness of first gift document Ex-PW1/1, had said anything about the fulfillment of these three conditions of gift between the parties in his presence, nor the other two witnesses, PW-2 Muhammad Younas and PW-3 Muhammad Sherin of second gift document Ex-PW1/2 have deposed, whether the performance of these ingredients of gift, oral or otherwise, had taken place in their presence. Even the evidence of PW-4 Mst. Gul Bibi in this context is hearsay as regards the first document of gift and shaky to the extent that in her C.A No.194-P/2010. 11 deposition, she has admitted that atleast three other brothers of Mst. Fehmida Begum, Mirza Mushtaq, Mirza Abdul Latif and Mirza Nazir Ahmed, continued to live in the said house till their death. To sum up, virtually not a single witness from the side of respondent validly proved the performance of these three prerequisites for a valid transaction of gift in respect of the suit house. 15. The upshot of the above discussion is that this appeal is allowed in terms of the short order already passed in this case. Peshawar, the 18th December, 2015. Approved for reporting. ��ا���  Chief Justice Judge Judge

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR REHMAN MR. JUSTICE MAQBOOL BAQAR CIVIL APEAL No.194 OF 2015 (Against the judgment dated 03.3.2015 passed by the Election Tribunal, Hyderabad in Election Petition No.3 of 2013) Jam Madad Ali … Appellant Versus Asghar Ali Junejo and others … Respondents For the appellant: Mr.Makhdoom Ali Khan, Sr.ASC Mr.Tariq Aziz, AOR. For respondent No.1: Dr. Farough Nasim, ASC Mr. Mahmood A.Sheikh, AOR Date of hearing: 12.11.2015 JUDGMENT MAQBOOL BAQAR, J.- The appellant, through the instant appeal, has challenged the judgment dated 03.3.2015 passed by the learned Election Tribunal, Hyderabad (‘the Tribunal’) whereby Election Petition No.3 of 2013 preferred by respondent No.1 (‘the respondent’) was allowed and the respondent was declared returned candidate from PS-81, Sanghar-IV. 2. The relevant facts of the case, in brief, are that the appellant contested election from the above constituency and having received 35,548 votes won the election held on 26.6.2013. Respondent, the runner-up, received 34,175 votes. On 28.6.2013, the respondent made an application to the Returning Officer (“R.O”) for a re-count in respect of thirty (30) polling stations specified therein, on the grounds that his Polling Agents were forcibly removed from various polling stations particularly from the CA 194/15 2 said thirty (30) polling stations which were situated in the areas dominated by the appellant, and that the concerned Presiding Officers (“P.O.”) did not perform their duties regarding the conduct of the vote count, and no action was taken by them on the complaint of the respondent, though in terms of section 38(1) of the Representation of the Peoples Act, 1976 (“the ROPA”), the P.Os. were required to count the votes in presence of the candidate’s polling agents. It was pointed out that the statements of count do not bear the signatures of the respondent’s polling agents as required under section 38(13) of the ROPA. The application was dismissed by the R.O. through order dated 28.6.2013. The R.O. after counting the votes and consolidating the result declared the appellant as the returned candidate. Notification to such affect was issued by the Election Commission of Pakistan (“ECP”) on 01.7.2013. On 02.7.2013 the respondent filed an application for re-count under section 39(6) ROPA before the ECP. 3. On 28.8.2013, the respondent through the afore-noted election petition challenged the result of the above election before the Tribunal and sought order, inter alia, directing the ECP to carry out a recount in respect of the said thirty (30) polling stations, on the grounds that the appellant in collusion with the officers of the ECP, the Local Administration and, the Arm Forces deputed to monitor the bye-election resorted to illegal and corrupt practices and rigged/manipulated the electoral process in his favour. It is specifically alleged that the polling agents of the respondent were removed from the polling stations and were prevented from participating in the vote count and consolidation of the result. No notice as required under section 39 of the ROPA was issued by the R.O. The provisions of the ROPA were violated by the concerned functionaries. That rejected votes were counted as valid CA 194/15 3 votes in favour of the appellant and that the votes polled at a number of polling stations were more than the votes assigned to those polling stations. The election results are infested with interpolation. 4. Through his written statement, the appellant denied the various allegations contained in the petition. Through order dated 16.9.2013, the ECP, in view of the pendency of the above election petition and at the request of the respondent disposed of the re-count application with an observation that the Tribunal shall dispose of the petition expeditiously. On 16.1.2014, the respondent filed an application before the Tribunal seeking a recount of the votes from the aforesaid thirty (30) polling stations under section 46 of the ROPA. The application was resisted by the appellant who filed a counter-affidavit thereto. By order dated 03.6.2014, the Tribunal allowed the application and ordered the recount to be conducted by the District Returning Officer (“DRO”)/the District and Sessions Judge, Sanghar, along with the Returning Officer and a nominee of the ECP. After concluding the re-count, as mandated, the DRO submitted his report, which report disclosed that a large number of ballot papers/votes recovered from the envelopes of the valid votes of the appellant and the respondent, bore double seals/stamps, rendering such votes/ballot papers invalid, leading to their exclusion in the recount. It also disclosed that a good number of the polling bags and the envelopes containing votes were found to not have been properly sealed, and that a substantial number of the envelopes, containing the votes of the two candidates in various polling bags were torn. On 26.8.2014, the appellant, in view of the above observations contained in the report, made an application to the Tribunal to summon the DRO, R.O., and the Presiding Officers of CA 194/15 4 the said thirty (30) Polling Stations, and also sought production of all the votes casted at the above polling stations along with the relevant Form XIV, and certain correspondence between the R.O. and the concerned Deputy Commissioner and the Mukhtiarkar for securing the premises where the aforesaid election record was stored. Through order dated 21.10.2014, the Tribunal, whilst disposing of the said application, summoned only the DRO and declined to summon the other officers. The DRO appeared before the Tribunal and produced his report. He was cross-examined by the appellant as well as by the respondent. Whereafter the appellant filed an application for sending the ballot papers rejected during the recount for forensic test, so that it may be verified as to whether same or different ink and/or seals have been used for the two impression found on each of the rejected ballot paper. The Tribunal, however, dismissed the application. The appellant and so also the respondent examined only themselves, they did not produce any other witness. After hearing the parties, the Tribunal through the impugned judgment accepted the respondent’s election petition and declared him as the returned candidate. 5. Mr. Makhdoom Ali Khan, the learned Sr. ASC for the appellant submitted that the impugned judgment is solely based on the re-count carried out by the DRO in pursuance of the Tribunal’s order dated 03.6.2014. He submitted that in the facts and circumstances of the case, the Tribunal ought not to have exercised the power under section 46 of the ROPA for recount of the ballots, as such could have been done only on the basis of some prima facie evidence justifying the exercise of power under the said provision. Whereas in the present case, the application was granted prematurely, without recording any evidence justifying the recount. He submitted that to allow a recount as a matter of CA 194/15 5 course tantamounts to permitting a rowing inquiry. The learned counsel further submitted that even where the result of a recount may be founded on authentic, reliable and unadulterated material, and which result may essentially entail consequences of altering the earlier count/result, such result also be taken into consideration as being of any consequence, only where the recount has been conducted in pursuance of an order of the Tribunal which meets the criteria for such order as prescribed by this Court. He emphasized that no recount can be ordered, unless at least a prima facie case is made out on the basis of evidence recorded by the Tribunal. However, neither was/is any evidence or even any material available in this case which could have justified a recount nor the result/findings of the recount/inquiry could even otherwise be relied upon and/or made basis for the impugned judgment. Elaborating his arguments Mr. Khan submitted that the vote count in favour of the appellant has been reduced by excluding the ballot papers/votes bearing double stamps/seals, one over the appellant’s election symbol and the other on that of some other contestant. However, there is admittedly no evidence to show that the second stamp was affixed at the time the polling was carried, and that it was not done after announcement of the result. He submitted that it is wholly inconceivable that double stamping on such a massive scale, would go unnoticed by the polling staff and/or the contesting candidate and/or their agents, and such ballots would be counted and secured as valid votes without a demur. Mr. Khan further submitted that in the facts and circumstances of the case heavy onus lay on the respondent to prove that in fact the double stamping occurred at the time of casting the ballot and not after the polls. He argued that proving the allegation of double stamping at the time of polling/casting CA 194/15 6 became all the more necessary for the reason that never at any stage before the recount the respondent alleged any double stamping. In fact absolutely no complaint was made either by the respondent or any of his polling or election agent regarding any double stamping and/or any other malpractice during the polling or in respect of the entire election process, till the time he made an application to the Returning Officer for the recount on 28.6.2013, even in the said application also and till the conclusion of the recount the respondent did not allege any double stamping. As to the respondent’s allegation that his agents were removed from the polling stations and not allowed to participate in the vote count or the consolidation of the result, the learned counsel submitted that the same is evidently incorrect and unfounded as admittedly neither any complaint was made by anyone nor has any material been placed on record to show that any such complaint or protest in any manner was made. Mr. Khan further submitted that in order to prove that his agents were prevented from participating in the vote count and its consolidation and/or that the double stamping in fact occurred during the polling, the respondent ought to have examined the concerned Presiding Officers and should have summoned the relevant record for scrutiny, however, far from doing so, the respondent in order to prevent the Tribunal from coming to the right conclusion regarding the manipulation carried out by him and/or on his behest, even resisted the appellant’s application for summoning the concerned POs and RO and also the application for seeking forensic testing of the ballot papers containing double stamps/seals. The learned counsel submitted that the appellant through his letter dated 04.7.2012 expressed his apprehension regarding such tampering/manipulation and has requested the R.O. to secure the record, however nothing was done CA 194/15 7 to prevent the tampering and to secure the record. In order to show that the strong room of the sub-treasury Khipro where the relevant record including the ballots papers was stored, was not a fully secured place, the learned counsel referred to the letter dated 26.7.2014, addressed by Sr.Civil Judge, Khipro, the concerned R.O., to the Deputy Commissioner, Sanghar, whereby he sought immediate repair of the ventilator of the strong room, which as noticed by the RO, at the time of storing back the relevant record after the recount, was without the necessary penal/shutter, and the cavity was blocked only by placing loose bricks therein. Mr. Khan submitted that in fact, as noted by the R.O. in presence of the parties and/or their representatives, not only a good number of ballot bags were found unsealed or improperly sealed, but a large number of envelopes containing the valid votes were either without seals or were torn. He submitted that although the respondent alleged that his polling agents were removed from the polling stations but has not even filed any authorization letter issued by him in favour of his purported polling agents and has failed to furnish any list of polling agents and that out of the two agents whose names the respondent disclosed, he filed affidavit of only one but did not produce even that single agent. In support of his contention that recount of the votes secured in an election can only be allowed by the Tribunal where evidence making out a prima facie case for a recount is recorded, not otherwise, relied upon following judgments:  KANWAR EJAZ ALI VS. IRSHAD ALI AND 2 OTHERS (PLD 1986 SC 483)  SARDAR ABDUL HAFEEZ KHAN VS. SARDAR MUHAMMAD TAHIR KHAN LONI AND 13 OTHERS (1999 SCMR 284) 6. On the other hand, Mr. Farough Nasim, the learned counsel for respondent No.1 submitted that in the facts and CA 194/15 8 circumstances of the case, the order for recount as passed by the learned Tribunal was/is the only order that could have been lawfully passed on the respondent’s application. He submitted that the contents of the election petition as well as the respondent’s application for the recount, spelt out valid grounds which were adequately supported by relevant material. He submitted that the count and the consolidation of the election result in the absence of the respondent and his election/polling agents is clearly violative of the mandate of sub-section (1) and (2) of Section 38 of the ROPA which requires such presence and that the PO shall provide reasonable facility to the contesting candidates and their agents to observe the count. He further submitted that although in terms of sub-section 13 of Section 38 of the ROPA, the POs were required to obtain signatures of the candidates or his election/polling agent on the statement of the vote count, however not a single such statement bear any signature of the respondent or his polling/election agent which clearly show that the counting and the consolidation of the result has been conducted in their absence. Mr. Nasim further submitted that no notice of the day, time and place fixed for consolidation of the result was served on the respondent or his agents, and thus by preventing/avoiding the presence and the participation of the respondent and his agent, the polling staff in collusion with the appellant massively tampered the ballot papers and manipulated the election result as discovered during the recount which clearly revealed that invalid votes bearing double stamps were counted and secured in favour of the appellant, thus giving him an undue edge/margin over the respondent and turning his defeat into a victory against the respondent. The learned counsel submitted that it is wholly contrary to the settled principle and our jurisdictional norms to CA 194/15 9 argue that a recount can be ordered by the Tribunal only on the basis of some evidence recorded by it. He submitted that neither such is the requirement under the relevant provisions of law nor is it in consonance with the principles of equity, fair play and justice and the same also militates against the principle of reasonableness. He referred to section 38(5)(b) of the ROPA which empowers the PO to conduct recount either on his own motion or upon the request of the contesting candidate where such request is not unreasonable, and submits that reasonableness is the only criteria laid down by law for the recount. He submitted that similarly in exercise of its powers under section 46 of the ROPA, a Tribunal also can order a recount where doing so is found reasonable by the Tribunal, and as to whether it would be just, proper and reasonable to allow a recount, can be decided keeping in view as to whether adequate statement of material fact along with supporting prima facie material has been furnished. Whereas in the present case, the respondent not only furnished adequate statement of material fact in his memo of appeal as well as in his application for the recount to the RO as noted earlier, but also annexed photocopies of a bulk of the relevant statement of count (Form XVI) which purport to show that at various polling stations 100% of the votes assigned thereto were purportedly casted and counted and at some stations the counting as recorded in the said statements was more than 100% of the assigned votes. He submitted that in addition to the above, in a number of form XIV though absolutely no votes were shown/recorded in favour of any of the candidates however strangely the total count of the casted votes was recorded in hundreds. Whereas in a good number of statements of count/form XIV, interpolation/re-writing in the relevant column/relevant figure of counts of the votes is clearly CA 194/15 10 visible. He submitted that in the face of such material refusal of recount would have been wholly illegal, unjust and unfair and the Tribunal was thus not left with any choice but to order recount. In order to substantiate his above allegation regarding the anomalies, discrepancies and interpolation reflected in the statement of count/form XIV, the learned counsel referred to copies of various such forms. In support of his contentions that recording of evidence justifying the recount is not always essentially required by the Tribunal to order recount. Mr. Nasim referred to and relied upon following cases:-  MEHR KHALIQ YAR KHAN VS. CH. GHAYAS AHMAD MELA AND OTHERS (2011 CLC 1515)  T.A. AHAMMED KABEER VS. A.A.AZEEZ AND OTHERS (AIR 2003 SC 2271)  BHABHI VS. SHEO GOVIND AND OTHERS (AIR 1975 SC 2117) 7. Heard the learned counsel for the parties and perused the record with their assistance. 8. The basic questions involved in this case are, firstly as to whether the order dated 03.6.2014 passed by the learned Tribunal for recount of the votes was lawful, appropriate and justified in the facts and circumstances of the case and secondly, as to whether the report submitted by the DRO in pursuance of the above order furnished adequate/lawful basis for declaring the appellant’s election as void and for declaring the respondent as the returned candidate in place of the appellant. 9. The purpose of a recount in an election dispute is to verify and determine the authenticity and truthfulness of the allegations on the basis whereof the election result is challenged, however, in order to secure the sanctity of the election result and with a view not to encourage the loosing candidates to attempt to frustrate the will of the people as expressed through the election and also in order to avoid creating an incentive for the loosing CA 194/15 11 candidates to in any way, indulge in post poll tampering or manipulation of the election record, a conscious effort is to be made that it is only in the circumstances which clearly justify, rather demand a recount, that the recount is allowed. As to what should be the criteria or the essential pre-requisites for satisfying the conscience of the Court for permitting a recount, perusal of the case law laying down our jurisprudential principles in this regard, would show that the minimum criteria is that there should be specific allegation of tampering, manipulation and maneuvering in very clear terms along with the necessary details and prima facie material supporting such allegations. It should also be kept in mind that secrecy of the ballot should not be violated on the basis of frivolous, vague and totally unfounded allegations and that the primary object should be to do full justice in the matter. The learned Tribunal should also be mindful that the discretion to exercise power of recount may not be exploited for a roving inquiry to fish out material for reversing the election or for declaring it void and thus it should be seen that as to whether in view of the statement of material fact, and the material placed before the Tribunal the request is fair and reasonable or not. 10. We have perused the judgments relied upon by the learned counsel for the parties have noted that in the case of Kanwar Ejaz (supra) the only ground urged before this Court was that the difference of votes between the successful candidate and the runner-up (appellant) was of just 707 votes whereas the allegation of the appellant that his polling agents were not allowed to sit at the polling stations and one sided votes were casted in favour of the winning candidate in their absence, was rejected by the Tribunal and the Tribunal also held that no corrupt practice was established against the respondent and that the allegations CA 194/15 12 contained in the application for recount were found to be vague. It also seems that the order rejecting the application for recount was also founded in the fact that though evidence was adduced before the Tribunal however the appellant could not establish any allegation made in support of his request for recount. This court thus expressed agreement with the observations of the election Tribunal that the request for recount was not reasonable and upheld its rejection. 11. In the case of Sardar Abdul Hafeez Khan (supra), this Court, whilst observing that section 46 of the ROPA confers an inclusive and wide discretion on an Election Tribunal to order opening of packets of counterfoils and certificates or the inspection of any counted ballot papers, held that Tribunal should have some basis for taking such recourse to its exclusive and essentially discretionary power under the said provisions, opening the way to a recount. Thus, it would be for the petitioner in the election petition to lead initial evidence for the Tribunal to take resort to power under the said provision. It is only then that the Tribunal may summon the relevant record and examine the corresponding official witnesses at the petitioner’s behest, unless, of course, the Tribunal is acting Suo Motu in the midst of the petition, something which does not appear to be precluded. It can thus be seen that recording of evidence is not essentially required by a Tribunal to pass an order for a recount as the Tribunal may on its own also order a recount. 12. In the case of Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others (PLD 2007 Lhr 141) referred to in the case of Mehr Khaliq Yar Khan (supra) the learned Lahore High Court laid down that the power to order recount is to be exercised by the Tribunal on the basis of some material prima facie CA 194/15 13 establishing illegalities and irregularities in the count of the polled votes and further that such power of the Tribunal is quite exclusive which it is to be exercised sparingly after satisfaction of the material/evidence that there had been wrong inclusion and exclusion of the ballot papers in the count. 13. In the case of Bhabi (supra), the Supreme Court of India laid down the following criteria for permitting a recount in an election matter:- “15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers: (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void;” 14. The present case, however, does not meet the criteria as prescribed through the afore discussed pronouncement. Firstly, neither the memo of the election petition, nor the application for recount contain any specific allegation of tampering and/or manipulation against the appellant, nor any prima facie material supporting the allegations justifying the request for recount was furnished. The memo only contained generalized allegations of illegal and corrupt practices and rigging/manipulation of the electoral process. There is also a vague allegation that the polling CA 194/15 14 agents of the respondent were removed from the thirty (30) polling stations for which recount was requested, however, there again no details were spelt out. As can been seen from the order for the recount, the learned Tribunal was persuaded to pass the order on the basis of the statement of count/form XIV, in respect of four polling stations. The two such statements/forms which pertain to polling station Nos.6 and 16, respectively, showed that 100% of the votes assigned to the said two polling stations were polled at the said stations, inasmuch as the number of votes mentioned in the column provided for the number of votes assigned to the polling station at the top of the statements showed 543 and 1337 votes respectively, whereas the said figures were in fact the count of the votes casted at the said two polling stations, however, it was due to sheer inadvertence that the P.Os. inserted the above figure in the column for the votes assigned to the said two polling stations. Such is evident from the fact that the same figures are mentioned as of the votes casted in the relevant column at the bottom of the statements. Furthermore, as evident from the gazetted list of polling stations the number of votes assigned to the said two polling stations were in fact 1041 and 1977 votes respectively and not 543 and 1337 as mistakenly mentioned by the P.O. The total number of votes at the polling station in question were, thus far higher than the number of votes cast and the Presiding Officers had simply committed a clerical error by recording the number of votes cast as the number of votes assigned to the polling station. Similarly, in respect of the other two polling stations being, Polling Station No.18 and 115, where the learned Tribunal presumed casting of votes in excess of the registered votes, it did not examine the gazetted list of polling stations through which it could have easily been confirmed that there was no excess casting at all. In PS CA 194/15 15 No. 18, the Presiding Officer recorded the total number of votes assigned to the polling station as 437 which in accordance with gazetted list of polling stations should have been 807 and the total number of votes polled by the contesting candidates, including the challenged vote was 437. He then added the total number of doubtful votes 17, excluded from the count to the total number of votes polled including the challenged votes, and recorded the aggregate of 454 as the “Number of votes polled”. Since this figure now included the excluded votes, the number of polled votes exceeded the figure recorded as the total votes assigned to this polling station. However, a glance at the Form XIV would clearly show that this is nothing more than a clerical mistake. The Presiding Officer added the valid and invalid votes, the sum of which exceeded the figure he had recorded as the total votes assigned to the polling station, which was itself an incorrect figure since the total number of votes registered at this polling station was much higher than figure mentioned in Form XIV. The same clerical mistake was made by the Presiding Officer of Ps No. 115 though it was made only on the second sheet of Form XIV, yet the Tribunal missed the first sheet of Form XIV on which the correct numbers were recorded. The issue could have been easily resolved by referring to the gazetted list of polling stations which clearly established that the total number of votes assigned to PS No. 18 and 115 were 807 and 1167 respectively, which far exceeded the number of votes cast. 15. Mr. Farough Nasim, the learned counsel for the respondent, in his endevour to show that there was adequate material available before the learned Tribunal justifying the recount, took us to various statements of counts/form XIV, which broadly falls in four categories. The first are the statements CA 194/15 16 wherein the number of votes assigned and the number of votes casted, as recorded, are even. The second category is of the statements where the number of votes casted has been recorded in excess of votes mentioned as votes assigned. Third is the category where no votes have been shown to have been secured by any of the candidate mentioned therein but the number of votes mentioned in the column for the total votes secured are in hundreds and in the forth category, there are certain overwriting/ interpolations. 16. So far as the first two categories which purportedly show that 100% and more than 100% of the votes assigned have been casted, the said misconception has already been dealt with in the foregoing paragraphs which leave not doubt that it was by way of a sheer mistake that the figure of the number of vote casted were also shown as the number of the votes assigned although in fact the votes assigned to the said polling stations were far larger than the votes casted. As regards the third category of the statements, as rightly pointed out by Mr. Makhdoom Ali Khan, the learned counsel for the appellant, we have noted that these infact are the second pages/sheet of the statement/form XIV which does not contain the names of all the contesting candidates, and the names of the remaining candidates are mentioned at the first page/sheet of the relevant statement/form, which candidate in fact secured certain numbers of votes as mentioned in the relevant column at the first page/sheet, total whereof has also been mentioned in that page/sheet which total has been brought over to the second page/sheet i.e. the page/sheet in question, showing the total number of votes polled at that particular polling station and therefore, it is wrong to say that hundreds of votes have been shown as casted/polled at the polling station where absolutely no CA 194/15 17 vote was casted. A close scrutiny of the last category of the statements clearly show that corrections there have been made in the figure of the total count as the same did not tally with the actual correct totaling of the votes recorded as casted in favour of various candidates in the relevant columns, as the corrected figures are found in consonance with the number of votes shown as secured by the various candidates in the relevant columns. 17. From the foregoing analysis, it is now abundantly clear that the material placed before and relied upon for the recount order in fact did not provide a slightest justification for the recount. 18. Now coming to the question as to whether the report submitted by the DRO in pursuance of the recount order justified passing of the impugned judgment. It may be noted that at no point in time from the polling day and up to the recount, the respondent alleged any double stamping. It is wholly inconceivable that the ballots infested with double stamping would not have been noticed by any of the polling staff or the various candidates and their agents and that such ballot papers could be counted and secured in favour of a candidate without a demur. There is no evidence in support of the allegation that the respondent’s agents were removed from the polling stations or were prevented from observing the counting of the ballots or the consolidation of the result. There is absolutely no proof at all, of the respondent making any complaint of the removal of his agents. The respondent far from examining the concerned P.Os., and/or any other witness, to prove his allegation and to demonstrate that the ballots excluded in the recount on account of double stamping were in fact so stamped at the time of polling and not afterwards, even resisted the appellant’s application for summoning the P.Os., and also CA 194/15 18 opposed the application for putting the said ballot papers to forensic test to verify the type of ink and the seal used for the two stamps affixed on the ballot papers and as to when each of the two stamps were affixed. As regards Mr. Farough Nasim’s submission that no notice as required in terms of section 39 of the ROPA was served on the respondent or his agents and that none of the statements of count/form XIV contains signature of the respondent or his agent. It may be noted that that such is of no consequence neither has the respondent made any specific allegation of any manipulation in the consolidation of the result nor does the DRO report reflects anything pertaining to the consolidation and in terms of section 38(13) of the ROPA, the P.O. is required to obtain signature only from such candidates or agents who may be present at the relevant time. Since it is the case of the respondent that none of his agent was available at the time of the counting and/or consolidation, there was no question that the relevant statement does not contain their signatures. The ballot bags and the envelopes containing the ballot papers infested with double stamping, were either unsealed or were not properly sealed and many of the envelopes were also found to be torn. More intriguingly, the envelopes containing the appellant’s votes found torn far out numbered such envelopes of the respondent. The respondent did not produce any of his polling or election agents to prove his allegation of their removal from the polling station. He did not even produce a list of his agents or any letter of their appointment. The respondent filed affidavit only of one of his two polling agents whose names he disclosed but did not produce even the said polling agent. The appellant, before the commencement of the recounting has through letter dated 04.7.2013, expressed his apprehension that the relevant election record may be tampered CA 194/15 19 with and requested that the same be secured, but in vain. From the letter dated 26.7.2014 written by R.O., the Sr.Civil Judge, Khipro, it can be seen that the so called strong room where the relevant record was stored was not a secured place. It may also be noted that a period of more than one year has elapsed between the polling/election and the recount. In the circumstances, it cannot be said that the double stamping took place at the time of casting of ballots and not after the result was announced and there is a great probability that the second stamp on the ballot papers may have been affixed during the period after the election and the recount. 19. We have already held the order of the Tribunal for the recount of the votes to be illegal and since the very foundation of the basis for the impugned judgment have been demolished, the impugned judgment has been rendered illegal on that count alone. However, in view of the fact that it could not be proved that the ballot casted in favour of the appellant were in fact infested with double stamping at the time they were so casted and particularly in view of the fact that the respondent did not make any effort to prove that such was the case and has in fact resisted the appellant’s efforts to bring forth the truth about the controversy and more so for the reason that the ballot papers were not found well secured and the ballot bags and envelopes containing the same were found unsealed and torn, the respondent can not be allowed to be benefited by the said double stamping and the same cannot provide a valid ground for de-notifying the appellant and declaring the respondent as the returned candidate. 20. In the case of Abdul Hafeez Khan (supra), this Court while dealing with the situation like in the hand has held as follows:- CA 194/15 20 “Three cases from this jurisdiction have contextual relevance. Such are Ejaz Shafi v. Ali Ashraf Shah, PLD 1995 SC 43; Ejaz Shafi v. Ali Ashraf Shah, 1996 SCMR 605 and Iftikhar Hussain v. Ijaz Ahmad Cheema, 1996 SCMR 943. The first two of these cases involved a recount pertaining to the same election and the same constituency. Initially, the recount having taken place by an agency other than the Tribunal, the case was remanded by this Court for the Tribunal to undertake that exercise but when that happened and the proposed recount did take place, a number of votes, on account of duplicate markings, were rejected and the election result was reversed. On a repeat appeal to this Court it was found that the double markings hand, probably, occurred after the election had taken place and not at the time the poll was being undertaken. As a result, such discrepancies were discarded and the original result maintained. In the third case, the power of the Tribunal to undertake an examination of interpolations in the election record was recognized. What, therefore, has to be ensured, once powers under section 46(l) and (2) of the Act come to be exercised, is that the jurisdiction is not over- stretched, that there is a prima facie case for a recount, that recount, if allowed, takes place scrupulously, without detracting from secrecy of the ballot and, finally that it can never be ignored that during the passage of time following upon the election and the recount a number of things may happen, having potential to throw up a picture that does not, in fact, correspond with the electoral process but depicts something of a later origin. To put it differently, the power, though broad and extensive, is to be used sparingly and with circumspection, the only object being to ensure a fair and lawful result of the electoral exercise. Nothing short of that would serve the object of the legislation.” 21. Mr. Farough Nasim, learned counsel in support of his contention that during the course of recount it is revealed that a number of appellant’s votes were infested with double stamps, entailing their rejection and exclusion from recount, which cannot be ignored and held inconsequential merely for the reason that such specific allegation was either not pleaded earlier or was not evident from the material placed before the Tribunal for seeking the recount, relied upon the case of T.A. Ahammed Kabeer (supra). Indeed, in the said judgment it has been observed that the Court CA 194/15 21 cannot shut it eyes on the result of recount on the ground that the result of recount is at variance with the pleading, however, such has been held in respect of a recount permitted by the Court within the well settled parameters of exercising jurisdiction in this regard. Whereas as discussed above in the first place the order of recount is not founded on the above criteria and secondly, the result thereof also does not show that the double stamping revealed thereby occurred at the time of casting and not after the result was announced. 22. It was in view of the foregoing that through short order dated 12.11.2015, we allowed the appeal and set-aside the impugned judgment holding the appellant to be the returned candidate. Judge Judge Judge Islamabad the 12th November 2015 (Aamir Sh.) ‘APPROVED FOR REPORTING’

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1950 OF 2007 (On appeal against the judgment dated 24.09.2007 passed by the High Court of Sindh, Karachi in Constitutional Petition No. D-2373/2006) Government of Pakistan through Secretary Revenue Division/CBR House, Islamabad and others … Appellants VERSUS Muhammad Junaid Talat … Respondent For the Appellants: Mr. Muhammad Habib Qureshi, ASC Raja Abdul Ghafoor, AOR Ms. Sonia Anwar Rana, D.C. Income tax. For the Respondent: Mr. Muhammad Jamshed Talat, in person Date of Hearing: 07.05.2018 JUDGMENT FAISAL ARAB, J.- In the year 1999, the respondent’s article on non-payment of income tax by Pakistani seafarers discharging duty on foreign flagships was published in daily ‘Takbeer’. Pursuant to such article the Income Tax department raised a demand against 812 seafarers for the payment of income tax to the tune of Rs.86.606 million, which was followed by ex- parte assessment orders. The respondent being the author of such an article sought recovery of reward in his capacity as informer on the amount which led to recovery proceedings against the seafarers. He calculated the reward money to be Rs.1.859 million CIVIL APPEAL NO. 1950 OF 2007 2 under Reward Order dated 14.05.1974 and lodged his claim for payment. 2. Before the reward could be paid to the respondent, the Commissioner of Income Tax, in exercise of suo moto powers under Section 122-A of the Income Tax, Ordinance, 2001, examined the assessment orders issued to Pakistani seafarers and set-aside the same on the ground that the resident status of a person is the prime factor in the determination of his tax liability and the same was not ascertainable with regard to Pakistani seafarers discharging their duties on high seas beyond the territorial limits of the country. Upon such denial of his claim, the respondent made a complaint to the Federal Tax Ombudsman, who vide recommendation dated 16.07.2001 directed that reward be paid to the respondent. The Commissioner of Income Tax, however, awarded Rs.3,741/- against recovery of income tax in a sum of Rs.14,910/- from only one seafarer as Reward Order dated 27.03.1980 envisaged payment of reward only upon recovery of tax. The respondent again moved the Federal Tax Ombudsman to seek recovery of his entire claim as according to him the Reward Order of 1980 was not published in the official gazette so it never came into force, the reward was, therefore, to be processed in terms of the Reward Order dated 14.05.1974 which envisaged payment upon making assessment of the evaded tax. The Tax Ombudsman accepted the respondent’s argument and vide his recommendation dated 17.02.2006 directed the appellants to pay reward in terms of Reward Order dated 14.05.1974. As the department still did not pay, the respondent filed a Constitutional CIVIL APPEAL NO. 1950 OF 2007 3 Petition No.D-2373/2006 before the High Court of Sindh for a direction to the appellants to implement the recommendation of the Federal Tax Ombudsman. The High Court vide impugned judgment dated 24.09.2007 allowed the Constitutional Petition by maintaining the decision of the Tax Ombudsman and directed the appellants to compute the reward in accordance with the provisions of Reward Order of 1974 and settle the respondent’s claim within a period of six months. Being aggrieved by such decision, the department filed the present appeal with leave of this Court. 3. Learned counsel for the department contended that the Reward Order dated 14.05.1974 was superseded by Reward Order No. C.No:63(88)IT-IV/75-Pt dated 27.03.1980 which was published in various tax commentaries and journals and as the claim of the respondent pertained to the year 1999 it was the Reward Order dated 27.03.1980 that was applicable and not Reward Order dated 14.05.1974. He submitted that the Reward Order of 1980 contained a proviso “provided that reward will be paid only if the tax sought to be evaded has been recovered atleast to the extent of the amount of reward being paid”, therefore, payment of reward to an informant was contingent upon recovery of tax only. Respondent’s brother, who is an advocate and upon the death of the respondent claims to be his only surviving heir appeared in person. He in rebuttal submitted that the department was not even aware that tax was not being paid by the Pakistani seafarers discharging duties on foreign flagships and it was the respondent who divulged such information, therefore, he rightly became entitled to the reward to the tune of Rs.1.859 million CIVIL APPEAL NO. 1950 OF 2007 4 under the provisions of Reward Order dated 14.05.1974 as the Reward Order of 1980 had not come into effect for the reason that it was not published in the official gazette. 4. As the whole issue revolves around the entitlement of the respondent on providing ‘definite information’ with regard to tax evasion, we posed a question to the respondent’s brother to point out from the record what constituted definite information that justifies the respondent’s claim. He was only able to point out a letter dated 19.07.1999, written by the Special Assistant to the Commissioner of Income Tax, Karachi appreciating respondent’s article published in Daily ‘Takbeer’ identifying non-payment of tax by Pakistani seafarers serving on foreign flagships. 5. In our view, a person can take benefit of the Reward Order only if he had supplied some definite information relating to a taxpayer who has evaded tax. So a condition precedent is ‘detection of evasion of tax’, which must have taken place before the question of reward arises. Merely giving general information that tax is not being paid by a person on his otherwise taxable income would not ipso facto entitle the informant to claim a reward as non-payment of tax is not always a case of tax evasion. The tax department knows quite very well that many people, whose incomes are taxable, do not file their tax returns. Pointing towards them would not constitute ‘definite information’ leading towards detection of ‘tax evasion’ whereas the basis for claiming reward lies in providing information that relates to an assessee who has concealed a source of income through manipulation or deceitful means that was liable to be taxed had such source been known to CIVIL APPEAL NO. 1950 OF 2007 5 the tax department at the time of making assessment. So informing the tax department generally that a person or a section of a society is not paying tax would hardly be categorized as ‘definite information’ leading to disclosure of evaded tax. There is a clear difference between failure to pay tax and to evade a tax. The evasion is established when a source of income of an assessee, had it been disclosed to the tax authorities, would have lead to assessing his income more than what has been assessed in absence of such information. So disclosure of an assessee’s source of income, which he has concealed from the tax department through deceit or manipulation, is the key in successfully claiming the reward as only in such a situation it could be said to be a case of tax evasion. In the case of the Regional Commissioner, Income Tax Companies II Vs. S. Sultan Ali Jeoffrey (1993 SCMR 266) this Court while exploring the meaning of ‘tax evasion’ held as under:- “Evasion with reference to taxation laws means to illegally manipulate things in such a manner that the tax payable under law cannot be assessed. By an act of evasion the assessee can reduce his tax liability or completely eliminate it. Evasion of tax or duty is always in breach of the applicable and binding law. In taxation law evasion will mean adoption of such deceitful mechanism and manipulation not permitted by law which may result in reduction or elimination of legal tax liability. ………….But the moment avoidance is sought by illegal contrivance; deceitful methods and adopting a course not permissible in law it turns into evasion.” 6. In the present case merely an article was published in the weekly magazine pointing out that Pakistani seafarers employed on foreign flagships are not paying income tax on their salaries. Though this was initially considered by Income Tax CIVIL APPEAL NO. 1950 OF 2007 6 Officer to be sufficient to claim reward but later this decision was reversed by the Commissioner of Income Tax albeit on an entirely different ground. The ex-parte assessment orders were set aside on the ground that the resident status of a person is the prime factor in the determination of his tax liability and the same was not ascertainable with regard to Pakistani seafarers discharging duties on high seas beyond the territorial limits of the country. On account of such reasoning, the Commissioner of Income Tax came to the conclusion that the salaries received by Pakistani seafarers outside Pakistan on foreign flagships could not be regarded as income earned on Pakistani soil and hence is not taxable in Pakistan. Resultantly, demand raised in 225 cases was withdrawn and the remaining cases were written off in accordance with the procedure laid down in the write-off of Irrecoverable Arrear Demand. The department did not examine that the key feature is detection of evasion of tax and not failure to pay tax without the element of tax evasion. 7. From what has been discussed above, it has become quite clear that where a category of persons liable to pay tax have failed to do so, merely pointing towards them would not ipso facto become definite information leading towards detection of tax evasion. The department already knew or was supposed to know who are liable to file their tax returns. Department’s lethargy or inefficiency or whatever the reason it may be in not collecting tax from tax defaulters would not bring any benefit to an informant who points out that tax is not being collected from a person or a section of a society in absence of any element of tax evasion. So merely drawing the attention of the tax department towards a CIVIL APPEAL NO. 1950 OF 2007 7 particular person or a category of persons which has failed to pay tax on their incomes would not constitute ‘definite information’ falling within the ambit of ‘tax evasion’ as it is the evasion of tax that is key in granting of an award not failure to pay tax. The whole philosophy of awarding a reward is that if on the basis of some specific information the income of an assessee which he has concealed through manipulation or by adoption of some deceitful mechanism comes to light through an informant, whereby tax liability of an assessee increases beyond his declared income or his declared loss stands reduced, only then such information would amount to detection of tax evasion qualifying the informant to claim reward not otherwise. Such a situation does not emerge at all in the present case, what to speak of which reward order i.e. Reward Order of 1974 or of 1980 was applicable at the time when the respondent raised his claim for reward with the tax department. 8. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. JUDGE JUDGE JUDGE Islamabad, the 7th of May, 2018 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE JAMAL KHAN MANDOKHAIL CIVIL APPEAL NO.196-P OF 2014 (Against the judgment of the Peshawar High Court, Peshawar dated 22.09.2010 passed in Writ Petition No.2064/2010) Allied Bank Limited …Appellant VERSUS Federation of Pakistan thr. Collectorate of Customs, Peshawar & others …Respondent(s) For the Appellant: Mr. Muhammad Ajmal Khan, AOR/ASC (via video link from Peshawar) Respondents 1-4: Mr. Abdul Rauf Rohaila, ASC (via video link from Peshawar) Respondent No.5: Nemo On Court Notice: Raja Muhammad Shafqat Abbasi, DAG Date of Hearing: 30.05.2023 JUDGMENT IJAZ UL AHSAN, J-. Through the instant Appeal by leave of this Court, the Appellant has challenged the judgment of the Peshawar High Court, Peshawar dated 22.09.2010 (hereinafter the “Impugned Judgment”) whereby the constitutional petition of the Respondent was dismissed. CIVIL APPEAL NOS.196-P OF 2014 -:2:- 2. Leave to appeal was granted by this Court vide this Court’s order dated 20.10.2014 which is reproduced below for ease of reference: “Respondent No.5 filed a writ petition challenging withdrawal of certain tax exemption on the import of raw material and the learned High Court seemingly passed an order directing the release of goods to the writ petitioner on furnishing a bank guarantee. Pursuant thereto, the petitioner/bank furnished bank guarantee in the following terms:- “Now the condition of this Bank Guarantee is that this Bank Guarantee can be enforced at any time after the release of the goods, at the expiry of the validity period of the stay order/temporary injunction in terms of clause 4(A) of Article 199, of the constitution of Islamic Republic of Pakistan or the decision of the Court whichever is earlier … This Guarantee is valid up to 14.04.1994 by which dated claim, if any in writing by registered post should be received by period, we shall stand absolved and released from all liabilities.” This writ petition was, however, dismissed vide judgement dated 15.05.1994. Thereafter, the department never approached the petitioner for encashment of the bank guarantee and by that time the period of guarantee had expired not only in terms of the first part of the order, but also even by virtue of second part of the same, reproduced above, and on 04.05.2009 a notice for the above purpose was served upon the petitioner when the ordinary period of limitation; for recovery of amount through enforcement of the guarantee as well as on the basis of reasonableness of time had expired and the petitioner under the law stood discharged from its liability to pay. Whether such guarantee had been validly held to be enforceable by the learned High Court when the action of the respondent demanding enforcement of the guarantee was challenged in the constitutional petition through the impugned judgement especially when the guarantee was not even a continuous guarantee for an unlimited period of time. Leave is granted to consider the above.” 3. The factual matrix and the arguments raised by the learned counsel for the Appellant have already been summed up and reproduced in the leave-granting order. The same therefore requires no repetition. We would however like CIVIL APPEAL NOS.196-P OF 2014 -:3:- to clarify that the Appellant’s petition before the High Court sought to prohibit the Customs Department/Respondents 1-4 from encashing five bank guarantees issued in favour of the said Respondents as surety for the liability of Respondent No.5. These guarantees were numbered 96/29, 93/65, 93/62, 93/05 and 93/06. Their respective expiry dates were 10.02.1995, 14.04.1995, 26.04.1995, 08.01.1995 and 08.01.1995. 4. The learned counsel for the Appellant has argued that the guarantees that are the subject matter of this lis were issued at the request of Respondent No.5 and that the first time any formal demand was made by Respondents 1-4 for their encashment was on 14.05.1998 which was three years after the guarantees in question had expired. Subsequently, and after a period of over ten years, Respondents 1-4 submitted another demand notice dated 04.05.2009 for encashment of the said guarantees which was well-beyond the period for encashing the same. The Appellant subsequently approached the High Court seeking a writ for prohibition which was dismissed vide the impugned judgement. The learned counsel prays that the instant Appeal be allowed and the petition of the Appellant before the High Court be accepted as prayed for. 5. The learned counsel for Respondents 1-4, on the other hand, has defended the impugned judgement. He contends that government dues that had been pending since 1993 were being sought to be recovered by way of the CIVIL APPEAL NOS.196-P OF 2014 -:4:- encashment of the guarantees in question. Further maintains that in light of Section 202 of the Customs Act, 1969 (the “Customs Act”), there was no fetter on Respondents 1-4 from encashing the guarantees in question at any point in time since the said Section does not stipulate a period of limitation for the recovery of government dues under the said Act. In support of his contentions, the learned counsel for Respondents 1-4 has relied on Bara Ghee Mills (Pvt.) Ltd. vs. Assistant Collector Customs (PLD 2017 SC 738), Universal Insurance Co. Ltd. vs. Collector Customs, Central Excise & Sales Tax, Peshawar (2005 PTD 2355), and Atif Mehmood Kiyani vs. Messrs Sukh Chayn Private Limited, Royal Plaza, Blue Area, Islamabad (2021 SCMR 1446). He has prayed that the instant Appeal be dismissed. 6. The learned Deputy Attorney General who has appeared pursuant to this Court’s notice has also supported the arguments raised by the learned counsel for Respondents 1-4. He has argued that the guarantees in question were standalone contracts between the Appellant and Respondents 1-4 and it was inconsequential how the litigation between Respondents 1-4 and Respondent No.5 concluded. Once Respondents 1-4 demanded encashment of the bank guarantees, the Appellant was duty-bound to encash the same under the terms of the said guarantees. 7. We have heard the learned counsel for the parties and gone through the record. The single point of law that needs to be determined by this Court is:- CIVIL APPEAL NOS.196-P OF 2014 -:5:- i. Could the High Court have, by disregarding the express terms of the guarantee, dismissed the petition of the Appellant seeking a writ of prohibition against Respondents 1-4? 8. In its very essence, a bank guarantee is an undertaking given by a bank to pay a beneficiary a sum on behalf of a principal debtor. 9. Guarantees are regulated in Pakistan under Chapter VIII of the Contract Act of 1872 (“Contract Act”). Guarantees are defined under Section 126 of the said Act. The same is reproduced for ease of reference:- “A “contract of guarantee” is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the “surety”; the person in respect of whose default the guarantee is given is called the “principal debtor”, and the person to whom the guarantee is given is called the “creditor”. A guarantee may be either oral or written.” 10. Since a guarantee is, for the purposes of the Contract Act, a contract under the law, the parties to the guarantee are deemed to be regulated by the terms of the guarantee which they have mutually agreed upon keeping in view the legal principle of consensus ad idem (meeting of the minds) when it comes to construction of contracts. Once a guarantee is executed between the parties (i.e. between a guarantor/surety and a creditor), they would be bound by the terms and conditions of the guarantee irrespective of any independent obligation of the principal debtor towards the CIVIL APPEAL NOS.196-P OF 2014 -:6:- creditor. That rule is firmly entrenched in our as well as common law jurisprudence. 11. This Court has, in the case of EFU General Insurance Ltd. vs. Zhongxhing Telecom Pakistan (Private) Limited (2022 SCMR 1994) expressed its view on demand guarantees. The relevant portion of the said judgement is reproduced for ease of reference:- “6. … It is clear that the guarantee in question was in the nature of a demand guarantee. The law relating to performance bonds and demand guarantees, and the conceptual framework regarding the same, especially as to the enforcement (or otherwise) of such instruments, is now well settled in common law jurisdictions. In our country one of the leading decisions is of this Court, reported as Shipyard K. Damen International v Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191, 2003 CLD 1 (“Karachi Shipyard”). It is a leave refusing order of a learned three member Bench. Reference was made therein to a large number of authorities, including English and Indian cases, and many were considered in detail. The principles deducible were set out in para 7 (pp. 201-3), with which (subject to what is stated below) we are in agreement … 7. It will be seen that demand guarantees are regarded as being in nature similar to letters of credit, and the guarantee constitutes an autonomous contract between the issuer and the beneficiary. Now, one aspect of the law relating to letters of credit is the rule of strict compliance. The documents presented by the beneficiary to the issuing (or, if such be the case, confirming) bank must comply strictly with the terms thereof. If so, the bank is (subject to exceptions and conditions not presently relevant) bound to pay. If not, the bank is bound to refuse payment …” CIVIL APPEAL NOS.196-P OF 2014 -:7:- 12. In the UK, the England & Wales Court of Appeal in Edward Owens Engineering Ltd. vs. Barclays Bank International Ltd. ([1977] 3 W.L.R. 764) while dealing with the encashment of a performance bond (which are a sub-set of demand guarantees) noted that:- “A bank which gives a performance guarantee must honour that guarantee according to its terms. It is not concerned in the least with the relations between the supplier and the customer; nor with the question whether the supplier has performed his contracted obligation or not; nor with the question whether the supplier is in default or not. The bank must pay according to its guarantee, on demand, if so stipulated, without proof or conditions. The only exception is when there is a clear fraud of which the bank has notice.” (Underlining is ours) Similarly, in Sri Lanka, the Supreme Court in Commercial Bank of Ceylon PLC vs. Ace Containers (Pvt) Ltd. ([2015] 1 S.L.R. 223) relied heavily on Paget’s Law of Banking when describing a demand guarantee. The said para is reproduced for ease of reference:- “Paget's Law of Banking 12th edition Chapter 34.2 at page 730 describes the characteristics of Demand Guarantees as follows “The essential difference between a guarantee in the strict sense (i.e, a contract of suretyship) and a demand guarantee is that liability of a surety is secondary, whereas the liability of the issuer of a demand guarantee is primary. A surety's liability is co-extensive with that of the principal debtor and, if default by the principal debtor is disputed by the surety, it must be proved by the creditor Neither proposition applies to a demand guarantee. The principle which underlies demand CIVIL APPEAL NOS.196-P OF 2014 -:8:- guarantees is that each contract is autonomous. In particular, the obligations of the guarantor are not affected by disputes under the underlining contract between the beneficiary and the principal. If the beneficiary makes an honest demand, it matters not whether as between himself and the principal he is entitled to payment. The guarantor must honour the demand, the principal must reimburse the guarantor (or counter-guarantor) and any disputes between the principal and the beneficiary, including any claim by the principal that the drawing was a breach of the contract between them, must be resolved in separate proceedings to which the bank will not be a party.”” The conduct of parties to a bank guarantee has also been the subject of discussion by the Indian Supreme Court in U.P. State Sugar Corporation vs. Sumac International Ltd. ([1997] 1 SCC 568) wherein it was of the view that:- “The law relating to invocation of such bank guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The courts should, therefore, be slow in granting an injunction to restrain the realization of such a bank guarantee.” (Underlining is ours) Reference may also be helpfully made to the judgement of the High Court of England & Wales in Simon Carves Ltd. vs. Ensus UK Limited ([2011] EWHC 657 (TCC)). Reflecting the CIVIL APPEAL NOS.196-P OF 2014 -:9:- everchanging need to keep up with contemporary commercial practices, Mr. Justice Akenhead opined that:- “12. I am very reluctant on the basis of an argument that has run for no more than about 45 or 50 minutes from both parties to make any final findings of law about this. … It is certainly the case, and the law and practice establishes this over many years, that a bank or surety which has provided an on demand bond, sometimes called an unconditional bond, cannot be enjoined against paying against a valid demand unless there is the clearest at least prima facie evidence of fraud, either fraud at the bank or fraud by the giver of the demand. ...” (Underlining is ours) 13. It would therefore appear that once a bank issues a guarantee, it is duty-bound to pay the beneficiary of a guarantee in terms of the guarantee itself. 14. Ex facie, the guarantees issued by the Appellant in favour of Respondents 1-4, although issued on behalf of Respondent No.5, were independent standalone obligations between the Appellant and Respondents 1-4 which were liable to be paid on demand by the Appellant without reference to Respondent No.5. But the said obligation was limited by time and amount with time being the expiry date mentioned in the guarantee document itself. It was for this reason that we insisted that the learned counsel for Respondents 1-4 satisfy this Court that a valid demand had been made for the encashment of the guarantees within the period stipulated in the terms of the guarantees itself. The learned counsel has taken us to the relevant demand notices addressed to the Appellant but we note that all such demand notices were CIVIL APPEAL NOS.196-P OF 2014 -:10:- issued after the expiry of the encashment period stipulated in the relevant guarantees. 15. When confronted with the said situation, the learned counsel has tried to raise an argument to the effect that in terms of Section 202 of the Customs Act, no limitation ran for the recovery of government dues and therefore the guarantees in question could be encashed by Respondents 1- 4 at any time the said Respondents chose to demand payment since the guarantees could not operate as estoppel against the express provisions of the Customs Act and the said guarantees had been issued as a surety against the liability of Respondent No.5. We note that this is the line of reasoning that has found favour with and subsequently been adopted by the High Court in the impugned judgement. We must, however, respectfully disagree with the submissions of the learned counsel for Respondents 1-4 as well as the view taken by the High Court. The obligation of the Appellant to pay was anchored in the contract of guarantee and not in the Customs Act. Therefore, the obligation of the Appellant to pay under the guarantee does not make the “guaranteed amount” “government dues” in the sense used in Section 202 of the Customs Act. Further, for avoidance of any doubt, the right of Respondents 1-4 to recover any government dues from Respondent No.5 had already been expressly protected in the terms of the guarantees itself. For ease of reference, the relevant portion of the guarantee is reproduced:- CIVIL APPEAL NOS.196-P OF 2014 -:11:- “… This would, however be without prejudice to the Power of the Collector of customs to recover the amount … involved in the release of the captioned consignment shall be recoverable under Section 202 of the Customs Act 1969 specially by way attachment and sale of any moveable or immoveable property of the defaulter and appointment of receiver from the Management of the moveable or immoveable property of the defaulter as in envisaged in clause a & b of Sub Section (3) of Section 202 ibid.” Respondents 1-4 could not have sought to recover Respondent No.5’s liability in the manner that is now before us. By seeking to encash the said guarantees, Respondents 1- 4 had, in essence, treated the Appellant as if it was an extension of Respondent No.5 which is, with all due respect, incorrect. The Appellant is a separate entity in the eyes of the law and cannot be saddled with the liability of making good any government dues that were to be recovered from Respondent No.5 (and Respondent No.5 alone) once the guarantees in question expired. We therefore have no hesitation in arriving at the conclusion that while Respondents 1-4 had the benefit of no period of limitation running against the recovery of government dues, such benefit was only available against Respondent No.5 and the High Court could not have held that by virtue of Section 202 of the Customs Act, the Appellant had also become subject to the said provisions because the Appellant is not subject to the Custom Act and the guarantee had been issued as a standalone contract for a limited period and for a limited purpose namely payment to the Government certain amounts CIVIL APPEAL NOS.196-P OF 2014 -:12:- on its first call, unconditionally, provided the demand/call was made within the time specified and mutually agreed in the contract itself. Therefore, the guarantees issued by the Appellant could not have been encashed by Respondents 1-4 at any point in time regardless of their expiration dates. It may be emphasized that a contract of guarantee is a standalone and independent contract between the guarantor (in this case, the Appellant) and the beneficiary (in this case, Respondents 1-4/Federation) for a limited period (unless the guarantee contract specifically states that it is a continuing guarantee or language to that effect and no date or event of expiry thereof is specified) and for a limited purpose (that is, to pay the amount mentioned therein on a call being made within the time specified) without reference to any third party or the underlying transaction that constituted the basis for issuance of the guarantee. The parties to the guarantee contract are bound by the terms and conditions of the guarantee including its date of expiry. Unless a valid call is received by the Guarantor within the time specified in the guarantee, the Guarantor is released of any and all obligations under the contract and the contract itself expires. The Guarantor, by reason of issuing the guarantee, does not become subject to Section 202 of the Customs Act in the sense understood by the High Court by reason of guaranteeing payment of certain sums. The Guarantor does not become liable to pay “government dues” referenced to in Section 202 of the Customs Act because such liability continues to be attached to the person who owes such dues to the Customs CIVIL APPEAL NOS.196-P OF 2014 -:13:- Department. The Department can, therefore, rely on Section 202 to recover the said dues from the person/company (in this case, Respondent No.5). 16. We have also examined the judgements sought to be relied upon by the learned counsel for Respondents 1-4. Two of the said judgements are leave-refusing orders of this Court and the third judgement was passed by a division bench of the Peshawar High Court. The said orders do not address the specific question before us and proceed on a different set of facts and circumstances and do not lay down the law on the subject. Even otherwise, none of the relied- upon judgements deal with the issue of encashment of guarantees past their expiration date. The same are therefore distinguishable and are of no help to the case of Respondents 1-4. 17. To answer the issue framed by this Court, the High Court could not have disregarded the express terms of the guarantees and allowed encashment of the same by dismissing the Appellant’s petition on the ground that no limitation ran against the recovery of government dues by the Customs Department/Respondents 1-4 in terms of Section 202 of the Customs Act. 18. For the aforenoted reasons, we find that the impugned judgement suffers from misapplication of the applicable law on the subject and is therefore unsustainable. Consequently, the impugned judgement is set aside and the CIVIL APPEAL NOS.196-P OF 2014 -:14:- petition of Appellant filed before the High Court is allowed as prayed for. This appeal allowed. There shall be no order as to costs. 19. These are the detailed reasons for our short order of even date. For ease of reference, the said short order is reproduced:- “For detailed reasons to be recorded later, this appeal is allowed.” Judge Judge Judge ISLAMABAD, THE 30th of May, 2023 Khalil Sahibzada, LC*/- NOT APPROVED FOR REPORTING*/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 1989 OF 2019 (On appeal against the judgment dated 11.10.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 407(L)CS/2016) Secretary (M-V) Federal Board of Revenue, Islamabad …Appellant(s) VERSUS Zeenat Bangash and others …Respondent(s) For the Appellant(s): Mr. M.D. Shahzad Feroz, ASC For the Respondent (1): In person Date of Hearing: 29.04.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by leave of the Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, the appellant has assailed the judgment dated 11.10.2018 passed by the Federal Service Tribunal, Islamabad, whereby the Service Appeal filed by the respondent No. 1 was accepted and he was held entitled to deputation allowance. 2. Briefly stated the facts of the matter are that the respondent No. 1 being officer of Postal Group remained working in Federal Board of Revenue on deputation from the year 1994 to 2001 but he was not given deputation allowance. After his repatriation to his parent department, he on 27.11.2012 approached the Federal Board of Revenue for grant of deputation allowance on the basis of judgment of the Federal Service Tribunal, which was upheld by this Court and also on the basis of discrimination that the same was extended to other employees with similar circumstances. However, the request of the respondent was turned down by the department vide order dated 12.05.2015 on the ground that pursuant to Office Memorandum No. F3(8)R.2/2007 dated 01.07.2007 deputation allowance is only admissible to fresh cases and it is not meant for old cases, therefore, it Civil Appeal No. 1989/2019 -: 2 :- could not be given retrospective effect. The respondent then filed appeal before the Appellate Authority i.e. Secretary Finance Division, which was referred to the Establishment Division vide letter dated 01.02.2016 but it was never decided. The respondent, thereafter, filed appeal before the Federal Service Tribunal, which has been allowed vide impugned judgment. Hence, this appeal with leave of the Court. 3. Learned counsel for the appellant inter alia contended that the respondent was repatriated to his parent department in the year 2001 and he filed departmental appeal on 08.06.2015 which was clearly barred by limitation; that the office memorandum of 2007 clearly states that deputation allowance is admissible to only fresh cases and it has no retrospective effect. 4. On the other hand, the respondent No. 1, who appeared in person defended the impugned judgment by stating that several of his colleagues were granted deputation allowance whereas he was ignored, which act is grossly arbitrary, illegal, unlawful and against the principle of natural justice. 5. We have heard learned counsel for the appellant and respondent in person and have gone through the available record. 6. We have noted that vide Office Memorandum dated 02.04.1999 the deputation allowance was made admissible only to the cases of foreign service of Pakistan and the cases of other deputationists of ministries, divisions etc were excluded. However, pursuant to a judgment of the Federal Service Tribunal passed in Appeal Nos. 39 & 40(R)CS/2003, which was upheld by this Court vide order dated 21.09.2005 passed in Civil Petition Nos. 519 & 524/2004, all officers/officials of ministries, divisions etc, who have been transferred and posted on deputation basis were held entitled to deputation allowance vide Office Memorandum No. F.5(8)R-2/2007 dated 04.07.2007. Therefore, the only question which remains to be clarified is whether the said office memorandum has retrospective effect or is it only meant for “fresh cases”. The learned Service Tribunal took into consideration the Office Memorandum dated 02.04.1999 which was further elaborated by Office Memorandum dated 04.07.2007 and while observing that according to paragraph ‘ii’ of the Office Memorandum dated 04.07.2007, the old cases of transfers/postings on deputation basis were granted deputation allowance held that “there is no denying the fact that on the basis of O.M. of the Finance Division dated 4th of Civil Appeal No. 1989/2019 -: 3 :- July, 2007, deputation allowance was allowed and disbursed to all the civil servants either old or fresh and no distinction was made between those, inducted in OMG or otherwise. It could not be acceptable even otherwise on the touchstone of rule of consistency i.e. that one set of civil servants posted on deputation or under Section 10 is allowed deputation allowance retrospectively and others are deprived of that”, which otherwise would be in defiance of Article 25 of the Constitution of Islamic Republic of Pakistan. When we confronted learned counsel for the appellant with this aspect of the matter, he could not give any plausible answer. So far as the question raised by learned counsel for the appellant that the claim of the respondent was barred by laches as he was repatriated to his parent department in the year 2001 and he filed departmental appeal on 08.06.2015 is concerned, suffice it is to state that being a financial matter, limitation will not have any adverse implication on respondent’s claim. 7. For what has been discussed above, we are of the candid view that the learned Service Tribunal has passed a well reasoned judgment to which no exception can be taken. This appeal having no merit is accordingly dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 29th of April, 2021 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal No.1 of 2020 (Against the judgment dated 31.12.2019 passed by the Election Tribunal Balochistan, Quetta in Election Petition No. No.36/2018) Sardar Abdul Rehman …Appellant(s) Versus Abdul Kareem Kehtran & others …Respondent(s) For the Appellant(s): Mr. Kamran Murtaza, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s): Syed Iftikhar Hussain Gillani, Sr.ASC Date of hearing: 06.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- After a nail biting contest, held on 25th of July, 2018 in PB-08 Barkhan, Balochistan, the appellant returned by a narrow margin of 65 votes; dissatisfied with the outcome, Abdul Karim Kethran, one of the contestants, respondent herein, approached the Returning Officer for recount of invalid ballot papers, allegedly liable to be excluded from consideration, however, credited to the appellant, materially altering the result of the election to his detriment; in his initial quest for a recount, he remained unsuccessful throughout whereafter he questioned the validity of election before the learned Election Tribunal Balochistan, Quetta, through an election petition filed by his attorney Sanaullah, decided in his favour vide impugned judgment dated 31.12.2019, in the following terms:- “……..the Election Petition filed by the petitioner Abdul Kareem Khetran is accepted. The Civil Appeal No.1 of 2020 2 Notification No.F.2(42)/2018-Cord.- dated 7th August 2018, issued by the Election Commission of Pakistan (respondent No.16), whereby the respondent No.1 (Sardar Abdul Rehman Khetran) was declared as returned candidate from PB-8-Barkhan, is set aside to his extent. The Election Commission of Pakistan is directed to de-notify the returned candidate namely Sardar Abdul Rehman Khetran (respondent No.1). The seat of returned candidate having become vacant shall be filled through re-polling in the entire constituency.” The respondent challenged the election on a variety of grounds ranging from massive rigging at various polling stations to inclusion of invalid votes in appellant’s count with a particular emphasis on 312 postal ballots. The appellant contested the petition alleging accusations as non-specific and vague as well as hit by non-compliance of various mandatory provisions of the Elections Act, 2017 “the Act”. On divergent positions, both sides led evidence before the Tribunal, on the basis whereof, the learned Tribunal, on 11.07.2019, through an interlocutory order directed the Returning Officer to arrange verification of 3052 votes from National Database & Registration Authority, however, upon a report submitted by the Returning Officer that since the seals on the bags containing the impugned ballot papers had already been breached, the desired verification could not be carried out with any degree of certainty/authenticity, a circumstance that appears to have weighed with the learned Tribunal to direct re-poll in the entire constituency. 2. Syed Iftikhar Hussain Gillani, learned Sr.ASC, after elaborating his entire case, nonetheless, has finally confined himself to the verification of the postal ballots for the determination of their validity, a request contrarily contested by the learned counsel for the appellant, primarily on the ground that the suggested exercise cannot be allowed to be undertaken without contravening the mandatory statutory provisions that render the election petition hopelessly non- maintainable for reasons more than one; according to him, the respondent had banked upon his attorney throughout and came forward with stereotype allegations, vague as well as non-specific, and also failed to discharge the onus so as to demonstrate that the alleged rigging and non-compliance with the Rules was done on his behalf and that it materially effected the outcome of the poll, otherwise tilting in his favour. The learned counsel has referred to the flawed verification of the election petition as well as annexures thereof to argue that the omission unredeemingly closed the chapter. Civil Appeal No.1 of 2020 3 3. Heard. Record perused. 4. Adverting to the fundamental issue of maintainability of the election petition, it would be pertinent to mention that the appellant had taken the plea of non-maintainability in his written statement, in consequence whereof, an additional issue in the following term was framed by the Tribunal: “Whether the petition filed by the petitioner is maintainable in view of legal objections ‘B’ ‘C’, ‘E’ & ‘F’ raised in the election petition?” The learned Tribunal, however, considering the case law cited at the bar as factually distinguishable, ignored the objections with regard to the patent flaws in verification of the petition as well as annexures and mode of presentation thereof, holding the challenge as intra vires. We curiously examined the question of verification to explore any sign of life in the lis and for the purpose went through various provisions of the Act that heavily borrows mechanism for the trial of an election petition provided under the Code of Civil Procedure, 1908 (Act V of 1998) “the Code” for disposal of a civil suit. Section 148 of the Act specifically provides as under: “Procedure before Election Tribunal for trial of petitions.- (1) Subject to this Act and Rules, the trial of an election petition, shall be as nearly as possible, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits and the Qanun- e-Shahdat Order, 1984 (President’s Order. No.X of 1984).” We have noticed that the respondent assigned the responsibility for institution as well as prosecution of the election petition to his confidant Sanaullah, designated as attorney; he is the person who appears to have not only presented the election petition but also verified contents as well as annexures thereof as required under section 144 (4) of the Act. While Order VI Rules 14 and 15 of the Code generously permit the parties to sign pleadings or verification either personally or through their designated attorneys, section 144 (4) ibid mandatorily restricts the petitioner to personally undertake the exercise, violation whereof, would inevitably result into summary rejection of the petition as is evident from the plain language of subsection 1 of section 148 of the Act ibid. It was incumbent upon the petitioner to follow the procedure expressly provided by the Act itself; admittedly not followed by him. The same anomaly is recurring in all the annexures without exception. It was at the fag-end of the Civil Appeal No.1 of 2020 4 proceedings that the respondent personally appeared to face cross- examination on detailed affidavit (Ex.P/11), again signed and submitted by the said attorney; his entry in the witness box was objected to, however, the decision thereof was deferred on the final adjudication, an omission conspicuous on the record. Statement of Abdul Kareem Khan, respondent, is the mainstay of his challenge to the election result; though in the opening part of the detailed affidavit, there is a solemn affirmation on oath, purportedly by the respondent in support of the contents thereof, nonetheless, at the bottom of the affidavit, it appears to have been sworn by Sanaullah attorney before the Oath Commissioner. As mentioned above, the provisions of Qanun-e- Shahdat Order, 1984 are also applicable before the Election Tribunal; Article 133 whereof provides order of examinations, reproduced for ready reference: “Order of examinations.- (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. (2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross- examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.” Record does not suggest appearance of Sanaullah attorney before the Tribunal, however, it is manifestly clear that for detailed affidavit EX.P/11, the oath was never administered upon the respondent as is evident from the description of deponent thereof being no other than Sanaullah. Examination-in-chief, cross-examination and re-examination are in inseparable parts of a witness’s deposition and it was not open for the respondent, though owned by him, nonetheless, to adopt contents of an affidavit sworn by a different deponent; the anomaly cannot be countenanced without destroying the entire scheme of law regarding examination of a witness. It may be added that verifications san compliance with the procedure provided in the High Court Rules & Orders, Volume IV, Chapter XII wherein form of oath and affirmation thereof, to be administered to the witnesses, are aptly illustrated, non compliance whereof has been held as fatal to an election petition, as is Civil Appeal No.1 of 2020 5 evident by the law declared by this Court in the cases reported as “Sardar Muhammad Naseem Khan Vs. Returning Officer PP-12 & others (2015 SCMR 1698), Hina Manzoor Vs. Malik Ibrar Ahmed & others (PLD 2015 Supreme Court 396) Zia-ur-Rehman Vs. Syed Ahmad Hussain & others (2014 SCMR 1015) Engr. Iqbal Zafar Jhagra & others Vs. Khalil- ur-Rehman & 4 others (2000 SCMR 250) and Lt. Col. (Retired) Ghazanfar Abbas Shah Vs. Mehr Khalid Mehmood Sargana & others (2015 PSC 1214). 5. In view of the above insurmountable juridical hurdles, we do not find ourselves disposed to grant an otherwise innocuous request to examine the validity of 312 postal ballots, against the backdrop of a narrow margin of victory, notwithstanding. Examination of other issues, resting upon allegations, otherwise too broad to be specifically qualified through tangible evidence, fades into insignificance on account of our findings on the question of maintainability of the election petition. Appeal is allowed; the impugned judgment is set aside, leaving the parties to bear their own costs. Judge Judge Judge Islamabad, the 6th October, 2020 Not approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN Civil Appeal No.20 1 of 2020 Against judgment dated 18.09.2019 of Punjab Service Tribunal at Bahawalpur, passed in Appeal No.2362 of 2018. Province of Punjab through its Special Secretary, Specialized Healthcare & Medical Education Department, Lahore, etc VERSUS Khadim Hussain Abbasi Appellants Respondent For the Appellant(s) Syed Wajid Ali Gillani, Addl.AG, Pb. For the Respondent(s) Mr. M. A. Rekmn Qureshi, ASC Date of Hearing: 13.04.2021 JUDGMENT IJAZ UL AHSAN, J-. This appeal by leave of the Court arises out of a judgment of the Punjab Service Tribunal at Bahawalpur ("the Tribunal") dated 18.09.2019. Through the impugned judgment, a Service Appeal bearing No.2362 of 2018 filed by the Respondent was partly allowed to the extent that major penalty of compulsory retirement from service was converted into minor penalty of forfeiture of past service for a period of two years. 2. Briefly stated the facts necessary for disposal of this Us are that the Respondent was serving as Chief Technician, District Blood Unit, Sheikh Zayed Hospital, Rahim Yar Khan. He was proceeded against departmentally - Civil Appeal jVo.203 of 2020 2 under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("PEEDA Act, 2006") on the allegations of misconduct, illegal sale of blood, absence from duty without leave and malpractices. An inquiry was conducted in which the Respondent was found guilty of the charges. Consequently, vide order dated 09.03.2017 major penalty of compulsory retirement from service was imposed upon him. He filed a departmental appeal which was rejected. Therefore, he approached the Tribunal. During the course of the hearing before the Tribunal the only argument made by learned counsel for the Respondent was to the effect that major penalty awarded to the Respondent may be converted into a minor penalty. He also produced a copy of the judgment dated 17.01.2019 passed by Magistrate, Section 30 Rahim Yar Khan who had acquitted the Respondent in the criminal case registered against him. The Tribunal came to the conclusion that the Respondent had been dealt with harshly and the penalty imposed on him was not commensurate with the gravity of the offence. It therefore vide impugned judgment dated 18.09.2019 proceeded to allow the Service Appeal in the manner noted above. 3. The Appellants were aggrieved of the said impugned judgment and approached this Court by way of a Civil Petition in which Leave to Appeal was granted on 03-03- 2020 in the following terms: "We have heard the learned Additional Advocate General, Punjab and have also gone through the case record. Serious allegations of misconduct, involvement in illegal sale of blood, absent from duty and involvement in malpractice Civil A ppeal No.201 o12020 3 were leveled against the Respondent by way of a charge sheet dated 22.12.2016. A regular inquiry was conducted into the matter, the Respondent was found guilty of the aforesaid allegations and ultimately after following the codal formalities, he was recommended to be dismissed from service by the inquiry officer. However, the competent authority after considering all aspects of the matter imposed a major penalty of compulsory retirement from service upon the Respondent, vide order dated 09.03.2017. The departmental appeal filed by him against the said order was rejected, vide order dated 22.05.2018. He then filed a service appeal before the Punjab service Tribunal, Lahore. Although, the Service Tribunal has found that allegations against the Respondent stood established on record, but for no reason given in impugned judgment dated 18.09.2019 interfered with the penalty of compulsory retirement imposed upon the Respondent by the department and converted the same into forfeiture ofpast service for a period of two years. 2. The learned Law officer has pointed out that by the time the impugned judgment was passed, the respondent had already received all benefits of his compulsory retirement and thus this very appeal before the Service Tribunal on such basis had become irifructuous. 3. The contentions raised by the learned Additional Advocate General, Punjab need consideration. Leave to appeal is therefore granted to consider inter alia the same." 4. The learned Additional Advocate General, Punjab appearing for the Appellants submits that the judgment of the Tribunal is not in consonance with the law declared by this Court in various judgments including Inspector General (Prisons) NWFP, Peshawar & others v. Syed Jaffer Shah, ex- Assistant Superintendent Jail & others (2009 PLC (CS) 47) and a flurry of recent judgment rendered by this Court. He maintains that the impugned judgment is devoid of any reason and relies on philanthropic ideas rather than any sound, legal or judicial principles. He submits that charges of 0 CiuilA ppeajf'Jo.201 of 2020 4 misconduct, illegal sale of blood from the Blood Bank, tampering with the record, etc stood fully established in addition to unauthorized absence from duty for more than 75 days. Therefore, there was neither reason nor justification for the Tribunal to interfere with the punishment imposed by the departmental authorities after following due process of law. He further maintains that neither any reason nor justification was given by the Tribunal for finding the punishment disproportionate to the gravity of offence. It has further been pointed out that it is settled law that acquittal in criminal proceedings has no impact on the departmental proceeding as the two can simultaneously proceed and the result of one has no bearing on the outcome of the other unless the departmental proceedings have not been independently conducted and solely and exclusively rely on the criminal proceedings, which is not the case here. In this regard, the learned Law Officer has relied upon Nazir Ahmed v. Capital City Police Officer (2011 SCMR 484), Muhammad Igbal v. District Police Officer (2011 SCMR 534), Shahid Wazir v. Secretary, Kashmir Affairs and Northern Areas and States of Frontier Regions Division (2006 SCMR 1653) and Shahid Masood Malik v. Habib Bank Limited (2008 SCMR 1151). He finally submits that the Respondent had already received his pensionary benefits, gratuity and GP Fund etc without protest and had thereby accepted the penalty imposed by the Department. In such circumstances, the Service Appeal filed by the Respondent had in any event become infructuous and the Tribunal committed serious error in ignoring and Ciuil Appeal No.201 of 2020 5 overlooking this fact and proceeding to reduce his penalty without recording any reasons for the same. 5. Learned ASC for the Respondent on the other hand has attempted to defend the impugned judgment. He submits that the Respondent has long service record with the Appellants and the punishment awarded to him was disproportionate to the gravity of the offence. However, when confronted with the fact that the Respondent had been found guilty of illegal sale of blood from the Blood Bank, tempering with the record and unauthorized absence from duty, he has not been able to offer any cogent or reasonable defence. 6. We have heard the learned Additional Advocate General Punjab, learned ASC for the Respondent and have gone through the record with their assistance. 7. The record indicates that the Respondent was proceeded against under PEEDA Act, 2006 on the allegations of misconduct, illegal sale of blood, tempering with the record of the Blood Bank and unauthorized absence from duty for at least 75 days. An inquiry was conducted against him in which he was found guilty of all charges. Surprisingly enough, the only defence taken before the Tribunal was that the punishment may be reduced from major penalty to a minor penalty. No effort whatsoever was made to deny or contest the charges against the Respondent. This constituted admission of charges which were admittedly of a very serious nature. The Tribunal has for reasons best known to it chosen to ignore such a vital and material aspect of the case. Although a Civil Appeal No.201 of 2020 6 the judgment of Magistrate, Section 30 Rahirn Yar Khan was produced before the Tribunal, whereby the Respondent had been acquitted of the criminal charges, nothing turns on the same in view of the independent inquiry conducted by the Department and clear and categorical findings of the departmental authorities holding the Respondent guilty of the charges leveled against him. This Court has repeatedly held that departmental proceedings and criminal prosecution are not mutually exclusive, can be proceeded independently and acquittal in criminal proceedings does not affect the outcome of the departmental proceedings. It may be noted that departmental proceedings are undertaken under a different set of laws, are subject to different procedural requirements are based upon different evidentiary principles and a different threshold of proof is to be met. Criminal proceedings on the other hand are undertaken under a different set of laws, have different standards of proof are subject to different procedural requirements and different thresholds of proof are required to be met. Therefore, acquittal in criminal proceedings cannot and does not automatically knock off the outcome of the departmental proceedings if all legal and procedural formalities and due process have been followed independently. In this context, reference may usefully be made to the cases of Nazir Ahmed; Muhammad Iqbal; Shahid Wazii-; and Shahid Masood Malik (ibid). 8. Further, without reference to the specific charges against the Respondent which stood established against him, Civil Appeal No.201 of 2020 7 the Tribunal completely ignored the fact that he had in effect admitted the charges and accepted his guilt before it. However, the learned Tribunal nevertheless thought it fit to launch upon a discussion of philosophy of punishment in a vague, ambiguous and abstract manner which has no place in judicial verdicts. Further, the Tribunal without discussing the facts and circumstances of the case proceeded to observe that, "the guilt and the quantum of severe punishment in the absence of tangible material is against the principle of natural justice to award severe punishment, fair and transparent method should be adopted, the punishment imposed under these circumstances is too harsh". 9. We are at a loss to understand how and on what basis the Tribunal came to the conclusion that there was absence of "tangible material" in the case of the Respondent against whom all charges stood established in a properly constituted inquiry and who had for all intents and purposes admitted his guilt even before the Tribunal. Further, the Tribunal did not bother to elaborate how the process was "unfair" or "lacked transparency". No reasons whatsoever were recorded let alone cogent for conclusion of the Tribunal that the punishment was harsh, considering the seriousness of the charges against the Respondent. Paragraphs 8 and 9 of the impugned judgment have no nexus or connection with the facts of the case as very briefly narrated in the earlier part of the impugned judgment. There is total lack of discussion of facts of the case, procedure followed and the finding of guilt Civil A ppeal No.201 012020 8 recorded by the departmental authorities and how there was absence of tangible material or any procedural impropriety. We are constrained to hold that in passing the impugned judgment, the Tribunal has completely ignored and disregarded the basic and foundational principles of law laid down by this Court in various judgments spelling out the parameters for exercise of jurisdiction under Section 5 of the Service Tribunals Act, 1973. In this regard, reference may also be made to the case of Inspector General (Prisons) NWFP, Peshawar & others (ibid) where the practice of undue and unwarranted interference in the penalties awarded by the departmental authorities has been deprecated. In a recent judgment of this Court reported as Government of Pakistan v. Nawaz Ali Sheikh (2020 SCMR 656) it was held as under: "13. No doubt, under Section 5 of the Service Tribunals Act, the Service Tribunal enjoys powers to modify any Appellate order but such power is to be exercised carefully judiciously and with great circumspection by assigning cogent, valid and legally sustainable reasons justifying such modification. We fail to understand how and from where the Service Tribunal derived the authority and jurisdiction to arbitrarily and whimsically grant the relief that it has ended up granting to the Respondent. 14. All Courts and Tribunals are required to act strictly in accordance with law and all orders and judgments passed by them must be entrenched and grounded on the Constitution, the law and the rules. No Court, Authority or Tribunal had any jurisdiction to grant any relief in favour of any person which is not based upon the foundation of the Constitution, the law and the rules. We notice that the Service Tribunal has not assigned any reason whatsoever in accepting the appeal of the Respondent in the manner noted above, which it was required to do to justify the reduction in penalty. In this regard, reference may usefully be made to the case of "Chairman Dr. A. 0. Khan, Research Laboratories Civil A ppeal No.201 of 2020 and another. v. Malik Muhammad Hamid Ullah Khan" (2010 SCRIP 302) as well as a judgment of this Court passed in Civil Appeal No.1343 of 2017 in the case of Secretary, Revenue, Division, Federal Board of Revenue, Islamabad and another. v. Asf Y ousaf and another." The aforesaid principles were reiterated by this Court in the case of Chief Postmaster Faisalabad v. Muhammad Afzal (2020 SCMR 1029) where it was held as under: "There is no cavil with the proposition that under Section 5 of the Service Tribunals Act, the Tribunal enjoys powers to modify any order passed by the departmental authorities but such power is required to be exercised carefully, judiciously and after recording reasons for the same. In the present case, the penalty in question had been imposed by the departmental authority on the basis of established charges and the major penalty of dismissal from service was imposed upon him in accordance with the law and the rules. In these circumstances, we are at a loss to understand how and from where the Tribunal derived the authority to exercise a power in favour of the Respondent in such an arbitrary unstructured and whimsical manner. We have found the exercise of jurisdiction by the Tribunal to be wholly without any lawful authority whatsoever, specially so where no reasons, let alone cogent have been assigned for exercise ofjurisdiction in this manner by the Tribunal. 8. All Courts/Tribunals seized of matters before them are required to pass orders strictly in accordance with the parameters of the Constitution, the law and the rules and regulations lawfully framed under the law. No Court has any jurisdiction to grant arbitrary relief without the support of any power granted by the Constitution or the law. This basic and fundamental principle of jurisprudence appears to have eluded the attention of the Tribunal which has clearly exceeded its jurisdiction power and authority in granting relief to the Respondent. 10. Further, the principles of law settled by this Court in the cases reported as Government of the Punjab v. Civil A ppeal No.201 or2020 10 Muhammad Arshad (2020 SCMR 1962) and District Police Officer v. Muhammad Hanif (2020 SCMR 1610) are also to the same effect as laid down in the cases of Chief Postmaster, Faisalabad and Government of Pakistan (ibid). 11. We therefore find that the Tribunal has not only exceeded its jurisdiction but exercised the same in a mariner which is in complete violation of the settled principles of law on the subject. Further, in converting the major penalty of compulsory retirement from service into a minor penalty of forfeiture of past service for a period of two years, the Tribunal has failed to assign any cogent, legally sustainable and valid reasons to support its finding. As such, the impugned judgment can safely be termed as a non speaking judgment which does not meet the test of a judicial verdict. We have repeatedly held that although the Service Tribunal has the discretion to interfere in questions of quantum of punishment, such discretion can neither be arbitrarily and capriciously exercised nor are powers of the Tribunal unqualified or unlimited. Where the Tribunal exercises its discretion to interfere in the penalty awarded by the competent authorities, such discretion has to be exercised in a circumscribed, restricted, carefully calibrated and structured manner duly supported by legally sustainable reasoning, which is conspicuous by its absence in the instant case. We therefore find that the impugned judgment of the Tribunal is not sustainable in law or fact and is liable to be set aside. herein. Civil Appeal No.201 012020 11 4 12. For reasons recorded above, we allow this Appeal, set aside the impugned judgment of the Tribunal dated 18.09.20 19 and restore the penalty of compulsory retirement from service imposed upon the Respondent by the departmental authorities vide order dated 09.03.2017. 13. Let a copy of this judgment be transmitted to Chairman, Punjab Service Tribunal, Lahore for its circulation amongst all members of the Tribunal for their perusal and adherence to the principles of law enunciated and reiterated ISLAMABAD, THE 13th April, 2021 ZR! 7Approved For Ing'

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{'id': 'C.A.201_2020.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE SH. AZMAT SAEED. C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015. (On appeal against the judgment dt. 20.03.2015 passed by the Lahore High Court, Lahore in C. R. Nos. 1575, 1882 and 1883 of 1999). Province of the Punjab through Collector, Sheikhupura, etc. …Appellant(s) Versus Syed Ghazanfar Ali Shah, etc. …Respondent(s) AND C. A. NO. 205-L OF 2015, CMA NOS. 974, 62 AND 117 OF 2016 IN C. A. NO. 205-L OF 2015. Province of the Punjab through Collector, Sheikhupura, etc. …Appellant(s) Versus Iqbal Ahmad (decd) through his L.Rs. etc. …Respondent(s) AND C. A. NO. 206-L OF 2015, CMA NOS. 63 OF 2016 AND 1604-L OF 2015 IN C. A. NO. 206-L OF 2015. (On appeal against the judgment dated 20.03.2015 passed by the Lahore High Court, Lahore in C. R. Nos. 1575, 1882 and 1883 of 1999). Province of the Punjab through Collector, Sheikhupura, etc. …Appellant(s) Versus Fazal Dad Khan, etc. Iqbal Ahmad (decd) through his L.Rs. etc. …Respondent(s) For the appellant(s): Mrs. Aasma Hamid, Addl. A. G. Pb. Rana Shamshad Khan, Addl. A. G. Pb. Rao M. Yousaf Khan, AOR (Absent) (in all cases) In CA.204-L/2015. For respdt. 1: Mr. M. Muzammil Khan, Sr. ASC. For respdts. 2-3: Mr. Tahir Naeem, ASC. For respdts. 4-15: N.R. In CA.205-L/2015. For respdts. 1, 2(b)-2(d), 3-8: Syed Najmul Hassan Kazmi, Sr. ASC For respdt. 2(a) : Raja M. Ibrahim Satti, Sr. ASC. For L.Rs. of respdts. 10: Mr. M. Muzammil Khan, Sr. ASC. C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 2 For respdts. 2(e) to 2(j), 9, 11-25: N.R. In CA.206-L/2015. For respdt. 1 : Ch. M. Masood Akhtar Bhan, Sr. ASC. L.Rs. of respdt. 7: Mr. M. Muzammil Khan, Sr. ASC. For respdts. 2-6, 8-15: N.R. In CMAs. 61-63/2016: Ms. Aasma Hamid, Addl. A. G. Pb. (For bringing on record Rana Shamshad Ahmed, Addl. A. G. Pb. LRs of Syed Ghazanfar Ali Shah). In CMA. 117/16 : Syed Ashiq Raza, ASC. (Intervenor). In CMAs. 974 and 1604/L/16: Nemo. (Intervenor). Date of Hearing: 21.11.2016. (Judgment Reserved). -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- J U D G M E N T EJAZ AFZAL KHAN, J.- These appeals with the leave of the Court have arisen out of the judgment dated 20.03.2015 of the Lahore High Court whereby the learned Single Judge in its chambers dismissed the revisions petitions filed by the appellants and upheld the judgments and decrees of the learned Appellate Court. 2. Brief facts of the case are described in paragraph one of the impugned judgment which reads as under :- “Briefly the facts are that Syed Ghazanfar Ali Shah and legal heirs of Syed Raza Ali Shah respondents (hereinafter to be referred as plaintiffs) brought a suit for possession with the assertion that land measuring 117 acres fully mentioned in the body of the plaint was evacuee property, which was leased out to the petitioners/Forest Department (hereinafter to be referred as the defendants) for a term of twenty years vide Notification dated 27.07.1950. However, out of the said property a chunk of land measuring 13 acre 5 kanals and 12 marlas was released and restored to the original owners on 27.1.1959 whereas rest of the property measuring 103 acres 2 kanals and 8 marlas remained in occupation of the defendants. It is also averred in the plaint that whole of the disputed land being evacuee property was available for allotment to the displaced persons and after due verification of C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 3 claims of the plaintiffs the same was proposed to the them, which was subsequently confirmed to the plaintiffs by duly attestation of RL-II in pursuance of the issuance of No Objection Certificate by the Forest Department/defendants. It is also pleaded in the plaint that as the disputed property was proposed to the plaintiffs and later on it was confirmed, therefore, property in disputed became private property and no nexus was attached with the Rehabilitation/ Settlement authorities whereas the lease period of defendants was extended for another ten years, which expired on 26.07.1980, but despite of the best efforts made by them, the plaintiffs could not succeed to take physical possession in spite of that the defendants had no right to retain possession thereof, which constrained the plaintiffs to institute the suit for possession. The said suit was resisted by the defendants with the assertions that disputed property is owned by them and that no NOC was issued on behalf of the department.” 3. The points raised and noted at the time of grant of leave read as under:- “The suit for possession filed by the respondents vis-à- vis 117 acres of land has been decreed by the learned Trial Court only to the extent of 13 acres and 5 marlas, but it was dismissed to the extent of 103 acres and 2 marlas. The respondents challenged this judgment and decree in appeal(s) which has been accepted. The revision(s) filed by the petitioner has also failed. 2. Leave is granted in these cases, inter alia, to consider whether the directive issued by the Chief Settlement Commissioner dated 27.2.1965 was operative retrospectively and would not in any way entitle the respondents to have confirmation of the suit land in their favour as evacuee property; whether the courts below have rightly interpreted RL-II which per se was conditional on the issuance of NOC by the Forest Department when admittedly, till date there is nothing on the record to establish if such NOC has been issued by the Forest Department for the confirmation of the suit land in favour of the respondents; whether in the earlier round of litigation the points now agitated especially about the confirmation of land has been conclusively decided by this Court in favour of the respondents and against the petitioner, the Forest Department; whether the property till date does not vest in the petitioner (Forest Department) and the lease period in its favour has also expired, thus the petitioner is bound and required under the law to surrender the land to the respondents, who were the allottees of the land and in whose favour the confirmation has been made vide RL-II dated 30.11.1964; whether RL-II was duly and validly issued to the respondents and there is no element of fraud and misrepresentation in this C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 4 context; whether RL-II has been validly and properly construed and relied upon by the courts below.” 4. Before the learned AAG for the appellants could take the rostrum to open up her case, a preliminary objection was raised by the learned ASC for the respondents for dismissal of appeal on account of having been filed against the dead persons. The learned AAG repelled the contention of the learned ASC for the respondents by submitting that where the appeal was filed against more than one person, death of one or two of the respondents would not render it liable to dismissal. To support her contention learned AAG placed reliance on the cases of Farzand Ali and another. Vs. Khuda Bakhsh and others (PLD 2015 SC 187) and Muhammad Yar deceased through L.Rs. and others. Vs. Muhammad Amin deceased through L.Rs. and others (2013 SCMR 464). She next contended that where the record was completed and corrected at the instance of the respondents themselves, appeal would not abate on this score. The learned AAG to support her contention placed reliance on the case of Niamat and another. Vs. Allah Banda and another (1984 SCMR 321). The learned AAG arguing the case on merits contended that where the Chief Settlement Commissioner placed ban on allotment of notified or un-notified evacuee land in possession of Forest Department vide Memorandum dated 27.02.1965, its allotment could not be confirmed in the name of any claimant and that the judgments and decrees of the fora below as well as the High Court being against law merit outright annulment. The learned AAG to support her contention placed reliance on the cases of Muhammad Ayub and others. Vs. The Province of Punjab (1989 SCMR 1033), Province of Punjab. Vs. Muhammad Mahmood Shah (1991 SCMR 1426) and Forest Department through Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin and 26 others (2002 SCMR 703). The learned AAG next contended that mere allotment without confirmation does not create any right much less vested, therefore, memorandum mentioned above, would be applicable with all force and vigour to the allotment C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 5 which is subsequent to the date of issuance of memorandum. Learned Additional Advocate General to support her contentions placed reliance on the case of Mian Rafi-ud-Din and 6 others. Vs. Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 SC 252). The learned AAG went on to argue that where title of the respondents was disputed by the appellants in their written statement by asserting their own title, mere suit for possession without declaration could not be decreed. The learned Addl. A. G. placed reliance on the cases of Muhammad Aslam. Vs. Mst. Ferozi and others (PLD 2001 SC 213) and Sultan Mahmood Shah through L.Rs. and others. Vs. Muhammad Din and 2 others (2005 SCMR 1872). Deduction about issuance of NOC, the learned AAG contended, would be just conjectural when it has not been proved through primary or secondary evidence. She next contended that the letter purportedly issued by a Minister could not be banked upon without knowing where did it come from and whether it was ever issued by the Minister it was attributed to. She lastly argued that neither the High Court nor the fora below considered the documents showing that the land forming subject matter of dispute was in fact purchased by the Forest Department. 5. Learned ASC appearing on behalf of respondent contended that the land being evacuee was allotted to Ghazanfar Ali, respondent No. 1 and his brother Ali Raza predecessor-in-interest of respondents No. 2 to 9; that their status as allottees of the aforesaid land has never been disputed nor has it been challenged in any Court of law; and that failure of the appellants to challenge it at any stage of litigation would take away the ground from beneath their feet to challenge it, even if, it is assumed without conceding, that allotment in favour of the respondents was void. Even void orders, the learned ASC added, have consequences if not questioned within the prescribed period of limitation. The learned ASC to support his contention placed reliance on the cases of Conforce Ltd. Vs. Syed Ali, etc (PLD 1977 SC 599) and S. Sharif Ahmed Hashmi. Vs. Chairman Screening Committee, Lahore and another (1978 SCMR 367). Application of C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 6 memorandum banning allotment of land in possession of Forest Department, the learned ASC maintained, cannot be stretched to the present case when the land stood allotted to the respondents before its issuance, that too, when there is nothing in the memorandum providing for its retrospective operation. The learned ASC next contended that no documentary evidence has been brought on the record by the appellants to show that the land in dispute has ever been sold to the Forest Department, therefore, their claim about its sale was rightly turned down by the Court of appeal as well as the Court of revision. Reliance on the cases of Muhammad Ayub and others. Vs. The Province of Punjab, Province of Punjab. Vs. Muhammad Mahmood Shah, and Forest Department through Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin and 26 others (supra) the learned ASC argued, is misconceived when the memorandum cannot override or extinguish a right accrued nor could it restrict the powers of the Settlement Authority to allot the property. The learned ASC next contended that the judgments rendered in the cases of Muhammad Ayub and others. Vs. The Province of Punjab, Province of Punjab. Vs. Muhammad Mahmood Shah, and Forest Department through Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin and 26 others (supra), lack authoritative or even persuasive value when they were rendered in derogation of an earlier three-member bench judgment rendered in the case of Wali Muhammad. Vs. Settlement Commissioner Sargodha Division, Sargodha and others (1984 SCMR 1574). The learned ASC next contended that where a party did not raise objection as to the admission of a document and its exhibition, it cannot subsequently complain about its mode of proof. Latter loss or lapse in production of the NOC, the learned ASC contended, would not have much meaning once its existence finds mention in RL-II and the letter dated 13.11.1988 issued by the Minister for Forestry, Wildlife and Fisheries Department. The said letter of the Minister, the learned ASC argued, would also prove whether the land was purchased by the Forest Department or C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 7 closed for forestation. Suit for possession, the learned ASC contended, is the only remedy when allotment of the land to the respondents has never been challenged by the appellants. The learned ASC lastly argued that when in another litigation between Mst. Sairan and the respondents, the issue about the memorandum banning allotment of the land in possession of Forest Department has been decided, the appellants who were party thereto could not raise it again. 6. Learned ASCs appearing on behalf of the applicants in CMAs. No. 61, 974, 62, 117 and 63 of 2016 and 1604-L of 2015 pleaded for their being impleaded as respondents in C. As. No. 204-L to 206-L of 2015 on the ground of their being bonafide purchasers. The learned Addl. A. G. opposed the CMAs for being impleaded as parties by contending that plea of bonafide purchaser cannot be entertained nor the rights thus acquired could be protected under Section 41 of the Transfer of Property Act when the allotment itself does not hold good. The learned Addl. A. G. to support his contention placed reliance on the cases of Gul Muhammad and others. Vs. The Additional Settlement Commissioner and others (1985 SCMR 491) and Ejaz Ahmad Khan. Vs. Chahat and others (1987 SCMR 192). 7. We have gone through the record carefully and considered the submissions of learned Addl. A. Gs. Punjab and learned Sr. ASCs and ASCs for the parties. 8. A perusal of the impugned judgment would reveal that the learned Single Judge of the High Court while concurring with the finding of the learned Appellate Court mainly relied upon the extracts from the record of rights, NOC, purportedly issued by a D.F.O, letter dated 18.12.1980 written by the Solicitor to the Government of Punjab and letter dated 13.11.1988 written by the Minister for Forestry, Wildlife and Fisheries. But none of these documents has been brought on the record in conformity with the mode provided by the Qanoon-i-Shahadat Order, 1984. Extracts from the record of rights were produced and exhibited without examining the Patwari. Who prepared and signed them and affirmed about their C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 8 correctness is anybody’s guess. Where did NOC come from, who issued, and countersigned it and what is the latter fate of this document is again anybody’s guess. How did the Solicitor edge in and where did the letter purportedly written by him come from and how did it reach the hands of the person producing it in the Court? How did the Minister step in the matter when it was pending in the Court? Where did go the record of the letter and the register showing its dispatch, if at all it was written? Why did the respondents bypass the mode of proving the document prescribed by Articles 2 and 78 of the Qanoon-e-Shahadat Order and what did constrain the Court to rely upon them? How could, bringing of papers on the record, be considered synonymous with proving them? All these questions are fundamental and foundational but the learned Additional District Judge hearing the appeal and the learned Single Judge of the High Court hearing the revision petition relied on these documents without addressing anyone of them. 9. The argument that where a party did not raise objection as to the admission of a document and its exhibition, it cannot subsequently complain about its mode of proof has not impressed us as the provisions governing the mode of proof cannot be compounded or dispensed with, nor can the Court, which has to pronounce a judgment, as to the proof or otherwise of the document be precluded to see whether the document has been proved in accordance with law and can, as such, form basis of a judgment. In the case of Messrs Bengal Friends and Co., DACCA. Vs. Messrs Gour Benode Saha and Co., and The Deputy Registrar of Trade Marks, Chittagong (PLD 1969 SC 477) this Court while dealing with the mode of proof of the documents not properly brought on the record held as under :- “Besides the authenticity of the account books relied upon by the respondent that were not properly brought on record as evidence of the transactions mentioned therein. The learned Chief Justice in the High Court ruled out the objection raised by the appellant on the view that it related to mode of proof of the entries in the account books and was not raised before the Deputy Registrar of Trade Marks. It was omitted from consideration that under section 34 C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 9 of the Evidence Act entries in books of account regularly kept in the course of business are only declared to be relevant whenever they refer to a matter into which the Court has to enquire. But this does not dispense with the requirement of section 67, that if a document is alleged to have been written by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Mere production of account books kept in regular course of business, therefore, does not constitute evidence of entries contained therein. The Legislature has made an exception in this behalf in the Bankers' Books Evidence Act. Section 4 provides as follows: "Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise." In the absence of such a provision in the Evidence Act regarding entries in books of account kept in regular course of business the mere production of the account books does not constitute evidence of the transaction and accounts therein recorded. Mr. Israrul Hossain further pointed out that the account books containing Exh. G.B. 3 series were not even exhibited by the Deputy Registrar. In the affidavit of the respondent sworn on the 25th August 1958, in paragraph the genuineness of the records, Exhs. G.B. 1 to G.B. 10, is affirmed, but this bald statement did not constitute proof of the entries in these series unless they were in his handwriting and he swore to the correctness of the transactions mentioned therein. The documents Exhs. G. B. 3 series relied upon by the respondent No. 1 in support of his claim that since 1937 he had been selling on large scale in Bengal and Assam including the riverine districts now constituting East Pakistan coaltar bearing trade mark "Jahaj Marka Al-katra" with a device of a ship were in this view wrongly treated as evidence by the Courts below.” 10. In the case of Khan Muhammad Yusuf Khan Khattak. Vs. S. M. Ayub and 2 others (PLD 1973 SC 160) this Court while dealing with an identical issue held as under :- “I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as “exhibits” and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 10 signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh. P.E., the original form “E” which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility n the appellant to negatively disprove it. “ 11. The argument that latter loss or lapse in production of the NOC would not have much meaning once its existence finds mention in RL- II and the letter dated 13.11.1988 issued by the Minister for Forestry, Wildlife and Fisheries Department, has also not impressed us when it did not see the light of the day at any stage. We, therefore, have no hesitation to hold that deduction about the issuance of NOC being conjectural has no evidential basis. 12. The argument that when in another litigation between Mst. Sairan and the respondents, the issue about the memorandum banning allotment of land in possession of the Forest Department has been decided, the appellants who were party thereto could not raise it again is misconceived, firstly because the litigation referred to above ended up in rejection of plaint, and since rejection of plaint does not operate as res- judicata, against the plaintiff in the subsequent suit, it cannot operate as such against a party who was defendant; and secondly because all the Courts in the said litigation having focused on the question of title between the rival claimants, decided the question of title only, without attending to the question of law and the judgments rendered in the cases of Muhammad Ayub and others. Vs. The Province of Punjab and Province of Punjab. Vs. Muhammad Mahmood Shah (supra). Therefore, reference to the previous litigation would not be of any help to the respondents. C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 11 13. Let us pause here for a while to see where did the memorandum dated 27.02.1965 come from and what did it stand for? This memorandum was issued by the Chief Settlement Commissioner under paragraph 4-A of the Rehabilitation Settlement Scheme, who had the power to exclude land from allotment where it was required for public purpose. The memorandum provided as under:- “On the representation of Forest Department it has been decided by the Chief Settlement Commissioner that evacuee lands in possession of the Forest Department whether notified or un-notified should not be allotted against claims under the provision of the West Pakistan Rehabilitation Settlement Scheme till further orders. “ The memorandum reproduced above provides that evacuee land in possession of the Forest Department whether notified or un-notified could not be allotted against claims under the provisions of the West Pakistan Rehabilitation Settlement Scheme, till further orders. Additional Settlement Commissioner or any other Officer in the hierarchy being subordinate to the Chief Settlement Commissioner could not nullify or neutralize its effect unless, of course, ordered otherwise by the Chief Settlement Commissioner himself. It does not give any power or authority even to the Forest Department to nullify or neutralize its effect, or read something in it what is not there. Allottee, too, could not ask for allotment of land on the condition of managing its retrieval from the Forest Department on his own when he does not figure anywhere in the scheme of the memorandum. We do not understand what prevailed on the Additional Commissioner to confirm allotment on the undertaking of the respondents or on the basis of NOC of the Forest Department, if at all it is assumed to have any existence, outside the record, when the memorandum does not provide for either of them. We thus hold that the allotment confirmed in derogation of memorandum dated 27.02.1965 cannot hold good. In the case of Muhammad Ayub and others. Vs. The Province of Punjab (supra) this Court while dealing with an identical issue held as under:- C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 12 “The suit was dismissed by the learned trial Court observing "that the plaintiffs never got possession and that many trees have been grown up there in the supervision of the Forest Department" and, therefore the claim of the petitioners that they were in possession which was allegedly interfered with by the Forest Department, was not well founded. It was also held on account of Memorandum No.65/775-RL, dated 27-2-1965 from the Chief Settlement Commissioner Lahore to the Deputy Commissioners, Sialkot, Gujranwala, Sheikhupura, Gujrat, Rawalpindi, Jhelum and Attock on the subject of "disposal of evacuee land in possession of Forest Department" which was to the effect that evacuee lands in possession of the Forest Department whether notified or unnoticed were not to be allotted against any claim under the provisions of the West Pakistan Rehabilitation Settlement Scheme, the allotment of this land in favour of Muhammad Din on 1-3-1966 against his verified claim was itself not valid and the subsequent sale of this land in favour of the petitioners did not confer any title on them. The aforesaid judgment and decree was upheld by the, learned District Judge on appeal and again by the. High Court on revision. Hence this petition for leave.” 14. In the case of Province of Punjab. Vs. Muhammad Mahmood Shah (supra) the same view was restated with much greater clarity and emphasis in the paragraph which reads as under :- “9. Under paragraph 4-A of the Rehabilitation Settlement Scheme, the Chief Settlement Commissioner had the power to direct the exclusion of land from allotment where it was required for a public purpose. While so excluding by his directive dated 27-2-1965, the Chief Settlement Commissioner was acting within hi; lawful authority. The High Court, however, did not approve of it in a case (Civil Appeal. No.155 of 1983) where the allotment had been made for the first time on 18-4-1968, by observing as hereunder:--- "The main ground on which the Settlement Commissioner set aside the allotment of the petitioners was the order of the Chief Settlement Commissioner dated 27-2-1965 mentioned above restraining the district authorities from allotting such lands as were in possession of the Forest Department. The copy of the Jamabandi for the year 1905-66, however, shows that the possession over some of the land in question at that time was that of the petitioners but he did not go into the same. In any case it has recently been held by a Division Bench of this Court in Inayat Bibi etc. v. Assistant Settlement Commissioner and Chief Settlement Commissioner PLD 1978 Lah. 252 that the Chief Settlement Commissioner could not issue such instructions restraining statutory functionaries to C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 13 allot land against the claims. The letter dated 27th February, 1965 is thus without lawful authority and of no legal effect: " Another paragraph which is extremely relevant in this behalf also merits a look and thus reads as under :- 10. The decision referred to and relied upon for recording the above findings related to absolute prohibition against making the allotments and not qualified prohibition as is contained in paragraph 4-A of the Rehabilitation Settlement Scheme. Hence, the very basis for the decision is incorrect. In a decision of this Court in Muhammad Ayub and others v. The Province of Punjab (1989 SCMR 1033), the allotments made on 1-3-1966 were held to be violative of the directive of the Chief Settlement Commissioner dated 27-2-1965. The law point involved in all these cases has received an authoritative pronouncement in Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others P L D 1971 S C 252 in the following words:-- “It is necessary in my view to keep in mind that there is a distinction between the right to claim a transfer and the right to the transfer and the right to the transference of the property itself. The provisions of the Schedule indicated the persons or the category of persons who can claim the transfer of a particular property but the right to the transfer of the property accrues or becomes vested only after a final order for such transfer has been made in accordance with the provisions of the Act itself, the Schemes, the rules framed under the Act and the instructions from time to time issued. Until a final order of transfer has been made it cannot be said that the property has been disposed of and is no longer available for transfer. It is only when a property is no longer available for transfer that an order of the Central Government laying down a different mode of disposal will not affect it, on the principle that change in the mode of transfer cannot reopen a past and closed transaction." 15. In the concluding part of the judgment only those lands have been excluded from the purview of the memorandum in which the confirmation of allotment was made before 27.02.1965. The land forming subject matter of dispute in this case would be fully covered by the memorandum when its allotment was admittedly confirmed on 30.04.1965. C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 14 16. The same view was reiterated in the case of Forest Department through Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin and 26 others (supra). 17. The argument that failure of the appellants to challenge confirmation of allotment in favour of the respondents at any stage of the litigation would takeaway the ground from beneath their feet to challenge it even if it is assumed that allotment in favour of the respondents was void, is devoid of force as the appellants despite enjoying uninterrupted possession have been questioning the confirmation of allotment in favour of respondents at every forum including Civil Courts and even in the litigation culminating in the instant appeals. The argument that even void orders have consequences if not questioned within the prescribed period of limitation would have been tenable had the appellants abated legal fight at any stage. Their unabated fight even in the second round of litigation initiated at the instance of the respondents speaks for itself. Therefore, the judgments rendered in the cases of Conforce Ltd. Vs. Syed Ali, etc and S. Sharif Ahmed Hashmi. Vs. Chairman Screening Committee, Lahore and another (supra) have no relevance to the case in hand. 18. The argument that the judgments rendered in the cases of Muhammad Ayub and others. Vs. The Province of Punjab, Province of Punjab. Vs. Muhammad Mahmood Shah and Forest Department through Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin and 26 others (supra) lack authoritative and even persuasive value when they were rendered in derogation of an earlier three-member bench judgment rendered in the case of Wali Muhammad. Vs. Settlement Commissioner Sargodha Division, Sargodha and others (supra) is not correct as the former deal with the memorandum dated 27.02.1965 while the latter deals with the memorandum dated 25.06.1973. The first having been issued by the Chief Settlement Commissioner under paragraph 4-A of the Rehabilitation Settlement Scheme was held to be intra vires and any C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 15 allotment confirmed in derogation of the said memorandum was held to be of no effect. Whereas the second having been issued without jurisdiction and lawful authority was declared void and so was the cancellation or allotment made thereunder. Therefore, no parallel can be drawn between the memoranda mentioned above nor between the judgments rendered in the cases of Muhammad Ayub and others. Vs. The Province of Punjab, Province of Punjab. Vs. Muhammad Mahmood Shah and Forest Department through Divisional forest Officer, Chhanga Manga, Lahore. Vs. Muhammad Amin and 26 others (supra) and the one rendered in the case of Wali Muhammad. Vs. Settlement Commissioner Sargodha Division, Sargodha and others (supra). Allotment without confirmation has also been held to be of no effect by a five-member bench of this Court in the case of Mian Rafi-ud-Din and 6 others. Vs. Chief Settlement and Rehabilitation Commissioner and 2 others (supra) which has been taken notice of and referred to in the case of Province of Punjab. Vs. Muhammad Mahmood Shah (supra). 19. The argument that where no documentary evidence has been brought on the record by the appellants to show that the land in dispute was ever sold to the Forest Department, their claim about its sale was rightly turned down would have been relevant had the allotment in favour of the respondents been confirmed in conformity with the memorandum issued under paragraph 4-A of the Rehabilitation Settlement Scheme. 20. The argument that the memorandum banning allotment of the land cannot be stretched to the case in hand in the absence of anything providing for its retrospective effect, is also misconceived when allotment in favour of the respondents was confirmed after issuance of the memorandum mentioned above. 21. Form of suit also does not appear to be proper when the respondents did not ask for declaration, in spite of the fact that their title to the land in dispute was seriously disputed by the appellants. Reference to C. A. NO. 204-L OF 2015, CMA. NO. 61 OF 2016 IN C. A. NO. 204-L OF 2015 16 the cases of Muhammad Aslam. Vs. Mst. Ferozi and others and Sultan Mahmood Shah through L.Rs. and others. Vs. Muhammad Din and 2 others (supra) would not be out of context. 22. The argument that applicants be impleaded as party on account of being bonafide purchasers is devoid of force, where the original allotment made in favour of the vendors cannot hold the field. The cases of Muhammad Yamin and others. Vs. Settlement Commissioner and others (1976 SCMR 489), Manzoor Hussain. Vs. Fazal Hussain and others (1984 SCMR 1027) Gul Muhammad and others. Vs. The Additional Settlement Commissioner and others (1985 SCMR 491) and Ejaz Ahmad Khan. Vs. Chahat and others (1987 SCMR 192) may well be referred to in this behalf. The argument of the learned ASC for the respondents seeking dismissal of appeals on account of having been filed against the dead persons need not be addressed at length when it has been befittingly dealt in the judgments rendered in the cases of Farzand Ali and another. Vs. Khuda Bakhsh and others, Muhammad Yar deceased through L.Rs. and others. Vs. Muhammad Amin deceased through L.Rs. and others and Niamat and another. Vs. Allah Banda and another (supra). 23. Having thus considered, we allow these appeals, set aside the impugned judgments and decrees with no order as to costs. CMAs. NO. 61 TO 63, 117, 974 AND 1604-L OF 2016. These CMAs are disposed of accordingly. JUDGE JUDGE Announced in open Court at Islamabad on 25.11.2016 JUDGE ‘NOT APPROVED FOR REPORTING’ M. Azhar Malik

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 2084 OF 2016 (On appeal against the judgment dated 29.06.2016 passed by the High Court of Sindh, Karachi in IInd Appeal No. 85/2011) Hafiz Muhammad Iqbal … Appellant VERSUS Gul-e-Nasreen etc. … Respondents For the Appellant: Mr. Shahid Anwar Bajwa, ASC For Respondents (1 & 2(c): Mr. Jawad S. Sarwana, ASC Date of Hearing: 28.06.2019 JUDGMENT FAISAL ARAB, J.- Being in the service of Pakistan Army, respondent No. 2 was entitled to buy a residential and a commercial plot in Defence Housing Authority, Karachi (DHA for short). On the basis of such entitlement, she applied to DHA for a 2000 square yard residential and a 200 square yard commercial plot which were allotted to her in December, 1973. All dues and charges for such allotments were cleared by 1983 and the plots were transferred in her name. In the same year she got the 2000 square yards residential plot bifurcated, which were assigned plot Nos.57/1 and 57/2 having an area of 1000 square yards each. She retired from service in the same year i.e. in 1983. 2. In 1986 respondent No.1, who is younger sister of respondent No.2, filed a suit against respondent No.2 and sought CIVIL APPEAL NO. 2084 OF 2016 2 declaration that she is the real owner of the plots and respondent No.2 is only an ostensible owner i.e. a ‘Benamidar’. The basis to seek such a declaration was that as respondent No.2 was neither interested nor had funds to pay for the plots so respondent No. 1 offered that she would make all payments for the plots to DHA and became their owner to which respondent No.2 agreed. Based on such understanding, the respondent No.2 applied to DHA for the allotment of a residential and commercial plots for which the entire price was paid by respondent No. 1. It is also the case of the respondent No.1 that after respondent No.2 retired from service in 1983, she came to live with respondent No.1 at her Karachi residence and when asked to transfer the plots in respondent No.1’s name she refused and thus the relations between them became estranged with the result that respondent No.2 left the house and went to reside with her old colleague. It was further stated in the plaint that in May, 1986 when respondent No.1 came to know that respondent No.2 has entered into a sale transaction with someone in relation to one of the residential plots and the process of transfer was pending with DHA, she got alarmed that gave her the cause to file the suit for declaration and permanent injunction. The respondent No.1 obtained injunctive orders from the Court against the respondent No.2 and the DHA in order to prevent alienation of the plots until her claim was decided in the suit. 3. During the pendency of the suit, the appellant, a stranger to the above mentioned controversy between the two sisters, interjected in the suit by filing an application under Order CIVIL APPEAL NO. 2084 OF 2016 3 1 Rule 10 CPC for his joinder as a defendant, on the strength of his claim that respondent No. 2 has entered into sale transaction for the residential plots with him. His application was allowed and the court joined him as a defendant. After recording of the evidence of the parties, the court held that respondent No.1 failed to establish that she is the real owner of the plot and dismissed the suit. Respondent No. 1 preferred first appeal which was also dismissed. She then filed second appeal in the High Court of Sindh, which was allowed vide impugned judgment. The High Court reversed the findings of the courts below after holding that respondent No. 1 has established in the evidence that there was an understanding between the two sisters that the payments for the plots would be made by respondent No.1 and become the real owner which was accordingly paid by her to DHA and respondent No.2 became just an ostensible owner. 4. The respondent No. 2 died during the pendency of the proceedings. Though her heirs were made party in the proceedings at the appellate stage, none of them came forward to challenge the decision of the High Court before this Court, hence insofar as respondent No.1’s claim that her proprietary interest has been created in the suit property has attained finality, leaving the appellant to file appeal in this Court on the strength of his plea that he was a bona fide purchaser for valuable consideration. 5. Learned counsel for the appellant submitted that the trial court and the first appellate court, after examining the evidence adduced by the parties, rightly came to the conclusion CIVIL APPEAL NO. 2084 OF 2016 4 that respondent No. 2 was not a ‘Benamidar’ and fully competent to deal with the plots as a real owner, such finding ought not to have been reversed by the High Court in second appeal, scope of which is very limited. As to the title document of plots coming in the hands of respondent No.1, he submitted that the address of respondent No. 1 was given to DHA only for the purpose of communication as she from time to time was posted in several parts of the country and on account of this fact the respondent No.1 came in possession of title documents of the plots which she was holding in trust for respondent No.2. Learned counsel maintained that merely coming in possession of title documents or demonstrating that payments have been made by her to DHA, which is otherwise not factually correct, would not make respondent No.1 real owner of the suit properties. Learned counsel lastly contended that the High Court also erred in holding that the appellant failed to establish that he is a bona fide purchaser for value when it has come in the evidence that he entered into sale transaction with respondent No.2 in whose name the open plots stood in her capacity as original allottee in the records of DHA and no steps were taken by respondent No.1 to get the plots transferred in her name. 6. Learned counsel for the respondent No. 1 in rebuttal submitted that his client has sufficiently established in evidence that based on the understanding between the two sisters she alone paid the entire amount for both the plots in the name of the respondent No.2 and was also given possession of the original title documents thereby disentitling the respondent No. 2 from CIVIL APPEAL NO. 2084 OF 2016 5 subsequently claiming to be the real owner. He next contended that the burden to prove that the appellant was a bona fide purchaser was on the appellant, which he failed to discharge as in absence of examining the original title documents of the plots, which were with respondent No.1, he paid the entire sale consideration to respondent No.2. 7. After the High Court reversed the findings of the courts below and declared respondent No.1 to be the real owner and respondent No.2 merely a ‘Benamidar’ no appeal has been preferred by any of the heirs of respondent No.2 after her demise before this Court though they were made party in the first Appellate Court as well as in the High Court. Notwithstanding the finding of the High Court, which creates proprietary interest of the respondent No. 1 in the suit plots, the fact remains that the plots were allotted to respondent No.2 only for the reason that she was in service of Pak Army. This entitlement for allotment of plots by itself has its own value, apart from the price that is paid to DHA. Had the plots in question been purchased by respondent No.1 from the open market, the price would have been much higher than what was actually paid. Therefore, irrespective of the fact that it was held by the High Court that respondent No. 1 paid the entire amount to DHA for both the plots from her own source, as held in second appeal, the fact remains that the plots were allotted, not at their full market value but at concessionary price only for the reason that respondent No.2 was in the service of Pak Army. In this peculiar circumstance, the monetary contribution made by respondent No.1 cannot be regarded as the true reflection of the CIVIL APPEAL NO. 2084 OF 2016 6 entire value of the suit property and hence cannot be regarded as sufficient to treat respondent No.1 full owner of the suit property though she paid the entire price. Therefore, in our assessment, respondent No. 1’s share in the plots on account of her financial contribution cannot be considered more than half and the remaining half has to be attributed purely to respondent No. 2 on account of the privilege which she enjoyed in seeking allotment from DHA at much lower rate than the true market value. Based on such distinction, respondent No.2 was entitled to sell one of the two residential plots. She in fact got the original residential plot bearing No. 57 bifurcated into two in 1983 i.e. plot No.57/1 and 57/2 and entered into sale transaction with regard to plot No.57/1 in 1986. The respondent No.2 in equity was justified in entering into sale transaction with the appellant for the first plot i.e. plot No.57/1. 8. As regards the sale transaction relating to plot No. 57/2, the appellant has claimed that he purchased plot No.57/2 and sale consideration was shown to be Rs.250,000/- paid through pay order No. AO/C192426 dated 05.05.1986. If the sale consideration of Rs.250,000/- had already been settled for plot No. 57/2 on or before 05.05.1986 then it is surprising that the agreement which was executed for this plot on 06.05.1986 neither refers to any pay order nor the price that was settled was printed with the remaining text of the agreement as the consideration of Rs.250,000/- for plot No.57/2 is written in a handwriting after erasing the printed matter whereas in the same situation, the consideration of Rs.425,000/- settled for plot No.57/1 in the first agreement executed on the same date i.e. 06.05.1986 was printed CIVIL APPEAL NO. 2084 OF 2016 7 along with the remaining text. Secondly, there is a marked difference in the sale consideration of both the plots as well i.e. Rs.425,000/- for plot No.57/1 and Rs.250,000/- for plot No.57/2. This casts some doubt as to the genuineness of the agreement relating to plot No.57/2 and probably the deal for plot No.57/2 was belatedly came up to defeat the claim of respondent No.1 as the factum of two separate agreements is neither mentioned in the application filed by the appellant for joinder under Order 1 Rule 10 CPC application nor in his written statement and in the first instance respondent No.2 in her counter affidavit to injunction application also denied sale transaction with regard to plot No.57/2. Even otherwise, ample discretion lies with the Court to deny the relief to a purchaser of an immovable property keeping in view the circumstances of each as he cannot claim specific performance of a contract as a matter of right even where it is lawful to do so. In this regard, reliance can be placed on the judgments of Ghulam Nabi Vs. Muhammad Yaqoob (PLD 1983 SC 344), Sirbaland Vs. Allah Loke (1996 SCMR 575) Muhammad Sharif Vs. Nabi Bakhsh (2012 SCMR 900), Farzand Ali Vs. Khuda Bakhsh (PLD 2015 SC 187), Adil Tiwana Vs. Shaukat Ullah Khan Bangash (2015 SCMR 828) and Muhammad Abdur Rehman Qureshi Vs. Sagheer Ahmad (2017 SCMR 1696) where this principle has been laid down by this Court. 9. For what has been discussed above, the impugned judgment is modified to the extent that the appellant is entitled to plot No.57/1 whereas the respondent No.1 has become entitled to plot No.57/2 and 50% share in the 200 yards commercial plot. The CIVIL APPEAL NO. 2084 OF 2016 8 remaining 50% in the commercial plot shall devolve upon the heirs of respondent No.2 in accordance with law of inheritance, which include respondent No.1 being one of the heirs of respondent No.2. 10. This appeal was partly allowed vide short order dated 28.06.2019 and the above are the reasons for the same. JUDGE JUDGE Karachi, the 28th of June, 2019 Not Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEAL NOs. 2105 & 2106 OF 2008 (On appeal against the judgment dated 18.1.2008 passed by the High Court of Sindh, Karachi in Spl. HCA No. 29/2001 and First Appeal No. 01/1998) Miss Rukhsana Murrad etc (In both cases) … Appellants VERSUS National Bank of Pakistan (In both cases) … Respondents For the Appellants: Syed Iftikhar Hussain Gillani, Sr. ASC For the Respondent: Mr. M. Rasheed Qamar, ASC Date of Hearing: 02.05.2017 JUDGMENT FAISAL ARAB, J.- Leather Goods International (hereinafter referred to as ‘LGI’), a sole proprietorship concern of the predecessor-in-interest of the appellants was engaged in the manufacture and export of leather garments. For its production needs, it had been availing financial facilities from respondent bank from time to time. The case of the respondent bank is that in January, 1987, LGI applied for a running finance facility which was sanctioned on 25.01.1987 to the extent of Rs.675,000.00. In this regard, LGI executed an agreement of finance on 18.02.1987. The finance was repayable with markup by 30.06.1987. To secure this financial facility, LGI pledged its goods, hypothecated its machinery, assigned the proceeds of life insurance policy of its proprietor, created equitable mortgage on Plot No. 16-C Lane 9, Phase-II Extension, Defence CIVIL APPEAL NOs. 2105 & 2106 OF 2008 2 Housing Authority, Karachi and executed a promissory note. All security documents were also executed on 18.02.1987. As against such facility, substantial part of outstanding amount and markup was recovered leaving a balance of Rs.261,775.76. 2. To seek recovery of the remaining amount, the respondent bank served a legal notice upon LGI on 19.09.1988 but it failed to make any payment. The respondent bank was thus constrained to file suit for recovery on 28.08.1989 in the Banking Tribunal for Sindh and Balochistan at Karachi. This suit was later numbered as 905/1991. In the written statement, LGI denied that it availed any finance under the agreement dated 18.02.1987 and termed all documents executed on 18.02.1987 to be forged. In this manner, the validity of the claim made in the banking suit was questioned. The parties then adduced their respective evidence. The Banking Court dismissed the suit on 18.08.1997 after holding that no amount was disbursed under the agreement of finance dated 18.02.1987. The respondent bank then preferred appeal. In the meanwhile, having succeeded in getting the banking suit filed by respondent bank dismissed on 18.08.1997, LGI filed its own suit in 1998 bearing No. 773/1998 claiming damages. In the suit for damages, it was claimed that recoveries made under the agreement dated 18.02.1987, when no finance was disbursed, caused a huge loss of business to LGI including sale of valuable plot for a meager amount. Keeping in view the findings in respondent’s suit that no amount was disbursed to LGI under agreement dated 18.02.1987, the suit for damages filed by LGI was decreed by the Banking Court. Against such decree also the respondent Bank filed appeal. Both the appeals, one filed against dismissal of respondent bank’s recovery suit and the other filed against award of damages in the suit filed by LGI, CIVIL APPEAL NOs. 2105 & 2106 OF 2008 3 were clubbed together and allowed by the High Court vide impugned judgment dated 18.01.2008. Aggrieved by such decision, the present appeals were preferred. 3. Learned counsel for the appellants argued that the evidence shows that after execution of the finance agreement dated 18.02.1987 no amount was disbursed, yet the plot valuing millions of rupees was sold for a meager amount of Rs.400,000.00 and the proceeds of insurance policy were appropriated by the respondent bank, therefore, the Banking Court rightly awarded damages to LGI. He next submitted that the evidence of the respondent bank also disclosed contradiction in the pleadings which was also ignored by the High Court as it was deposed by bank’s witness that the finance in dispute was sanctioned by the State Bank whereas in his cross- examination it was admitted that the finance was never sanctioned by State Bank. He, therefore, contended that while deciding the appeals, the Division Bench of the High Court erred in decreeing the suit of the respondent bank and dismissing the suit of the LGI by misreading the evidence on record, which decision is liable to be reversed. 4. In rebuttal, learned counsel for the respondent bank though conceded that no amount was disbursed after the execution of the agreement on 18.02.1987 but it was explained that this agreement was intended to cover LGI’s obligation towards Part-I of the Export Re- finance Scheme availed by it on 27.08.1986 as well as the penalty which was imposed by the State Bank on 25.09.1986 on account of LGI’s failure to meet export target under previous Part II of the Export Refinance facility. Against both the heads, State Bank had issued a debit voucher to the respondent bank and in order to settle State CIVIL APPEAL NOs. 2105 & 2106 OF 2008 4 Bank’s above-referred claim against LGI and keep its account regularized, the respondent bank at the request of LGI sanctioned the financial facility of Rs.675,000.00 on 25.01.1987. Thereafter, agreement of finance along with other security documents were executed on 18.02.1987 and Rs.675,000.00 were credited to the account of LGI and from this account, State Bank’s outstanding claim for Rs.671,841.00 was settled. He submitted that this also explains the innocuous contradiction of respondent bank’s witness as to which of the two sanctioned the finance i.e. the State Bank or the respondent bank. He further submitted that there was also an admission in a letter written by LGI to respondent Bank on 12.05.1987 that a sum of Rs.640,324.00 was still payable and proposed that Rs.450,000.00 would be adjusted from the sale of the mortgaged plot and the remaining balance from the proceeds of the insurance policy assigned to the respondent bank as well as from the sale proceeds of the pledged stock. Learned counsel for the respondent bank maintained that in this background the High Court rightly allowed the appeals. 5. It has come in evidence that between the years 1984 and 1986 LGI had been availing various financial facilities under Part-I and Part-II of State Bank of Pakistan’s Export Refinance Scheme through respondent bank’s Saddar branch, Karachi. The Export Re-Finance Scheme allows the exporters to avail finance from State Bank to finance their exports, which is adjustable against export proceeds. In case no exports are made or there is a shortfall, the State Bank imposes penalty. The last of the Export Refinance facilities availed by LGI from State Bank was on 27.08.1986 bearing No. R-39/U-74 to the extent of Rs.548,400.00 which was to be adjusted in 150 days against the export proceeds i.e. by 24.01.1987. A shortfall in exports under CIVIL APPEAL NOs. 2105 & 2106 OF 2008 5 the previous Part-II of Export Refinance facility had also occurred in the meanwhile that resulted in imposition of penalty on 25.09.1986 by State Bank to the tune of Rs.123,441.00. Thus, in all, a sum of Rs.671,841.00 (Rs.548,400.00 availed under Part I of Export Refinance facility No. R-39/U-74 plus Rs.123,441.00 towards State Bank’s penalty against Part I of Export Refinance facility) became due and payable by LGI to the State Bank on account of LGI’s failure to meet its export target. In LGI’s letter dated 24.11.1986 to the State Bank, the shortfall in exports and the resultant imposition of penalty has been duly acknowledged. In fact in this letter, LGI requested the State Bank to waive the penalty on account of loss of export orders. So it was solely on account of LGI’s failure to export leather garments promised under Export Refinance Scheme that the State Bank perforce recovered Rs. 671,841.00 from the respondent bank through which the Export Refinance facilities were being availed by LGI. Thus it becomes abundantly clear that the financial facility of Rs.675,000.00 was sanctioned by respondent bank on 25.01.1987 for no other purpose except to facilitate LGI to adjust Rs.671,841.00 which it owed to the State Bank. Ultimately, it was from the financial facility of Rs.675,000.00 that Rs.671,841.00 were paid to the State Bank of Pakistan on 18.02.1987 on behalf of LGI. 6. The above factual position becomes even more clear when LGI’s statement of account bearing No. 9014-6 (available at page 318 of the Paper Book) is scrutinized. The account No. 9014 was opened on 18.02.1987 not at the instance of LGI but was necessitated due to change over to computerized banking. In this account, LGI’s credit balance of Rs.814.08 from its previous current account No. 3708 which was being made inoperative was transferred. In paragraphs 5 and 7 of the plaint in the suit bearing No. 773 of 1998, LGI has itself CIVIL APPEAL NOs. 2105 & 2106 OF 2008 6 acknowledged that its current Account No. 3708 which had a credit balance of Rs.814.08 became inoperative on 17.02.1987. Account No. 9014 further shows that on 18.02.1987, i.e. the day when the agreement of finance was executed, a sum of Rs.671,841.00 was debited. This debit entry reflects the payment made by the respondent bank to the State Bank on LGI’s behalf covering Rs.548,400.00 availed by LGI under Part I of Export Refinance facility from State Bank on 27.08.1986 and Rs.123,441.00 being penalty imposed by State Bank on account of short fall in LGI’s exports under Part II of the Export Refinance facility availed earlier. Then there are three debit entries of Rs.60,324.00, Rs.7,080.44.00 and Rs.6,246.00 dated 24.06.1987, 30.06.1987 and 27.10.1987 respectively, all reflect payments made against State Bank’s penalty. There is a debit entry of Rs.103,335.00 dated 30.06.1987 towards charging of markup. Then there is a credit entry of Rs.29,275.80 dated 18.03.1987 in the statement of account which is downward adjustment of State Bank’s penalty that was originally charged to the extent of Rs.123,441.00 on 25.091986. As against the recovery made by respondent bank against assignment of life insurance policy, a credit entry to the extent of Rs.138,455.00 also appears on 22.09.1987. Then there is a credit entry dated 22.11.1987 for a sum of Rs.400,000.00 which represents the amount recovered against the consented sale of the mortgaged plot. It may be pointed out that LGI in its letter dated 12.05.1987 had itself stated that the outstanding amount would be liquidated from the proceeds of insurance policy assigned to the respondent bank and from the sale proceeds of the mortgaged plot. LGI for four long years never protested against adjustment of proceeds of insurance policy and sale of mortgaged plot. Only in the written statement filed in the recovery suit on CIVIL APPEAL NOs. 2105 & 2106 OF 2008 7 15.10.1991 that LGI took the stand that no finance was availed under the agreement of finance dated 18.02.1987. After adjustment of above-referred entries in the statement of Account No. 9014-6, a debit balance of Rs.261,775.96 finally remained outstanding against LGI on 01.03.1989 and this was the amount for which respondent bank filed recovery suit in Banking Court in 1989. 7. From the above, it is abundantly clear that in fact the agreement of finance dated 18.02.1987 for Rs.675,000.00 was executed to regularize the amount which the respondent bank had to pay perforce to the State Bank of Pakistan on 18.02.1987 on behalf of LGI. In the evidence neither Rs.548,400.00 availed by LGI from State Bank against Part I of the Export Refinance Scheme nor the penalty imposed by State Bank against Part II of such facility availed earlier was denied. In fact the same was acknowledged by LGI in its letters dated 24.11.1986 and 12.05.1987. We have also noted that in letter dated 12.5.1987, LGI had also acknowledged that there was an outstanding balance of Rs.640,324.10. This is exactly the outstanding balance, which appears in the statement of account No. 9014-6 as on 03.04.1987. The plea of LGI that no finance was disbursed after execution of the finance agreement dated 18.02.1987 for Rs.675,000.00 was though correct but it became quite evident from the evidence discussed above that said agreement was executed so that the finance is availed from respondent bank to settle Rs.671,841.00 owed by LGI to the State Bank. In this background, the plea that no amount was disbursed after the finance agreement was executed on 18.02.1987 is of no legal consequence. CIVIL APPEAL NOs. 2105 & 2106 OF 2008 8 8. Taking into consideration the admissions made by LGI in its letters dated 24.11.1986 and 12.05.1987 as well as the entries contained in LGI’s bank statement of account No. 9014-6, the Division Bench of the High Court while deciding both the appeals vide impugned judgment rightly decreed the suit for recovery filed by respondent bank and dismissed the suit for damages filed by LGI. These appeals having no merit are accordingly dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 2nd of May, 2017 Not Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO. 2109 TO 2139 OF 2016 AND CIVIL PETITION NO. 516 OF 2017 (Against the judgment dated 08.06.2016 the Islamabad High Court, Islamabad passed in I.C.As Nos. 368, 372, 377, 382, 383, 385, 387, 409, 415, 433, 375, 379, 382, 412, 406, 417, 429, 400, 402, 403, 423, 398, 414, 426, 374, 368, 416, 384/2015, CMA 2816/2016 in ICA 384/15 and ICA 411/2015) AND C.M.As. NO.5210, 7645/2016 in C.A.2109/2016 C.M.A. No. 6094/2016 in C.A.2136/2016 Federation of Pakistan through Secretary, Establishment Division, & others (in CA 2109-2118/16) Muhammad Ashraf & others (in CA 2119/16) Ms. Rubina Tayyab & others (in CA 2120/16) Muhammad Zahid & others (in CA 2121/16) Sq.Ldr.(R) M. Irfan Elahi & others (in CA 2122/16) Yousaf Naseem Khokhar & others (in CA 2123/16) Capt. (R) Ejaz Ahmed (in CA 2124/16) Samin Ullah Khan Gandapur (in CA 2125/16) Capt (R) Tariq Hayat Khan (in CA 2126/16) Dr. Kamran Fazal (in CA 2127/16) Malik Tahir Sarfraz Awan (in CA 2128/16) Khawaja Umar Mehdi (in CA 2129/16) Sohail Akhtar (in CA 2130/16) Imran Tariq (in CA 2131/16) Muhammad Ayub Minhas (in CAs 2132-2134/16) Mukhtar Ahmed Baig (in CA 2135/16) Sohail Muhammad Khan (in CA 2136/16) Humayun Iqbal Shami (in CA 2137/16) Badar Zaman (in CA 2138-2139/16) …Appellants Zahid Rashid (in CP 516/17) …Petitioner VERSUS Dr. Muhammad Arif and others (in CA 2109 & 2119/16) Shah Muhammad Jamal & others (in CA 2110/16) Ghani ur Rehman Wazir & others (in CA 2111/16) Qaiser Majeed Malik & others (in CA 2112/16) Waqar Haider & others (in CA 2113/16) Hafiz Zafar Ali Malik & others (in CA 2114/16) Syed Imtiaz Altaf & others (in CA 2115/16) Suresh Mal & others (in CA 2116/16) Rana Muhammad Iqbal & others (in CA 2117/16) CAs 2109 to 2139 etc of 2016 2 Dr. Muhammad Shafique & others (in CA 2118/16) Secretary, Establishment Division (in CA 2120-2139/16 & others & CP 516/17) …Respondents For the Appellants: Mr. Afnan Karim Kundi, Addl. AG Syed Rifaqat Hussain Shah, AOR (In CAs.2109-2118/16) Hafiz S.A. Rehman, SASC Ch. Akhtar Ali, AOR (In CA 2119/16) Mr. Muhammad Shoaib Shaheen, ASC (In CA 2120-2124/16) Mr. Faiz Ahmed A. Jandran, ASC Ch. Akhtar Ali, AOR (In CA 2132-2134/16) Barrister Masroor Shah, ASC (In CA 2136/16) In person (In CAs 2135 & 2137 to 2139 of 2016) Mr. Abdur Rehman Siddiqui, ASC (In CA 2125-2131/16) For the petitioners: Mr. M. Munir Paracha, ASC. (In CP 516/17) and CMA 5210/16 For the Respondent(s): Mr. Abdur Rehman Siddiqui, ASC (In CAs 2110,2112,2116/16) Syeda B.H. Shah, ASC. (In CA 2109/16) Mr. Mehrban Khan, Admin Officer M/o Defence For respondents 185-187 in CA 2135/16) Barrister Masroor Shah, ASC (In CAs 2111,2113,2118/16) For official respondents: Mr. Afnan Karim Kundi, Addl. AGP. (In CA 2119-2139/16) For the applicants: Mr. Zulfiqar Ahmed Bhutta, ASC (In CMA 7645/16) For Respondents: Mr. Imran Fazal, ASC.(In CAs. 2121 2129, 2131/16) For Respondents: Mr. Nasir Mehmood Mughal, Spl. Prosecutor NAB. In CAs. 2138-2139/16) Date of Hearing: 13.03.2017 JUDGMENT MAQBOOL BAQAR, J. Impugned through the present appeals is the judgment dated 08.06.2016 whereby a learned Division Bench of the Islamabad High Court, upheld the judgment dated 27th July, 2015, in terms whereof a learned Single Judge of the said Court CAs 2109 to 2139 etc of 2016 3 declared the criteria for the award of 15 marks at the disposal of Central Selection Board (CSB), with overriding effect of 5 marks and thereby placing the civil servants in category A, B and C, as against the dictum laid down by this Court in the case of Orya Maqbool Abbasi (2014 SCMR 817) and the judgment of the Islamabad High Court rendered in Iram Adnan’s case (2012 PLC (CS) 1355), and also that the process carried out by CSB on the basis of above formula, and resulting into deferment/supersession of the respondents as illegal, without jurisdiction and violative of the law laid down by this Court. 2. Before we proceed to examine the legality and proprietary of the recommendations in question, It would be beneficial to refer to the legal framework pertaining to the matter of promotion of the civil servants and its procedure. 3. It is Section 9 of the Civil Servants Act, 1973 that provides for and, deals with the promotion of a civil servant in the following terms: “9. Promotion.- (1) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules of departmental promotion in the service or cadre to which he belongs: Provided that the posts of.. (a) ………………………………………………………………………. (b) ………………………………………………………………………. (2) A post referred to in sub-section (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed.. (a) In the case of a selection post, on the basis of selection on merit; and (b) In the case of a non-selection post, on the basis of seniority-cum-fitness. CAs 2109 to 2139 etc of 2016 4 (3) Promotion to posts in basic pay scales 20 and 21 and equivalent shall be made on the recommendations of a Selection Board which shall be headed by the Chairman, Federal Public Service Commission.” The above provisions are supplemented by Rules 7, 8 and 8-A of The Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. For the ease of reference the said rules are reproduced hereunder: “7. Promotion and transfers to posts in **[basic pay scales 2 to 18 and equivalent, ***[except the posts specified in sub clause (i) of clause (b)] and equivalent] shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts, ***[specified in sub clause (i) of clause (b) and posts], in ***[basic pay scales 19 to [21] and equivalent] shall be made on the recommendations of the Central Selection Board. 8. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board as the case may be; 8-A. No promotion on regular basis shall be made to posts in Basic Pay Scales 17 to 22 and equivalent unless the officer concerned has completed such minimum length of service, attended such training and passed such departmental examination, as may be prescribed from to time.” 4. However, since the Federal Government felt that the above legal framework was not sufficient to meet the functional requirement, it therefore, with the approval of the President of Pakistan, supplemented the same by a “comprehensive and consistent set of policy guidelines”, by way of Promotion Policy, 1982 (“The Policy”). The policy contained certain guidelines for Departmental Promotion Committees (DPCs)/Central Selection Boards (CSBs) which included the following two: (i) Confidential reports will be given due importance but will not be the sole criterion for promotion to selection posts; (ii) Performance evaluation as reflected in the confidential reports will be quantified according to formula enunciated in the CAs 2109 to 2139 etc of 2016 5 enclosed guidelines and weightage will be given to more recent appointment (emphasis supplied). By way of general instructions the policy provided that the DPC/CSB shall consider the cases of eligible civil servants in order of seniority and either: (a) Recommend a civil servant for promotion to the next higher post; or (b) Recommend a civil servant for supersession; or (c) Defer consideration of a civil servant’s promotion provided that this step will be taken only if: (i) The CR dossier is incomplete or any other document/information required by the DPC/CSB for determining a civil servants suitability for promotion is not available; or (ii) Disciplinary or departmental proceedings are pending against the civil servant whose promotion case comes up for consideration before the DPC/CSB; or (iii) The civil servant on deputation abroad to a foreign government, private organization or international agency; or (iv) The civil servant does not possess the requisite length of service; or (iv) The civil servant has not undergone the prescribed training or passed the departmental examination for reasons beyond his control; or (vi) The civil servant’s inter se seniority is sub judice. (Emphasis supplied) The policy further required that the civil servant whose promotion has been deferred will be considered as soon as the reason on the basis of which deferment took place ceases to exist. (Emphasis supplied) 5. The formula for quantifying the ACRs of the officers under consideration by the committee or the board also was appended to the policy. The policy also prescribed that the civil servant who fails to CAs 2109 to 2139 etc of 2016 6 come up to the qualifying score shall not normally be considered for promotion. However, the committee/board may, for the reason to be recorded in detail, recommend relaxation of the said condition, to the competent authority. (Emphasis supplied) 6. For promotion to selection posts the policy, inter alia, required that the entries under “quality and output of work” and “integrity” in all the ACRs recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in the Addendum thereto, and that such marks shall be a crucial factor in determining comparative merit of the officers for promotion to selection posts. (Emphasis supplied) 7. Some amongst the various essential qualifications prescribed for promotion to the post carrying BPS-20 and BPS-21were as follow: (i) Eligibility threshold: attain a minimum score of 70 marks in CRs in accordance with the formula given in the Addendum; (ii) Relevance of Experience: possess experience relevant to the functions of the post to which promotion is being made; (iii) Quality and Output of Work and Integrity: marks calculated in accordance with the formula in the Addemdum shall be a crucial factor in determining the comparative merit of an officer. (Emphasis supplied) It may be, and especially in respect of clauses (i) & (iii), noted that in terms of the Addendum to the policy, marks in favour of the officer under consideration were to be calculated/awarded on the basis of his confidential reports (CRs). (Emphasis supplied) CAs 2109 to 2139 etc of 2016 7 8. Through D.O. No. 10(3)/84-CP-I. dated 30th April, 1984, it was required that the committee/board shall specify the exact grounds under para 1(c) of the guidelines, for recommending a civil servant’s promotion, supersession or deferment. Through DO No. 10(10)/85-CP dated 15 May, 1985 the Establishment Division, in view, inter alia, of its perception that the trend towards inflated reporting which had been in vogue since inception, has, because of the higher eligibility threshold fixed for the selection posts, achieved greater proportion, and thus added to the pressure on reporting/countersigning officers to be overly generous in their assessments, and as such most of the average officers were being graded as “good” and the good as “very good”, adversely affecting the genuinely outstanding officers, introduced a more cautious approach/criteria for evaluation and its quantification & grading, and also introduced an additional/higher category in relation to the grading of the officers. 9. The instructions and the guidelines for DPC/CSB, were reviewed once again. Such was done on the basis of the recommendations made by the committee on Promotion Policy, purportedly to “develop a comprehensive criteria for selection, for promotion/deferment/supersession which, is measurable to the extent possible, comparable with regard to performance of each officer on the panel and is based on tangible record duly placed on the dossier and also re-defines discretion of the members and the board and, to lay down as to how more objectivity can be brought in the recommendations of the selection board” . (Emphasis supplied) CAs 2109 to 2139 etc of 2016 8 10. The above recommendations of the committee, as contained in the Establishment Division’s OM No. 1/3/2007/CP/-II dated 24th October, 2007, also prescribed conditions for deferment. One such condition being an eventuality where the board considers the records as incomplete, or wants to further watch the performance of the officer, or for any other reason to be recorded in writing. (Emphasis supplied) It also prescribed the minimum threshold of marks for promotion to various scales. Such marks prescribed for BPS-18, are 50, for BPS-19, are 60, for BPS-20, the marks are 70, and for BPS-21, the marks prescribed are 75. It further provided that no officer meeting the aggregate thresholds shall be superseded. (Emphasis supplied) The allocation of marks based on Performance Evaluation Reports (PERs), Training Evaluation Reports (TERs) and evaluation by CSB were prescribed as follows: S.No. Factor Marks 1. Quantification of PERs relating to present grade and previous grad(s) @ 60%:40% 70% 2. Training Evaluation reports in ratio of 60%:40% 15% 3. Evaluation by CSB 15% Total: 100% The OM dated 24.10.2007, also required that the officers superseded/deferred by the CSB be informed about the reason for his supersession/deferment to enable him to improve his performance and to complete his records or to make up any other deficiency, as the case may be. (Emphasis supplied) CAs 2109 to 2139 etc of 2016 9 11. Through OM dated 19th January, 2012 the Establishment Division clarified that the reasons for supersession/deferment on the recommendations of the CSB are to be communicated to the officers concerned immediately after such recommendations have been approved by the respective competent authority. (Emphasis supplied) 12. From the foregoing, it can be seen that in terms of the Promotion Policy, as originally conceived & formulated, performance evaluation was to be based on and, quantified as per the confidential reports of the officers under consideration. The service record/dossier was found, and naturally so, to be of such crucial importance that its non-availability or the non-availability, of any other document/information required for determining the suitability of the officer concerned was to result in the deferment of consideration of the officer. The significance attributed to evaluation and its quantification so achieved is evident from the fact that the same was not left to the whims of the board, but a well laid down and elaborate formula was prescribed for the same. It was further prescribed that the officer who thus fails to meet the qualifying score shall not normally be considered for promotion. Furthermore the quantification of the “quality & output of work” and “integrity”, evaluated and quantified as above, was described as a crucial factor in determining comparative merit of the offices for promotion to the selection post. The significance of the service record as a source/basis of the above evaluation/quantification was so great and crucial in the eyes of the framers of the policy that the eligibility threshold set down through the CAs 2109 to 2139 etc of 2016 10 policy was a minimum score of 70 marks in the confidential reports, and therefore, in the Addendum to the policy document, it was reiterated/emphasized that marks for the eligibility threshold, and in respect of “quality & output of work” and integrity were to be calculated/awarded on the basis of the confidential reports. The evaluation, its quantification & the grading, which were wholly based on the service record of the officer concerned, being of crucial significance, the Establishment Division through DO dated 15.05.1985 introduced a more cautious approach in that regard and also created additional/higher category as per such grading of the officer concerned. 13. The policy was however, with a stated objective of developing a comprehensive criteria, measurable with reference to the performance of each officer in the run, as per the tangible record duly placed on the dossier and for prevalence of objectivity, revised through, DO dated 24.10.2007, in terms whereof now 70% of the marks on the scale were reserved for quantification of the PERs, 15% were reserved for training evaluation, whereas the remaining 15% were allocated for evaluation by CSB. However, as is patently evident, ironically and contrary to the avowed objective, the above bifurcation of marks, instead of inducing any objectivity in the process, created vagueness and ambiguity and removed the focus of evaluation from the exclusivity of the service record and brought it within the realm also of undefined and unstructured discretion of the board, and in fact practically within the discretion of just a few of its members (as not all members could possibly be said to be familiar with the officers under CAs 2109 to 2139 etc of 2016 11 consideration), and thus giving rise to whimsical and arbitrary decisions/recommendations, based on personal opinion rather impressions, not based on any prescribed, relevant and permissible material. 14. The process thus evolved could not withstand the judicial scrutiny which resulted in the judgment rendered by a learned Judge of the Islamabad High Court in writ petition No. 863/2011 titled as Gulab Zamir vs. Federation of Pakistan, dilating upon the question of 15% marks allocated for evaluation by CSB, the learned Judge observed and held as follows: “As far as marks given by the Central Selection Board are concerned, these are exclusively discretionary. These marks are to be given with reference to Service Record and having been examined the comparative marks as well as the performance of the officer in the Training Reports. The officer concerned does not appear before the Central Selection Board; there is no interview and there is every possibility that the Selection Board may not be knowing the person, whose case for promotion is before them, so some criteria is required to be evolved as these marks can not be given simply on the basis of whims. The order of Selection Board is required to be based upon proper reasons… 7. …In absence of any criteria, it would become unfettered discretion of the Central Selection Board to recommend promotion of one person and refuse the same to another similarly placed officer… 8. In the circumstances, I accept this petition; the order of supersession is converted into deferment and the case is sent back to the Central Selection Board with the direction to determine ‘Specific Criteria’ for assessing the officer and pass a just and fair order, based on reasons.”(Emphasis supplied) 15. The allocation of marks for evaluation by CSB was once again declared illegal and un-constitutional by the Islamabad High Court, in the case of Mrs. Iram Adnan (2012 PLC (CS) 1355), whereby the Court directed the Establishment Division to restructure the CAs 2109 to 2139 etc of 2016 12 provision of awarding 15 marks by CSB. In deciding so, the learned Judge relied on the case of Secretary, Revenue Division vs. Gul Muhammad (2011 SCMR 295), and upon an earlier judgment of this Court in CPs No. 836 and 837 of 2016, where a judgment of the Federal Service Tribunal, directing the Establishment Division to bring more objectivity in the criteria for excellence and comparative merit, by defining it further, so that more specific, detailed and, well thought out reasons for denying promotion to an officer, who is otherwise eligible, could be given, was upheld by this Court with the following observations: “2… We are of the opinion that decision with regard to promotion of the Officer cannot be left on the discretion of Members of the Board. There must be some criteria to judge the performance of a candidate because promotion was denied to the officer on the ground that he does not fulfill the criteria. When there is no criteria, then how a person can be denied promotion, therefore, the Service Tribunal has rightly observed that the Board must bring more objectivity in the criteria.” (Emphasis supplied) 16. Similar views were expressed by an Honourable Bench of the Lahore High Court in respect of the above policy of granting 15 marks by the CSB in the case of Liaquat Ali Chughtai (PLD 2013 Lah 413), by stating that the CSB had consciously adopted a policy to place reliance on the personal views and impressions of the Members regarding the integrity and reputation of the officers under consideration and that the process so adopted by the CSB negates the very purpose of the CSB which is expected to form a collective view after independent application of mind to the facts and circumstances of each case, and was required to meticulously review the service dossier of the officers under consideration and formulate a CAs 2109 to 2139 etc of 2016 13 collective opinion. The board’s reliance on the personal opinions of its Members in making recommendations for the supersession of the officers under consideration was held to be an affront to fairness; due process and Article 10 of the Constitution. The power and discretion of the board to grant 15 marks to the officers was held not to be sufficiently structured or elaborately tailored to reflect thorough deliberation and proper analytical assessment. The Court thus, set aside the impugned selection process and declared the same illegal and un-constitutional, with direction for framing a well thought-out objective criterion in accordance with the 2007 Revised Promotion Policy. The Court also directed the CSB to form its opinion on the basis of evidence before them in the form of complete service dossier comprising of PERs for the last over 15 years and restrained the board from relying on any evidence without confronting the officer concerned with the same, and also not to pass any adverse order on the basis of any impressions, nurtured, and opinion harboured by its Members without placing any tangible evidence supporting such opinion before the board, and then confronting the officer concerned with such evidence .(Emphasis supplied) 17. It seems that it was in the light of the judgments in the cases of Iram Adnan and Liaqat Ali Chughtai, that the Establishment Division constituted a committee to restructure the formula/criteria for award of marks by the CSB, so as “to bring in more objectivity in the light of the observations made by the High Court”, and thus through OM No. F.1/1/2012-CP.I dated 12th October, 2012 made certain amendments in the promotion policy, and prescribed new CAs 2109 to 2139 etc of 2016 14 parameters/attributes by way of (i) integrity/general reputation /perception; (ii) personality profile; (iii) conduct, discipline and behaviour. The attributes “quality and output of work”, and “integrity” earlier contained in the 1982 policy were revived. A new objective assessment form for assessment in respect of the attributes namely (i) quality & output of work; (ii) integrity/general reputation/perception; (iii) variety and relevance experience; (iv) top management potential; (v) personality profile; and (vi) conduct, discipline & behaviour was introduced. The OM further provided that the above objective assessment form shall be placed before the CSB along with panel proforma of every officer for his/her objective evaluation by the CSB and, that the board shall assess each officer on the panel on the basis of said parameters/attributes (Emphasis supplied) and, that after assessment/evaluation the CSB shall place the officer in any of the following category and, assign appropriate marks accordingly: Sl. No. Category Range of Marks 1. Category-A = 11- to 15 2. Category-B = 06 to 10 3. Category-C = 00 to 05 The Memorandum further provided that an officer meeting the aggregate threshold (70 marks for BPS-20 and 75 for BPS-21) shall also be superseded, in case the CSB places him in category-C. 18. The objective assessment form introduced through OM dated 12.10.2012 is, for the ease of reference, reproduced hereunder: OBJECTIVE ASSESSMENT BY CSB (as per OM dated 12.10.2012) S.No. Parameters/Attributes Categories 1. Quality and Output of Work Cat-A (11-15) Cat-B (06-10) Cat-C (00-05) 2. Integrity/General Reputation/Perception (Last 05-Yrs of Synopsis OR as known to the Board members CAs 2109 to 2139 etc of 2016 15 3. Variety & Relevance of Experience Nature of Duties, duration and location of Yrs whichever is longer relevant to the functions of posts in BS-21 BS-18 (if applicable) = yrs BS-19 = Yrs BS-20 = Yrs Total = Yrs 4. Top Management Potential (Observation by RO/CO if any OR as known to the Board Members 5. Personality Profile (As known to the Board Members) 6. Conduct, discipline & Behavior (Observation by RO/CO during last five years OR as known to the Board members 7. Total 8. Average 9. Marks by CSB (Emphasis supplied) 19. It can be seen from the various columns in the above form, that further departing from the previous practice of evaluating the officers under consideration exclusively on the basis of their service record, which comprise of their PERs and TERs of the last several years, and thus granting them marks accordingly, through the above form, except for the numerical data, the assessment/evaluation, marking and categorization could now, also be done exclusively on the basis of the knowledge of the members of the Board. Such option that the board could now exercise was in respect of certain crucial attributes/aspects such as, “integrity”, “top management potential”, “personality profile”, “conduct discipline and behaviour”, and, therefore the amendment made purportedly to bring the process, approach and criteria in line with the various directives of the Courts, and to remove from the process, the blemish and abrasion of unbridled and arbitrary exercise of discretion, and instead provide an open transparent objective criteria based on tangible record which could be lawfully taken into consideration, and to meet the essential CAs 2109 to 2139 etc of 2016 16 requirements of adequate disclosure and fairness, rather reinforced and further perpetuated the tendencies and practices deprecated by the Courts, and therefore when decision of CSB made under the above dispensation, and thus placing the officers under consideration by the Board in its meetings held in the year 2013, in category-C, was brought under the scrutiny of this Court in the case of Orya Maqboo abbasi (2014 SCMR 817), this Court held that although promotion was not a right but a civil servant fully qualified for promotion has a right to claim that his case may be considered for promotion strictly following the eligibility criteria laid by the authority, and that though the officers not meeting the eligibility criteria for promotion could be deferred, but the deferment could not be arbitrary and not supported by the service record, it was further held that the Board conducted itself arbitrarily as in view of their PERs, the officers were fully eligible for promotion but the Board “failed to take into consideration such reports for the reasons not tenable under the law and their such findings were clear violation and departure from the promotion policy because once the officers have fulfilled the criteria, their cases have to be considered to assess the fitness and suitability to share higher responsibility mostly based on objective criteria, instead of denying promotion to them for the subjective consideration”. The impugned decision of the Board was declared to be whimsical, violative of the promotion policy and based on subjective considerations. The notification for promotion of all the officers based on the recommendation of the CSB through the above exercise/process was set aside with direction for conducting the process of promotion of all the officers concerned, strictly on merits CAs 2109 to 2139 etc of 2016 17 and in consonance with Section 9 of the Civil Servants Act, 1973 and Rules 7, 7-A and 8 of The Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and the promotion policy. The Government was also directed to evolve an objective criteria for promotion of the civil servants. 20. It was purportedly in pursuance of the above directives that the objective assessment form was, vide OM dated 10.02.2014, revised once again and the form reproduced hereunder was thus introduced: OBJECTIVE ASSESSMENT BY CSB ( as per OM dated 10.02.2014) S.No. Parameters/Attributes Total Marks Marks Assigned 1. Output of Work and Quality of Work 2. Variety & Relevance of Experience Secretariat/Field Postings; Federal/Provincial Government Postings; Leadership/Routine Postings; Deputation/Foreign Postings 3. Professional Expertise 4. Personality Profile (As known to the Board Members) 10 5. Conduct, Discipline and Behavior (Observation by RO/CO during last 05 years OR as known to the Board Members) 6. Functional Ability and Leadership 7. Estimated Potential for Middle/Higher Management Based on PERs and Training Evaluation Reports; Management Skills, Ability to take decisions, Strategic Thinking, Leadership Qualities, Drive for Results and Accomplishments in BPS-19 and 20 in policy formulation & implementation 8. Integrity/General Reputation/Perception On the basis of PERs/TERs/Opinion of the Board 5 9. Total Marks by CSB 15 10. Overall Category Cat-A Cat-B Cat-C (11-15) (06-10) (0-05) * An officer under consideration, getting less than 3 out of five under this parameter may be defended or superseded by the CSB at their discretion but with reasons to be recorded in writing. _______________ Secretary CSB Dated ________________ ________________ (Chairman CSB) CAs 2109 to 2139 etc of 2016 18 21. However, the above amended form, as is evident from its plain reading, instead of providing any evaluation structure, not only left it open for the board to choose either the service dossier of the officer concerned as a source material for the evaluation of the various essential & crucial attributes of the officer, or just to rely upon the personal knowledge of its members for the said purpose, whereas in relation to the candidate’s personality profile it was left exclusively to be evaluated on the members knowledge, without any reference to any record, and above all, and more crucially, for an officer to avoid deferment or supersession (one out of two at the option of the board) it is made essential to obtain at least 3 out of the 5 discretionary marks in respect of “integrity/general reputation/perception”. This created an anomalous situation where an officer who may have otherwise, achieved the required threshold on the basis of evaluation of his service record, may still be superseded by the Board on the basis of the opinion harboured or nurtured by a few of its members, and instead less deserving officer may be recommended, which could result in the degeneration of the civil service, and dissatisfaction & despondency amongst its cadres. 22. The recommendation of the board made in its meetings held on 05.05.2015 and 07.05.2015, on the basis of the assessment form, as discussed above, were impugned through 57 different writ petitions, filed by its affectees before the Islamabad High Court. The petitions were disposed of through a judgment dated 27.07.2015, which was assailed before a Division Bench of that Court resulting in the CAs 2109 to 2139 etc of 2016 19 impugned judgment, whereby the appeals, challenging the striking down of the OM dated 10.02.2014 along with the objective assessment form annexed thereto to the extent of five (5) overriding discretionary marks, have been dismissed and the entire process carried out by the CSB on the basis of OM dated 10.02.2014 and the objective assessment form annexed thereto, and resulting in the recommendations of the CSB for deferment/supersession of the officers under consideration has been declared to be unlawful and violative of the law laid down by this Court in Orya Maqbool Abbasi’s case, with direction to the Establishment Division to reframe the formula in light of the observations contained in the impugned judgment with a further direction to reconsider the cases of all the officers whether promoted or not promoted by it through the impugned process/exercise in accordance with directions as contained in the judgment. 23. The entire impugned process being flawed for want of a well thought out structured objective criteria, and lacking in due process, gave way to arbitrariness, ambiguity and a whimsical approach, inasmuch as drifting from reliance upon the service dossier of the officer, (which were duly and meticulously qualified with all assessment spectrum, including overall performance and output and also regarding the integrity of the officer), and instead placing reliance on undefined personal opinion, and that too without qualifying it with the necessity of being based on any tangible evidence/material, resulted in adverse recommendation, like as reproduced hereunder:- S.No. Name of Petitioner WP No. Reasons for supersession as recommended by CSB CAs 2109 to 2139 etc of 2016 20 1. Qaiser Majeed Malik (PAS) 1401/2015 Followings reasons provided: “Though the officer met the minimum threshold of 75 marks, yet the Board, after assessing the officer against the prescribed objective assessment criteria, besides keeping in view the PERs, TERs and knowledge of the Board members, placed in category C and accordingly recommended him for supersession.” 2. S.Asif Mateen Zaidi 1506/2015 Following reasons provided: “Though the officer met the minimum threshold of 70 marks, yet the Board, after assessing the officer against the prescribed objective assessment criteria, besides keeping in view the PERs, TERs and knowledge of the Board members, placed in category C and accordingly recommended him for supersession. 3. Samin Ullah Khan 1507/2015 Following reasons provided: “Though the officer met the minimum threshold of 70 marks, yet the Board, after assessing the officer against the prescribed objective assessment criteria, besides keeping in view the PERs, TERs and knowledge of the Board members, recommended him for supersession.” 24. As can be seen from the foregoing, though all the officer named therein, achieved the prescribed threshold on the basis of their PERs and TERs, but have been superseded on the basis of knowledge of the board’s members, but neither has any reason given for ignoring the quantification in the service record, nor the nature and/or source of the so called knowledge been disclosed. Since it has not even been stated as to what came to the knowledge of the members (and to which of them) so as to persuade them to override the evaluation on the basis of the service dossier of the officer covering the entire spectrum of his performance and conduct, spread over long years of his service, and recommend his supersession in the face of his meeting the prescribed criteria otherwise, and therefore neither was the board in a position to disclose or convey to the effectee any ground/reason CAs 2109 to 2139 etc of 2016 21 for his predicament, nor was any explained before us, despite our repeated queries, and thus the process not only violated the requirement of adequate disclosure, but also offended the principle of fairness, due process and procedural propriety. Even otherwise the appellant has not been able to show any thing adverse against the officer in their respective service dossiers. We have also noted that in the cases of deferment also no plausible explanation or reason has been mentioned. The matter of promotion, deferment or supersession of a civil servant and that too of BPS-20 and 21, is of enormous significance, having a bearing on the state structure and cannot be left to be dealt with in an arbitrary, casual and capricious manner, like in the present case. 25. It was for the foregoing reasons that we through a short order dated 13.3.2017, dismissed the titled appeals/petition, and would hereby direct the Establishment Division to place all of those cases which were laid before the board through the impugned exercise/process, afresh, after withdrawing the overriding effect of five (5) marks assigned for integrity/reputation etc. and removing the deviation of the focus of the board from the service dossier to the personal knowledge of its members. The above exercise be initiated within four weeks, and be concluded within ten weeks from 13.4.2017. In the meanwhile, those who may have been promoted on the basis of impugned recommendations shall maintain their such elevated position/status. However, in the event the officers whose cases for promotion have been recommended to be deferred or superseded, are through the proposed process recommended for promotion, they CAs 2109 to 2139 etc of 2016 22 shall maintain their seniority viz’a‘viz those who were recommended for promotion through the impugned process, and may again be so recommended, so that the seniority of the presently left out officers and so also their entitlement to the consequential benefits, including prospects of their future promotion is not adversely effected. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 13th March, 2017 Rizwan “APPROVED FOR REPORTING”

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Shakirullah Jan Mr. Justice Jawwad S. Khawaja Mr. Justice Amir Hani Muslim Civil Appeals Nos. 212 & 213 of 2011. (Against the order dated 15.6.2009 passed by the High Court of Sindh at Karachi, in Const. Petitions Nos.D- 2404/08 and D-38/09). Province of Sindh thr. Chief Secretary & another. … Appellants (In both cases) VERSUS Rasheed A. Rizvi & others. … Respondents (In CA 212/11) Abdul Haleem Siddiqui & others. … Respondents (In CA 213/11) (Civil Appeal No.212/2011) For the appellant (s): Abdul Fateh Malik, A.G. Sindh For the respondent-1: Rasheed A. Rizvi, Sr. ASC. For the respondent-2: Anwar Mansoor Khan, Sr. ASC (Civil Appeal No.213/2011) For the appellant (s): Abdul Fateh Malik, A.G. Sindh For the respondent-1: N.R. For the respondent-2: Mr. Muhammad Waqar Rana. ASC For the respondent-3: Abdul Rasool Memon, Registrar, High Court of Sindh. (in both cases) On Court’s notice: Maulvi Anwar-ul-Haq, Attorney General of Pakistan (On behalf of Federation) Date of hearing: 16.2.2012 Judgment Jawwad S. Khawaja, J.- These appeals raise issues concerning the manner in which judicial officers are appointed in the province of Sindh through initial recruitment. The appellants impugn the judgment of a five Member Bench of the High Court of Sindh dated 15.6.2009 that has set aside amendments made by the Sindh Government to the appointment mechanism For reasons elaborated in this opinion, we have dismissed these appeals and upheld the impugned judgment subject to a modification elaborated toward the end of this opinion. THE PARTIES: 2. Before setting out the facts which have given rise to these two appeals, we may make a note of the parties involved in the controversy. There are two Civil Appeals Nos.212-213 of 2011 2 appellants, namely the Province of Sindh and the Sindh Public Service Commission (“SPSC”) who have filed both appeals. Rashid A. Rizvi, a member of the Sindh High Court Bar Association (“SHCBA”) and the SHCBA are respectively respondents Nos. 1 and 2 in Civil Appeal No.212/2011 while Abdul Haleem Siddiqui Advocate who was a member of the Sindh Bar Council (“SBC”) and the SBC are respectively respondents Nos. 1 and 2 in Civil Appeal No.213/2011. THE FACTS: 3. The appointment of judicial officers in the District Judiciary in the province of Sindh is governed by the Sindh Judicial Service Rules, 1994 (the “1994 Rules”). Prior to the framing of these rules in 1994, judicial officers were inducted in the Sindh judicial service in accordance with rules of general application which were framed under section 26 of the Sindh Civil Servants Act, 1973. These were called the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (the “1974 Rules”) and were applicable to the recruitment of civil servants including those inducted in the judicial service. 4. This position was changed radically by the 1994 Rules which were notified on 24.11.1994 vide notification No. SOR-I(S&GAD)2/3-93. The background and the reasons which led to the framing of the 1994 Rules have an important bearing on the outcome of this case. We will advert to these in detail, later in the opinion. For the present, it will suffice to note that the method of recruitment prescribed by the 1994 Rules departed from the earlier 1974 Rules in important particulars; the most relevant in the present context being the method of selection and appointment of Judges in the District Judiciary. While recruitments to the judicial service prior to 1994 were made by the Government of Sindh on the recommendation of the SPSC, Rule 5 of the 1994 Rules stipulated that appointments to the judicial service would thenceforth be made on the recommendation of the Provincial Selection Board. The Provincial Selection Board was defined in Rule 2(e) to mean “the Administrative Committee of the High Court or a Committee of not less than three High Court Judges specially constituted for the purposes of these rules by the Full Court”. The Rules also provided for other matters including promotions, seniority, transfer and discipline. Civil Appeals Nos.212-213 of 2011 3 However, the present controversy before us is confined to the method of appointment of judicial officers. 5. The Government of Sindh, vide Notification No. SOR-I(5GA&CD)2-3/9, dated 4.12.2008 (the “impugned Notification”), again gave the SPSC a significant and over-bearing role in the recruitment of Judges in the Sindh judicial service. This has been done by stipulating in Rule 5 that recruitments to the posts of Civil Judges and Judicial Magistrates shall be made by initial appointment through the SPSC on the requisition of the High Court of Sindh. 6. The respondents were aggrieved of the amendments made in the Sindh Judicial Service Rules, 1994, through the impugned Notification. They, therefore, challenged the constitutional validity of the said Notification before the High Court. It was their case that these amendments were violative of the constitutional imperative requiring separation of the Judiciary from the Executive and thus adversely affected the independence of the Judiciary. The respondents, therefore, prayed that the impugned Notification be struck down on the ground that the same was ultra vires the Constitution and in particular, was inconsistent with Articles 4, 9, 14, 175 and 203 of the Constitution. For ease of reference, we can state here the relevant parts of the latter two articles. Article 175(3) of the Constitution commands that “[t]he Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day,” and Article 203 states that “each High Court shall supervise and control all courts subordinate to it.” 7. According to the respondents, the conferment of the power of selection on the SPSC and the power of appointment on the Government, coupled with the withdrawal of power from the Provincial Selection Board amounted to an unconstitutional encroachment on the independence of the judiciary. The case of the Province, however, was that the amendments did not adversely affect the independence of the Judiciary or its separation from the Executive. The appellants and the respondents, both reaffirm before us, their respective positions taken in the Sindh High Court. Civil Appeals Nos.212-213 of 2011 4 THE ISSUES: 8. The controversy between the parties is thus greatly narrowed down in view of the above. If indeed the amendments in the 1994 Rules and the consequent elimination of the High Court from the process of selecting and appointing judicial officers amounts to negation of the separation of the Judiciary from the Executive or if it constitutes an encroachment on the independence of the judiciary, then the impugned Notification would have to be struck down and the judgment of the Sindh High Court will be affirmed. In other words, the question before us is quite straightforward: has the impugned Notification contravened the constitutional provisions requiring the independence of the judiciary and its separation from the executive? A consideration of established precedent, as well as the historical perspective in which the original 1994 Rules were framed, brings us to answer this question in the affirmative. We shall presently explain both these grounds on the basis of which, the appeals have been dismissed. (a) The Link between Independence of the Judiciary and the Process of Appointment of Judges: 9. Our constitutional courts have consistently held that the process of appointments to the judiciary must be carefully scrutinized through the lens of constitutional principles such as the principle of separation of powers. In the Al- Jehad Trust case, this Court stated with reference to appointment of judges of the superior judiciary "...that the independence of the judiciary is inextricably linked and connected with the process of appointment of judges and the security of their tenure and other terms and conditions." (PLD 1996 SC 324, 429) Although this was said in the context of appointment to the High Court, the principle applies with equal force to all judicial appointments, including those in the District Judiciary. Accordingly, the dictum laid down in the Al-Jehad case was soon reaffirmed by this Court in the case of Mehram Ali & Others v. Federation of Pakistan (PLD 1998 SC 1445, 1474) and Sh. Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504, 658), both cases which concerned the District judiciary. The aforesaid dictum has also been recently reiterated in Sindh High Court Bar Association v. Federation of Pakistan (PLD 2010 SC 879, 1182) and Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407). In Civil Appeals Nos.212-213 of 2011 5 the latter case, the Court, after examining the case law, concluded that “it is an undisputed tenet of our Constitutional scheme that in matters of appointment, security of tenure and removal of Judges the independence of the Judiciary should remain fully secured.” (PLD 2011 SC 407, 467) 10. The aforesaid principle would in itself be enough to bring us to the conclusion that the impugned Notification, which takes away the power of selection from the High Court and gives it to the SPSC does not meet Constitutional standards which have, by now become part of our jurisprudence. The method of making appointments of judicial officers attempted through the impugned Notification has the effect of negating the independence of the judiciary and the separation of powers envisaged in Articles 175 and 203 of the Constitution because the High Court is neither involved in the selection of Judges nor in their appointment. The former function is meant to be performed by the SPSC and the latter by the Sindh Government. (b) Reading the 1994 Rules in their Historical Backdrop. 11. The historical context in which the 1994 Rules were framed makes the point clearer. It should be recalled that the 1994 Rules were framed in the wake and as a result of judgments by the Sindh High Court and the Supreme Court. Consistent with established precedent the role constitutionally envisaged for the High Courts in the judicial appointments process cannot lawfully be substituted by the SPSC because that would go against the concept of an independent judiciary separate, in a real sense, from the Executive. Particularly important are the two Sharaf Faridi cases: Sharaf Faridi v. Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404) and the appeal against the aforesaid decision reported as Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105). In these cases, firstly the High Court and then the Supreme Court defined the implications of the constitutional provisions dealing with independence of the Judiciary and its separation from the Executive. The relevant extracts from these cases have been reproduced in the impugned judgment. Some may usefully be reiterated at this point. In the cited case the High Court held that “the supervision and control over the judiciary vested in the High Court Civil Appeals Nos.212-213 of 2011 6 under Article 203 of the Constitution, keeping in view Article 175, is exclusive in nature,…any … notification empowering any executive functionary to have … control over the subordinate judiciary will be violative of above Article 203 of the Constitution. Besides it will militate against the concept of separation of powers and independence of judiciary…” In appeal, the Supreme Court re-affirmed the constitutional imperative by observing that “separation of the Executive from the Judiciary was an obligation cast . . . by the Constitution and this obligation could not be willed away or avoided. It had, willy nilly to be carried into effect despite all the difficulties.” The context of the case was the separation of the executive magistracy (and its control by the Executive), from the judicial function, but the lines of such separation were clearly delineated. These pronouncements were unambiguous and provide the norms to be adhered to in the appointment process for the District Judiciary. 12. The Court gave a well defined meaning and outlined the scope of the separation of powers and judicial independence mentioned in our Constitution. It is in the backdrop of the judicial pronouncements referred to above, and the interpretation of the Constitution made therein, that the 1994 Rules for the recruitment of judicial officers were framed. The 1994 Rules must therefore be analysed in the same context. As has been noted earlier, the original 1974 Rules of general application were applicable to the recruitment of judicial officers also. The judgments of the Sindh High Court and of this Court in the case of Sharaf Faridi were the direct cause for making changes in the 1974 Rules and for framing the 1994 Rules. This is evident from the judgment of this Court in 1994 wherein steps taken by the Government of Sindh have been noted and it has also been observed that “Rules for appointment and transfer etc. of judicial officers have been drafted and are likely to be approved by the High Court soon.” It was in fact, during the pendency of the case before this Court that the Provinces including Sindh initiated the process of separating the Judiciary from the Executive. The Sindh Government also modified the 1974 Rules and in addition, framed the 1994 Rules which include Rules 4 and 5 relating to the selection and appointment of Judges in the District Judiciary. The Rules adverted to by this Court in Sharaf Faridi’s case are in fact, the 1994 Rules as is Civil Appeals Nos.212-213 of 2011 7 evident from the correspondence on record between the Sindh Government and the High Court in 1993-94. In any event, the fact that the 1994 Rules emerged in the background of the two Sharaf Faridi cases is uncontested before us. Even the Province of Sindh, acknowledges it. The learned Advocate General has specifically stated in his written submissions that “…the required notification[s] were issued in terms of the judgment passed by the Larger Bench of the Honourable High Court of Sindh” in the case of Sharaf Faridi (para 4 (f), Synopsis on behalf of the Province of Sindh). 13. The changes made by the 1994 Rules to the process of appointment of judges are, therefore, to be considered a contemporaneous statutory exposition of Articles 175 and 203 of the Constitution and the interpretation given to these in the Sharaf Faridi cases. Being contemporaneous, this exposition enjoys a great deal of sanctity and cannot lightly be set aside in favour of a materially different expression. The value attached to such contemporaneous exposition is well-settled in our jurisprudence. An accepted authority on the interpretation of statutes notes this in no uncertain terms: “... the best exposition of a statute or any other document is that which it has received from contemporary authority. Where this has been given by enactment or judicial decision, it is of course to be accepted as conclusive.” (Maxwell on the Interpretation of Statutes, 11th Ed. (Sweet and Maxwell Limited: 1962), p. 296, Chapter 11). In Hakim Khan’s case, this Court inferred such a relationship between the Preamble encapsulating the Objectives Resolution and the 1973 Constitution, the latter being a contemporaneous exposition of the former. The Court stated: “…after the adoption of the Objectives Resolution on 12th March, 1949, the Constitution-makers were expected to draft such provisions for the Constitution which were to conform to its directives and the ideals enunciated by them in the Objectives Resolution and in the case of any deviation from these directives … the Constituent Assembly… [itself] would [have] take[n] the necessary remedial steps … to ensure compliance with the principles laid down in the Objectives Resolution.“ Hakim Khan and Others Vs. Govt. of Pakistan and others (PLD 1992 Supreme Court 595, 619). In the present case, we are brought to the conclusion that the structural features of the 1994 Rules were a contemporaneous exposition of judicial pronouncements about Articles 175 and 203 in the Sharaf Faridi cases. Civil Appeals Nos.212-213 of 2011 8 14. These features highlighting the change brought about by the 1994 Rules may now be closely examined to get a better idea of the meaning of Articles 175 and 203. As has been noted above, prior to the 1994 Rules, judicial officers in Sindh were appointed by the Provincial Government on recommendations made by the Sindh Public Service Commission. The High Court had no say in the process. It is as an undisputed consequence of the Sharaf Faridi cases that changes were brought about in the process of appointments to the Sindh judicial service. The fundamental change that the 1994 Rules brought about, was that the High Court of Sindh was made a key institution having a crucial role in the appointment of judges. The 1994 Rules, in draft form, were before the Supreme Court and were noted with satisfaction as is clear from the report of the case (at p.113). The 1994 Rules, it may be seen, made express stipulation that the Provincial Selection Board which was comprised of Judges of the High Court of Sindh would select the judicial officers for appointment to the judicial service and the Government would make their formal appointments in accordance with Rule 4 of the 1994 Rules. No appointments to the Sindh judicial service were, therefore, possible under the 1994 Rules unless recommended by the Provincial Selection Board comprising exclusively of Judges of the Sindh High Court. This background which was part of the defining precedent in the case of Sharaf Faridi has been elaborately referred to and commented upon in the impugned judgment. 15. The foregoing discussion makes it clear that the dispensation envisaged in the 1974 Rules did not meet the constitutional benchmark for the independence of the Judiciary and its separation from the Executive. This standard was satisfied only by the above-mentioned structural change, brought about through the 1994 Rules. It only follows from this that anything which reverses this fundamental change by making judicial appointments the exclusive preserve of the Sindh Government and the SPSC, would amount to a violation of the constitutional imperative. The impugned Notification dated 4.12.2008 is unconstitutional for precisely this reason. It reverts the process of appointing judicial officers in Sindh (in essential particulars), to the situation which was prevalent prior to 1994. In this Civil Appeals Nos.212-213 of 2011 9 dispensation, the government makes appointments while the selection is done through the SPSC. The High Court has been left with no role in the selection and appointment of Judges in the Sindh judicial service. The High Court can, at most, trigger the process of appointment by making a requisition, but the Court itself has no say either in the selection of judicial officers for recruitment in the judicial service or in their appointment. We have no hesitation in following precedent and in adhering to the constitutional principles enunciated therein. As a consequence, we hold that the impugned Notification dated 4.12.2008 and the amendments made thereby in the 1994 Rules, are ultra vires the Constitution and of no legal effect. The said Notification and the amendments thereby made have rightly been struck down on this ground by the High Court of Sindh. 16. This does not imply that every province is obliged to adopt a uniform method for the selection and appointment of judicial officers. It is a hallmark of our federal Constitution that each federating unit is free to carve out its own policy and practice in such matters. ‘Parity’ between the federating units as urged by the learned Advocate General, Sindh is not required and would be contrary to the federal nature of our Constitution. The only requirement is that the policy and practice adopted by each Province must conform to constitutional imperatives elaborated in Articles 175 and 203 and the relevant precedents - which demand, inter alia, that the High Courts must retain a significant degree of 'control' over the appointment and selection process of judicial officers. EXECUTIVE AUTHORITY : TRICHOTOMY: 17. With great respect for the learning and erudition of the learned five member Bench of the High Court, we do wish to differ with certain observations and findings relating to the “past performance” of the SPSC given by the learned Bench. In para 35 of the impugned judgment, the Court has cited certain comments filed by the Government of Sindh and a report prepared by Mr. Justice Faisal Arab, to conclude that these “speak[] volumes about the mismanagement and mal-practices prevalent in the said Commission.” The High Court has also stated its opinion that “… experience show [that the SPSC] has remained under the influence of the Executive and on Civil Appeals Nos.212-213 of 2011 10 several occasions successfully given results as per their expectations or to say the least, on considerations other than merits” (para 66). At the end of the judgment, the High Court felt it necessary to go beyond the plea of the petitioner’s counsel and record its finding that the impugned Notification was not just mala fide in law, but also mala fide in fact (para. 87). With due respect to the learned Judges, these observations and conclusions raise some fundamental constitutional questions, inter alia, as to the scope of judicial review of administrative action and the constitutionally mandated trichotomy of state functions. That the SPSC is an executive body is quite enough to show that it cannot, under our constitutional scheme, be vested with the exclusive power to select judicial officers. Moreso, when the Government (as per Rule 4) is obliged to appoint the persons so selected. The observations of the High Court adverted to above, however, go beyond this principle and can be seen as blurring the separation of powers. JUDICIAL REVIEW: 18. In the exercise of its jurisdiction under Article 199 of the Constitution, the High Court was called upon only to judge the legal and constitutional validity of the impugned Notification. Passing judgment on the competence or good faith of the SPSC or over the SPSC’s performance as an institution, past or present we say with respect, was not called for in this case. By passing these remarks, the Court has risked tainting the institutional credibility of SPSC on the basis of specific or unspecified incidents adverted to by the High Court, which would be amenable to correction through judicial review. Such taint in turn, creates far-reaching repercussions effecting well settled constitutional principles. When a forum no less lofty than a five member Bench of the High Court puts it in writing that the Commission is blighted by “mismanagement and mal-practices” and makes appointments on “considerations other than merits,” then it is only natural that innumerable professionals who are regularly examined by the SPSC, be they teachers, doctors, accountants, revenue officers etc, would flock to the courts seeking to get the decisions of SPSC overturned based on the authority of a full Bench of the High Court. Such a situation would be both inconsistent with Civil Appeals Nos.212-213 of 2011 11 precedent and constitutionally questionable, given the doctrine of separation of powers which requires that the three organs of the State are considered coordinate and co-equal. 19. The SPSC, it should be noted is an executive authority and a singularly important institution. It was created by the Sindh Public Service Commission Act, 1989 (XI of 1989), an act passed in exercise of powers specifically conferred by the Constitution. The institutional importance of a Public Service Commission becomes clearer when we notice that such Commissions have been specifically mentioned in all of Pakistan’s Constitutions. Article 242 of the 1973 Constitution stipulates that the …Provincial Assembly of a Province in relation to affairs of a Province, may, by law, provide for the establishment and constitution of a Public Service Commission… (2) A Public Service Commission shall perform such functions as may be prescribed by law.” 20. The SPSC, to which certain functions of the Provincial Government of Sindh have by law been delegated under Article 138 of the Constitution, has correctly been deemed by the High Court as an executive authority. It is clearly performing an executive function and for this very reason, it cannot be given the task of making appointments to the Judicature. It may, however, be noted that while it remains a part of the Executive branch, for the effective discharge of its duties, it has been provided a certain degree of autonomy from the political executive. Where such autonomy is unlawfully impinged upon by the Executive in a given situation, the remedy lies in rectifying the specific situation under Article 199 of the Constitution, rather than declaring an Executive body to be incompetent or to be acting mala fide. 21. The SPSC as specifically envisaged in the Constitution and the SPSC Act has the backing and mandate of Article 242 of the Constitution. The High Court undoubtedly has the power to exercise judicial review over specific selections/recommendations made by SPSC. Such review, however, will have to be situation specific and secondly, will need to meet the well settled criteria justifying such review. An illegal decision taken by the SPSC while selecting District Attorneys or Prosecutors for the Sindh Government can thus easily be set-aside by the High Court in exercise of powers of judicial review vested in it under Article Civil Appeals Nos.212-213 of 2011 12 199 of the Constitution. A specific selection or set of selections can also be reviewed judicially on the ground of malice in fact, if there is sufficient material to establish such malice. However, in view of the constitutional principle of trichotomy of powers, a High Court would not be in a position to negate the powers of an executive body such as SPSC which, as noted above, has the backing of an enactment passed by the provincial legislature in accordance with Article 242 of the Constitution. We, therefore, are of the opinion, that the general observations, comments and conclusions drawn in respect of SPSC by the High Court were not appropriate or necessary in the facts and circumstances of the present appeals. We have felt the necessity of reiterating the constitutional structure of separation of powers between the Executive, the Judiciary and the Legislature to ensure that the selections/recommendations, past and future, made by the SPSC are not subjected to litigation and judicial review on the basis of the observations and conclusions made by a five member Bench of the Sindh High Court. This does not, in any manner, restrict the case-specific power of judicial review vested in the High Court under Article 199 of the Constitution and to examine the actions of the SPSC. 22. For the foregoing reasons, while these appeals have been dismissed for the reasons noted above, certain remarks and observations made by the High Court in respect of the SPSC have not been affirmed. Judge Judge Judge Islamabad. A. Rehman. Announced on 9.5.2012. Approved for reporting.

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IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE KHILJI ARIF HUSSAIN CIVIL APPEAL NO. 2133 OF 2006 (on appeal from the judgment of the Lahore High Court, Lahore dated 24.10.2001 passed in CR No.2239/2000) Mst. Noor Bibi and another …Appellants VERSUS Ghulam Qamar and another …Respondents For the Appellants: Mr. Iftikhar Hussain Shah, ASC. Mr. Salim Khan Chechi, ASC. For the Respondents: Nemo. Date of Hearing: 17.03.2016 JUDGMENT Anwar Zaheer Jamali, CJ.— This appeal by leave of the Court arises out of the judgment dated 24.10.2001 in Civil Revision No.2239/2000, passed by learned single Judge in chambers of the Lahore High Court, Lahore, whereby the said Civil Revision was allowed, concurrent findings of the two Courts below, challenged therein were set aside, and accordingly the suit for declaration and change of mutation filed by the respondents was decreed. 2. Briefly stated, relevant facts of the case are that on 24.07.1995, Respondent Nos. 1 and 2, being son and daughter of late Nasir Hussain, instituted a declaratory suit against their real mother, Mst. Noor Bibi (Appellant No.1), and their brother, Zulfiqar Ali (Appellant No.2), in respect of agricultural land measuring 45 Kanal 14 CA 2133/2006 -2- Marla, out of total land measuring 76 Kanal 4 Marla, bearing Khasra Nos. 92, 124, 125, 126, 127, 621/128, 134, 135, 193, 194, 195, 634/280, 307, 308 and 309, Khewit No.13, Khatooni No.14 according to Jamabandi for the year 1992-93, situated at village Gurri, Bhoora, Tehsil and District Sialkot. Their claim was based on the assertions that their father, Nasir Hussain, had died five years ago, whereafter Inheritance Mutation No.181 dated 24.01.1994 was attested in favour of his legal heirs according to which, Mst. Noor Bibi, widow of deceased, got 1/8 share, Ghulam Qamar and Zulfiqar Ali, sons, got 4/5 and Mst. Razia Bibi, daughter, got 1/5 out of 7/8. Late Nasir Hussain belonged to Shia faith, wherein a widow is not entitled to any share in the immovable property (lands) owned by her deceased husband. Further, according to Shia law of inheritance, Ghulam Qamar and Zulfiqar Ali, sons should have been given 4/5 share each and Mst. Razia Bibi, daughter should have been given 1/5 share, whereas the widow of Nasir Hussain (deceased) was not entitled to 1/8 share. 3. The suit was contested by the parties, issues were framed, evidence was recorded, and vide judgment dated 15.11.1997, it was dismissed with the observation that the widow, as per Shia law of inheritance, being mother of two sons and a daughter, not being a childless widow, was entitled to inherit legal share from the legacy of her deceased husband, Nasir Hussain. 4. The appeal under Section 96 of the Code of Civil Procedure, 1908, filed by respondents against the judgment of the Trial Court of learned Senior Civil Judge, Sialkot, before the Court of Additional District Judge, Sialkot on 12.12.1996, was dismissed vide judgment dated 01.03.2000, with the conclusion that the findings of the Civil Court, that the widow of deceased Nasir Hussain, being mother of two CA 2133/2006 -3- sons and a daughter, was not a childless widow and thus entitled to her legal share under Shia law of inheritance, were unexceptionable. 5. Against these concurrent findings of the two Courts below, the respondents then preferred Civil Revision under Section 115 C.P.C. before the Lahore High Court, Lahore, on 13.06.2000, which was heard and allowed vide impugned judgment dated 24.10.2001 with reference to the application of ratio of judgment in the case of Syed Muhammad Munir v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab Lahore and 7 others (PLD 1972 SC 346). 6. We have heard arguments of the learned ASC for the appellants, while respondents have chosen to remain absent. 7. In his submissions, the learned ASC for the appellants briefly stated admitted facts of the case that Appellant No.1 is widow of late Nasir Hussain and real mother of Zulfiqar Ali (Appellant No.2), Ghulam Qamar (Respondent No.1) and Mst. Razia Bibi (Respondent No.2). Nasir Hussain had expired five years prior to the filing of suit, leaving behind amongst others some agricultural lands as detailed in Paragraph No.1 of the plaint. Therefore, keeping in view that parties were governed by Shia law of inheritance, the two Courts below have rightly held the Appellant No.1 entitled to her share from the estate (lands) of late Nasir Hussain as in her capacity as widow, but the High Court misinterpreted and wrongly applied the ratio of judgment in Syed Muhammad Munir’s case (supra), while equating the claim of Appellant No.1 to that of a childless widow, which is admittedly not the position in the present case. 8. Since the whole case of the respondents is based on the ratio of the judgment in Syed Muhammad Munir’s case (ibid), it will be useful to discuss the said case in some detail: 9. In this case, the only issue involved was regarding the exact connotation of ‘childless widow’ so as to decide whether it meant a CA 2133/2006 -4- widow from whose womb no issue had been born to the deceased or a widow who might have had an issue from her womb to the deceased which died before the opening of inheritance of her deceased husband. It was in this background that not only detailed discussion of various authoritative books of scholars and jurists of the subcontinent on this limited subject was made, but Quranic verses and relevant Hadiths were also taken into consideration to record the conclusion as follows: “The Shias claim that the difference between Shias and Sunnis arise as a result of their different interpretations of some of the Quranic texts. The Sunnis, it is said, accept the interpretations given by the four Imams, namely; Imam Abu Hanifa, Imam Malek, Imam Ahmad and Imam Shafi’e whereas the Shias rely on the interpretations of the Holy Qur’an given by only the Ahl- e-Bait (Members of the Household of the Holy Prophet) beginning with Hazrat Ali and ending with the last Imam and, as such, they claim that their interpretation is likely to be more correct. No one, they maintain, could have known the Holy Qur’an better than Hazrat Ali himself who in his Book had recorded these interpretations according to the instructions of the Holy Prophet himself. In view of this difference in the interpretation of the Qranic text itself, we feel that it would not be proper on our part at this stage to attempt to put our own construction in opposition to the express ruling of commentators of such great antiquity and high authority. To depart from a rule of succession which the Shia community has universally been following ever since the days of Imam Jafar Sadek, as evidenced by the unanimous opinions of the Shia jurists on this point, would be wrong. It is not open to us to change a settled rule of succession, having the force of Ijma behind it at this late stage. If a change is desired to be made this work should be undertaken by the Legislature itself after consulting the Shia Community. We can only point out that the Urdu translation given by Allama Mufti Syed Tyeb Agha Musavi Jazairi does not tally with the English translation given by S.V. Mir Ahmed Ali, another eminent Shia scholar. This rule has, it appears, also been consistently followed by the Court in this subcontinent since the decision of the Calcutta High Court in Mst. Asloo V. Mst. Umdutoonnissa. It was affirmed by the Privy Council in 1897 in the case of Aga Mohamed Jaffer Bindaneem v. Koolsom Bee Bee. The Allahabad, Madras and Patna High Courts have also followed it in Umardaraz Ali Khan v. Wilayat Ali (1), Durga Das v. Nawab Ali (2), Mir Ali Hussain v. Sajuda Begum (3) and Syed Ali Zamin the contrary has been brought to our notice. CA 2133/2006 -5- We would, therefore, allow this appeal, set aside the order of the High Court and declare that on the death of Mst. Fatima, childless widow, her life estate terminated and the bequest made by her in favour of Mst. Hassan Zamani in respect of the Nizampur lands came to an end. According to the Shia Law, even after the termination of her limited estate under custom, she acquired no share in the landed properties obtained by her in lieu of her husband’s estate left behind in India, according to the Shia Law.” 10. From the above, it will be seen that at no stage of the proceedings any issue had cropped up with reference to the status of a widow with children under the Shia law of inheritance, rather the issue dilated upon was in respect of a childless widow, being governed by Shia law of inheritance. In this backdrop, we have no hesitation to hold that the judgment of the Revisional Court impugned before us is not in consonance with the real facts and the ratio of judgment in Syed Muhammad Munir’s case (ibid), which, as discussed above, proceeded on different premises. Under Section 113 of Mohammedan Law by Sir D.F. Mulla (17th Edition), the status of a childless widow for the purpose of inheritance under Shia Fiqah has been discussed as follows: “Section 113. Childless widow.—A childless widow takes no share in her husband’s land, but she is entitled to her one-forth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufractuary mortgage or otherwise.” Apart from it, right of inheritance of a Shia widow from the estate of her deceased husband, not being a childless widow, is also clearly established from the table of sharers under Section 90 of the same book, where in the column of sharers she is placed at serial No.2, with normal share of 1/8, being one or more. 11. Similarly, in another book on Shia Law of succession titled ‘Muhammadan Law’ Volume-II, authored by renowned scholar, Syed Amir Ali, only a childless widow has been shown disqualified from CA 2133/2006 -6- claiming share from the estate of her deceased husband, that too only to the limited extent of lands left behind by her husband. 12. Further, in the book of succession in Muslim family, authored by N.J. Coulson, he has opined that: “ ‘Childless’ here means, according to the text, that the surviving widow is without a child, alive or in embryo and subsequently born alive, at the time succession to the estate opens. A wife, therefore, suffers from this disability if she has had children by the prepositus who have died before the succession opens or if her only children are those of another marriage. The rule is clearly aimed at ensuring, to a larger degree, that lands remain within the husband’s family. A widow succeeds to a share in her husband’s lands only when that share, or the greater part of it, will in the normal course of events be transmitted to the husband’s issue upon her deceased.” 13. This aspect of the case has also been considered in the case of Syid Murtaza Husain v. Musammat Alhan Bibi 1909 IC (Vol.2) 671, which lays down that under the Shia faith, a widow with a child from her deceased husband is entitled to a share in both movable and immovable property of her husband. 14. This being the position, in our considered opinion, the learned single Judge in chambers of the Lahore High Court committed patent error of law and failed to exercise his jurisdiction in accordance with law, which resulted in gross injustice to the appellants. Thus, such judgment is liable to be set aside. 15. Foregoing are the reasons for our short order dated 17.03.2016. Chief Justice Judge Judge Judge Judge ISLAMABAD. 17th March, 2016. Mudassar/   “Approved for reporting.”

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEAL NO.2148/2016 AND CIVIL PETITIONS NO.813-L & 814-L/2015, 579-L, 606-L TO 608-L, 658-L, 1055-L, 1075-L, 1109-L, 1110-L, 2029-L, 2157-L, 2365-L, 3292-L/2016, 179-L, 802-L, 1490- L, 1634-L, 2041-L TO 2050-L, 3195-L, 3210-L, 3385-L/2017, 88-L AND 95-L TO 97-L/2018 (Against the orders/judgments dated 2.3.2015, 12.1.2015, 25.11.2015, 16.11.2015, 24.11.2015, 18.11.2015, 28.10.2015, 19.1.2016, 1.2.2016, 23.2.2016, 20.4.2016, 7.4.2016, 9.3.2016, 18.5.2016, 28.11.2016, 19.1.2017, 19.4.2017, 28.4.2017, 5.6.2017, 1.6.2017, 11.10.2017, 25.10.2017, 14.11.2017, 2.11.2017 and 24.10.2017 of the Lahore High Court, Lahore passed in W.P.No.15430/2014, P.T.Rs.No.233 & 234/2012, I.T.Rs.No.356, 321, 369 & 340/2015, I.T.A.No.286/2015, I.T.Rs.No.5 & 34/2016, W.Ps.No.18231 & 19677/2014, I.T.Rs.No.118, 108/2016 & 87/2015, P.T.R.No.26/2016, I.T.Rs.No.343/2016 & 9/2017, P.T.R.No.7/2013, W.P.No.15659/2013, I.T.Rs.No.34486, 34516, 35358, 35364, 35369, 35373, 33411, 33422, 33470, 33518, 85689, 85691 & 89724/2017, 105/2016, 23149, 90000 & 90026/2017) C.A.2148/2016: Additional Commissioner Inland Revenue, Audit Range, Zone-I Vs. M/S Eden Builders Limited C.P.813-L/2015: Commissioner Inland Revenue, Zone-I, Regional Tax Office, Faisalabad Vs. M/s Crescent Textile Mills Limited, Lahore C.P.814-L/2015: Commissioner Inland Revenue, Zone-I, Regional Tax Office, Faisalabad Vs. M/s Crescent Textile Mills Limited C.P.579-L/2016: The Commissioner Inland Revenue, Zone-I, Large Taxpayers Unit, Lahore Vs. M/s Qureshi Textile Mills Limited C.P.606-L/2016: The Commissioner Inland Revenue, Zone-III Large Tax Payers. Tax House, Syed Mauj Drya Road, Lahore Vs. M/s Suraj Cotton Mills Limited C.P.607-L/2016: The Commissioner Inland Revenue, Zone-I Large Tax Payers Tax House, Syed Mauj Drya Road, Lahore Vs. M/s Al-Nasar Textile Mills Limited C.P.608-L/2016: The Commissioner Inland Revenue, Zone-I Large Tax Payers Lahore Vs. M/s Design Development Fabrication Company (Private) Limited C.P.658-L/2016: The Commissioner Inland Revenue, Zone-I, Large Tax Payers, Lahore Vs. M/s Fazal Cloth Mills Civil Appeal No.2148/2016 etc. -: 2 :- Limited, etc. C.P.1055-L/2016: The Commissioner Inland Revenue, Zone-III, Lahore Vs. M/s Sui Northern Gas Pipelines Limited C.P.1075-L/2016: The Commissioner Inland Revenue, Zone-III, Large Tax Payers Unit, Lahore Vs. M/s Prosperity Weaving Mills Limited, Lahore C.P.1109-L/2016: The Commissioner Inland Revenue, Zone-II, RTO, Lahore Vs. M/s Eehabs Engineering Company (Private) Limited, etc. C.P.1110-L/2016: The Commissioner Inland Revenue, Zone-II, RTO, Lahore Vs. M/s Down Town Private Limited, Lahore, etc. C.P.2029-L/2016: The Commissioner Inland Revenue, Lahore Vs. M/s Jamhoor Textile Mills Ltd. through its Chief Executive C.P.2157-L/2016: The Commissioner Inland Revenue, Lahore Vs. M/s Medical Equipment Systems, Lahore C.P.2365-L/2016: Commissioner Inland Revenue, Lahore Vs. M/s Atta Cables Pvt. Ltd., Lahore C.P.2392-L/2016: Commissioner Inland Revenue, Zone-III, Large Taxpayer Unit, Lahore Vs. M/s Security General Insurance Company Ltd. C.P.179-L/2017: Commissioner Inland Revenue, Lahore Vs. Shakarganj Mills Ltd., Lahore C.P.802-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Master Paint Industries (Pvt.) Ltd., Lahore C.P.1490-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Jamhoor Textile Mills Ltd., Lahore C.P.1634-L/2017: Commissioner Inland Revenue, Lahore, etc. Vs. M/s Kohinoor Textile Mills Ltd., Lahore, etc. C.P.2041-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Ejaz Spinning Mills Ltd., Lahore C.P.2042-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Ejaz Spinning Mills Ltd., Lahore C.P.2043-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Crescent Bahuman Ltd., Lahore C.P.2044-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Crescent Bahuman Ltd., Lahore C.P.2045-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Crescent Bahuman Ltd., Lahore C.P.2046-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Crescent Bahuman Ltd., Lahore Civil Appeal No.2148/2016 etc. -: 3 :- C.P.2047-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Ellcot Spinning Mills Ltd., Lahore C.P.2048-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Ellcot Spinning Mills Ltd., Lahore C.P.2049-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Ellcot Spinning Mills Ltd., Lahore C.P.2050-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s Ellcot Spinning Mills Ltd., Lahore C.P.3195-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s KSB Pumps Company, Ltd., Lahore C.P.3210-L/2017: Commissioner Inland Revenue, Lahore Vs. M/s KSB Pumps Company, Ltd., Lahore C.P.3385-L/2017: The Commissioner Inland Revenue, Gujranwala Vs. M/s Tayyab Agencies C.P.88-L/2018: Commissioner Inland Revenue, Lahore Vs. M/s Khawaja Spinning Mills Ltd., Lahore C.P.95-L/2018: Commissioner Inland Revenue, Lahore Vs. M/s Kohat Cement Ltd., Lahore C.P.96-L/2018: Commissioner Inland Revenue, Lahore Vs. M/s T.U Plastic Industry Company (Pvt.) Ltd., Lahore C.P.97-L/2018: Commissioner Inland Revenue, Lahore Vs. M/s T.U Plastic Industry Company (Pvt.) Ltd., Lahore For the Petitioner(s): Mr. Sajid Ijaz Hotiana, ASC Mr. Abdul Hameed Anjum, Secy. Legal, FBR (In C.A.2148/2016) Mr. Sarfraz Ahmed Cheema, ASC (In C.Ps.813-L & 814-L/2015, 579-L, 606-L, 1055-L, 1075-L, 2157-L, 2365-L & 2392-L/2016, 802-L, 1490-L, 1634-L, 2041-L to 2050-L, 3195-L & 3210-L/2017, 88-L, 95-L to 97-L/2018) Mr. Ibrar Ahmed, ASC (In C.Ps.579-L, 606-L, 1055-L, 1075-L, 1109-L, 1110-L/2016) Mr. Ijaz Ahmed Awan, ASC (In C.Ps.3195-L/2017) Mr. Waqar A. Sheikh, ASC (In C.Ps.3385-L/2017) For the Respondent(s): Ms. Ayesha Hamid, ASC (In C.A.2148/2016) Mr. Imtiaz Rasheed Siddiqui, ASC Mr. Shehryar Kasuri, ASC (In C.P.813-L/2015) Mr. Shahbaz Ahmed Butt, ASC (In C.Ps.2157-L, 608-L, 658-L, 1075-L/2016 & 1634-L, 2043-L, 2046-L to 2050-L/2017) Mr. M. Ajmal Khan, ASC (In C.Ps.606-L, 579-L/2016, 1490-L/2017 & 88-L/2018) Civil Appeal No.2148/2016 etc. -: 4 :- Mr. Mansoor Usman Awan, ASC (In C.P.2392-L/2016) Mr. M. Iqbal Hashmi, ASC Mr. Faiz-ur-Rehman, AOR (In C.Ps.1055-L/2016 & 95-L to 97-L/2018) Date of Hearing: 15.2.2018 ORDER MIAN SAQIB NISAR, CJ.- These matters concern a common question of law and shall be disposed of through the instant order. Initially, on 16.09.2016, leave was granted by this Court in C.P. No.940- L/2015 to consider whether or not the provisions of section 122(2) of the Income Tax Ordinance, 2001 (hereinafter “ITO 2001”) being procedural in nature would have retrospective effect. Subsequently, on 20.12.2017, the notice was issued in C. P. No.813-L/2015 and connected petitions to consider whether pursuant to the amendment brought about in section 122(2) of the ITO 2001 through Finance Act, 2009 consequential extension in date of expiry of the limitation period would operate prospectively or since the Limitation Act 1908 is generally interpreted as a procedural law therefore the amendment would take effect retrospectively. 2. The facts obtaining to C.A. No.2148/2016 (arising out of C. P. No.940-L/2015) are representative of the facts pertaining to the rest of the petitions and therefore we shall only mention the same, for a detailed recital of the facts of each petition would serve no useful purpose. In the aforesaid appeal the respondent filed income tax return for the Tax Year 2008 on 30.12.2008. This was deemed to be an assessment order issued to the taxpayer by the Commissioner on the day the return was furnished in terms of section 120(1)(b) of the ITO 2001. The said deemed assessment order could have been amended as per section 122(2) of the ITO 2001 as it stood on the date of filing of the return in the following Civil Appeal No.2148/2016 etc. -: 5 :- terms “an assessment order shall only be amended under subsection (1) within five years after the Commissioner has issued or is treated as having issued the assessment order on the taxpayer” [hereinafter referred to as the “original section 122(2)”]. Therefore, in terms of section 122(2) of the ITO 2001, as it stood on 30.12.2008 the period within which the assessment order could be amended was 5 years beginning from 30.12.2008 which would mean that the assessment order could be amended uptill 29.12.2013. Thereafter, on 12.09.2013, the appellant issued a notice to the respondent under Section 122(5A) of the ITO 2001 asking the respondent to show-cause why the assessment order should not be amended for the reasons cited in the notice. Finally, on 22.05.2014 an amended assessment order was passed by the appellant against the respondent under Section 122(5A) of the ITO 2001 demanding Rs.49,671,892/- by way of additional tax, etc. It is to be noted that this amended assessment order was passed 5 months after the expiry of the limitation period in terms of Section 122(2) of the ITO 2001 as it stood on 30.12.2008. However, through the Finance Act, 2009 an amendment had been made in Section 122(2) of the ITO 2001 to the following effect:- “(2) No order under subsection (1) shall be amended by the Commissioner after the expiry of 5 years from the end of the financial year in which the Commissioner has issued or treated to have issued the assessment order to the taxpayer”. [hereinafter referred to as the “amended section 122(2)”] In terms of the amended section 122(2) of the ITO 2001 the period of limitation was to commence from 01.07.2009 and end on 30.06.2014. Therefore, as per the appellant/tax department’s interpretation, the amended assessment order was within the period of limitation. The Civil Appeal No.2148/2016 etc. -: 6 :- respondent challenged the amended assessment order dated 22.05.2014 before the Lahore High Court through W. P. No.15430/2014 which was allowed on 02.03.2015 (the impugned order) in the following terms:- “The petitioner, who filed its tax return on 30.12.2008, will be governed by section 122(2) as it stood in the year 2008 and the amendment brought about in the said section through Finance Act 2009 dated 30.06.2009 will not be attracted to the case of the petitioner.’ 3. The learned counsel for the appellant argued that all provisions relating to limitation are procedural in nature and therefore do not create any vested right in favour of the respondent, therefore, the amendment to Section 122(2) of the ITO 2001 brought about through Finance Act, 2009 is to be given retrospective effect. He argued that even otherwise the show cause notice dated 12.09.2013 was issued to the respondent within the original period of limitation and therefore any extensions and/or adjournments sought by the respondent(s) which would extend the period in which the amended assessment order was issued beyond limitation would not operate to create benefit for the respondent and therefore the amended assessment order(s) were within time. The learned counsel for the appellant relied on the judgments reported as Commissioner of Income Tax vs. Asbestos Cement Industries Ltd (1993 SCMR 1276), S. M. Junaid vs. President of Pakistan (PLD 1981 SC 12), Income Tax Officer vs. Sulaiman Bhai Jiwa (1970 Taxation (Vol.21) page 62), Commissioner of Income Tax, East Karachi vs. M/s Reyaz-o-Khalid Co, Karachi (PLD 1973 SC 98), Kohi-Noor Textile Mills Ltd vs. Commissioner of Income Tax, Lahore (PLD 1974 SC 284) and Commissioner of Income Tax, Karachi vs. Civil Appeal No.2148/2016 etc. -: 7 :- Eastern Federal Union Insurance Co. (PLD 1982 SC 247). The learned counsels for the appellant department in connected petitions took the same grounds. 4. Ms. Ayesha Hamid, ASC, learned counsel for the respondent in C. A. No.2148/2016 set out the respondent’s case: that the period of limitation once it begins to run cannot be interrupted or extended unless the legislature expressly provides for the same. She pointed out that the amendment brought about to Section 122(2) of the ITO 2001 does not extend the period of limitation from for example 5 years to 6 years. According to her, had the terminal date of limitation been extended while the original period of limitation had yet to expire, the appellant tax department may have had an arguable case; but in the instant case the terminal date was not extended and nor was the total period of limitation extended beyond 5 years. Instead effectively it was the commencement date of limitation which was disturbed and therefore through the amendment brought about by the Finance Act, 2009 the period of commencement of limitation was changed in case of the respondent from 30.12.2008 to 01.07.2009 and this could not have been done once time began to run on 30.12.2008 and rights relating to limitation and further tax liability, etc., had come to vest in the respondent on 30.12.2008. She placed reliance on Commissioner Inland Revenue vs. Maj. Gen. (R) Dr. C. M. Anwar (2015 PTD 242) which was upheld in an unreported judgment of this Court dated 03.09.2014 passed in C. P. No.1306/2014 titled Commissioner of Income Tax vs. Maj. Gen. (R) Dr. C. M. Anwar (in which leave to appeal was refused against the order cited at 2015 PTD 242), the review against the said judgment was dismissed vide order dated 25.02.2015 on the basis of judgment reported as Nagina Silk Mill, Lyallpur vs. Income Tax Officer, A-Ward, Lyallpur (PLD 1963 SC Civil Appeal No.2148/2016 etc. -: 8 :- 322). Mr. Imtiaz Siddiqi, ASC, Mr. Shahzad Butt, ASC adopted the arguments made by Ms. Ayesha Hamid and also supported the orders impugned in their petitions on the basis of the reasons cited therein and the fact that the vested rights of the respondents could not be lightly set aside by the appellant by treating limitation as merely procedural in these matters. 5. We have the heard the parties and with the able assistance of the learned counsel examined the short point involved in these connected matters: whether limitation is purely procedural and therefore the amended Section 122(2) ought to be given retrospective effect? It is true that on a perfunctory level limitation has often been treated as a procedural law. But this is not always so. Limitation laws by regulating the periods during which particular remedies may be availed do create vested and substantive rights too. The salient features of the law of limitation have been examined in the judgment reported as Khushi Muhammad v Fazal Bibi (PLD 2016 SC 872) wherein at para 4 (i) and (vi) it has been held as under: “(i) The law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right; it only regulated the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they ought to be construed strictly. Civil Appeal No.2148/2016 etc. -: 9 :- (vi) The intention of the Law of Limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right” 6. From the ratio of the above judgment it can be seen that the law of limitation in so far as it regulates the period in which one party can avail a remedy against another is not to be lightly disturbed as the certainty created by limitation is necessary for the success of trade and business, the more so when that limitation governs tax matters. In the matters in hand, the respondents, at the time of filing their tax returns were aware that these tax returns may be amended in terms of section 122(5A) of the ITO 2001 at any time up to five years from the date of filing of the tax return itself. Thus, their planning in terms of their possible amended and/or revised tax liability would extend for a period of five years from the date of filing of their respective tax returns. After the said five years were up, they could be sanguine that their tax return was now final and they could no longer be burdened with an additional demand. This means that a right related to the law of limitation came to vest in the respondents on the date of filing of their respective returns in terms of the provisions of the original section 122(2). However, the effect of the amendment brought about through the Finance Act, 2009 was to change that original date of commencement of limitation. Instead of limitation commencing on the date of filing of the tax return, 30.12.2008 in the case of appellant in CA 2148/2016, limitation was now to commence on the last day of the financial year in which the Commissioner has issued or treated to have issued the assessment order to the taxpayer, which in this particular appeal ibid would have been 1.7.2009. This means that the goal posts themselves were changed by the amendment. It was not that the period of limitation was enhanced to for example 6 years. On the contrary, post amendment too, the limitation Civil Appeal No.2148/2016 etc. -: 10 :- period remained five years. Instead, the amended to Section 122(2) of the ITO 2001 changed the commencement date for when limitation would begin to run. And this was not permissible as certain rights had already come to vest in the respondents on the date on which they had filed their tax returns under the original Section 122(2) ibid. We are fortified in our view by the ratio of the seminal judgment in Nagina Silk Mills’ case (supra) wherein it has been held that: “The limitation in this case under subsection (2) of section 34 of the Act had started running on the 1st of April 1956, and that fixed the terminal date of the period of four years as the 31st of March 1960, with certainty under the law as it then stood. It is a well-recognized principle of the law of limitation that once time begins to run from a specified date it cannot be interrupted or extended unless the Legislature intervenes and makes express provision to the contrary. The Courts 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. ……. the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing statute.” [emphasis supplied] 7. Because the terminal date of limitation is not changing through the amendment brought about through the Finance Act, 2009 and because the period of limitation is not being extended per se therefore the authorities cited by the learned counsel for the appellants are of no avail and are distinguishable. In this view of the matter, hold that the various respondents, who filed their tax returns before the Section 122(2) of the ITO 2001 was amended through the Finance Act, Civil Appeal No.2148/2016 etc. -: 11 :- 2009 will be governed by section 122(2) ibid as it stood before the amendment and the amendment brought about in the said section through Finance Act, 2009 dated 30.06.2009 will not be attracted to their cases. 9. For the reasons above, the appeal as also the petitions are dismissed. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Announced in open Court on 4.4.2018 at Islamabad Approved for reporting Waqas Naseer

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1 ن�� � ِ�ا� )�ِ�� ر�اِ�ا ( د��: � ،ن� �ا ز�ا ب� � ،ن� � �ود ب�  �ا�دى� �ا٢١٩�ا۔/٢٠١٥  � ِ�ز)٢(١٨٥ِ �آ،ل� �� ن�� ١٩٧٣؁ ء ) ف�ِ  � ى�ڈ و �� ِ�ا� ر�� ،ر�و��، ر�و�،ہر�   ٢٠١٥۔٠٤۔١٧  رد �ا�د ���ى� �ا�رد٢٠١٠/٢٣( �ا �ر �و ��ا� )ہ� �ا( م� �ۃںا� ف� � � ںا�  ) ل��(  ��ہ� �ا: قور� � �ا�،��  �و � ِ�ا� ہ� � ��ر �� ِ�ا� �و � ،  �� ل��: �� �� �� ِ�ا� �و � ، �� ِ�ر�: ٢٠�د، ٢٠١٦؁ء  C.A. No. 219-L of 2013 2 � � ،ن� � �ود:۔  �� ��� : ل� �� ١ ى�د � ٰ�� � را�اِ� � ��� � �اد � �ا�ا ِ�ا� ٔ�� �� ہو �   � �ارا٥/٣٦�  � ت��ا � � روا � �� روا �� � ١٨٧،٢٥٤ روا ١٤٧  � ر� ��� �  ف�ِ ك� و �� ت�او � ء� � �� ��� � �و �ل �  �ٔ� � � ق� ��� � ۔� �� � روا �د ��د � � روا � م�� روا ٢۔ �� �ا�ا ِ�ا� ت� � � ����ُ� �و ت�������� �� � ٢ و ن�� ف� � ر� � � ِ  �� ف�� ر�ِت� �� � �ر  سا � ور � ت�او ��� ُ�  ہ� �ا ت� ر� �ِ / �� ��و سا �� روا � � ہ ِ�ا�و �� �ا�ا ِ�ا� � ء � � �ا  تد� � �� � � �  �� �� ��� روا � �ا � ��� � روا � ل�  ل� ۔� جر� �ا و ى�د �ٰ� �   �ا� ى� �ا�د ٢٤٢ ىڈ۔ /٢٠٠٧ � �� ِ�ا� �� � �� � � � �اد � �� ِ�ا�   ں�ود� ں�ا�ى�ڈ و م�ا ل� �ا� �� �� د� � ��  �  ى�د روا � ر�ٰ� � ل� � ۔� �اد ا� �ا �ار ہا� � ہ� �ا � � ں�� � � � رد� ى�ڈ �ِ ٣۔  � �� � � � تد� روا � � � ��د � � ِ�ا� ��و �� � � � � � � ہ�� ر� � � ن�� روا ۔ ٤۔ ل� � � � ر�ا � �� � � � � ع� سا �� ت�او �ِ �  �ارا �  � � � روا � � � � ر�ا � � �� �ہ�� ۔� �� � � �آ ں�ود ہ�د � روا  �ا �� � � �ا سا ر ِ�� ہ� �ا � �� ��  � � ول� ��ا ۔� �� � �  �  ہ� �ا � � ��� ہ�او � �ور زور �ا � �� � � � � � �ا � زور �ا � � �ِ C.A. No. 219-L of 2013 3 � � ��� � ��� ہ�او � ہ� �ا �و سا � � ں� ح�ل �  � � � � �� �د � ہو� � تر� � ہو ا� � ہ �و  � � � ىر� � � � ��� � �و � ��  ل�ا��� � ہ� �ا ��� ہ�او � � �او � ر� � �ا � � ہ� �ا تد� روا   �ا � � � � ��� و �و � ��� �و سا � � ہ� � � ف� � � �ر � ر�  � ر�ا � ى� �۔ ٥۔  ن�� � � ��ن�� و  ��ا �ار  � � ��� � � � � ل�ُا � � �  �ا� �ز� � � �د �� � ں� �ا روا � مو� و مز� �� ار� � � � ىر� � ط� �ا �    � � � � � ��� � � � � سا � � �� �� �� و � ��� � � � � ۔� ��  � �� � جرد � �ذ �ا� � �� �ر�:۔ )ا( � دا�� �� و ��، �� � � � ف� � ہ�د �،� � �� �  �  ا �۔ر� )ب(  �ہ��� � � � � � ف� � � �� و � ى��  ��ا �  � ر� ۔�� ر�اِ )ج(  �� د� ہ�د � �ا / � � � دا�� ��ہ��ا �  ٔ� �و � ےد ہ� � دا���� ے� � ِ�ز دا�� �ا روا ��د �  � � �   � � �عرا� � راد �ا� �  �راد � ے� ن�ا ��ز �� � سا � � �   � � ند سا � ےد �� ى��ہ��  � ��/ روا �� � ر� ��  �ا� � ن�آ � دا�� � راد ى۔ےد� عو� �� ادا � �� � ��� ٦۔ ل� �� � /��ٗہ� روا �� ��ز � �  ��� د� ِ�� � ل�ا  � � روا � � �ا سا ا� ۔� � ر�ا � ر� �� تد� ل� �� روا س� � � �� �� �  �ا�� �� � �� � � ہ� ا � � � � ہو � �� � تد�  �ر م�� � ر� ِ�� � ل� ب� � ��زِ � /�� ہو ا� � ��� ،� � ہ� �ا ��  ن�� �ور زا � � � C.A. No. 219-L of 2013 4  �� � و �و � � �� � ہ� �ا � � � ز� � �� ہ�� �� � سا �� � �  �� ا� � �ز�  �ط ِ�� �او ار� ں� روا �ر �� � � ور � ن�� � ُ��� روا ��  ��  � � � زو� و ِ�� � � �� ۔ِ�ا �ارا � � � ر� ��ز � �� �� � ل��� �   � �ہ�� �  �۔� ��د ٧۔ د � � ہ� �ا �و �� �� ت� � �و سا ہ� �ا ��� ہ�او �� � ىد �  روا � � ادا راد� � ��� روا �و ر� � � �� �� � سُا � �� � ر� � ا� �ِ �� ت�اوِ�� رواً �ر�ا � � �  �� �� � �ا  � تد� �� � � سا � �� � �� � � � � ہر�ا � � سا ر�رد روا ف�ا � ب�د م� � � تد� � �� �ا � � ا  �� �ا روا �� ف� � ں��ُا � � ن�� � روا � �ا � � � � �اد � �ا� �و ل�ا � � � ہ� �ا �و �� �� ۔� �� � ب�ا � � � � فدا� � ��   �� � �د ��٢٥ � ٣٠ � � � ل� ������ � � � � � � � جرد �� �� � � ى����  ىر� ط� � � � ٔ �� ا� � د��� � � � �ا� � � � � ��� � ور � ن�ُ  � �� � روا ل�� ��  �و �� �   �ا� ں� �  ىر� ے�د � �ا ا� � �ز� ��  ۔� �ٔ� � روا � � �� � � � ل� تا�� � � �� ��ِ ٨۔ ا � � � �اد� ل�ا � �َروا ��د ، ھ� ن � � زارد ٔ�� � ے��  �ا� ��  وا ��ار� ر� � ت�اور �� �  ۔� �� � ر� � ا� � زور �ا � � ت�� ىو�د � � ُا � � �� � � � � �� � �دن �ا� نا�� ت�وا �ا � � ں� ۔� �� � �ار �  د� � �ارو � نا ت�وا �ا روا � �� � ے� � ��او � نا ف� � �� � نا � ں� سا � �� �ر مو� � � � �� ��ا� روا ا� ِ�ا� � �  � � �� � �� ��   � ں� �� � �� � د�� ہ�ذ ا�� �� � جرد � ��:۔ C.A. No. 219-L of 2013 5 "ہ�و �ا ر� م� ہ�و � � ہ�ر نا� ��ِ")  ِ�ا� ،��ر �� ِ� ���  ل� ہ� �� �٢٠٠٨ � � ١٣٨٤(� � �� �� � � سا۔ ��  �و ل�ُا � � � �� �ا � �ا� � � روا ھ� نا ��د � � �  � ى�ر �� � � ت� ر� ى� � � � � � � ر� دا�� � �رذ ِِ  ��� روا �و ��� ہو � تر� سا � � ى�ر روا � � �او ��ا ہ��  � � � � � �� �ہ�� �� � � �� روا �� ،�� � �ا � �  ۔� � � � � سا نا� �"�� � م� ہ� � ل�") ِ�ا� ،��ر �� ِ� ���  ل� ہ� �� �٢٠١٦ � � ١٢٢٥( � � � � �و ل�ا �رز � � �   � � �� ہ�� � � سا �� � ن�� ��د � ہد� � � روا �� �� ط�ا �ز� ��د را�  ك� � ر� �� � ہ�� � � سا�د تر� �ِ ۔� �� � ر�  نا� �� ح� �اِِ"� �� م�ء�رو ��� �ر� �ر � م") �� ِ� ���  ل� ہ� �� � ِ�ا� ،��ر٢٠١٦ � � ٨٦٢( � ��د ل�ُا � � �  ۔� جرد �� ل� �� � ِ�ا� ��ر ہ� �� � ��� ح� �ا ِ٢٠٠٨ � �  ١٢٠١نا� �� ِ"ہ�و � � م� ہ�و �� م�" نا� �� روا ِ" �ا ں�  م� ء�رو ��� �ر� �د� � � ت�" ) �� � ِ�ا� ،��ر �� ِ� ��� � ہ� ل٢٠١٣ � � ٨٦٨ (۔� جرد �� � ت� ىر� �د � � ٩۔ � � ر� � �� ِ�ا� � �� � � �� � ہ،� � � �د �ا� � �� �� � �  نا نا� �� �� ِ� � ِ"ى� رو� م� ت� م� نا�د ود و � م�")  � �� ن��  ت� � ��ر � ل� ہ� ��١٩٩٠ � � ٠١( ��ڈ � �ا� � ے�� ےر� � � �  �دا � نُا ، �� �او �� �� روا ��� � نا ح� �ا روا � � ��ا � � � �ا� روا �   �� � � � � � ق�ا� ۔� � � �و ل�ا  نا ہد� �و��اں � ء� � ى�د ٰ �� � ��ِ ند�  ں� ح� � �ور زور � � � تد� � � � �و � �� � ق�ا �ِ C.A. No. 219-L of 2013 6  � � تا� ہ� � �ارا � �� نا�� � � ىر�� � � ىر�� � �ا �  �  � �� �ارا ��� ا��� س�د� �  �ر � � � �ن�� � د�   ق�ا �� �� ا �� � � ۔  � � �ر� � � � تد� روا � و � �� �ر������ �� � �ا� � روا � ہ���   � � � ِ�ز � � ور � � �� � ا� �� ق�ا �ار ہا�ُِ�� � �� ِ�ا�ا  � � ���  � ِ�ز �ا ا� ۔� �آ � � � ��ا � � � � � � �آ � � ��،� �� � جر�  ��  �� ��۔� �� �ر ��   �ر� � � � ا� ِ�ا� ت��و �� �ر�٢٠۔١٢۔٢٠١٦�� � �� �  � � � �  � �� �ا�ود � �ذ �:۔ “For the reasons to be recorded later, this appeal being without merit is dismissed.” ١٠۔  � �� � ھ� � �ا��� روا۔� � � �آ م�ا،د٢٠ �د ،٢٠١٦ء ؁ )ر� � � ��ا( �ا�و   

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{'id': 'C.A.219-L_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present :- Mr. Justice Mian Shakirullah Jan Mr. Justice Tassaduq Hussain Jillani Mr. Justice Nasir-ul-Mulk Mr. Justice Syed Jamshed Ali Civil Appeal No.2206/2005, Civil Appeal No.721/2006, Criminal Appeal No.304/2003, Civil Petition No.459 of 2006 and Suo Moto Case No.8/2006, In Civil Appeal No.2206/2005 & 721 of 2006 On appeal from the orders dated 07.09.2006 10.03.2006 of the High Court of Sindh, Karachi, passed in CPD No.371 of 2005 & CP.D. No.1664 of 2005, respectively. Pakistan Medical & Dental Council Appellant Versus Ziauddin Medical University & others Respondents For the Appellants : Mr. M. Akram Sheikh, Sr.ASC Assisted by Barrister Rahil Kamran Sh. Mr. M. A. Zaidi, AOR For the Respondent No.1 : Mr. Anwar Mansoor Khan, ASC For the Respondent No.2 : Mr. Tariq Mehmood, Sr.ASC For the Respondent No.3: Ch. Aitzaz Ahsan, Sr.ASC Assisted by Barrister Gohar Ali Khan. For the Respondent No.4: Ms. Nahida Mehboob Elahi, DAG Raja Abdul Ghafoor, AOR For the Respondent Nos.1&2: Mr. Anwar Mansoor Khan, ASC (in C.A.No.721/2006) Mr. Tariq Mehmood, Sr.ASC Raja Abdul Ghafoor, AOR For the Respondent No.3: Ms. Nahida Mehboob Elahi, DGA (in C.A.No.721/2006) Ch. Akhtar Ali, AOR For the Applicant : Mehr Khan Malik, AOR (in C.A.No.721/2006) In Crl Appeal No.304 of 2003 On appeal from the order dated 03.07.2003 of the Lahore High Court, Rawalpindi Bench, passed in Crl.Org. No.107-W/2003 Dr. Sohail Karim Hashmi, etc Appellants Versus Healers Education Society, etc Respondents For the Appellant : Mr. M. Bilal, Sr.ASC For the Respondent : Mr. M. Munir Peracha, ASC Mehr Khan Malik, AOR Ch. Akhtar Ali, AOR In Civil Petition No.459 of 2006 On appeal from the order dated 25.05.2006 of the High Court of Sindh, Karachi, passed in C.P. No.D- 619/2006 Pakistan Medical & Dental Council Appellant Versus Federation of Pakistan & others Respondents For the Petitioners : Mr. M. Akram Sheikh, Sr.ASC Assisted by Barrister Rahil Kamran Sh. Mr. M. A. Zaidi, AOR For the Respondents : Mr. Anwar Mansoor Khan, ASC Raja Abdul Ghafoor, AOR Ch. Akhtar Ali, AOR In S.M.Case. No.8 of 2006 Fraud by a Fake Medical College i.e. Independent Medical & Dental College, Faisalabad For the Applicant : Malik Qamar Afzal, ASC Barrister Ch. M. Jameel, ASC On Court’s Call : Sohail Karim Hashmi (Secy. PMDC) Fazal Ahmed, President PMDC Ms. Nahida Mehboob Elahi, DAG Raja Saeed Akram, Asst.AG, Pb. Raja Abdul Ghafoor, AOR Ch. Akhtar Ali, AOR Mr. Ejaz Muhammad Khan, AOR Date of hearing : 28.11.2006 JUDGMENT Tassaduq Hussain Jillani, J-. Medicine has always been a noble, rewarding and cherished profession. No wonder, down the ages, some prompted by mundane considerations, some inspired by idealism and some by the belief that healing is a divine virtue, young men and women in great numbers have chosen it as a career. By the nature of their calling Doctors have been respected, adored and at times subjected to, not too flattering a comment. The poet John Owen was not very off the mark when he said: - "God and the doctor we alike adore But only when in danger, not before; The danger o’er, both are alike requited, God is forgotten, and the Doctor slighted". Driven by lofty objectives, motivated to achieve higher standards of professional excellence in Medical & Dental research as also to provide quality services to the needy and to ward off the element of "slight", in public comment, efforts were made to establish regulatory bodies all over the world. In the Indian subcontinent was passed the Indian Medical Council Act 1934 which formed a body by the name of Indian Medical Council. The Pakistan Medical Council of 1951 replaced by Pakistan Medical & Dental Council established under the Pakistan Medical & Dental Council Ordinance, 1962 are successor bodies to the said Council. 2. Responding to the public demand many private institutions have been established to train and impart medical training and award degrees in a medical qualification. The attempt by the Medical & Dental Council to keep a balance between the mandate of law and the demand of institutions seeking recognition of their respective medical qualifications have led to conflict of interests and litigation. The cases in hand are reflective of this dilemma in which following issues have cropped up for consideration. What is the nature and import of the concept of recognition of a medical qualification as contemplated in Section 11 of the Pakistan Medical & Dental Council Ordinance, 1962? What is the nature of ‘consultation’ with the Council by the Federal Government, which the law requires the latter to have before passing an order under various provisions of the Ordinance? Whether every chartered University having a medical faculty is entitled to representation in the Pakistan Medical & Dental Council in terms of Section 3 of the Ordinance? Whether the teaching staff of each Medical & Dental Institution in Pakistan is entitled to representation in accord with Section 3 (f) of the Ordinance? Whether the Pakistan Medical & Dental Council is empowered to ask for information, make queries, issue directions and take other steps prescribed in law to carry out the purposes of the Ordinance? 3. The afore-mentioned issues have arisen out of following set of facts and circumstances. 4. In Civil Appeal No.2206 of 2005, Pakistan Medical & Dental Council has challenged the order dated 07.09.2005, passed by a learned Division Bench of the High Court of Sindh Karachi, vide which the constitution petition (C.P.D. No.371 of 2005) was allowed & it was held and directed as under:- "We are of the considered opinion that the Petitioner No.2 University as well as the Medical Institutions owned by the Trusts which Petitioners No.1 and 3 represent are entitled to be represented on the Council of the Respondent No.1. Indeed the Respondent No.1 is entitled to seek such information as may be necessary or cause inspection of medical or dental institution as is permissible by section 20 and 21 and seek compliance of Regulations framed under section 33(2), it cannot take away the petitioners’ right to be represented on the Council till such time that their recognition are revoked. We, therefore, direct the Respondent No.1 to hold elections within 02 months from the announcement of our short order dated 07.09.2005 Above are the reasons of the aforesaid order". 5. In Civil Appeal No. 721 of 2006, Pakistan Medical & Dental Council has challenged the judgment dated 10.03.2006 passed (in C.P. No.D-1664 of 2005) by a learned Division Bench of the same learned High Court, vide which the earlier judgment/direction referred to in the preceding paragraph was reiterated and the Pakistan Medical Council was directed to convene a meeting for organizing the election of members for representing the respondent/petitioner in the Council in terms of Section 3(1) (b) and 3(1) (f) of the Ordinance. 6. In Civil Petition No.459 of 2006, Pakistan Medical & Dental Council has challenged the order dated 25.05.2006 passed in C.P. No.D-619/2000, whereby the learned High Court of Sindh, Karachi held that since the Council did not hold elections in terms of the order passed in C.P.No.D-371 of 2005 (referred to in para 4 above), petitioner Nos.1 to 3 & 5 to 8 (Now respondent Nos.2 to 8 before this Court) shall have a right to participate in the meetings of the Pakistan Medical & Dental Council unless the Notification dated 18.04.2006 of Ministry of Health declaring them elected as members of the Council under section 3(1)(b) and (f) is set aside. 7. In Criminal Appeal No.304 of 2003, filed by Dr. Sohail Karim Hashmi, Secretary, Pakistan Medical & Dental Council, the charge sheet dated 03.07.2003, framed by a learned Division Bench of the Lahore High Court, has been challenged, wherein the learned Division Bench held that prima-facie the appellant was guilty of violating the undertaking given before the High Court in Intra Court Appeal No.153 of 2003, with regard to carrying out inspection of a medical institution. It issued show cause notice to the appellant and Dr. Riffat Ansari, Assistant Secretary, Pakistan Medical & Dental Council, as to why they should not be punished for committing contempt of the Court and the reply was sought within four days. 8. In Suo Moto Case No.8, some students of the independent Medical & Dental College, Faisalabad, addressed a petition to the Hon’ble Chief Justice of Pakistan, levelling serious allegations against the College administration and submitted that on account of omissions and commissions of the College, the students pursuing their professional Degree/Courses are not certain about their future as the medical qualification being given by the respondent had not been accorded recognition by the Pakistan Medical & Dental Council. It has been prayed that the Pakistan Medical & Dental Council be directed to close down the College and accommodate the students in other recognized Medical Institutions of the country. 9. The Pakistan Medical & Dental Council is a statutory body and in terms of the Pakistan Medical & Dental Council Ordinance, 1962, it is a regulatory authority for the universities having Medical & Dental Faculties and Institutions in Pakistan. The Council has been of the view that only those institutions and the faculties of such medical universities are entitled to be represented in the Council which are imparting education and training for the grant of medical qualifications which have been accorded recognition by the Federal Government in consultation with the Pakistan Medical & Dental Council in terms of Section 11 of the Ordinance. It has maintained that the elections for the membership of the Council from amongst the Medical faculties of universities and Medical Institutions have to be conducted by the Council. Reference was made to Section 3(1)(b) & (f), Sections 4 and 11 of the Pakistan Medical & Dental Council Ordinance, 1962. The Council has been jealous of its mandate to carry out inspections of the Medical & Dental Institutions & their examination centers with a view to ensuring uniform quality and standard of the medical education in Pakistan. Respondent Nos. 1 to 3 (in C.A. No.2206 of 2005), were petitioners before the learned High Court of Sindh (in C.P. No.D-371 of 2005). Their precise case before the learned High Court was that all Medical and Dental Institutions recognized by the Federal Government have a right to be represented in the Council; that all the three respondent- institutions have been accorded recognition in terms of the Pakistan Medical & Dental Council Ordinance, 1962; that elections were carried out by the respective institutions, and therefore, having been elected by Medical faculties, they have a right to be represented in the Medical Council. Civil Appeal No.721 of 2006 is directed against the order of the learned High Court of Sindh in which the same learned Bench reiterated its order passed in C.P. No.371 of 2005. The impugned order (in Civil Petition No.459 of 2006) dated 25.05.2006 was passed by a learned Division Bench of the High Court of Sindh in which constitution petition of Respondent Nos. 2 to 8 representing various medical institutions was allowed. In the said petition, filed by several representatives of medical institutions, it was alleged that notwithstanding the order passed in C.P. No.371 of 2005 by the Sindh High Court (which has been challenged in Civil Appeal No.2206 of 2006) the Medical & Dental Council had not complied with the order on the ground that recognition granted to the medical institutions was provisional, therefore, they were not entitled to be represented on the Council. 10. Learned counsel for the appellant representing the Pakistan Medical & Dental Council contended that the judgment of the learned High Court of Sindh holding that respondents are entitled to be represented in the Council is not tenable as it does not appreciate the mandate and import of Section 3(1) (b) & (f) of the Pakistan Medical & Dental Council Ordinance. Under these provisions, only those faculties of medical institutions have a right to be represented whose medical qualifications have been recognized by the Federal Government in consultation with the Pakistan Medical & Dental Council. Referring to various provisions of the Pakistan Medical & Dental Council Ordinance, 1962, learned counsel maintained that the lawmakers have prescribed an elaborate procedure of inspection/of inquiry and of inspection of examinations by the Council. 11. Mr. Anwar Mansoor Khan, learned counsel representing the private respondents, contended that under the Ordinance there is no requirement of recognition to a medical institution by the Federal Government which already stands affiliated with a Pakistan University established by law. He added that Ziauddin Medical University is a chartered University and under section 3 (1)(b) of the Ordinance it has right to be represented in the Council without prior recognition in terms of Section 11 of the Ordinance. He further added that the medical institutions are of two kinds i.e. firstly those which are merely imparting training and secondly those which are imparting training and granting medical degrees. So far as former institutions are concerned there is no concept of recognition by the Federal Government and the institutions which stand affiliated with the Ziauddin Medical University also do not require recognition by the Federal Government as they do not grant degrees and it is the University which grants degrees. He lastly submitted that since the faculties of medical institutions have held elections for members who are to represent them in the Pakistan Medical & Dental Council, they have a right to be represented and the judgment of the learned High Court of Sindh is unexceptionable. Learned counsel also brought to the notice of this Court that the medical qualifications being granted by respondents No.1 (Ziauddin Medical University) & No.2 (Fatima Jinnah Dental College and Hospital Trust) have now been accorded recognition by the Federal Government in terms of Section 11 of the Ordinance. 12. Mr. Tariq Mehmood, ASC, representing the Fatima Jinnah Dental College & Hospital Trust, submitted that the institution has been accorded recognition by the Federal Government and to its extent there is no live issue. 13. Mr. Aitzaz Ahsan, Sr.ASC, learned counsel representing Respondent No.3 (Sohail Medical Trust) submitted that the institutions granting medical qualifications affiliated with a Pakistan University established under the law need not be specifically mentioned in the First Schedule of the Ordinance; that the respondent-institution was granted provisional recognition by the Pakistan Medial & Dental Council; that the concept of provisional recognition is not alien to the Ordinance; that under Section 23 of the Ordinance there is a concept of provisional registration of a medical practitioner; that by extending provisional recognition the Council obliged the respondent to invest a huge sum of money in those medical institutions and it was only with concurrence of the Council that several students were granted admissions in those institutions. It would be rather harsh both to the management and to the students to withdraw such recognition at this stage. He added that the respondent-institution is training and imparting knowledge but the medical qualification is to be granted by the University with whom the respondent-institution is affiliated which is sufficient for the purposes of the Ordinance. He contended that there is no concept of granting recognition to a Medical or a Dental Institution, the same was inserted for the first time by Ordinance No.VII of 1999 which was promulgated on 25th May 1999. But it was never placed before the National Assembly / Parliament within the period stipulated under the Constitution and it lapsed. This according to him reflects the intention of the lawmaker i.e. to dispense with the requirement of prior approval and recognition by the Federal Government to establish a medical institution. Now the Ordinance contemplates recognition of medical qualification and not of a medical institution or a University. 14. Ms. Naheeda Mehboob Elahi, learned Deputy Attorney General, submitted that the right to confer degrees, diplomas, licenses or certificates or other documents to "practise scientific Medical and Dental System" is with the authorities referred to in Section 3 of the Medical & Dental Degrees Ordinance, 1982 and the Schedule thereunder. She added that unless the Medical or Dental qualification for which the respondents-institutions are imparting training is recognized by the Federal Government in consultation with the Pakistan Medical & Dental Council in terms of Section 11 of the Pakistan Medical & Dental Council Ordinance, 1962 these institutions can not seek representation in the Council. 15. To appreciate the issues raised it would be in order to refer to the relevant provisions of Pakistan Medical & Dental Council Ordinance, 1962. The main object of the Ordinance is reflected in its preamble and it was, "to consolidate the data relating to the registration of medical practitioners and dentists and re-constitute (Medical & Dental Council) in Pakistan in order to establish a uniform minimum standard of basic and higher qualification in medicine and dentistry". The recognized medical qualification has been defined in Section 2 Clause (1) to mean, "any of the medical qualifications included in the first and second schedule or recognized under Sections 14 & 15 of the Ordinance". The composition of the Medical & Dental Council is spelt out in Section 3 of the Ordinance, which reads as under:- "3. Constitution and composition of the Council.- (1) The Federal Governemnt shall cause to be constituted a Council consisting of the following members, namely:- one member to be elected by the National Assembly from amongst its members; one member from each Province, to be nominated by the Provincial Government; one member each to be elected by the members of the Syndicate of each Pakistan University from amongst the members of the medical faculty or the dental faculty of the University or, if the University has both a medical faculty and a dental faculty, from amongst the members of the two faculties; four members to be elected from amongst themselves by the registered medical practitioners; four members to be nominated by the Federal Government of whom at least one shall be a member of the Armed Forces Medical Services; two members to be elected amongst themselves by the registered dentists; one member to be elected by the teaching staff of each medical institution and dental institution in Pakistan from amongst the Professors on its staff, if such institution trains for a medical or dental qualification which is for the time being recognized under this Ordinance; one member, belonging to the legal profession, to be nominated by the Chief Justice of Pakistan; the Director General of Health, Government of Pakistan. The President of the Council shall be elected by the members of the Council from amongst themselves. No act done by the Council shall be invalid on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Council". 16. The elections of members to which reference has been made in Section 3 (b) & (f) are to be conducted by the Council in such manner as it may think fit (Section 4). The function and power of the Council are provided in various sections of the Ordinance. One of the sections is Section 11 which is as follows:- "11. Recognition of medical qualifications granted by medical Institutions in Pakistan.- The medical qualifications granted by medical institutions in Pakistan which are included in the First Schedule shall be recognised medical qualifications for the purpose of this Ordinance. Any medical institution in Pakistan which grants a medical qualification not included in the First Schedule may apply to the Federal Government to have such qualification recognised, and the Federal Government after consulting the Council, may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein. (Emphasis is supplied). Such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be recognised medical qualification only when granted after a specified date". 17. Section 13 relates to the power of the Council to enter into negotiations with appropriate authority within or outside Pakistan, for settling a scheme of reciprocity for the recognition of Medical qualification. Section 14 provides that the Federal Governemnt after consulting the Council may accord recognition to a medical qualification granted by medical institution outside Pakistan. Section 15 empowers the Council to certify persons to be possessed of sufficient medical qualification of course with the approval of the Federal Government Section 16 provides for recognition of additional medical qualification granted by foreign or domestic medical institutions. By virtue of Section 17 the medical licenses and diplomas granted by medical institutions in or outside Pakistan are registerable under the Ordinance Sections 18 & 19 contemplate recognition of qualifications granted by Dental institutions in or outside Pakistan and their certification by the Council. Section 20 empowers the Council to require information from every Medical or Dental institution in Pakistan as to the courses of studies and examinations being carried out. Section 21 empowers them to carry out inspections. Section 22 authorizes the Council to recommend withdrawal of recognition of medical qualification to the Federal Government. Under Section 23, the Council maintains a Register for registration of medical practitioners possessing qualifications, which are recognized medical qualifications under the Ordinance. Section 28 prescribes a penalty for fraudulent representation or registration. Section 33 empowers the Council with previous sanction of the Federal Government to make regulations. Section 34 mandates the Council to furnish reports about its working to the Federal Government and Section 35 envisages commission of inquiry by the Federal Government if it is found that the Council is not complying with any of the provisions of this Ordinance. A careful study of various provisions of the Ordinance referred to in the preceding paragraphs show that the objective of the Ordinance are as follows:- Maintenance of uniform standard of Medical & Dental education (at the graduate and postgraduate level). Recommendations for recognition, de-recognition of medical qualifications registration of doctors with recognized medical qualifications within the country or outside the country. Registration of doctors possessing recognized medical qualification from within country or from foreign countries. Making arrangements with foreign countries for according reciprocal recognition to the medical qualifications. 18. Having had a glance at various provisions of the law under consideration and the object of the establishment of the Council, we take up the first two of the 5 issues framed as mentioned above i.e. " (i) What is the nature and import of the concept of recognition of medical qualification as contemplated in Section 11 of the Pakistan Medical & Dental Council Ordinance, 1962? (ii) What is the nature of ‘consultation’ with the Council by the Federal Government, which the law requires the latter to have before passing an order under various provisions of the Ordinance? Although the Ordinance does not expressly use the expression of ‘recognition’ of a training institution but a combined reading of the preamble Sections 11, 20, 21 & 22 would indicate that recognition accorded to a medical qualification in terms of Section 11 of necessity would entail the recognition of the institution which is imparting training and granting a medical qualification. This is so because to assess whether the medical qualification being granted by an institution is in accord with the standard set by the Council and to ensure "uniform standard of basic and higher qualification in medicine and dentistry", the Council has prescribed the courses of study, watches the teaching standards and has been empowered to inspect, issue directions, monitor the working of the medical & dental institution or university which trains for, "grants medical or both trains and grants a medical qualification, additional qualification registerable medical license or diploma or any degree, diploma and license in dentistry". In this regard, the law does not contemplate any distinction between a medical institution or a chartered university granting a medical degree. With regard to the power of the Council in the realm of recognition of a qualification and other related matters under the Ordinance this Court approved in "Shafique Ahmed and others vs. Government of Punjab and others (PLD 2004 SC 168)" the view taken by the Lahore High Court in "Ahmad Abdullah & 62 others vs. Government of the Punjab and 3 others (PLD 2003 Lahore 752)". In the latter judgment, at page 783, it was held as follows:- "But, so far as the power to grant a Degree in some medical qualification is concerned, no University in Pakistan can issue a Degree in a medical qualification mentioned in the First Schedule to Ordinance XXXII of 1962 unless the said qualification has been accorded prior recognition in terms of section 11(1)(2) of the said Ordinance which, inter alia, contemplates recognition through a notification to be issued by the Federal Governemnt after prior consultation with Medical Council established under the said Ordinance. This is true of the University of Punjab, the other Universities similarly placed in Pakistan and University of Health Sciences is no exception" 19. This brings us to the second issue mooted i.e. what is the nature of ‘consultation’ with the Council by the Federal Government, which the law requires the latter to have before passing an order under various provisions of the Ordinance? Under Section 11 (2) of the Ordinance, it is stipulated that "any institution which grants a medical qualification which is not included in the First Schedule, may apply to the Federal Government to have such qualification recognized and the Federal Government after ‘consulting’ the Council may, by notification in the official gazette, amend the First Schedule so as to include such qualification therein". The rationale appears to be that the expert opinion of the apex body of the Medical & Dental professionals should be solicited before according recognition to a medical qualification. The ‘consultation’ envisaged is not the ‘consultation’ of a senior with the junior in administrative hierarchy nor it is a ‘consultation’ with a consultant of choice rather it is ‘consultation’ with a statutory body mandated under the law to carry out prescribed functions to achieve certain objectives. The statutory phraseology of consultation has to be understood and expounded in accord and consistent with the law and to promote the objectives given in the context. The Council being a body of medical and dental professionals, the ‘consultation’ has to be purposive and meaningful. The opinion or advice rendered by the Council during consultative process may not be binding but the Federal Government has to consider and give it a due weight. If it chooses to disagree or bypass the advice rendered it has to give reasons in writing. The reasons should reflect an objective understanding of the issue and should be germane to the objectives enshrined in law Consultation with the Council by the Federal Government before an order under these provisions is passed is reflective of the legislative intent which is twofold i.e. firstly that it is the Federal Government which has to pass an order conferring certain legal status to a medical qualification granted by an institution within or outside Pakistan and secondly an order by the Federal Government should be preceded by consultation with the Council. 20. The third & fourth issues are interrelated and they are being dealt with together. The issues are as under:- "iii. Whether every chartered University having a medical faculty is entitled to representation in the Pakistan Medical & Dental Council in terms of Section 3 of the Ordinance? Whether the teaching staff of each Medical & Dental Institution in Pakistan is entitled to representation in accord with Section 3 (f) of the Ordinance? At a first look, a plain reading of Section 3(1)(b) gives the impression that every Pakistani University established by a law and having a medical or dental faculty or both has a right of representation. This Section does not require a university to have a prior recognition of its medical qualification (by the Council) to qualify for representation. However, this has to be read along with other provisions of the Ordinance. A university which has a medical or a dental faculty, would make arrangements to train, or to train and grant a degree in a medical qualification or to extend affiliation to an institution doing this unless such a qualification is accorded recognition in terms of Section 11 of the Ordinance, the university cannot issue a degree in the said qualification. Even otherwise the medical and dental faculty of a university by itself would be an institution. Therefore, only those universities would qualify for representation in the Council whose degrees fall within the ambit of Section 11. The argument that once, a university is established, the medical qualification it grants does not require recognition in terms of the Ordinance would defeat the very purpose of the Ordinance. Because education being a concurrent subject under the Constitution, a university can be established either under Federal or Provincial law. If such universities are established and they start imparting training or granting degrees of a medical qualification independently of the regulatory mechanism of Pakistan Medical & Dental Council, then each university would run its own courses, and there would be no institution of medical experts at national level to ensure uniform quality education. 21. In case of Medical Institutions under Section 3 (1)(f), "the teaching staff of each medical or dental institution in Pakistan from amongst the Professors on its staff can elect one member for representation in the Council, provided, "such institution trains for a medical or dental qualification which is for the time being recognized under the Ordinance". Thus both the universities established by law in Pakistan having medical faculties and medical institutions would require prior recognition of their respective medical qualifications for getting representation in the Council. 22. The last fifth issue pertains to the powers of Pakistan Medical & Dental Council and has been framed as follows:- "v. Whether the Pakistan Medical & Dental Council is empowered to ask for information, make queries, carry out inspections, issue directions and take other steps prescribed in law to carry out the purposes of the Ordinance?" The powers to require information with regard to courses of study & examination and to inspect examination have been conferred on the Council in terms of Sections 20 & 21. These two provisions stipulate that the Council may require the institutions in Pakistan which train or grant or both train and grant a medical qualification, additional medical qualification, a diploma or a license in dentistry:- To furnish information regarding courses of study and examination to be undergone in order to obtain a medical qualification in question. The minimum age at which such undergraduate courses of study can be undertaken on admission. The examination required to be undergone prior to such qualifications being conferred, any general information having relevance for obtaining the afore-referred qualification, degree or diploma. The Council can appoint medical or dental Inspector to inspect the medical centers. To appoint Inspectors who are mandated under the law not to interfere in the conduct of any examination but they are to report to the Executive Committee on the sufficiency of every examination which they attend and on the courses of study and facilities for teaching provided by the medical or dental institution in question at different stages in respect of such examination. 23. The powers envisaged under the provisions referred to in the preceding paragraphs are not exhaustive and they may include the ancillary powers which they may exercise to achieve the objective of the Ordinance and the regulations framed thereunder. If the Council is not satisfied on report submitted by its Executive Committee with regard to the courses of studies and examinations, the law mandates that the Council in such an event shall report the matter to the Federal Government which after considering the report transmit the same to the concerned medical or dental institution asking the latter to submit explanation and after receipt of the same and after making any further inquiry if it deems fit may withdraw the recognition. 24. We may observe that over the last few decades there has been a mushroom growth of Medical and Dental institutions in the private sector. The element of commercialization has been more pronounced than commitment to academic excellence. The travails of education in public sector are appalling and are partly attributable to the lopsided national priorities pursued by those at the helm of affairs. This tempted the private sector to fill the void. The rapid growth of educational institutions in the private sector on the one hand reflect the extent of public need/thirst for education and on the other a deterioration or dearth of State run educational institutions. The quality of education in the private sector leaves much to be desired. Barring a few exceptions it reflects a pathetic state of affairs. There has been a complete absence of any regulatory mechanism in the domain of general education and people have been allowed mostly to fleece the students and their parents. The private sector has entered the realm of medical and dental education as well. In this domain there are regulatory laws but their application needs further improvement. The Pakistan Medical & Dental Council Ordinance and the regulations framed thereunder lay down a comprehensive procedure to ensure uniform and quality medical and dental education. Similarly, the Medical & Dental Degrees Ordinance, 1982 has restricted and regulated the right to confer degrees, diplomas, licenses and certificates to practice in the medical and dental domain and any violation thereof has penal consequences. There is a dire need to enforce the provisions of these laws with a view to promoting not only quality medical and dental education but also to provide better quality of professional services to the people. The need for regulatory mechanism in the realm of general education and in the domain of professional courses has never been greater. The Higher Education Commission has taken a number of regulatory steps to ensure qualitative improvement in the higher education. The Pakistan Medical & Dental Council through the Ordinance and the regulations framed thereunder is mandated to pursue the objective of a uniform standard of Medical and Dental education in the country All the stakeholders should strengthen these and similar institutions in the country because it is only through these institutions that we can achieve the goals set out in their Charter. 25. A society in transition witnesses two parallel strains i.e. a process of institutional erosion and attempt by the reformers/idealists to build the institutions. Effort should be to strengthen the latter. Because institutions play a vital role in civilizing a people and in their onward march towards socio-economic and political progress. In the comity of nations the credibility and progress of a country is measured by the strength of its institutions. A nation which fails to respect the institutions falls in grace, decays, splits and is condemned in history. A society bereft of stable institutions would be at odds with itself. The role of institutions in society has been aptly commented upon by (Professor Dr. Douglass C. North in his seminal work "Institutional Change and Economic Performance"). According to him, "Institutions reduce uncertainty by providing a structure to everyday life. They are a guide to human interactions, so that when we wish to greet friends on the street, drive an automobile, buy oranges, borrow money, form a business, bury our dead, or whatever, we know (or can learn easily) how to perform these tasks. We would readily observe that institutions differ if we were to try to make the same transactions in a different country, Bangladesh for example. In the jargon of the economist, institutions define and limit the set of choices of individuals Institutions include any form of constraint that human being devise to shape human interaction. Are institutions formal or informal? They can be either: informal constrains – such as rules that human beings devise and informal constraints – such as conventions and codes of behaviour. Institutions may be created, as was the United States Constitution; or they may simply evolve over time, as does the common law. (Emphasis is supplied"). 26. In the cases in hand, we are seized of the affairs of a professional regulatory institution Such institutions stand on a set of rules prescribing the objective to be pursued, courses to be followed and a code of ethics to be honoured. The medical graduates would deliver, would be worthy of their noble calling, and would be respected within and outside the country only if they pass through the rigorous courses of study, abide by the parameters of academic discipline and the code of professional ethics which the Council has laid down. But above all, the Council itself has an onerous duty to perform and a responsibility to shoulder. The institution would be made or marred partly by what it does to itself, to its mandate, to the oath of its calling and to the law of which it is a creature. 27. For what has been discussed above, Civil Appeal Nos.2206 of 2005, 721 of 2006 Criminal Appeal No.304 of 2003, Civil Petition No.459 of 2006 after conversion into appeal & Suo Moto Case No.8 of 2006, are allowed, the impugned judgments are set aside and we are inclined to hold, declare and direct as under:- No medical institution or university can train or grant a medical or dental qualification or train and grant both unless the said qualification, degree or diploma has been accorded recognition in terms of Section 11 of the Pakistan Medical & Dental Council Ordinance, 1962. The Federal Government before according recognition in terms of Section 11 has to have a meaningful and purposive ‘consultation’ with the Pakistan Medical & Dental Council and the order to be passed in this regard has to be germane to the purposes and objects of the law. Every University established by law in Pakistan having a medical or dental faculty or both and every Medical & Dental Institution performing a similar function have a right of representation in terms of Section 3(1) (b) & (f) of the Ordinance, provided the medical qualification or diploma for which they are training the students in their university/institution have been accorded recognition as prescribed under Section 11 of the Ordinance. There is no concept of provisional recognition of a medical qualification issued by a medical institution either under the Pakistan Medical & Dental Council Ordinance or the Regulations framed thereunder. Since on account of the act of Pakistan Medical & Dental Council and the Federal Government certain medical qualification / degree / diploma being issued by certain medical institutions have been granted provisional recognition and on account of this, several students admitted in those institutions and they may be at various stages of their professional courses, we are not inclined to direct immediate closure of these institutions. The cases of these colleges / institutions having provisional recognition shall be taken up by the Council. The institutions are given six months time from the announcement of this judgment to make up the deficiencies and submit a detailed report to the Pakistan Medical & Dental Council and thereafter the Council having examined the reports and carrying out requisite inspections, if deemed necessary, shall submit its recommendations to the Federal Government which shall decide the matter by 14th August 2007. The medical institutions whose cases do not qualify for recognition in terms of Section 11 of the Ordinance and no order qua recognition of their medical qualification is passed by the Federal Government, by the afore-referred date shall not be allowed to function thereafter. The students studying in the institutions / colleges who were accorded provisional recognition and whose cases are not approved in terms of Section 11 of the Ordinance, shall be accommodated by the Federal Government in various medical institutions of their respective provinces of residence. Necessary steps shall be taken by the Federal Government so that the students are not put under any mental pressure and their studies do not suffer on account of this exercise. This is being done firstly, because the Pakistan Medical & Dental Council & the Federal Government have been partly responsible for their admissions when it granted provisional recognition and secondly, on Court query the Secretary, Pakistan Medical & Dental Council undertakes that the Council with the assistance of the Federal Government shall ensure that these students are accommodated in Medical & Dental Institutions of their respective Provinces. The Council shall ensure that all necessary steps are taken for the composition of the Council in accord with the afore-referred provisions under Section 4 of the Pakistan Medical & Dental Council Ordinance. It is the Council which has to conduct elections in terms of clauses (b) (c) (e) or (f) of Sub-section 1 of Section 3 and a meeting of the Council shall be held within six weeks of the pronouncement of the judgment. The Federal Ministry of Health, Government of Pakistan is directed to ensure that the mandate of the Pakistan Medical & Dental Council Ordinance, 1962 & Medical & Dental Degrees Ordinance, 1982 is given effect to in letter and spirit and any violation of these laws are met with penal consequences as envisaged under the law. In view of our findings in para 22 above with regard to powers of the Council qua inspection of a Medical Institution, the proceedings of contempt against the appellants are uncalled for. Therefore, Criminal Appeal No.304 of 2003 is allowed and the proceedings before the High Court, Rawalpindi Bench are set aside. In view of terms noted above, all these appeals & petitions are disposed off. JUDGE JUDGE JUDGE JUDGE ANNOUNCED IN OPEN COURT ON 15.12.2006 "APPROVED FOR REPORTING" ISLAMABAD, THE 15.12.2006 M. Zubair/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEALS NO.2215 TO 2222 OF 2006 (On appeal from the judgment dated 2.12.2003 of the High Court of Sindh, Karachi passed in Const.Ps.No.D-680/1989, 8-D/1991, D-452/1991 and D-2474/1995) AND CRL. ORIGINAL PETITION NO.31 OF 2008 (Contempt matter/disobedience of the Court order) 1. Younus Habib etc. Vs. Imranur Rashid etc. In C.A.2215/2006 2. Mst. Zaibun Nisa Yaqoob etc. Vs. Zulfiqar Ali Agha etc. In C.A.2216/2006 3. Muhammad Younus Habib etc. Vs. M.A. Baig Ghazi (decd.) through L.Rs. etc. In C.A.2217/2006 4. Mst. Zaib-un-Nisa etc. Vs. Ali Ahmed etc. In C.A.2218/2006 5. Evacuee Trust Property Board through its Chairman Vs. Imranur Rasheed (decd.) through L.Rs. etc. In C.A.2219/2006 6. Evacuee Trust Property Board through its Chairman Vs. Zulfiqar Ali Agha (decd.) through L.Rs. etc. In C.A.2220/2006 7. Evacuee Trust Property Board through its Chairman Vs. M.A. Baig Ghazi (decd.) through L.Rs. etc. In C.A.2221/2006 8. Evacuee Trust Property Board through its Chairman Vs. Ali Ahmad etc. In C.A.2222/2006 9. Ali Ahmed etc. Vs. NAB through its Chairman etc. In Cr.O.P.31/2008 For the Appellant(s): (In CAs 2215-2218/06) Mr. Khalid Anwar, Sr. ASC Mr. M. Afzal Siddique, ASC Mr. Mehmood A. Sheikh, AOR Assisted by: Mr. Yousaf Nasim, Advocate Mr. Hamid Ahmed, Advocate Raja Ikramullah, Advocate CAs 2215-2222/06 -: 2 :- Mr. A.I. Chundrigar, ASC Mr. Mehr Khan Malik, AOR Mr. Shehzad Sarwar, Manager Litigation, HBL (In CAs 2219-2222/06) Hafiz S. A. Rehman, Sr. ASC Raja Abdul Ghafoor, AOR Assisted by: Sheikh Rizwan Nawaz, Advocate (In Cr.O.P.31/08) Ch. Aitzaz Ahsan, Sr. ASC Mr. Gohar Ali Khan, ASC. Syed Feisal Hussain Naqvi, ASC Assisted by: Ms. Zonaira Fayyaz, Advocate For the Respondent(s): For private Respondents i.e. members of WCHS Ch. Aitzaz Ahsan, Sr. ASC Mr. Gohar Ali Khan, ASC Syed Feisal Hussain Naqvi, ASC Syed Rifaqat Hussain Shah, AOR For WCHS: Mr. I. H. Zaidi, ASC For KDA: For ETPB: For NAB: For Govt. of Sindh: For the Federal Govt.: Syed Jamil Ahmed, ASC Hafiz S. A. Rehman, Sr. ASC Raja Abdul Ghafoor, AOR Mr. Imran-ul-Haq Khan, Special Prosecutor NAB Mr. Shehryar Qazi, Addl. A.G. Mr. Aamir Rehman, Addl. A.G.P. Other respondents in CAs: Ex-parte Dates of Hearing: 18.10.2017, 19.10.2017, 23.10.2017, 24.10.2017, 08.11.2017, 09.11.2017 and 14 to 16.11.2017 JUDGMENT MIAN SAQIB NISAR, CJ.- These appeals are with the leave of the Court dated 6.11.2006. The dispute inter se the parties is in relation to the land measuring 32 acres and 30 ghuntas situated in the prime location of Deh Okewari, District Karachi East (Okewari), falling in Survey No.37 (18 acres and 3 ghuntas), Survey No. 160 (10 acres and 25 ghuntas) and Survey No. 161 (4 acres and 2 CAs 2215-2222/06 -: 3 :- ghuntas). There appears to be no dispute that the aforesaid land was part of land originally owned by the Karachi Panjrapore Association (the Association). The land originally owned by the Association was registered on 25.04.1938 under Section 26 of the Companies Act, 1913, for the ‘protection and preservation of the cattle and other animals and to arrange for their feeding etc.’. The dispute before us is regarding the proprietary title of the disputed land. The appellants on the one hand are the purchasers from the haris (Haris) of the said land to whom certain leasehold rights have been granted by the Evacuee Trust Property Board (ETPB), whereas the contesting respondents i.e. allottees of the Works Cooperative Housing Society (WCHS) claim that the land has been transferred to WCHS by the Karachi Development Authority (KDA). The key questions involved in this matter are: (a) what was the status of the Association after the partition of the subcontinent; whether it remained active or did it become an evacuee; (b) whether the property in question was evacuee trust property or not; (c) whether the property had been validly acquired by the Federal Government for the purposes of establishing a police line, if so, to what extent and whether after shifting the Capital from Karachi to Islamabad such acquired land, which had validly vested with the Federal Government, had been lawfully given to the KDA and subsequently transferred by the KDA to WCHS; and (d) whether the land was factually and validly leased to the Haris by the Association or the ETPB, and they had validly transferred it to the appellants; and what is the status of the appellants. CAs 2215-2222/06 -: 4 :- 2. To address these questions, it is expedient to consider the relevant facts, which can be categorized into four transactions which are pivotal to the required determination; namely, (1) the acquisition proceedings with regard to the 8 acres of the disputed land in the year 1954, (2) the decision of this Court in Madhavji Dharasibhai vs. Karachi Panjrapore Association (PLD 1957 SC 83) declaring the Association to be ‘evacuee’ under Section 2(2)(d) of the Pakistan (Administration of Evacuee Property) Ordinance 1949 as amended in 1951 (Ordinance of 1949) and directions to determine whether the land owned by it was ‘evacuee trust property’, (3) the issuance of the Martial Law Regulation No.57 (MLR 57) in the year 1983, the application of which was limited to encroachments of ‘evacuee trust property’ under the ETPB, and (4) the issuance of lease dated 27.7.1990 (Lease Deed) for 99 years. Though the impugned judgment addresses these events, a brief overview of the same is given for further clarity. 3. The partition of the sub-continent in 1947, marked the creation of a unique category of ‘evacuee’ persons and entities who needed to be adequately and justly dealt with under the law of the country. While ‘evacuee property’ has over the years been allotted to immigrants from the other side of the border or otherwise, the administration of ‘evacuee trust property’ i.e., the properties formerly owned by trusts was and remains an ongoing obligation of the government. The Ordinance of 1949 (later amended in the year 1951) was introduced to cater to both these categories of properties. Section 6 of the Ordinance draws a fine distinction between the treatment of the two types of property ibid: while subsection (1) of Section 6 provides that ‘evacuee property’ is to completely vest in CAs 2215-2222/06 -: 5 :- the Custodian, subsection (2) thereof provides that ‘evacuee trust property’ will only temporarily vest in the Custodian who was duty- bound to appoint fresh trustees for the same and till such time that new trustees were appointed, he was to ensure that such property was utilized for the original purposes of the relevant trust. The Association was indeed a trust but it was only declared ‘evacuee’ a decade after partition by this Court in Madhavji Dharasibhai’s case (supra). The Association owned huge chunks of property in the city of Karachi, which was at that time the Federal Capital of the Country; the disputed land was allegedly being utilized for agricultural purposes by the Haris (originally as lessees of the Association) who claim to be in possession of the same till date. Interestingly, 8 acres of the same land was also part of acquisition proceedings initiated by the Federal Government in the year 1954 for the purpose of construction of Police Lines. Notifications under Sections 4, 6, 9 and 17 of the Land Acquisition Act, 1894 (the Acquisition Act) have been placed on the record in this regard. 4. Mr. Khalid Anwar, learned Sr. ASC appearing on behalf of the appellants (in CAs No. 2215-2218/2006) commenced his arguments with a brief summary of facts. Placing his reliance on the judgment in Madhavji Dharasibhai’s case (supra), he submitted that the Association was conclusively declared ‘evacuee’ and thus the lands belonging to it including the disputed land was ‘evacuee trust property’. In this context, he read out the definition of ‘evacuee’ in Section 2(2)(d) of the Ordinance of 1949. He further submitted that as per Section 8 of the ETP Act 1975, the Chairman is the ultimate authority for determining whether a property is evacuee trust property and the fact that the ETPB has time and CAs 2215-2222/06 -: 6 :- time again referred to the disputed land as ‘evacuee trust property’ meant that the Chairman (under Section 8 of the ETP Act 1975) had made such determination with regard to the disputed land. He submitted that the Haris, the predecessors of the appellants were tenants of the Association from pre-partition days and they had been cultivating the land and paying dhal to the Association. Thus, after partition in 1947 and once the property of the Association was declared evacuee trust property, which also included the disputed property, the Haris retained their rights of tenancy. Such rights, he stated, attained finality when suit No. 3611/1978 filed by the Haris was decreed in their favor on 30.5.1984 and on the basis of which through filing of execution No.5 of 1984, the executing court ordered the execution of a lease deed of 33 years on payment of Rs.769.56/- per acre. The Haris made the said payment and this had validly resulted in the extension of the lease to 99 years in favor of the Haris, who for sufficient consideration transferred the same in favor of the appellants. Learned counsel unequivocally submitted that MLR 57 would not apply to the disputed land as the acquisition of leasehold rights by the appellants and their predecessors was legal and valid for all purposes and the said MLR only applied to encroachments on ‘evacuee trust property’. On this basis he stated that the order of the Chairman, as authority, dated 10.6.1985 was not applicable to the disputed land which had been validly transferred to his clients. He added that it was precisely to nullify this order that paragraph 6A was incorporated in MLR 57 through an amendment in the year 1989 as clause (4) read with clause (1) of the said para specifically provides that the tribunal established thereunder will determine the scope of the application CAs 2215-2222/06 -: 7 :- of MLR 57, and evacuee trust properties falling outside it shall remain unaffected by MLR 57. Regarding the claim of the WCHS which rests on the acquisition proceedings in the year 1954, he submitted that there were certain insurmountable hurdles in the success of such a claim which were based on some critical aspects of these land acquisition proceedings which could not be ignored; (i) that the land acquisition proceedings of 1954 were initiated for the benefit of the Federal Government whereas the disputed land was evacuee trust property as confirmed by judgment in Madhavji Dharasibhai’s case (supra); since evacuee trust property already vests with the Federal Government hence the Federal Government could not acquire its own land for a public purpose.; (ii) that the purpose of these land acquisition proceedings was the construction of the Police Lines which was abandoned after Karachi was no longer the Federal Capital past the year 1960, thereafter the land could not be transferred to KDA and subsequently the WCHS unless prior approval of the Federal Government was obtained since the purpose for acquisition did not remain the same. He added that the transfer of said land to the WCHS for purposes of a housing society did not satisfy the test of a public purpose; (iii) subsequently, these acquisition proceedings were illegally continued by the Provincial Government and culminated in an award of compensation which was also invalid; (iv) each of the two notifications in the year 1954 under Sections 4 and 6 of the Acquisition Act which were produced on the record related to only 8 acres out of Survey No.37 and the rest of the disputed land could not be covered under the same land acquisition CAs 2215-2222/06 -: 8 :- proceedings: in fact even to this extent he submitted that it was not a valid acquisition since evacuee trust land cannot be acquired. The notifications dated 12.1.1956 regarding Survey No. 161 were not produced and hence cannot be relied on without examining the contents thereof; (v) the entire land acquisition proceedings of 1954 are based on the false assumption that the disputed land was non-evacuee; (vi) the acquisition proceedings can only be concluded if the steps of such acquisition have been completed in accordance with the provisions of the Acquisition Act, and since the respondents have been unable to produce any evidence to the effect that any payment of award was made with regard to the land acquired, nor can possession be said to have transferred to them as per Section 16 of the said Act, thus these proceedings were incomplete and cannot be relied on. 5. He explained that as notices under Sections 9 and 10 of the Acquisition Act were sent to the Association instead of the Custodian Evacuee Property therefore this adds another lacuna to the 1954 land acquisition proceedings. Elaborating on his argument, he submitted that the ETPB was constituted for the first time by virtue of Section 3 and 4 of the ETP Act 1975 and on 03.05.1978 the Deputy Administrator, ETPB wrote to the KDA categorically pointing out that evacuee trust lands can neither be compulsorily nor unilaterally acquired for any Scheme sanctioned by the KDA and that the alleged acquisition by the KDA of the same had no legal validity. This letter also provided that under the ETP Act 1975, there is no statutory bar on the sale of evacuee trust lands provided that such sale is made with the prior approval of CAs 2215-2222/06 -: 9 :- the Federal Government. He clarified that the notification dated 15.06.1964 cannot be deemed to be an approval of the Federal Government for the transfer of acquired land since the said notification was merely sanctioning the approval of the KDA Scheme No.24/Town Expansion Scheme. He pointed out that although an offer was made by the Deputy Administrator for the KDA to approach the ETPB and agree on sale at the prevailing market rates, KDA failed to avail this gracious offer. Learned counsel also stated that although various other illegal acquisitions by the KDA were retrospectively validated by the ETPB but such validation expressly excluded the property/lands of the Association. He further stated that once the purpose of the land acquisition proceedings is abandoned, as was the case in these 1954 acquisition proceedings, they inevitably become void. In support of this the learned counsel relied on Union of India v. Nand Kishore (AIR 1982 Dehli 462) and Industrial Development & Investment ah 47 Corp. v. State of Maharashtra (IR 1989 Bombay 156). With regard to his contention that the fact that possession is taken by the Government as per Section 16 of the Acquisition Act is essential to the conclusion of acquisition proceedings, he relied on the judgments of Saradar Begum v. Lahore Improvement Trust (PLD 1972 Lah 458) and Nand Kishore’s case (supra). He stressed that it is admitted by the KDA that the possession till date remains with the Haris who are the predecessors of the appellants and in this regard he referred to the letter of the KDA dated 4.6.1989. 6. The learned counsel clarified that even if the award for compensation and the 1954 acquisition proceedings with regard to CAs 2215-2222/06 -: 10 :- 8 acres of the disputed land are assumed to be legally valid, there is still the hurdle of illegality of the transfer of the said land by the Central Government to the KDA, sanctioning of town expansion Scheme No. 24 of the KDA [President Order No. 5 of 1957] vide notification dated 15.06.1964 wherein the KDA is directed to honor the commitments made by it inter alia to the WCHS with regard to “Block 8 & 9 of the land originally reserved for the Police Headquarters”. He continued that it is pertinent to note that neither can such sanctioning by the Federal/Central Government be seen as an approval by the Federal Government for the transfer of the land acquired by it for the Police Lines to the KDA, nor can it be used to conclusively determine the right of the WCHS to the disputed land since the said commitment was to be honored “as far as practicable” and hence no obligation was created on the KDA. He submitted that soon thereafter when the KDA attempted to resile from this commitment, the WCHS and KDA went into litigation which was settled in the two judgments of Works Cooperative Housing Society v. Karachi Development Authority (PLD 1969 SC 391) and Karachi Development Authority v. Works Cooperative Housing Society (1978 SCMR 307). He further pointed out that in both the aforementioned judgments of 1969 and 1978, neither the Evacuee Custodian nor the ETPB were ever made party to the proceedings and therefore the judgements cannot be binding on them and must be disregarded completely to the extent of the present matter. Learned counsel pointed out that yet another critical point to note was that the WCHS itself later abandoned the prospect of claiming any land in Blocks No. 8 and 9 of KDA’s Scheme no.24 and instead accepted CAs 2215-2222/06 -: 11 :- alternative land. In this backdrop, learned counsel concluded his arguments by pointing out the irregularities in the impugned judgment which inter alia included the irregularity that a writ petition in the Sindh High Court cannot lie against a consent order or against an order in a revision petition which was itself decided by the Sindh High Court. In support of this contention he relied on Muhammad Baksh v. Ghulam Hussain (1989 SCMR 443), Muhammad Khan v. Mst. Ghulam Fatima (1991 SCMR 970), and Faizur Rehman v. Rahman-ud-Din (1997 SCMR 1301). Another irregularity was that the appellants in the impugned judgment were allottees of the WCHS who derive their title from the KDA, however the KDA itself had never challenged the decision of the revision petition, neither did the WCHS, and these appellants- allottees therefore could not have challenged the same. Regarding the legality of the Chairman’s order dated 10.6.1985, he referred to the decision of the tribunal which the KDA had approached for the ratification of the Chairman’s order, whereby the tribunal categorically held that the Chairman had gone beyond his powers in issuance of the said order in its judgment dated 28.8.1989. 7. Mr. Aitzaz Ahsan, Sr. ASC for respondents No.1 and 6 (respondents), submitted that he represents the allottees of WCHS. He commenced his arguments by submitting that the WCHS derives its title to the entirety of the disputed land (Surveys No. 37, 160 and 161) through the KDA who admittedly allotted the said land to the WCHS; while 8 acres of the Survey No. 37 were validly acquired by the Government through the land acquisition proceedings in 1954 which were later validly transferred to the KDA, the rest of the 24 acres and 3 ghuntas of the disputed land were also validly CAs 2215-2222/06 -: 12 :- acquired by the KDA as this remaining land was notified to be part of the KDA Scheme No.24 and later the ETPB, through negotiations with the KDA, regularized this land in favor of the KDA as evidenced in various minutes of meetings of the ETPB. Regarding the 8 acres of land acquired through the 1954 acquisition proceedings, learned counsel for the respondents submitted that in the year 1954, the land acquisition proceedings for acquisition of evacuee trust property land were in accordance with Section 12 of the Ordinance, 1949 (as amended by Act of XXXI of 1951), clause (b) of subsection (3) of which specifically provides that nothing contained in the provisions of the Ordinance of 1949 shall affect the powers of the Central (Federal) and Provincial Government to requisition or acquire evacuee property, provided that the consent of the Federal Government is acquired prior to exercise of such powers. In response to the contention of the appellants’ counsel that evacuee trust property cannot be acquired, he referred to A.R. Niazi v. Pakistan (PLD 1968 SC 119) wherein it was clarified that evacuee trust property is only a sub-specie of evacuee property. Elaborating on the said contention he submitted that these 8 acres of the disputed land were acquired by the Federal Government for the purposes of construction of the Police Lines. In this regard, he referred to the following notifications which fulfilled the requirement of a valid acquisition for public purpose under the Acquisition Act: - Notification dated 21.5.1954 under Section 4 of the Acquisition Act (pg. 25 of CMA No. 2659/2007); - Notification dated 21.5.1954 under Section 9 of the Acquisition Act (pg. 28 of CMA No. 2659/2007); CAs 2215-2222/06 -: 13 :- - Notification dated 8.6.1954 under Section 6 of the Acquisition Act (pg. 36 of CMA No.2659/2007); and - Notification dated 8.6.1954, and 21.5.1954 under Section 17 of the Acquisition Act (pgs 25 and 36 respectively of CMA No.2659/2007) which according to the learned counsel directs the taking over of possession. He submitted that in pursuance of the abovementioned direction regarding possession, possession was taken over by the Police and an award was made by DC, Karachi, for the compensation of the acquired land; as such Rs. 16,06,559.20/- was paid by the KDA. Thus, he submitted, the acquisition of 8 acres of the disputed land in Survey No.37 had been validly completed and acquired by the Federal Government which had subsequently been transferred to the KDA for Scheme N.24. 8. Regarding the remaining 24 acres and 3 ghuntas of the disputed land, he candidly conceded both in his written as well as oral arguments that no separate acquisition proceedings were ever carried out under the Acquisition Act, however the ETPB had accepted the KDA’s request for acquisition of evacuee trust land falling within the boundaries of Scheme No.24. 9. Furthermore, he submitted that the Chairman’s Order on 10.6.1985 in his capacity as Authority under MLR 1957 was conclusive in determining the fate of the disputed land and it was never challenged in this regard and it is settled law that even a void order must be challenged on a timely basis as per the law laid down in the judgment of Pervaiz Musharaf v. Nadeem Ahmed (PLD 2014 SC 585). Hence the said order has now attained finality. He also vehemently asserted that the appellants’ counsel’s CAs 2215-2222/06 -: 14 :- claim that the WCHS had abandoned its claim to the disputed land is absolutely incorrect and such claim has never been abandoned by the WCHS. Further added, that in all, the KDA Scheme No.24 constitutes 2662 acres in Karachi, and hence setting it aside now will adversely affect tens and thousands of land allottees/owners. On the other hand, he submitted that the entire claim of the appellants stems from a Lease Deed dated 27.7.1990 which lacks any legal standing as determined by the Chairman’s order dated 10.6.1985. 10. The learned counsel for the KDA and the ETPB appeared before this Court and chose to adopt the arguments of Mr. Aitzaz Ahsan, the learned counsel for the allotees of the WCHS. 11. We have heard the learned counsel for the parties and perused the record. The claim of the appellants is that on account of the judgment in Madhavji Dharasibhai’s case (supra) declaring the Association as ‘evacuee’, all the properties belonging to the Association became evacuee properties and thus acquisition proceedings were void ab initio, having no bearing on the determination of the title of the disputed land. The respondents on the other hand claim that the said acquisition proceedings are valid and conclusive. In order to determine the status of the Association and ultimately the status of the land owned by it and also the status of the Haris and the appellants, it would be advantageous to consider the background and functioning of the Association prior to and post partition, which has been highlighted in detail in Madhavji Dharasibhai’s case (supra). Around the year 1866, some of the Hindu citizens of Karachi formed the Association for the protection and preservation of cattle and, on 25.4.1938, CAs 2215-2222/06 -: 15 :- under a licence granted by the Central Government, it was registered under the Indian Companies Act, 1913 in conformity with section 26 thereof. The Association continued to work, but during the 1947 partition the Hindus migrated in large numbers from Karachi. In 1949, an application was made to declare the property belonging to the Association as “evacuee property”, which was so declared on 28.1.1950, by the Additional Custodian (Judicial) Evacuee Property, Sind and Federal Capital, Karachi. The Association went in revision to the Custodian of Evacuee Property Sind and Federal Capital Karachi, which was allowed by the order dated 18.7.1950, holding that: “The fact that the bulk of the members of the Managing Committee are now evacuees, does not affect the character of the property because they have ceased to have any right or interest in the property”. The result was that the Association was not an “evacuee” and the property belonging to it was not “evacuee property”. On account of amendments made in the Evacuee law by the Act of 1951, another application was presented in which it was alleged that the Association had become a defunct body and, therefore, the property owned by it should be declared “evacuee property”. The enquiries made by the Assistant Rehabilitation Commissioner in regard to the working and management of the Association revealed that the whole Association had collapsed and the management was being carried on by persons who had no authority to manage and supervise the affairs of the Association, nor was any general meeting of the Association held since 1947. The Association was given an opportunity to rebut the facts ascertained during the enquiry and the allegations made in the application. In this connection the statement of Seth CAs 2215-2222/06 -: 16 :- Jethanand Biranand, President of the Association, was recorded on 21.1.1950. It was stated that out of the members of the Managing Committee mentioned in the report of 1946, only 5 remained in Pakistan. The last annual meeting of the Association was said to have been held on 27.10.1947. Its minutes were recorded in the Proceedings Book, but they had not been confirmed or signed. In 1948, there was no annual general meeting. There was no record of the proceedings of the meeting claimed to have been held since 1947. In view of these facts, the Deputy Custodian (Judicial), Evacuee Property, Karachi, by order dated 18.8.1953, came to the conclusion that the Association had become defunct and by reason of the definition of “evacuee” given in Section 2(2)(d) of the Ordinance of 1949, the Association was declared an “evacuee” and its property “evacuee property”. A revision petition filed by the Association was dismissed on 19.4.1956 by the Custodian, with the observation that the Association had ample opportunity to produce evidence before the Deputy Custodian in support of its plea that it had not ceased to function wholly or partially, but no such evidence was produced and on the evidence on the record, the conclusion was inescapable that the Association had at least partially ceased to function and the Association must, therefore, be held to be an “evacuee”. On 22.5.1956, a petition under Article 170 of the Constitution of Pakistan, 1956 for the issuance of a writ was filed in the High Court of West Pakistan, Karachi Bench. It was prayed therein that the order of the Custodian be quashed and the Association be declared as “non-evacuee” and its properties be restored. The said petition was dismissed vide order dated 12.11.1956, wherein the finding of the Custodian was upheld. It CAs 2215-2222/06 -: 17 :- was also held that there was no doubt that the authority of the persons who were managing the Association at that time had not been approved by the Custodian. The said order was challenged through a petition for special leave to appeal by the Association which was allowed. Another petition for the issuance of a writ was also made to this Court by Madhavji Dharasibai and others (for themselves and on behalf of the members of the Hindu community who had made endowments and paid contributions for the objects of the Association) under Article 22 of the Constitution of Pakistan, 1956. It was alleged that the Fundamental Rights guaranteed by Article 15 thereof with respect to the protection of property rights and Article 18 thereof with respect to their right to establish, maintain and manage their religious institutions had been violated by the order of the Custodian. This Court while declaring the Association as an “evacuee” observed that “As a matter of fact, under section 76 of the Companies Act, a company is under a statutory obligation to convene a general meeting once at least in every calendar year and not more than 15 months after the holding of the last preceding general meeting, and Associations, like the appellant-Association registered under section 26 of the Companies Act, are also subject to the same obligation under subsection (3) of section 26. This could not be done for a number of years and the Association has, therefore, ceased to function, wholly or partially, as mentioned in clause (d) of subsection (2) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. At this point, it might conveniently be mentioned that the alleged, functioning of the Association, after it ceased to function in accordance with the Companies Act, and its Articles of Association, was clearly under the CAs 2215-2222/06 -: 18 :- control of persons, who could not derive their authority from the aforesaid instruments, and whose authority therefore required the approval of the Custodian, if the Association were not to fall within the definition of “evacuee” cited above. It is quite clear that the approval of the Custodian was neither sought nor recorded at any time.” However, after observing that “no step was ever taken to find out that property was held in trust; for religious or charitable purposes; for according to subsection (2) of section 6, the custody of the Custodian over such property is only a temporary one and the income has to be applied for carrying on the purposes of the trust. It appears that this aspect of the case was not pressed before the High Court, Karachi Bench, nor is there anything to show that at any stage did the Custodian ever apply his mind to it, though in view of the allegations of the appellants such a determination was necessary”, the High Court was directed to issue a writ of mandamus to the Custodian to take such action as is provided by section 6 (2) aforesaid in respect of any property or properties of the Association which he may find, after enquiry, to be “property held in trust for religious or charitable purposes”. 12. From the above it is clear that after independence, the Association became evacuee and as such its properties also became evacuee property. Now we come to the second question whether the properties of the Association were held in trust for religious or charitable purposes. In this regard it is to be noted that no specific order of the Custodian in this regard has been produced by either of the parties, before this Court or before the forums below, thus, we have to consider other material available on the record. In this regard it is to be noted that in the Schedule CAs 2215-2222/06 -: 19 :- appended with MLR 57 in terms of Paragraph 1 thereof the property of the Association was mentioned as the evacuee trust property under the Evacuee Trust Property Board. For reference, Paragraph 1 alongwith the relevant portions of the Schedule is reproduced below: 1. Martial Law Administrator Zone ‘C’ or any other person or authority, authorised by the Chief Martial Law Administrator in this behalf, may, if he or it is of the opinion that any part of the agricultural land specified in the Schedule to this Regulation and belonging to the defunct Evacuee Trusts so specified and now vesting in the Evacuee Trust Property Board has been acquired, entered upon, or taken possession of by any person illegally or by any person illegally or by fraud, misrepresentation or otherwise by order cancel such acquisition or as the case may be, order the ejectment of such person and further order that the said property shall forthwith be restored to the Evacuee Trust Property Board free from all encumbrances. THE SCHEDULE [See Paragraph 1] Name of Deh Area of land Survey No. & Area (1) Pinjrapur Trust Acres, Ghuntas …. 2. Deh Okewari Distt 608, 02 ….. _37_ , _160_, 18-03 10-25 ….. …… _161_ 4-02 A perusal whereof makes it clear that the property in issue was mentioned as the property belonging to the defunct Association and its supervision was vesting in the ETPB. 13. With regard to the validity of the acquisition proceedings of the 8 acres of the then evacuee land, reliance may be placed upon Section 12 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (as amended by Act of XXXI of 1951) which is reproduced hereunder: Chapter II Appointment of Custodians and Vesting and Possession of Evacuee Property 12. Exemption from legal process.- (1) Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, CAs 2215-2222/06 -: 20 :- ejectment, attachment or sale by any officer of a Court, and no injunction or other order of whatever kind in respect of such property shall be granted by the Court or any other authority. (2) Upon the commencement of this Ordinance, any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect, and all evacuee property in custody of any Court, or receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called by the Custodian, be delivered to the Custodian. (3) Nothing contained in the foregoing sub-sections shall— a) prevent a Registering Officer from ordering registering of a deed of sale or exchange relating to evacuee immovable, or a Civil Court from ordering specific performance of a contract of sale or exchange of any such property where the sale or exchange or contract of the same has been duly confirmed or approved by the Custodian and the required certificate has been granted by him; or b) affect any power conferred on the Central Government or by or under any law for the time being in force to requisition or acquire property, and it is hereby declared that if by or under such law or any other law for the time being in force, a like power is conferred upon or delegated to a Provincial Government the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such direction as the Central Government may at any time see fit to give. Hence in light of Section 12(3)(b) ibid, an exemption was granted to the Federal Government for the acquiring of evacuee land and hence the acquisition of the 8 acres of Survey No.37 of the disputed land by the Federal Government was in accordance with the law and hence the acquisition proceedings were validly initiated. 14. In view of the above, the dispute remained that whether the disputed land being evacuee trust property could be acquired by the government under the land acquisition proceedings. It is an undisputed fact by the parties concerned that prior to the Madhavji Dharasibhai judgment in 1957, the lands/properties of the Association had not been declared as evacuee trust property and thus the notifications made under CAs 2215-2222/06 -: 21 :- Section 4 and 6 of the Acquisition Act in this regard were valid. For purposes of convenience, relevant portions of these notifications are reproduced hereunder: Notification under Section 4 of the Acquisition Act; The Gazette of Pakistan May 21, 1954 ----------- Karachi 15 May, 1954 No. 25/10/Rev 53.- Whereas it appears to me that land specified in the Schedule hereto are likely to be needed/to be taken by Government at the expenses of the Government of Pakistan, and for the purpose specified against it in the Schedule. It is hereby notified under the provisions of Section 4 of the Land Acquisition Act 1 of 1984, as amended by Act XXXVIII of 1923 that the said lands are likely to be needed for the public purpose specified in the Schedule. Any person hereby interested in the said lands are hereby warned not to obstruct or interfere with any surveyors or any other persons employed on the said land for the purpose of the said acquisition. Any contract for the disposal of the said lands by sale, lease, mortgage, assignment, exchange or otherwise on any improvements made therein without the sanction of the Collector after the date of this Notification will under Section 24 (Seventhly) of the said Act be disregarded by the officer assessing compensation for such parts of the said land as may be finally acquired. ………..If the acquisition is in part or wholly abandoned, the facts will be duly notified on the Pakistan Government Gazette. I further direct under Sub-Section (4) of Section 17 of the said Act that as the acquisition of the said land is urgently necessary, the provisions of Section 5-A of the said Act shall not apply in respect of the lands. ************** Schedule Taluka: Karachi – District: Karachi Taluka Deh S.No. Area of S.No. Approximate Purpose (in acres) area required of (in acres) acquis.. …… ….. ….. ……. …… ….. …… ….. ….. ……. …… ….. Karachi Oke- 37 18-3 8-0 For the wari construction of Karachi Police Lines etc. ………… (Stamp of A.T. Naqvi Chief Commissioner, Karachi) [Emphasis applied] Notification under Section 6 of the Acquisition Act; CHIEF COMMISSIONER’S SECRETARIAT (Revenue Department) CAs 2215-2222/06 -: 22 :- No.25|10|Rev.53. – Whereas by notification in the Revenue Department No.25|10|Rev.53 dated 15th July 1954, it was notified that the lands specified in the schedule hereto were needed for the purpose stated in the said notification viz., for construction of Police Lines, etc., and whereas I am satisfied that the said lands are needed for a public purpose as specified above. It is hereby declared under the provisions of Section 6 of the Land Acquisition Act, 1894 (1 of 1894) that the said lands are needed for public purpose as stated above. …..He (Deputy Collector Land Acquisition), Karachi) is also directed under Section 7 of the said Act to take order for the acquisition of the said lands. And whereas the acquisition of the said lands is urgently necessary, I further direct under sub-section (1) of Section 17 of the said Act that the Collector shall on the expiration of 15 days from the publication of the notice relating to the said lands under sub-section (1) of Section 9 of the said Act, take possession of all the waste and arable lands specified in my notification aforesaid mentioned. .... …. ************** Schedule Taluka: Karachi – District: Karachi Taluka Deh S.No. Area of S.No. Approximate Purpose (in acres) area required of (in acres) acquis.. …… ….. ….. ……. …… ….. …… ….. ….. ……. …… ….. Karachi Oke- 37 18-3 8-0 For the wari construction of Karachi Police Lines etc. ………… A.T. Naqvi Chief Commissioner, Karachi [Emphasis applied] A perusal of the notifications above reveals that both were made under Section 17(1) of the Acquisition Act by virtue of which, on the expiration of 15 days from the publication of the notice relating to the said lands under sub-section (1) of Section 9 of the said Act, possession can be acquired by the Federal Government regardless of whether statutory award of compensation is made (as required under Section 11 of the Acquisition Act) to the persons entitled by such time. Needless to observe that the disputed land, to the extent of 8 acres, vested absolutely in the Federal Government once possession of CAs 2215-2222/06 -: 23 :- the same was taken under Section 16 of the Acquisition Act, which is reproduced hereunder; 16. Power to take possession.— When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. [Emphasis supplied] Evidence of the taking of possession has been proved by the learned counsel for the respondents vide letter from the Mukhtiarkar to the Assistant to the IG Police dated 21.10.1954 which provides that possession was taken over by the Police on 21.10.1954. Although the learned counsel for the appellants has claimed that the disputed land is presently in possession of the appellants, he has failed to produce any evidence to controvert the fact that the possession was taken over under Section 16 by the Police, in effect completing the procedure of acquisition, or that at the time of acquisition, the Haris were occupying the disputed land and the same was not taken over by the Government. Once the land so acquired vested absolutely in the Federal Government, the Federal Government was competent to transfer the same to the KDA as there is no prohibition in the Acquisition Act in this regard, and this is in consonance with the law laid down in the judgments reported as Muhammad Hussain Beg v. Govt. of West Pakistan (PLD 1961 Lah 696), Syed Nazar Abbas Naqvi v. Commissioner Sargodha Division (PLD 1993 SC 455 at pgs 462-463), Asmat un Nisa v. Govt. of NWFP (2010 SCMR 480 at pg 490), and Rana Abdul Majid v. Faislabad Development Authority (1994 MLD 1895). The approval of the Federal Government for such transfer was given vide notification dated 19.10.1963 made by the Basic Democracies Social Welfare and Local Government Dept., CAs 2215-2222/06 -: 24 :- which is a department of the Federal Government, as such, it constitutes a valid transfer for all legal purposes. 15. The amount of compensation to be awarded in this regard had been calculated as Rs.3000/- per acre according to the Award made by the Deputy Commissioner, Karachi vide notification dated 19.10.1963. The payment made by the KDA in this regard is evidenced in the challan dated 30.11.1964 (at pg. 82 of CMA No.2659/2007) referred to by the counsel for the respondents, the contents of which are reproduced hereinbelow; CAs 2215-2222/06 -: 25 :- The acquisition proceedings which commenced in the year 1954, thus stood concluded after due payment made as evidenced above, which was in accordance with the market rate calculated in the award made by the Deputy Commissioner on 19.10.1963. 16. As argued by the learned counsel for the respondent, the land acquired for a particular purpose can be subsequently used for a different purpose. Reliance in this behalf may be made to the judgments reported as Muhammad Hussain Beg v. Govt. of West Pakistan (PLD 1961 Lah 696), Syed Nazar Abbas Naqvi v. Commissioner Sargodha Division (PLD 1993 SC 455 at pgs 462-463), Asmat un Nisa v. Govt. of NWFP (2010 SCMR 480 at pg 490), and the law laid down in Rana Abdul Majid v. Faisalabad Development Authority (1994 MLD 1895) whereby it was held that once land has been acquired by the Government, the title no longer vests with the original owners. Further, as held by this Court in the judgments reported as Pakistan v. Muhammad Ali (PLD 1960 SC 60 at pgs 60,64, 67-70) and Muhammad Ishaq v. Govt. of Punjab (2002 SCMR 1652 at pg. 1661) the acquisition of land for a housing society is recognized as a public purpose. In light of the above and the notification under Section 9 of the Acquisition Act (pg. 28 of CMA No. 2659/2007), the said 8 acres of the disputed land are held to be validly acquired by the Federal Government under the 1954 acquisition proceedings. 17. The law governing evacuee trust property however underwent a sudden change in the year 1983, when MLR 57 was promulgated solely for the purposes of removing illegal encroachments (property acquired illegally or by fraud or misrepresentation or otherwise) by Government and private organizations on the evacuee CAs 2215-2222/06 -: 26 :- trust properties, which lands were to be restored to the ETPB. The appellants, who are the successors in interest of the Haris, maintain that pursuant to lease obtained by them from the ETPB for 33 years, which was later extended to 99 years in the year 1990, they were the rightful occupants of the disputed land and MLR 57 was not applicable to any evacuee trust land which was legally transferred to any person. The main thrust of the argument of appellant’s counsel was that since the said lease was granted to the Haris pursuant to the judgment of the learned Trial Court dated 30.5.1984, which was upheld in appeal vide judgment dated 31.8.1988, therefore, the said Haris were lawful occupants of the disputed land. 18. In this regard it is to be noted that Paragraph No.1 of MLR 57, reproduced hereinabove, makes it abundantly clear that the disputed land was conclusively declared to be ‘evacuee trust property’ and hence any such property would be ordered to be restored. Moreover, paragraph 5 of MLR 57, without making any exceptions of any kind, provides that all judgments or orders of any Court before the promulgation of MLR 57, shall abate. For purposes of reference, paragraph 5 is reproduced below: 5. Every judgment or Order of any Court including the Supreme Court, High Court, Tribunal or authority given or made before the commencement of this Regulation, whether pending in the Supreme Court, Tribunal or authority shall abate. In light of the above paragraph, as rightly held by the learned High Court in its findings in the impugned judgment, since all judicial proceedings and orders pronounced by different Courts prior to the promulgation of MLR 57 stood nullified, it would be a useless exercise to go into details with regards to any such judgments. CAs 2215-2222/06 -: 27 :- Needless to observe that when MLR 57 was promulgated, the appeal was pending before the appellate Court and as per above paragraph, the same stood abated, but the Appellate Court continued with the proceedings on the pretext that the Haris were lawful occupants of the same. Whereas, the fact that the Haris were lawful occupants had never been determined, which fact was determined by the Chairman, ETPB vide order dated 10.6.1985 passed under MLR 57 in his capacity as Authority. Therefore, the land of the Association as detailed in the Schedule to MLR 57 was conclusively declared evacuee trust property and only a legally valid transaction, agreement, lease etc., acquired prior to MLR 57 would be saved from the impact of paragraph 6 of the MLR. Thus, the remaining 24 acres and 3 ghunats of land, on account of the above, were saved from operation of paragraph 6 of MLR 57 which mandated that the land could be disposed of. 19. With regard to the remaining portion of the disputed property measuring 24 acres and 3 ghuntas, it is to be noted that the ETPB, under Section 4(d) of the ETP Act 1957, was authorized to sell or transfer the evacuee trust property provided that prior approval of the Federal Government was obtained in this regard. The said land fell within the boundaries of Scheme No.24, as such its possession was taken over by the KDA. The ETPB had for the first time raised the issue of the purported illegal occupation of evacuee land in the year 1968, conceding that a detailed circular in this regard was issued by the ETPB vide Circular No. ETPB/68/4152 dated 13.06.1968, whereby the ETPB categorically stated that where evacuee trust lands had already been taken over by the KDA, compensation on reasonable rates would be decided CAs 2215-2222/06 -: 28 :- upon and the matter henceforth would be disposed of. Subsequent to the issuance of the abovementioned Circular, the District Evacuee Trust Committee in its meeting held on 23.1.1969 (Minutes of Meeting reproduced in letter of the ETPB) resolved that the ETPB should be paid by the KDA for all of the land falling within KDA Scheme No.24 (2662 acres) on the basis of the compensation award in 1963 and based on the market rate prevailing at the time, compensation payable for 268-13 acres (which according to the learned counsel meant evacuee land that was in addition to the 256 acres already paid for i.e. inter alia 8 acres of the disputed land) was calculated at Rs.13,17,216.24 which was inclusive of interest from 7.5.1965 to 30.6.1971. Full payment of this amount was made through cheque No.CCC-982502 dated 30.7.1971, as evidenced in letter dated 15.9.1971, which is reproduced hereunder; Thus, at that point, all formalities were complete and the land, to that extent too, stood conclusively transferred to the KDA. CAs 2215-2222/06 -: 29 :- 20. As we have already held hereinabove 8 acres of Survey 37 of the disputed land had validly been acquired under the acquisition proceedings of 1954 and the same were validly acquired by the KDA and transferred to WCHS. We further hold that the remaining 24 acres and 3 ghuntas, which was evacuee trust property for all legal purposes after the promulgation of MLR 57, was legally and validly transferred/sold by the ETPB to the KDA in accordance with Section 4(d) of the ETP Act 1957. 21. With regard to the question whether the land was factually and validly leased out to the Haris and thus whether they had validly transferred it to the appellants or not; suffice it to say that as mentioned above in detail, the bulk of the members of the Managing Committee of the Association left the country and the remaining members were insufficient in number to complete the quorum, and further the annual general meetings of the Association could not be held over a long period of time, as such the Association had become defunct and ceased to function. In such a situation, it is not conceivable that the occupation of the land of the Association by the Haris, even if it was on lease obtained from the then Management Committee, when it was functional, could by any stretch of imagination be considered to be valid when the said Committee had become defunct. So when the title of the Haris was not valid, obviously, they could not transfer a better title to the appellants. 22. In light of the above, these appeals are dismissed. 23. In the circumstances when the appeals have been dismissed, we do not want to further proceed with the contempt CAs 2215-2222/06 -: 30 :- matter, resultantly, the same (Criminal Original Petition No.31 of 2008) is accordingly disposed of. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 16.2.2018 at Islamabad Approved for reporting Waqas Naseer CHIEF JUSTICE

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{'id': 'C.A.2215_2006.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT Mr. Justice Maqbool Baqar Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Khan ( V CIVIL APPEAL NO. 221/2018 (Against the judgment dated 28.11.2017 of the Lahore High Court, Mutton Bench passed in RSA No. 8/1998) Haq Nawaz etc. Versus Appellant(s) Ban aras etc. Respondent(s) For the Appellant(s) Respondent Nos. 1-7 For Respondent No.8-10 Date of Hearing Moulvi Anwar-ul-Haq, ASC Ex-Parte Mr. Anwar Mobiri Ansari, ASC 15.09.2021 ORDER Magbool Bagar, J. Assailed through the above appeal was the judgment of the Lahore High Court, whereby the respondent No.8 to 10's regular second appeal against the concurrent Judgments of the fora below was allowed. 2. The dispute mainly was with regard to the sale of the land owned by Mst. Channan Jan, the predecessor in interest of respondents No.] to 7. The impugned sale was affected by Ghulam Rasool, the predecessor in interest of appellants No.) and 2, who on 14.10.1974, as attorney of Msf. Channan Jan, transferred the land in favour of his sons, the appellants Nos.] and 2, through oral sale mutation No. 61. 3. The mutation, upon being challenged by Mst. Channan Jan, was cancelled by the concerned Assistant Commissioner/collector on 30.4.1975. The appeal filed by the appellants No.] and 2 against the said cancellation was dismissed by the concerned Additional Commissioner on 25.10.1975. However instead of pursuing the matter before the revenue hierarchy any further, the appellants No.] and 2 on 30.10.1975 filed a suit, seeking to be declared owners of the suit land on the basis of the aforesaid oral sale mutation, though the same, as noted above, had already been cancelled. The said appellants however in the alternative sought a decree for specific performance of an agreement to sell dated 02.9.1 974. They claimed that in transferring the suit land in their favour, Ghulam Rasool, who was their father, and a tenant of Mst. Channan Jan, in respect of the suit land, acted under and in terms of a General Power of Attorney executed and registered by Mst. Channan Jan in his favour on 17.2.1973. According to said appellants, Ghulam Rasool had on 02.9.1974 entered into an agreement to sell the suit land with Mst. Channa Jan for a sale consideration of RS.40,000/-, 4. It is an admitted fact that Mst. Channan Jan was an old illiterate village dweller, with ill health. The lady was not able to even move on her own, and had been carried to the Registrar's office for the execution of the power of attorney by someone. Ghulam Rasool, the purported attorney, while deposing before the trial Court, also has not denied the suggestion that she was a parda nashin lady. It was not even pleaded that she received any independent advice and/or that contents of the power of attorney were read over and explained to her before she executed if. 5. Mst. Channan Jan's stance throughout has been that she appointed Ghulam Rasool, who was her tenant in occupation, as her attorney, merely to manage the affairs of her land and for nothing more, and therefore, given the status of the lady, it was Imperative for the appellants No.] and 2 to have demonstrated and proved that at the time of the execution of the power of attorney, she was fully conscious of the fact that the document also contained power to sell and that the entire document was read out and explained to her fully and truly, and further that she executed it under an independent advice. They had also to prove that the lady was fully aware and conscious of the consequences and implications of executing the said document. However neither did they prove, nor even pleaded any of it. It therefore cannot be held that Ghulam Rasool, was in fact authorized by Mst. Channan Jan to sell the suit land. The impugned sale/transfer was thus liable to be set-aside on this ground alone. In any view of the matter, since admittedly, the power of attorney did not specifically authorized Ghulam Rasool, to convey the property to his sons, or for that matter to any of his near ones, nor has he been able to prove that, he was otherwise so authorized. The impugned sale mutation was liable to be cancelled as rightly done by the revenue hierarchy. Since long it is well established that an attorney cannot lawfully make transfer of a property under agency in his own name, or for his benefit, or in favour of his associates, without explicit consent of the principal, and in the event he does so, the principal, under the mandate of section 215 of the Contract Act, has a right to repudiate such transaction. Msf. Channan Jan having disowned the subject transaction, the some was rightly annulled as noted above. 6. In any case the power of attorney, of whatever worth it was having admittedly been revoked by Mst. Channan Jan through revocation deed dated 05.9.1974, and thus on 14.10.1974, the date on which Ghulam Rasool purportedly transferred the suit land, he no more remained attorney of the lady, and stood denuded of 4 whatever power he purportedly enjoyed thereunder. The transfer of The suit land by Ghulam 1asool was without authority and was of no legal effect. 7. Although as noted above, the appellants No.] and 2's case as initially presented before the trial Court, through their plaint dated 30.] 0.1975. simply was that their father, being attorney of Mst. Channan Jan, on 02.9.1974, entered into an agreement to sell the suit land with them and thereafter transferred the lands in their favour through mutation No.61 attested on 14.10.1974. There was absolutely no mention of any sale agreement between their father Ghulam Rosool and the lady. The plaint was thereafter amended twice firstly on 04.3.1981 and then on 21.2.1985, however still there was no mention of any sale between the lady and Ghulam Rasool. It was only through third amended plaint filed on 03.1.1987, that the said appellants introduced a new story claiming that Mst. Channan Jan had in fact orally agreed to sell the land to Ohulam Rasool for an amount of Rs.40,000I- and it was upon payment of the said sale consideration amount that she executed the general power of attorney dated 17.2.1973 in favour of Ghulam Rasool, to enable him to pay the outstanding dues in respect of the suit land so that proprietary rights therein may be conferred on her, and the land may then be transferred accordingly. The story as can be seen from the forgoing was so introduced, by the appellants No.1 and 2 to enable them to plead that since the power of attorney was coupled with interest the same could not have been lawfully revoked. However in the first place the appellants No.] and 2 could not have been allowed to set up and plead a case different from what they initially narrated and pleaded, secondly, this subsequent plea even otherwise did not inspire confidence, it was merely a vague assertion, bereft of necessary details. The said appellants did not even mentioned as to when, where and in whose presence the land was orally sold to Ghulam Rasool as claimed by them. The alleged purchase by Ghulam Rasool and the claim that the power of attorney was executed for consideration also does not find support even from the written statement tiled by Ghulam Rasool in the case. Ohulam Rasool has through his written statement which he filed on 03.2.1976 simply conceded the claim of the appellants No.1 and 2 as set out in their original plaint dated 30.10.1975, which plaint, as noted earlier, made no mention of any sale in favour of Ghulam Rasool or of any payment by him to Mst. Channan Jan as a consideration therefor. Ghulam Rasool in his evidence recorded at an earlier stage of the trial as PW-4, simply deposed that Mst. Channan Jan had appointed him as her attorney, and as such he sold the suit land to the appellants No.1 and 2. However subsequently, after the above amendment in the plaint, when Ghulam Rasool was examined as PW-7, he claimed to have purchased the property himself and having himself paid the agreed sale consideration of RS.40,000/- to Mst, Channan Jan in presence of witnesses Allah Wasaya (PW-5) and Allah Dawaya (PW-6), as well as of the son and daughter of Mst. Channan Jan, namely, Banaras and Khadija, the respondent No.] and 5 respectively, but he still failed to mention the date and venue of the purported transaction. Although the said two witnesses who were cousin brothers of Ghulam Rasool, were examined by the appellants No.1&2, however their evidence failed to lend any credence to the appellants' stance, as they contradicted each other in material details. 8. The appellants No.] and 2 have thus miserably failed to establish that the suit land was sold by Mst. Channan Jan to Ghulam S 6 Rasool and/or that the power of attorney was executed in consideration of the price of land paid by Ghulam Rasool and/or that the same was otherwise coupled with interest. The power of attorney also does not say so. No strings were therefore attached to the power of attorney that preventing Mst. Channan Jon from revoking it before Ghulam Rasool acted thereunder, which she did, before the purported oral sale mutation in favour of the appellants No.] and 2 was recorded. The said mutation was therefore wholly without authority, illegal and ineffective and therefore was rightly cancelled. 9. As regards the agreement to sell dated 02.9.1974, it may be noted, that despite the fact that Mst. Ohannan Jan had denied entering into any agreement with/or selling her suit land to Ghulam Rasool, and further that neither the relevant roznamcha rupt, nor the purported sale mutation, makes mention of any written agreement. However,and despite the fact that the stamp paper does not bear the name of Ghulam Rasool, and was rather purchased in the name of someone else. Neither the purchaser was produced nor was the vendor of the stamp paper examined, or was the relevant register of the stamp vendor summoned, and more crucially the witnesses examined in respect of the said agreement did not mention the date thereof. The above gives credence to the respondents' stance that the agreement was manipulated subsequently in order to defeat the consequences of the cancellation of power of attorney and is therefore of no avail to the appellants. 10. So for as the contention of the appellants that sale of the suit property in favour of respondent No.8 to 10 is hit by doctrine of lis pendens, as envisaged by the provision of section 52 of the Transfer 7 of Property Act, 1882 which provides that a suit land cannot be transferred by any party to the suit, so as to effect the rights of the other party thereto, under the any decree or the order which may be made in the suit. As noted above, the said restriction is subject to the outcome of the suit, thus the fate of such sale/transfer depends upon the outcome of the suit. Whereas in the present case, since purportediqsale in favour of the appellants No.1 and 2 has been held to be illegal and without authority, they have no locus standi to object to the sole of the land in favour of respondents No.8 to 10. The appeal is dismissed. Islamabad, the 7511 September, 2027 (ADmit Shjr APPROVED FOR REPORTING'

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{'id': 'C.A.221_2018.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MANZOOR AHMAD MALIK CIVIL APPEAL NO.222-L OF 2016 (Against the judgment dated 10.6.2015 of the Lahore High Court, Lahore passed in W.P.No.3925/2015) Mian Umar Ikram-ul-Haque …Appellant(s) VERSUS Dr. Shahida Hasnain and another …Respondent(s) For the appellant(s): Mr. Qamar Zaman Qureshi, ASC For respondent No.1: Mr. Riasat Ali Chaudhry, ASC Date of hearing: 15.09.2016 … JUDGMENT MIAN SAQIB NISAR, J.- This appeal with the leave of the court dated 6.9.2016 involves a simple yet important question of law i.e. whether an order under Section 24 of the Punjab Rented Premises Act, 2009 (the Act) can be passed against a respondent of an eviction application when he has denied the relationship of tenancy, leave to contest has been granted pursuant to a leave application and an issue to that effect has also been framed by the learned Rent Tribunal. 2. The brief facts in the context of the aforesaid question are that respondent No.1 (respondent) filed an eviction application against the appellant under the Act asserting that the latter is a tenant who failed to pay rent to the former according to the terms and conditions of the lease agreement dated 1.1.2012 entered into between the two parties. The application also states that such lease C.A.222-L of 2016 -:2:- agreement was not registered with the Rent Registrar therefore the amount of 10% rent is being deposited as fine. The rate of rent was claimed as Rs.40,000/- per month. The appellant filed an application for leave to contest in which he specifically and unequivocally denied the relationship of tenancy and clearly set out a defence that he was in occupation of the property pursuant to an agreement to sell dated 1.2.2012 between the parties in terms whereof the appellant paid an amount of Rs.41,00,000/- at the time of execution [out of the total consideration of Rs.61,00,000/-] and took possession; the balance amount was/is payable at the time of the execution of the sale deed. It was further averred that the appellant had already filed a suit on 3.10.2012 for the performance of the agreement to sell whereas the eviction application had been moved on 3.12.2014. It was categorically stated that the lease agreement dated 1.1.2012 was/is a fake and forged document. The learned Rent Tribunal vide order dated 3.12.2014 granted leave to the appellant and in view of the defence taken, framed a sole issue i.e. whether the relationship of landlord and tenant exists between the parties, if so its effect. However the learned Rent Tribunal observed that since the relationship of landlord and tenant was yet to be determined, therefore no order as to interim rent could be made. The respondent did not challenge this order of the learned Rent Tribunal but instead moved an application under Section 24 of the Act with the prayer that an order for the deposit of past and future rent due be passed by the Tribunal in terms of the section ibid. The application was dismissed by the learned Rent Tribunal vide order dated 2.1.2015 on the ground that since the respondent had denied the relationship of landlord and tenant, the order for the deposit of rent under Section C.A.222-L of 2016 -:3:- 24 ibid cannot be made till such relationship is established. Aggrieved, the respondent challenged both the orders dated 3.12.2014 and 2.1.2015 by filing a constitutional petition before the learned High Court (in which the appellant was proceeded against ex-parte and the impugned order is ex-parte order) to the extent that no direction was given for deposit of rent.. The learned High Court, while allowing this petition, held as under:- “The tenor of section 24 of the Act does not make a distinction between the cases where the relationship of landlord and tenant is admitted and in those cases where the said relationship is denied. The mandate of section 24 is clear. When an application for leave to contest is granted, it falls upon the Rent Controller to make an order for the deposit of rent due from the tenant and continue to deposit the same in accordance with the tenancy agreement. This proposition is bolstered by the terms of subsection (2) of section 24 of the Act which lays down that if there is no dispute as to the amount of rent due, then the Rent Tribunal shall tentatively determine the dispute and pass the order for the deposit of rent in terms of subsection (1) of section 24 of the Act. The term “rent due” has a wide sweep and would include a dispute of the nature where the relationship of landlord and tenant is denied…” It was further held that:- “A common thread which runs through the Act is to discourage and ward off unscrupulous and C.A.222-L of 2016 -:4:- irrational defenses on the part of tenants. If the deposit of payment of interim rent was made dependent upon the denial or acceptance of the relationship of landlord and tenant then the spirit which permeates the Act would be rendered nugatory…A combined reading of sections 5, 6, 7, 8 and 9 of the Act, 2009 brings forth ineluctably the sea-change which runs through the length and breadth of the Act, 2009…The jurisdiction of Rent Tribunal is only triggered when the conditions laid down in the Act, 2009 are found to exist…It is clear from a reading of the provisions of section 10 reproduced above that an agreement to sell or any other agreement entered into between the landlord and tenant shall not affect the relationship of landlord and tenant. In reaching its decision, the learned High Court relied heavily upon a judgment of this Court reported as Rana Abdul Hameed Talib Vs. Additional District Judge, Lahore and others (PLD 2013 SC 775). 3. Leave has been granted to consider whether an order under Section 24 of the Act can be passed where the relationship of tenancy has been denied and the effect of Section 10 of the Act upon such denial. Although the legislative history of rent laws in Pakistan has been discussed in detail in Rana Abdul Hameed Talib’s case (supra), nevertheless we find it expedient to briefly reiterate the same for the sake of completeness before deciding the proposition in hand. Initially disputes inter se landlords and tenants relating to leases and tenancies were dealt with under the general law of the land i.e. Transfer of Property Act, 1872 (excluding leases of agricultural properties, dealt with by the revenue courts) and the same were adjudicated by the courts of general jurisdiction (see Section 9 CPC). The West Pakistan Rent C.A.222-L of 2016 -:5:- Restriction Ordinance, 1959 (Ordinance) a special law was enacted for the purposes of resolution of such disputes between landlords and tenants within the purview of the provisions mentioned therein, particularly Section 13 of the Ordinance which provided the grounds upon which a tenant may be evicted by the landlord. The definitions of landlord and tenant were specifically provided and it is clear that jurisdiction under this special law was endowed in three ways. The first was jurisdiction upon the subject matter i.e. the property was to be urban immovable property – residential or non-residential, or rented land etc. The second was jurisdiction upon the parties i.e. there was to be a relationship of tenancy, in other words the dispute must be between the landlord and tenant as defined in the law. The third was territorial jurisdiction. Therefore if any of the aforementioned requirements were not met, the Rent Controller would have no jurisdiction over the matter before him. With respect to the second type of jurisdiction: if the respondent in a rent matter denied the relationship of tenancy, a question of jurisdictional fact would arise. The doctrine of jurisdictional fact connotes that the jurisdiction of an adjudication forum is dependent upon the ascertainment and determination of certain facts. In this behalf, N.S. Bindra in the Interpretation of Statutes Seventh Edition, 1984, p.229, has defined "Court's jurisdiction to determine the jurisdictional fact", as follows:- “Court's jurisdiction to determine jurisdictional facts. It is well settled that a Tribunal can investigate into the facts relating to the exercise of its jurisdiction when that jurisdictional fact itself is in dispute. Where a Tribunal is invested with jurisdiction to determine a particular question, it is competent to determine the existence of the facts C.A.222-L of 2016 -:6:- collateral to the actual matter which the Tribunal has to try. This power to decide collateral facts is the foundation for the exercise of its jurisdiction.” In Halsbury's Laws of England, it has been stated; “Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive”. The jurisdictional fact in this context would be whether the relationship of landlord and tenant existed between the parties. If the Rent Controller positively ascertained such a relationship through factual enquiry, he would assume jurisdiction, otherwise the petition had to fail because the Rent Controller in that situation would not have any jurisdiction over the parties and consequently the matter before him. Section 13(6) of the erstwhile Ordinance was similar to Section 24 of the Act, where the Rent Controller was obliged to make an order directing the tenant to pay all the past rent due and the future rent that would become due: however this direction could only be to a tenant and not a respondent of an eviction petition. There is a conspicuous distinction between the two which needs to be appreciated. The expression of law is that such direction be made to a tenant, which expression (i.e. tenant) cannot be read or substituted for the respondent of an eviction petition. ‘Tenant’ was defined in Section 2(i) of the Ordinance, therefore an order under Section 13(6) C.A.222-L of 2016 -:7:- could only be passed against a person who fell within the definition of ‘tenant’ as provided in the Ordinance. 4. From this examination of the erstwhile Ordinance it is clear that where the relationship of tenancy was denied by the respondent of the eviction petition the Rent Controller would be exceeding his jurisdiction and acting in violation of the clear provisions of law in directing such respondent to deposit the rent due. This question pertaining to the earlier law came before the superior courts in a number of cases and it has been categorically held that in a situation where the relationship of tenancy was denied, the Rent Controller could not pass an order for payment of rent due under Section 13(6) of the Ordinance. In this respect the judgments which are germane are Muhammad Ismail Vs. Israr Ahmad [PLD 1961 (W.P.) Lahore 601],Mst. Karam Bibi Vs. Mir Muhammad Hassan and others [PLD 1962 (W.P.) Quetta 67], Akhtar Ali Pervez Vs. Altaf ur Rehman [PLD 1963 (W.P.) Lahore 390], Habibullah Vs. Bawa Vasdevgir Chelo Shambhugir (PLD 1968 Kar 869), Mst. Khurshid Vs. Haji Abdul Hadi and 4 others(PLD 1979 Quetta 39), Mst. Rashida Begum Vs. Mazhar Iqbal (1983 CLC 380), Abdul Wahid Vs. Bashir Ahmad and others(1986 CLC 829), Muhammad Siddique Vs. Fazal Hussain Qureshi and 2 others (PLD 1996 Lah 252), Mst. ah Razia Begum and another Vs. Senior Civil Judge (Rent Controller), Charsadda and 2 others (PLD 1996 Pesh 8), Tariq Ali Sheikh Vs. Rent Controller (Khalid Nawaz), Lahore and another (1998 CLC 460), Sh. Muhammad Siddiq Vs. Khurram Gulraiz and 2 others (1998 MLD 624), Ghulam Rasool Vs. Mian Khurshid Ahmed (2000 SCMR 632),Khalid Saeed and others Vs. Nadeem Ahmad Khan (2003 CLC 1614), Irfanullah Shah Vs. C.A.222-L of 2016 -:8:- Wahabullah and another (2003 YLR 1195), Qazi Muhammad Hayat and others Vs. Dad Muhammad and others (PLD 2003 SC 231), Babu Din Vs. Civil Judge/Rent Controller, Multan and 6 others (2006 CLC 926), Aziz Ahmed Mughal Vs. Rent Controller and others (2006 CLC 1381), Irshad Ahmad Khan Vs. Rent Controller and 2 others (2006 CLC 1860), Ashiq Hussain and another Vs. Jamia Masjid Hanfia Ghausia through President (PLD 2007 Lah 283) and Muhammad Wakil Khan Vs. Additional District Judge, Lahore and 3 others (2007 CLC 1151). 5. The Ordinance was repealed by the Punjab Rented Premises Ordinance, 2007 which finally culminated into the Act. Again, in this special law (the Act) the jurisdiction of the Rent Tribunal is restricted to disputes which are covered by the Act in terms of subject matter, parties and territorial jurisdiction. Subject matter jurisdiction includes non-agricultural residential or non-residential buildings or rented land whereas in terms of territorial jurisdiction it is the same as the extent of the jurisdiction of the Rent Tribunal under the previous law. With respect to parties, as was the case under the earlier law, the Rent Tribunal would only assume jurisdiction over a matter once the jurisdictional threshold is crossed by establishing that the matter involves a landlord and tenant. ‘Tenant’ has been defined C.A.222-L of 2016 -:9:- termination of his tenancy for the purpose of a proceeding under this Act; (ii) Legal heirs of a tenant in the event of death of the tenant who continue to be in occupation of the premises; and (iii) A sub-tenant who is in possession of the premises or part thereof with the written consent of the landlord…” Section 24 of the Act reads as under: “24. Payment of rent and other dues for pending proceedings.—(1) If an eviction application is filed, the Rent Tribunal, while granting leave to contest, shall direct the tenant to deposit the rent due from him within a specified time, and continue to deposit the same in accordance with the tenancy agreement or as may be directed by the Rent Tribunal till the final order. (Emphasis supplied) (2) If there is a dispute as to the amount of rent due or rate of rent, the Rent Tribunal shall tentatively determine the dispute and pass the order for deposit of the rent in terms of Sub- section (1). (3) In case the tenant has not paid a utility bill, the Rent Tribunal shall direct the tenant to pay the utility bill. (4) If a tenant fails to comply with a direction or order of the Rent Tribunal, the Rent Tribunal shall forthwith pass the final order.” C.A.222-L of 2016 -:10:- Through the impugned judgment the learned High Court has tried to resolve the question at hand by dwelling upon the larger scheme of the new rent laws by trying to decipher the latent intent of the legislature, which in our view was completely unnecessary because the answer to the question is quite patent. A plain reading of Section 24 of the Act reproduced hereinabove makes it clear that a direction is not to be issued to the respondent of an eviction application but to a tenant. The use of the word ‘tenant’ as opposed to ‘respondent’ speaks to the legislative intent. This usage appears to be conscious and deliberate, because elsewhere in the Act where the parties to a lis are meant to be referred to without identifying their legal characters, the words ‘applicant’ and ‘respondent’ are used instead of ‘landlord’ and ‘tenant’ (see Sections 19, 21 and 22 etc.). Where there is a specific intention to do so and the attending context requires that the parties be referred to by their legal status, the legislature has used the words ‘landlord’ and ‘tenant’ (see Sections 5, 7, 9, 10, 11, 12, 13, 14, 15, 20, 24 etc.). It is a settled canon of statutory interpretation that where a statute uses a particular word(s), the presumption is that such word(s) is illustrative of the legislative intent unless there are very cogent reasons to displace the same and in our view, there are no such reasons that justify interpreting Section 24 of the Act in a way that defeats its express meaning. Therefore, it follows that where the relationship of landlord and tenant is denied, the Rent Tribunal would lack jurisdiction, on account of the doctrine of jurisdictional fact, to pass an order for payment of rent due under Section 24 of the Act until and unless the Tribunal positively ascertains the relationship of tenancy and establishes that the respondent to the eviction application is in fact a ‘tenant’ in terms of Section 2(l) of the Act. As C.A.222-L of 2016 -:11:- regards the argument of the learned counsel for the respondent that where there is a contumacious denial by the respondent of an eviction application the Rent Tribunal should pass an order for payment of rent due, suffice it to say that contumacious denial of the relationship of tenancy would form the basis for declining relief to the respondent. Where the denial, prima facie, appears to be tainted and contumacious, the Rent Controller would refrain from granting leave to the respondent as a matter of right and course, in a perfunctory manner. Instead, when the Rent Tribunal, without framing an issue, concludes that the denial is contumacious in nature, it may refuse to grant leave and allow the eviction application. Whilst so doing, the Tribunal can simultaneously pass an order under Section 24 of the Act finally determining the rent due from the tenant and direct that the same be deposited/paid. However, where once leave has been granted and the Tribunal has first to decide the question of its own jurisdiction, then in that eventuality, on account of the clear provisions of Section 24 ibid read with the definition of the word ‘tenant’ appearing in the Act, the Rent Tribunal is precluded from passing an order without first determining the jurisdictional fact. Once the relationship of tenancy has been denied the jurisdiction of the Rent Tribunal has essentially been called into question and needs to be resolved before the Tribunal can proceed to pass an order for payment of rent due. It needs to be appreciated that the there is a distinction between an issue as to the very authority to adjudicate and those issues which may arise as between the parties. The Rent Controller must first establish relationship of landlord and tenant. Objections “to” proceedings must be distinguished from objections “in” the proceedings. Issue of jurisdiction may be raised by a party C.A.222-L of 2016 -:12:- but it only concerns the court and the party over whom it is asked to assume jurisdiction.1To hold otherwise would be to defeat the express intention of the statute, which is that an order for payment of rent due should only be passed against a tenant, and not merely a respondent of an eviction application. The relationship of landlord and tenant is an essential question which has a direct effect upon the assumption and exercise of the jurisdiction of the Rent Tribunal, which (question) must necessarily be positively ascertained before passing an order for payment of rent due under Section 24 of the Act. The judgment of the High Court reported as Farrukh Nadeem Vs. Muhammad Ahmad Khan and another (2009 MLD 955) relied upon by the learned counsel for the respondent to the effect that where there is a contumacious denial an order under Section 13(6) of the Ordinance can be passed is bad law which cannot be sustained, thus this judgment is set aside. It may however be mentioned here that where default in the payment of rent is set out as a ground in the eviction application, the relationship of tenancy is denied by the respondent, leave is granted to the respondent of the case, an issue in this context is framed, evidence is led by the parties, and the Rent Tribunal comes to the conclusion that such relationship exists, the Tribunal by applying the principles of estoppel and the rule of forfeiture of tenancy shall straightaway pass an order of eviction against the respondent/tenant and shall also pass the final order regarding the amount of rent due to the landlord which the respondent (adjudged as a tenant) is obliged to pay, and such order shall be executable against the tenant, besides the execution of the 1Akhtar Ali Pervez Vs. Altafur Rehman (PLD 1963 (WP) Lah 390), Full Bench, J Manzur Qadir. C.A.222-L of 2016 -:13:- eviction. However where grounds envisaged by Section 15 of the Act other than default are raised in an eviction application, obviously the Rent Tribunal after deciding the issue of relationship of tenancy and finding in favour of the landlord may frame further issues on merits and at that point of time pass an order under Section 24 ibid. 6. We now advert to the question regarding the validity of the agreement to sell in terms of Section 10 of the Act which (section) reads as follows:- “Effect of other agreement.—An agreement to sell or any other agreement entered into between the landlord and the tenant, after the execution of a tenancy agreement, in respect of premises and for a matter other than a matter provided under the tenancy agreement, shall not affect the relationship or landlord and tenant, unless the tenancy is revoked through a written agreement entered before the Rent Registrar in accordance with the provisions of section 5.” Section 10 of the Act provides that an agreement to sell entered into between a landlord and tenant, after the execution of a tenancy agreement, shall not affect the relationship of landlord and tenant unless the tenancy is revoked in accordance with the Act. In the instant matter the case of the appellant (respondent in the eviction petition) is that he was in occupation of the premises by virtue of an agreement to sell entered into with the respondent, and not because he was a tenant who subsequently entered into an agreement to sell with the respondent. It is his stance that the agreement to sell had nothing to do with any tenancy whatsoever, and therefore Section 10 had no C.A.222-L of 2016 -:14:- bearing on his case. We are inclined to agree with this argument. Again, the use of the words ‘landlord’ and ‘tenant’ in Section 10 ibid presupposes the existence of the relationship of tenancy between the parties. Therefore the agreements to sell that Section 10 refers to are, by ineluctable conclusion, the ones entered into between existing landlords and tenants subsequent to their tenancy agreement and during the subsistence thereof. This is entirely different from those cases where there is/was no relationship of landlord and tenant from the very beginning, as is allegedly the case in the instant matter. Therefore, the judgment reported as Haji Muhammad Saeed Vs. Additional District Judge (2012 MLD 108) relied upon by the learned counsel for the respondent is distinguishable, pertaining to the former category of cases where existing landlord and tenant subsequently enter into an agreement to sell. This vital distinction has eluded the attention of the learned High Court while passing the impugned judgment. 7. In light of the above, we answer the question identified in the first paragraph of the opinion in the negative, in that an order under Section 24 of the Act cannot be passed against a respondent of an eviction application where the relationship of landlord and tenant has been denied. The learned High Court has clearly erred in holding that the Rent Tribunal is obliged to pass an order for payment of rent due under Section 24 ibid notwithstanding the fact that the relationship of tenancy had been denied. Therefore, this appeal is accepted and the impugned judgment of the learned High Court is set aside. Before parting it may be observed that the counsel for the respondent has apprised us that in compliance with the impugned judgment the appellant has deposited a certain amount with the Rent C.A.222-L of 2016 -:15:- Tribunal in response the appellant’s counsel states that his client shall not withdraw such amount, which shall be subject to the final decision of the case. We also direct that the suit for specific performance filed by the respondent against the appellant and the eviction petition be tried by the same court, therefore, either of the parties may apply to the District Judge Lahore for the transfer of either of the cases to one court. Such court should decide both the matters within four months of the transfer of the case under intimation to the Assistant Registrar (Lahore) of this Court. JUDGE JUDGE Announced in open Court on 10.10.2016 at Lahore Approved For Reporting Waqas Naseer/* JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed Civil Appeals No.2234, 2235 of 2005 & 61 of 2006 (On appeal from the judgment dated 30.06.2004 & 12.04.2005 passed by the Lahore High Court, Lahore in W.P. No.143/2003 & 19438/2004 respectively) And Civil Petitions No.1587-L, 1588-L of 2010 (On appeal from the judgment dated 6.07.2010 passed by the Lahore High Court, Lahore in W.Ps No.5194/2006 & 11873/2010) And Civil Petitions No.445-L & 454-L/2012 (On appeal from the judgments dated 12.10.2010 & 13.10.2011 passed by the Lahore High Court in W.Ps. No.23372/2009 and 19138 of 2011) 1. Secretary Economic Affairs Div, Islamabad etc. (in CA 2234/05) 2. Anwarul Haq Ahmed (in CA 2235/05) 3. Miss Zainab Iqbal Mian (in CA 61/2006) 4. Secretary, Govt. of Pb. Health Deptt. (in CP 1587-L, 1588-L/10) 5. Principal/EO, Fatima Jinnah Medical College for women, Lahore (in CP 445-L, 454/12) … Appellants/Petitioners VERSUS 1. Anwarul Haq Ahmed (in CA 2234/05) 2. Secretary M/o Finance etc. (in CA 2235/05 & CA 61/06) 3. Noorien S. Bokharee & another (in CP 1587-L/2010) 4. Hassan Ashraf (in CP 1588-L/2010) 5. Miss Sara Bukhtiar & others (in CP 445-L/2012) 6. Khadija Akram Ch. & others (in CP 454-L/2012) 2 … Respondents For the appellants In CA 2234/05 & CP 1587-L, 1588-L/2010 Mr. Jawwad Hassan, Addl. A.G. Pb. Mr. Ijaz Farrukh, Sr. Law Officer, Health Department (also for respondent in CAs 2235 & 61/2006) For the appellants In CA 2235/05 & CA 61/06 Mr. A.K. Dogar, Sr. ASC (also for respondent in CA 2234/05) For the petitioners: in CP 445-L & 454-L/12 Mr. Anwar Kamal, Sr. ASC For the respondents: Mr. Abdul Sadiq Ch. ASC (in CP 1587-88-L/10 & 454-L/10) Malik Allah Yar Khan, ASC (in CP 445-L/12) For HEC: Mian Muhammad Hanif, ASC Raja Abdul Ghafoor, AOR Date of hearing: 05.06.2013 ***** JUDGMENT Iftikhar Muhammad Chaudhry, CJ. The listed appeals with the leave of the Court as well as the petitions have been filed against the judgments of the Lahore High Court, mentioned in the title. 2. Brief facts of the case are that as per prospectus for the sessions 2002-2003 issued by Government of Punjab, Health Department for admission in Medical Colleges of the Province, seats were allocated under various categories on merits and to accommodate students of some of the countries allocations of seats were made under “Pakistan Technical Assistance Programme” (PTAP) and under the “Self Finance Scheme” (SFS) for foreign students of 3 Pakistan origin. For convenience relevant paras from the prospectus containing policy read thus:- (iv) FOREIGN STUDENTS SEATS: (a) Under Technical Assistance Programme: The applicants seeking admission to a medical college should submit their applications through their own government/embassies to the Government of Pakistan (Economic Affairs Division, Islamabad). The nominations against these seats, shall be communicated to the Health Department, Government of Punjab, by Economic Affairs Division, Islamabad for onwards transmission to the colleges concerned. Applications submitted directly to the Principal or to the Government of Punjab, shall not be entertained. (b) … … (v) FOREIGN STUDENTS SEATS ON SELF-FINANCE BASIS:- The applicants seeking admission on self-finance basis will be required to contribute to the college endowment fund. This contribution would be US$10,000 per annum in addition to the normal fee till graduation. However, such students will apply to the Economic Affairs Division, Government of Pakistan Ministry of Finance, Islamabad. The nominations against these seats, shall be communicated to the Health Department, Government of the Punjab, by Economic Affairs Division, Islamabad, for onward transmission to the colleges concerned. The students will have to pay for the first year through pay order worth US $ 10,000 in the name of the Principal of the college for which he/she has been nominated and for the remaining four years a bank guarantee worth US $ 40,000 in the name of the same Principal. In case a student repeats any class at his /heown accord or fails in the class/university examination, he/she will have to pay US $ 10,000 for each extra year. Students discontinuing their studies at their own or expelled from the college will not be refunded the remaining amount which would be credited to the college according to the bank guarantee. (vi) … … (vii) SELF-FINANCE SEATS: (a) Admissions would be open to local and expatriate Pakistans. (b) Admissions would be on merit. (c) Fee for local students shall be Rs.2,50,000/- per annum. (d) Fee for expatriate students shall be US$ 10,000 per annum for colleges in Lahore, US $ 7,000 per annum for colleges located in Multan and Rawalpindi and US $ 5,000 per 4 annum for colleges located in Bahawalpur and Faisalabad. (e) In case a student repeats any class at his/ her own accord or fails in the class/ University Examination, he/she will have to pay the same amount as mentioned above for each extra year. (f) For the first year the student will pay in cash/pay order and he/she will have to submit a bank gurantee for the remaining four years equivalent to the amount applicable in his/her case. 3. As per the prospectus for the year 2002-2003, 28 seats were earmarked on SFS basis for foreign students, out of which 4 (2+2) seats were allocated to King Edward Medical College. 4. Anwarul Haq Ahmed (respondent in CA No.2234/05 and appellant in CA No.2235/05) having passed A-Level, from the University of Cambridge, England, securing 935 marks out of 1100 as per equivalence certificate issued by the Inter Board Committee of Chairman. He applied for admission in the first year of MBBS for the session 2002-03 for Medical Colleges in Punjab as well as for Self Finance Scheme (SFS) and PTAP. He could not get admission on merit against the general seats. As he did not fulfil the basic pre-conditions of having studied abroad physically, his application was not considered under the PTAP, however, he was offered admission under Self Finance Scheme (SFS) against the seats reserved for foreign students of Pakistan origin in the King Edward Medical College. It is to be noted that according to the policy the student admitted under said scheme, will have to contribute to the college endowment fund an amount of US$10,000/- per annum, which will be paid in advance; that for ensuring payment of fee for the remaining four year student will also have to furnish a bank guarantee for an amount of US$40,000/-, in additional to the fees payable by a regular student. 5 5. It is to be noted that Anwar-ul-Haq, respondent being Pakistan origin holding foreign nationality succeeded in getting admission on SFS basis and deposited his contribution of US $10000 towards college endowment fund as prescribed in the policy noted hereinabove, besides fulfilling his obligations towards payment of normal fee thus he was admitted in 1st year of MBBS, Sessions 2002- 2003 in King Edward Medical College. 6. It is pertinent to note that the Government of the Punjab, Health Department vide letter No.SO(ME)8-91/2003 dated 03.02.2003 revised the policy for SFS, which is reproduced hereinbelow:- “No.SO(ME)8-91/2003 GOVERNMENT OF THE PUNJAB HEALTH DEPARTMENT Dated Lahore, the 3rd February, 2003 To The Principal/Chairman, Admission Board, King Edward medical College, Lahore SUBJECT: REDUCTION OF SELF-FINANCE RATES FOR FOREIGN STUDENTS IN MEDICAL COLLEGES OF PUNJAB Reference your letter No.191/KEMC/2002, dated 8. .2002 on the subject noted above. 2. The Competent Authority in the Government of the Punjab on reconsideration of the issue decided as under:- (i) 50% seats of MBBS (self-finance) for expatriate Pakistans may be kept floating and the preferred choice of candidates be respected (ii) The fee structure for the peripheral colleges like, Multan, Rawalpindi be reduced from US$10,000/ to US$7,000/- per annum and for Faisalabad and Bahawalpur to US$5,000/- per annum. 3. ……… 4. …. 6 ADDITIONAL SECRETARY (TACH) HEALTH DEPARTMENT” 7. The respondent Anwar-ul-Haq filed a Writ Petition No.143/2003 before the Lahore High Court, wherein following prayer was made:- “In the light of Paras 31, 32, 33 and 34 it is respectfully prayed that this learned court be pleased to declare the Revised Fee Structure under Self Financing Scheme (SFS) for foreign students of Pakistan origin ultra vires of the provisions of Articles 2-A, 3, 4 and 25 read with 37(c) of the Constitution of the Islamic Republic of Pakistan, 1973. It is further prayed that this learned court be pleased to direct the respondents to charge the petitioner a fee commensurate with the actual expenditure of Rs.100,000 per annum incurred on his education, which may be receivable in US dollars without any additional fee, and to accordingly adjust the already paid US$10000 by the petitioner refunding him extra amount after deducting the aforesaid actual expenditure. Also, it is prayed to direct the Respondents to abolish the bank guarantee as security for payment of future fee for 4 years since it is not required in any other province of the country and, being too harsh, it has already been withdrawn by Punjab government for local students admitted under SFS.” 8. In the meanwhile, Government of Pakistan, Ministry of Economic Affairs and Statistics vide letter dated 06.06.2003 communicated following decision to the Secretary Health, Government of Pakistan:- “No.1(1)FS/03 GOVERNMENT OF Pakistan MINISTRY OF ECONOMIC AFFAIRS & STATISTICS (ECONOMIC AFFAIRS DIVISION) Islamabad, the 6th June, 2003 Fax: 92-51-9205971 & 9210734 From: Joint Secretary, Tele: 9205327 7 SUBJECT: ADMISSION OF FOREIGN UNDER PAKISTAN TECHNICAL ASSISTANCE PROGRAMME (PTAP/SELF FINANCING SCHEME (SFS). 1 … 2. … 3. … 4. You would kindly appreciate that the high fee rates for Self-Financing Scheme and condition of submitting bank guarantee for remaining four years studies has resulted into low utilization of these seats for the last many years. No doubt the revision of fee rates made by the Health department during last year has improved the utilization of seats under SFS in Punjab. However, it can be improved further by reducing the fee rates to US$7,000 per annum for Medical colleges in Lahore and US$5,000 for Colleges of rest of cities of Punjab and by waving off the condition of bank guarantee as no such condition exists in other Province.” The above decision has been taken in continuation of letter dated 03.02.2003 issued by Government of the Punjab, Health Department, which has been reproduced hereinabove. 9. It may not be out of context to note that pending decision of petition filed by the respondent before the High Court, Government of Punjab enhanced status of King Edward Medical College to University vide the King Edward Medical University, Lahore Act, 2005. 10. A learned Division Bench of the Lahore High Court, vide judgment dated 02.08.2004, allowed the said writ petition to the extent that the letter dated 03.02.2003 in so far it prescribed a different fee structure for the Foreign students admitted under the Self Finance Scheme in different colleges of the Punjab and the condition of furnishing Bank guarantee were set-aside. It was further directed that the respondent authorities may, however, charge those students a 8 uniform rate of US $5000 per annum irrespective of the College in which they were admitted. Relevant para therefrom is reproduced hereinbelow:- “10. For what has been discussed above, this petition is allowed. The letter dated 3.2.2003 in for as it prescribes a different fee structure for foreign students admitted under the self-finance scheme in different Colleges of the Punjab and the condition of furnishing Bank guarantee are set aside. The respondent authorities may, however, charge those students a uniform rate of US$5,000/- per annum for irrespective of the Colleges in which they are admitted. The petition stands disposed of in terms noted above.” 11. The Secretary, Economics Affairs Division, Government of the Pakistan, Islamabad; Secretary Health Government of the Punjab; Principal Executive Officer/Dean; and Deputy Dean, King Edward medical College, Lahore, assailed the above decision in Civil Petition No. 2932-L/2004, whereas respondent Anwar-ul-Haq also challenged the same in Civil Petition No.2763-L/2004, wherein the reduced amount of endowment US$5000 was also questioned being highly excessive as compared to the actual expenditures by the government on education and training of medical students. Leave to appeal was granted vide order dated 23.11.2005, inter alia, to examine the questions highlighted by the parties through their counsel while arguing their respective petitions. 12. It is important to note that following the judgment passed by the Lahore High Court in the case of Anwar-ul-Haq, Writ Petitions No.19438/04 (Ms. Zainab Iqbal Mian), 5198/2006 (Noorien S. Bokharee), 23372/09 (Ms. Sara Bakhtiar), 11873/2010 (Hassan 9 Ashraf) and 19138/11 (Ms. Khadija Akram Ch.) were filed before the High Court. In these petitions inter alia following prayers were made:- “In view of the above circumstances and submissions it is respectfully prayed that this honourable court be pleased to declare that the General Conditions/Guide Lines for admission of foreign students of Pakistan Origin under Pakistan Technical Assistance Programme (PTAP) and Self Financing Scheme (SFS) are without lawful authority and of no legal effect and the petitioner is entitled to the same benefit as already directed by this Honourable Court in W.P.No.1162/2006 as well as in the light of reported judgment in PLD 2004 Lahore 771 which was decided prior to the admission of the petitioner. It is further prayed that pending disposal of the main petition this honourable court be pleased to direct the respondents that the sum of US$5000 P.A. only be charged from the petitioner in future years as directed in Anwar-ul-Haq case (PLD 2004 Lahore 771). It is further prayed that the excess payment of US$10000 already received by the respondent No.3 from the petitioner directed to be adjusted against future demands for the ends of justice, equity and fair play.” 13. Learned High Court following the dictum laid down in the judgment arising out of Anwar-ul-Haq’s case, allowed writ petitions No. 5198/06, 23372/09, 11873/2010 and 19138/11 whereas writ petition No. 19438/04 filed by Miss Zainab Iqbal Mian was partly allowed, wherein the learned Division Bench of the High Court, after relying upon the said case, did not strike down the SFS. However, it was held that foreign students admitted under SFS should also be treated equally with in their class and they should not be subjected to a varying fee structure on the basis of different colleges in the province of Punjab; all students under the above scheme should be charged with same fee irrespective of their College or cities within the 10 Province, in view of the provisions of Article 25 of the Constitution. The details of the proceedings of the High Court are as under:- Writ Petition No. Title of the Petition Date of Judgment Decision WP 19438/04 Miss Zainab Iqbal Mian v. Secretary Ministry of Finance 12.04.2005 Partly allowed in the light of the judgment in Anwar-ul-Haq’s case WP 5198/06 Norien S. Koharee v. Secretary Economic Affairs 06.07.2010 Allowed and Disposed of in terms of judgment in Anwar-ul-Haq’s case WP 11873/10 Hassan Ashraf v. Secretary Health, Govt. of Punjab 06.07.2010 Allowed and Disposed of in terms of judgment in Anwar-ul-Haq’s case WP 23372/09 Miss Sara Bukhtiar v. Secretary to Government of Pakistan 12.10.2010 Allowed in terms of judgment in Anwar-ul-Haq’s case WP 19138/11 Khadija Akram Chaudhry v. Government of the Punjab 13.10.2011 Disposed of in terms of judgment in Anwar-ul-Haq’s case 14. It is to be noted that pending decision of Civil Petitions No.2763- L/2004 and 2932-L/2004, impugned judgments passed in Writ Petitions No.5198/2006, 23372/09, 11873/2010 and 19138/11 were challenged by the departments whereas, Miss Zainab Iqbal Mian also assailed Writ Petition No.19438/04 in this Court. 15. It is necessary to note that initially under the policy guidelines with regard to admission in the Medical Colleges in different cities of Punjab, e.g., Lahore, Rawalpindi, Multan and Faislabad, a uniform prospectus used to be issued allowing mostly the admission in Medical Colleges on merit basis. The candidates, who were found 11 eligible on merit, were accommodated as per the policy. However, there were certain other applicants/candidates like Anwar-ul-Haq, who were of Pakistan origin holding foreign nationality, when could not compete on merit, were left only with one option to apply on SFS basis. Because they had accepted the term & conditions laid down in the policy noted above, therefore, they were given admission. Subsequent thereto, the condition to the extent of deposit of endowment fund was changed and ultimately vide letter dated 03.02.2003, it was reduced as mentioned above but to the extent of candidates/students who would seek admission in future and not for the students who had already got admission. 16. Learned counsel for the appellants-departments stated that respondents-students are estopped to challenge the policy of admission on self finance basis, as they themselves had accepted the terms & conditions for the admission in 1st Year MBBS in Medical College after failing to get admission on merits, as he/they were not found eligible for not securing required marks. 17. Learned Additional Advocate General was not in attendance when case was heard; however, he has filed written arguments, inter alia, relying upon the arguments, which have been noted above. 18. On the other hand learned counsel for the respondents- students that both schemes noted hereinabove are confiscatory in nature and discriminatory as well as in violation of their fundamental rights enshrined in Article 9 read with Article 25 of the Constitution. 12 19. We have heard the parties’ counsel, gone through the material so made available on record and perused the leave granting order dated 23.11.2005. 20. Before dilating upon the arguments of the parties, it is considered appropriate to note that educational institutions are independent to follow policy for admission including affairs relating to changing conditions for endowment funds or fee, either under the policy given by the government or adopted by the college; and interference in the policy by the Court is possible only in exceptional circumstances. Reference may be made to the case of Chairman Joint Admission Commission v. Raza Hassan (1999 SCMR 965) wherein it was held that the universities in Pakistan enjoy complete freedom to take decision in their own matters and interference by the Courts in such matters would be the least desirable, except for exceptional circumstances. In another case namely Mian Muhammad Afzal v. Province of Punjab (2004 SCMR 1570) this Court declined to interfere in the matter relating to the admission in the medical college, on the ground that it was of administrative nature relating to policy. In the case of Shazia Irshad Bokhari v. Government of Punjab (PLD 2005 Lahore 428), the learned Lahore High Court held that the Court, under its Constitutional jurisdiction would not enter into policy making domain of the State or question the wisdom of the legislature; it would not normally interfere or strike down a policy made by the Government unless the same was proved mala fide or made in a colourable exercise of authority, etc. It was further held that the classification in terms of equal treatment was legally permissible. 13 Reference may also be made the case of Waqas Zafar v. Baha-ud-Din Zakriya University (2010 CLC 999). 21. At this juncture it is to be observed that in respect of foreign students and students of Pakistan origin two independent policies have been followed by the Medical Colleges since the time when respondents-students themselves applied for admission on Self Finance Basis. Details of the seats reserved in different colleges for the year 2002-2003 are as follows: - Sr. No. Category KEMC NMC QMC PMC RMC AIMC FJMC Total 1. Open Merit Seats 171 159 159 159 159 169 135 1111 2. Reserved Seat i). Disabled students seats 1 2 2 2 2 2 1 12 ii). Federally Administere d Tribunal Areas (FATA) seats 1 1 1 1 1 1 1 7 iii). Azad Jammu & Kashmir and Northern Areas seats - 4 4 4 4 - 12 28 iv). Foreign Students Seats under Technical Assitance Program 5 10 11 10 10 5 21 72 v). Foreign Students Seats on Self Finance basis 4 4 4 4 4 4 4 28 vi). Reciprocal Seats 2 3 2 2 2 2 2 15 vii) Total seats of categories (i to vi) 13 24 24 23 23 14 41 162 Total 184 183 183 182 18 2 183 176 1273 14 22. With regard to the arguments of the learned counsel for the respondents-students that the charging of fee/endowment funds at higher rates from the students of SFS as compared to other students is discriminatory as well as violative of Article 9 read with Article 25 of the Constitution, it is to be noted that Article 25 provides that all citizens are equal before law and are entitled to equal protection of law, and that there shall be no discrimination on the basis of sex. However, by now it is well settled that equality clause does not prohibit classification for those differently circumstanced provided a rational standard is laid down. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious activities and deal with a vast number of problems. The protection of Article 25 of the Constitution can be denied in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. The differentia, however, must have rational nexus to the object sought to be achieved by such classification. Reference in this behalf may be made to the case of I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041) wherein the issue has been dealt with in detail. In the case of Tariq Aziz-ud-Din and others (Human Rights cases Nos.834O of 2009, etc.) (2010 SCMR 130) it was held as under: - 22. … … We are also conscious of the provision of Article 25 of the Constitution, which guarantees equality of citizens. However, denying such protection in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. 15 The differentia, however, must have rational nexus to the object sought to be achieved by such classification [Dr. Mobashir Hassan v. Federation of Pakistan and others PLD 2010 SC 265]. … …” In the case of National Bank of Pakistan v. Nasim Arif Abbasi (2011 SCMR 446) this Court after relying upon I.A. Sharwani’s case (supra) declined to grant relief on the ground that no discrimination prohibited under Article 25 of the Constitution and a reasonable classification did exist between the two categories of employees, i.e., those who had exercised the option and those who had not exercised the option. In the case of Dr. Shahnaz Wajid v. Federation of Pakistan (2011 SCMR 1737) same principle was reiterated in the following words: - “5. … … It is well settled by now that “equality clause does not prohibit different laws for those differently circumstanced provided a rational standard is laid down to guide the discretion of the relevant Authority to choose the appropriate law. A State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities which others do not. Expression “equal protection of laws” does not place embargo on power of State” to classify either in adoption of police laws, or tax laws, or eminent domain laws” rather gives to state exercise of wide scope of discretion, of course, nullifying “what is without any reasonable basis”. The State has the power of what is known as “classification” on the basis of rational distinctions relevant to the particular subject dealt with. Classification may be due to geographical situation or it may be based on territorial, economic, communal and other similar considerations. The Constitution itself contemplates passing of different laws for different provinces by their respective legislatures. The doctrine of reasonable classification is founded on the assumption that the State has to perform 16 multifarious activities and deal with a vast number of problems. It, therefore, should have the power to make a reasonable classification of persons and things, to whom different treatment may be accorded, provided there is legitimate basis for such difference the State can make laws to attain special objects, and the administrative authorities may make classification, in pursuance of such laws. But the classification should not be arbitrary and capricious and must rest on reasonableness and have a fair nexus and a just relation with the need for which classification is made”. Ziaullah Khan v. Government of Punjab (PLD 1989 Lah. 554), Akram Khan v. State (PLD 1976 Lah. 1224), Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041), Aziz Begum v. Federation of Pakistan (PLD 1990 SC 899), Balochistan Bar Association v. Government of Balochistan (PLD 1991 Quetta 7), Kathi Raning v. State of Saurashtra (AIR 1952 SC 123), Dhirendra v. Supdt. and Remembr (AIR 1954 SC 424), Zain Noorani v. Secretary of National Assembly (PLD 1957 Kar. 1), Government of Punjab v. Naila Begum (PLD 1987 Lah. 336), Charanjit Lal v. Union of India (AIR 1951 SC 41), State of West Bengal v. Anwar Ali (AIR 1952 SC 75), Rehman Shagoo v. State of J&K (1958 Cri L Jour 885), TK Abraham v. State of Tra. Co. (AIR 1958 Ker. 129), PLR 1957 (1) 743). In the case of N.W.F.P. Public Service Commission v. Muhammad Arif (2011 SCMR 848) the Court held as under: - “8. In view of what has been discussed hereinabove it can be inferred safely that reasonable classification which is not arbitrary or violative of doctrine of equality cannot be questioned. We are not impressed by the contention made by the learned Advocate Supreme Court on behalf of respondents that it is a case of sheer discrimination because discrimination means “making a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observing differences accurately, or of making exact distinctions; discernment. But discrimination against a group or an individual implies making an adverse distinction 17 with regard to some benefit, advantage or facility. Discrimination thus involves an element of unfavourbale bias and it is in that sense that the expression has to be understood in this context [Shirin Munir v. Government of Punjab (PLD 1990 SC 295), Pakcom Limited v. Federation of Pakistan (PLD 2011 SC 44)]. The learned Advocate Supreme Court has failed to point out any unfavourable bias which is an essential ingredient of discrimination and it is not understandable that how it can be pressed in to service.” Reference in this behalf may also be made to the case of Safdar Jamil v. Vice-Chancellor (2011 CLC 116), wherein a division Bench of Lahore High Court held that equality of citizens, provided in Article 25 of the Constitution meant equal treatment amongst persons, who are equally placed and reasonable classification in terms of equal treatment is legally permissible. The students obtaining less marks as compared to the students who succeeded in getting admission on open merit, were not similarly situated or placed and differential treatment was justified. Relevant para therefrom reads as under: - “9. We do not agree with the argument of the learned counsel for the petitioners that the Self-Finance Scheme was violative of the fundamental rights, enshrined in the Constitution of Islamic Republic of Pakistan, 1973, as equality of the citizens, provided in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, means equal treatment amongst persons, who are equally placed and reasonable classification in terms of equal treatment is legally permissible. In this connection, a reference could be made to the case of I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMR 1041), wherein, it has been held that Clause (1) of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 does not prohibit the State to treat citizens on the basis of reasonable classification. A classification would be considered reasonable, if it is based on an intelligible differentia, which distinguishes 18 persons or things that are grouped together from those, who have been left out. The conditions, prerequisites for seeking protection of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, have also been discussed in the judgments reported in the cases of Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641), Muhammad Ramzan and 3 others v. Government of Pakistan through Secretary Ministry of Law, justice and Parliamentary Affairs, Pakistan Secretarial, Islamabad and 3 others (2004 YLR 1856), Shehzad Riaz v. Federation of Pakistan through Secretary Cabinet Division and 3 others (2006 YLR 229), Government of the Punjab. through Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan through L.Rs. and others (2010 SCMR 431) Tariq Aziz-ud-Din and others in re Human Rights cases Nos.834O, 9504-G, 13936-G, 13635-P 14306-G to 143309-G 4.2009 (2010 SCMR 130) and Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265). … …” Thus, it is held that the classification between the students, who secured more marks and succeeded in getting admission on open merit and the students, who, after failing to get admission on open merit, opted to get the benefit of Self Finance Scheme, is based on an intelligible differentia as such reasonable. Therefore, students who opted to apply for admission on Self Finance basis, after being failed to get admission on open merit, can not claim the protection of Article 25 of the Constitution as they are neither similarly placed nor such classification is unreasonable. 23. It is to be noted that the doctrine of ‘estoppel’ means a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. Even as a rule of evidence 19 or pleading a party should not be allowed to approbate and reprobate. Reference in this behalf may be made to the case of Haji Ghulam Rasool v. The Chief Administrator of Auqaf (PLD 1971 SC 376) wherein it was held as under; - “The doctrine of estoppel is not confined to the matters deal with under section 115 of the Evidence Act, for, as pointed out by Garth, C. J. in the case of Ganges Manufacturing Co. v. Sourajmull (I L R 5 Cal. 669) “estoppels in the sense in which the term is used in the English legal phraseology are matters of infinite variety and are by no means confined to the subjects dealt within Chapter VIII of the Evidence Act”. It has been defined in Salsbury's Laws of England (2nd Edn.), Vol. 13, “as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability”. It is in this sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. This principle was acted upon by the Judicial Committee in the case of Lakshmana Goundan v. Subramania Aiyar (AIR 1924 PC 44) where it was held that if a person had “held out and represented to the Hindu public that the temple was a public temple” he cannot resile from that position. Similarly in the case of Jai Dayal v. Dewan Ram Sarn Das (A I R 1938 Lah.686) the Lahore High Court also held that “where a person with full knowledge of the facts in unmistakable terms admitted the wakf nature of a house, he cannot subsequently be allowed to resile from that position”.” In the case of M/s Gadoon Textile v. WAPDA (1997 S C M R 641) it was held that if on the basis of representation made one party, any other party, acting bona fide, legally enters into any transaction, contract or deal which gives rise to rights and liabilities enforceable at law, then a vested right is created and the benefits or concessions arising from the representation made cannot be withdrawn. In the case of Pakistan v. Fecto Belarus Tractors Ltd. (PLD 2002 SC 208) it 20 was held that true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon the same, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre- existing relationship between the parties or not. In the case of Muhammad Zubair v. Government of Pakistan (2012 CLC 1071) a division Bench of learned Lahore High Court held that the students appeared in the Entry Test in terms of the merit/weightage criteria publicized by the competent authority without challenging it and when they could not perform well in the entry test, they filed the writ petitions apprehending that they would be ousted on the basis of the entry tests, therefore, they were estopped by their own conduct to challenge the vires of the weightage criteria or merit on the settled principle of estoppel and waiver. The equality is only possible amongst the persons who are placed in same set of circumstances. In Yahya Gulzar v. Province of Punjab (2001 CLC 9) it was held that candidate who had not challenged the vires of prospectus before appearing in the entry test for admission was estopped to file Constitutional petition against the entry test on the principle of estoppel and waiver as per principle laid down by the Honourable Supreme Court in Ghulam Rasool’s case (PLD 1971 SC 21 376). In the case of Turner Morrison & Co. v. Hungerford Investment Trust Ltd. (AIR 1972 SC 1311) the Indian Supreme Court held that “estoppel is a rule of equity. That rule has gained new dimensions in recent years. A new class of estoppel i.e. promissory estoppel has come to be recognised by the courts in this country as well as in England.” 24. Thus, we are in agreement with the learned Additional Advocate General that under the doctrine of ‘promissory estoppel’ the respondents-students are estopped to challenge their contribution of US$ 10,000 in endowment fund, in terms of article 114 of the Qanun- e-Shahadat Order, 1984, as they themselves accepted the terms and conditions of admission policy while getting admission on SFS basis. 25. As far as the different fee structure for foreign students admitted under SFS in different colleges of Punjab is concerned, it is to be noted that every college has its own study atmosphere due to different facilities available therein, which also vary from city to city. Further, the expenditures and cost of education also change in various cities. Thus, a uniform policy to contribute towards endowment fund can not be prescribed by the government of Punjab or by College Administration situated in different cities. The finding of the learned High Court directing the authorities to charge from all students a uniform rate of US $5000 per annum, irrespective of the colleges, being unwarranted in view of the above discussion is not sustainable in law and the Constitution. 26. For the foregoing reasons, the CA No.2234 of 2005, CP No.1587-L & 1588-L of 2010 filed by the department (Secretary 22 Economic Division; Secretary Government of Punjab Health Department etc.) are allowed. Whereas, CA No.2235 of 2005 and CA No.61 of 2006 filed by the students are dismissed. 27. As far as CP No.445-L & 454 of 2012 CP are concerned, these are barred by time and also have become infructuous in view of allowing relief to other appellants in appeals noted hereinabove. No order as to cost. Chief Justice Judge Judge Announced in open Court on_31.07.2013 At Islamabad, Chief Justice Nisar/* Approved For Reporting

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{'id': 'C.A.2234_2005.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present Mr. Justice Iftikhar Muhammad Chaudhry Mr. Justice Rana Bhagwandas Mr. Justice Syed Deedar Hussain Shah Mr. Justice Hamid Ali Mirza Mr. Justice Sardar Muhammad Raza Khan Mr. Justice Faqir Muhammad Khokhar Mr. Justice Tassadduq Hussain Jillani CIVIL APPEALS No. 224 TO 227 OF 2003 & CONSTITUTION PETITION No. 18 OF 2004 A/W C.M.As.No. 1383, 2376 & 2604 OF 2004. (On appeal from the judgments/orders dated 19.04.01, 10.12.02 and 20.01.03 passed by Lahore High Court Lahore in Writ Petitions No. 660/2000, 19239/02, 2418/01 & 692/03) CA No. 224/2003 & CMA No. 2604/04. Arshad Mehmood & others. … … Appellants. Versus The Government of Punjab through Secretary, Transport Civil Secretariat, Lahore & others. … … Respondents. For the appellants : Mr. Muhammad Akram Sheikh Sr. ASC. Mr. M. A. Zaidi, AOR. For the respondents. : Syed Shabbar Raza Rizvi AG(Punjab) a/w Mrs. Afshan Ghazanfar AAG Punjab. Mr. Maqbool Illahi Malik Sr. ASC. For the applicant : Ch: Muhammad Anwar Khan, AOR/ASC (in CMA No. 2604/04) CA No. 225 OF 2003. Muhammad Younas, etc. … … Appellants. Versus Government of Punjab etc. … … Respondents. For the appellants. : Mr.A. K. Dogar Sr. ASC. For the respondents. : Syed Shabbar Raza Rizvi AG (Pb.) a/w Mrs. Afshan Ghazanfar AAG(Pb). Syed Ali Zafar ASC Ch. Muhammad Akram AOR. CA.224 of 2003, etc. 2 CA No. 226 OF 2003. Malik Asghar, etc. … … Appellants. Versus Government of Punjab etc. … … Respondents. For the appellants. : Mr. Nasir Saeed Sheikh Sr. ASC. For the respondents. : Syed Shabbar Raza Rizvi AG (Pb.) a/w Mrs. Afshan Ghazanfar AAG(Pb). Mr. Aftab Gul, ASC. Mr. Arshad Ali Ch: AOR. CA No. 227/2003 & CMA No. 1383/2004. Mukhtar Ahmed & others. … … Appellants. Versus. Secretary District Regional Transport Authority, Faisalabad. … … Respondents. For the appellants/ : Mr.Tariq Mehmood ASC. Applicants Maher Khan Malik, AOR. For the respondents. : Syed Shabbar Raza Rizvi AG (Pb.) a/w Mrs. Afshan Ghazanfar AAG(Pb). Ch: Muhammad Akram AOR. CONST. PETITION NO. 18/2004. Javed Akhtar & others. … … Petitioners. Versus. Province of Punjab & others. … … Respondents. For the petitioners. : Mr. Habib-ul-Wahab-ul- Khairi Sr. ASC. Maher Khan Malik, AOR. For the respondents. : NR. CIVIL MISC. APPLICATION NO. 2370 OF 2004 Mukhtar Ahmed & others. … … Appellants. Versus. Secretary District Regional Transport Authority, Faisalabad. … … Respondents. For the applicant : Nemo. For the respondents : Syed Shabbar Raza Rizvi AG (Pb.) a/w Mrs. Afshan Ghazanfar AAG(Pb). Ch: Muhammad Akram AOR. Dates of hearing. : 25.10.2004 to 29.10.2004. ………………… CA.224 of 2003, etc. 3 JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, J. – In above noted appeals, judgments of the Lahore High Court, Lahore, details whereof are mentioned in above title, have been challenged in pursuance whereof Section 69-A of the West Pakistan Motor Vehicles Ordinance 1965 [herein after referred to as ‘the Ordinance’] as amended by the Province of Punjab has been held valid piece of legislation. 2. Listed petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan [herein after referred to as ‘the Constitution’] has been filed by invoking original jurisdiction of this Court to challenge Section 69-A of the Ordinance, independently. Whereas Civil Misc. Applications No. 1383/2004 and 2604/2004 have been moved by the Transports who got the franchise rights with regard to route permits mentioned therein. 3. As common question of law and facts have been raised in these matters, therefore, they are being disposed of by means of instant judgment. 4. Facts of each case need not be narrated in details as common question raised in all of them is whether Section 69-A of the Ordinance, inserted by the Government of Punjab is contrary to the fundamental rights of the appellants, enshrined in Article 18 of the Constitution because in pursuance thereof, appellants have been restrained/ousted completely from the trade/ business of transport, which they were carrying on against valid route permits issued by competent authority under the provisions of the Ordinance for the last many years and in which for it they had made huge investment for purchase of vehicles i.e. wagons, suzukies, etc. The franchise of routes on which they were plying their stage carriages have been given to the private respondents in pursuance of the scheme of Section 69-A of the Ordinance. Thus feeling dissatisfied by the grant of franchise to private CA.224 of 2003, etc. 4 respondents, appellants preferred Constitutional Petitions under Article 199 of the Constitution, before the Lahore High Court, Lahore, questioning validity of Section 69-A of the Ordinance being unconstitutional, void, unlawful and of no legal effect being violative of Article 18 of the Constitution, which guarantees right of freedom of trade, business or profession to the citizens. A learned Division Bench of the High Court pronounced its judgment in W.P. No.9436 of 2000 on 1st February 2001, declaring Section 69-A of the Ordinance intra vires of the Constitution. In another Writ Petition No.660 of 2000, instituted by appellants (impugned in Civil Appeal 224 of 2003), a learned Division Bench of High Court dismissed it on 19th April 2001 in view of earlier judgment referred to above. Later on, a larger bench, in Writ Petition No.19239 of 2002 alongwith other petitions, examined vires of Section 69-A of the Ordinance and declared it intra vires of the Constitution vide judgment dated 10th December 2002 (impugned in Civil Appeal No.225 of 2003). Subsequent thereto, another Division Bench of the High Court in view of the judgment of the full bench, dismissed another Writ Petition No. 692 of 2003 in limine, which has been challenged in Civil Appeal No. 227 of 2003. It may be noted that in this case, respondent M/s Manthar Metro General Bus stand, a franchise holder, was not impleaded as party, therefore, Civil Misc. Application No. 1383 of 2004 was filed on its behalf for impleadment as party, which was allowed. Similarly, M/s Bashir & Sons, transporters/ operators of franchised Bus Service in Faisalabad also moved an application for impleadment as party, which has been allowed and learned counsel permitted to argue the case. Similarly, M/s Baloch Transport Company Ltd. also filed Civil Misc. Application No.2376 of 2004 to join as party in the above appeals but no one has appeared on their behalf to plead their application. Constitution Petition No. 18 of 2004 has been filed under CA.224 of 2003, etc. 5 Article 184 (3) on behalf of members of the general public, who have to travel in stage carriages as passengers. Their grievance is also against the promulgation of Section 69-A of the Ordinance as according to them, their right of movement cannot be limited by compelling them to undertake journey in the transport owned by private respondents because they have obtained franchise rights and are charging exorbitant fare compared to other transporters who used to ply buses on the same route, and if competition is allowed, they will charge less fare from them, as such citizens, having limited resources of income are not bound to pay fare to respondents transporters at high rates. 5. The conclusions drawn by learned High Court in the impugned judgments are as under:- i) The right guaranteed through Article 18 of the Constitution, pertaining to freedom of trade, is not absolute in terms and it is subject to reasonable restriction, which can be imposed by law, which is a clog on the fundamental rights. ii) A citizen under Article 18 of the Constitution could enter upon a lawful profession, occupation and trade/business which is to be regulated by a licencing system under the supervision and control of the Government. iii) The Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance V of 1970 is not absolute in command as Section 5(2) permits even apparently monopolistic steps in the contribution towards financial or promotion of public interest or the benefit arising out of said steps would outweigh the said competition or lessening the competition. CA.224 of 2003, etc. 6 iv) The obvious object and purpose of the provisions of Section 69-A of the Ordinance is to rid the commuting public of hazardous, dangerous, unreliable and undignified means of transport and also to lessen the congestion on roads by introducing large occupancy vehicles instead of low occupancy wagons, etc. v) The appellants/petitioners are not being thrown out of business because according to the Government, they have been offered alternative routes in same city. vi) The power to regulate a trade/business necessarily includes the power to prohibit business while regulating the same. vii) By enacting Section 69-A of the Ordinance, which is a regulatory provision, Article 18 of the Constitution has not been violated because while examining the vires of a statute, it is always presumed that the legislature would not flout the Constitutional provision and all efforts have to be made to lean in favour of the constitutionality of the law in order to save it rather than to destroy it. viii) The Government of Punjab and Secretary, Regional Transport Authority, while granting franchise to the specific routes to the respondents in exercise of powers under Section 69-A of the Ordinance, have conducted proceedings in a transparent manner as open tenders were invited from the interested transporters to secure franchise on the specific routes, therefore, no monopoly has been created in favour of the respondents by the Government. CA.224 of 2003, etc. 7 6. Leave to appeal was granted to examine the following questions:- (a) “Whether the insertion of Section 69-A in Punjab Motor Vehicles Ordinance 1965 by virtue of Punjab Ordinance No. XLVI of 1999 is in the public interest and is not violative of the constitutional guarantee of right of trade and business under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 and is in consonance with the provisions of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance No. V of 1970. (b) The addition of Section 69-A in the Punjab Motor Vehicles Ordinance 1965 would not amount to protect and promote the vested interest of a specific class by depriving large number of people associated with the transport business of their legitimate right of earning and they have not been denied the equal and fair opportunity of right of business as provided under the Constitution of Islamic Republic of Pakistan, 1973. (c) The exclusion of wagons and mini bus owners from transport business under franchise routes scheme is not a departure to the policy of constitution of free competition and would not amount to take away the right of people from using the vehicle of their own choice as means of transport and compel them to travel through the franchise transport. (d) The imposing of unreasonable restriction on the free trade and business is not a social and economic exploitation as provided in Article 3 of the Constitution of Islamic Republic of Pakistan, 1973. e) The provision of Section 69-A ibid for exclusion of wagons and mini buses as stage carriages from the franchise routes in the private sector is not a discriminatory law and the distinction created is based on reasonable classification.” CA.224 of 2003, etc. 8 7. Learned counsel appearing for appellants argued against the constitutionality of Section 69-A of the Ordinance from different aspects but essentially it being contrary to Article 18 of the Constitution is liable to be declared void in terms of Article 8 of the Constitution. 8. Conversely, learned counsel for respondents as well as Advocate General of Punjab stated that the provision of Section 69-A of the Ordinance, is not contrary to any fundamental right, therefore, it cannot be declared to be void as well as invalid under Article 8 of the Constitution and the learned Division Bench of the High Court as well as the Full Bench vide impugned judgments had thoroughly examined its vires in the light of the precedent law, referred to therein, as such it must be saved in the public interest because it has advanced/promoted the cause of general public interest. 9. Mr. A. K. Dogar, learned ASC contended that monopoly in trade and business by grant of franchise is against Article 18 proviso (b) of the Constitution which guarantees the regulation of the trade, commerce or industry in the interest of public, subject to competition. He further explained that except the Federal or Provincial Government or by a corporation controlled by such Government under Article 18 proviso (c) of the Constitution no private person can be allowed to monopolize a trade or business and as franchise routes have been given to the private respondents under Section 69-A of Ordinance therefore, it is liable to be struck down on this score alone. To substantiate his plea he relied upon “Grammar of Politics” by Harold J. Allasky 5th Edition (page 175) and referred to its following para:- “men may begin to acquire property to safeguard their lives from want but they continued to acquire it because of the distinction which comes from its possession. It CA.224 of 2003, etc. 9 satisfies their vanity and their lust for power. It enables them to attune well of society to their own”. Learned counsel further contended that the respondents on account of their resources, influence and contacts have exploited the appellants’ rights as they were not in a position to arrange the buses having capacity of 70 seats or more than it, due to their poor financial conditions. On the other hand the respondents have not only been obliged by granting franchise of specified routes to them, according to their choice, the Banks had also provided them fabulous loans of 70% against their equity of 30% for purchase of stage carriages. Therefore, in this manner, Provincial Government has also violated Article 3 of the Constitution as well, according to which the State is responsible to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle from each according to his ability to each according to his work. Similarly, appellants have also been deprived of their right to life as they are not in a position to earn their livelihood, therefore, the security which has been provided to them under Article 9 of the Constitution has been denied to them as held in Administrator Market Committee, Kasur v. Muhammad Sharif (PLD 1994 SC1048). It is further contended by him that as per the objective resolution, which is now a part of the Constitution i.e. Article 2-A , it is the duty of the State to provide social, economic and political justice to all its citizens and to achieve the object. It is the duty of the Government to frame such policies which ensure promotion of social and economic well being of the people as required by provisions of Article 38 of the Constitution, but in the instant case the Government of Punjab by inserting Section 69-A has not only denied certain Constitutional rights to the appellants but has also discriminated them in violation of Article 25 of the Constitution. CA.224 of 2003, etc. 10 10. Mr. Muhammad Akram Sheikh, learned counsel contended that the action of Punjab Government, by excluding the appellants from the trade of transport, without cancelling the route permits granted to them under Section 62 of the Ordinance, tantamounts to forfeiture of their property contrary to the Constitutional protection under Article 24. The provisions of Section 69-A of the Ordinance are confiscatory in nature because of execution of agreement between the franchise holders and Government all route permits possessed by the appellants have been virtually cancelled. Moreover, abovesaid provisions being against the principles of natural justice, i.e. audi alteram partem in derogative of the spirit of Articles 2-A and 18 of the Constitution and violative of the principles of State policy deserve to be struck down. He further contended that the High Court without recording evidence has made adverse observations against the appellants namely that Section 69-A of the Ordinance has been promulgated to rid the commuting public of hazardous traffic, unreliable and undignified means of transport etc. He stated that if at all the High Court wanted to determine the factual aspects of the case it should have embarked upon an inquiry and on the basis of the same ought to have recorded a finding merely on the basis of conjectural and capricious reasons the judgments are not sustainable. He was also of the opinion that the Government by enacting Section 69-A of the Ordinance has created monopoly in favour of the private respondents contrary to the Constitution. In support of his arguments he has relied upon Saghir Ahmed Vs. The State of UP & others (AIR 1954 SC 728). 11. Mr. Nasir Saeed Sheikh ASC, in his arguments mostly highlighted on factual side of the case which would be discussed at later stage, if need be. CA.224 of 2003, etc. 11 12. Mr. Habib-ul-Wahab-ul-Khairi ASC, contended that Section 69-A is contrary to the Article 18 of the Constitution, and the petitioners on whose behalf he is appearing being the passengers cannot be compelled to travel in a transport of respondents, who got franchise for specified routes and are charging exorbitant fare than ordinary fare, meant for same journey, without any legal justification. 13. Syed Ali Zafar, learned ASC contended that proviso (a), (b) and (c) of Article 18 of the Constitution are disjunctive from each other, therefore, are to be interpreted independently. As per proviso (b) of Article 18 of the Constitution, the Government is authorized to regulate the trade, commerce or industry, being fully aware that there could be traders who would be interested to obtain franchise of a particular trade, subject to competition amongst equals, who are placed under same conditions, as such introduction of “franchise system” is not prohibited under this clause, as argued by the learned counsel for appellants. Therefore, for such reason, Government of Punjab by enacting Section 69-A of the Ordinance, had not violated Article 18 of the Constitution in any manner. He further contended that Section 69-A of the Ordinance was made as a general law, not for any particular person and, therefore, its validity has to be examined as a free standing law. According to him under Section 69-A of the Ordinance the Government is authorized either to put up franchise of particular routes or all the routes, therefore, invitations were given to the persons interested in obtaining franchise of all the existing routes by inviting open tenders, from time to time and whosoever was found suitable in competition, was declared entitled without any discrimination. Nor it could be argued that Section 69-A of the Ordinance had monopolized the trade of transport, against the provisions of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance V of 1970 [herein after referred to as CA.224 of 2003, etc. 12 “the Ordinance, 1970], thus attaching malafides to the conduct of the Government is not fair. It is also contended by him that appellants are not debarred from doing business as transporters on the same routes, provided they fulfill the conditions laid down for obtaining franchise rights under Section 69-A of the Ordinance and their objection that they are being thrown out of business of transport is misconceived. Thus no case of violation of Article 25 of the Constitution is made out as well. He also argued that proviso (a) of Article 18 of the Constitution stipulates that if a person does not qualify for the business, he is prohibited from doing it under the licencing system and in pursuance of these provisions, the Government has laid down a policy with certain qualifications to control traffic hazards and for the welfare of the people. Appellants who do not fulfill such qualifications, could not be heard to say that their fundamental right under Article 18 of the Constitution has been denied, because it is always subject to law. 14. Mr. Aftab Gul, ASC has adopted the arguments put forward by Syed Ali Zafar, ASC and also highlighted the factual aspects of the case to counter the arguments advanced by Mr. Nasir Saeed Sheikh, ASC. These factual aspects of the case will be considered at a later stage, if need be. 15. Mr. Tariq Mehmood, ASC adopted the arguments of Syed Ali Zafar, ASC and also added that respondents got franchise in an open competition because the appellants did not compete for the same, therefore, they are estopped from agitating against the promulgation of Section 69-A of the Ordinance. He further stated that Courts are not required to examine the vires of Section 69-A of the Ordinance as they have no powers to question the wisdom of the legislature, who have framed law in pursuance of policy of the Government. According to him, if at all a monopoly has been created by granting franchise to respondents on specified routes, they have an CA.224 of 2003, etc. 13 alternate remedy available to approach the competent forum for redressal of their grievance, in stead of invoking the constitutional jurisdiction of the High Court as well as of this Court. 16. Syed Shabbar Raza Rizvi, learned Advocate General Punjab contended that under Article 18 of the Constitution, a citizen shall have a right to enter upon any lawful profession subject to law, therefore, no absolute right has been conferred upon the appellants, as such provisions of Section 69-A of the Ordinance cannot be questioned, being contrary to Article 18 of the Constitution and, according to him, it has been enacted lawfully. He was also of the opinion that under Section 5(2) and 6(2) of the Ordinance, 1970, the Government is empowered/ competent to promulgate the law, authorizing a selected party to run the business to the exclusion of the others. Lastly he adopted the arguments of the learned counsel who appeared on behalf of the respondents/interveners. 17. As the arguments put forward on behalf of the appellants’ counsel call for examination of the constitutionality of Section 69-A of the Ordinance, being allegedly against their fundamental rights, guaranteed under Article 18 of the Constitution, therefore, same is reproduced herein below for convenience:- “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 CA.224 of 2003, etc. 14 (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.” It may be noted that appellants have sought declaration that Section 69-A of the Ordinance is ultra vires of above provisions of the Constitution, on the touchstone of Article 8 of the Constitution, scheme of which is that any law, custom or usage, having the force of law in so far as it is inconsistent with the rights conferred by this chapter shall, to the extent of such inconsistency, be void and the State shall not make any law which takes away or abridges the right so conferred and any law made in contravention of Sub-Article (2) of Article 8 shall, to the extent of such inconsistency, be void. It is to be born in mind that this Court has held that the Constitution is a living document which portrays the aspiration and genius of the people and aims at creating progress, peace, welfare, amity among the citizens, and the nations abroad. It is the basic structure on which the entire edifice is built, therefore, it has to be interpreted in a manner to keep it alive and blossom under all circumstances and in every situation. See Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341). Likewise in the case of M/s Illahi Cotton Mills and others v. Federation of Pakistan and another (PLD 1997 SC 582) important principles of law have been highlighted keeping in view the earlier case law and treatises namely that “while interpreting Constitutional provisions Courts should keep in mind, social setting of the country, growing requirements of the society/nation burning problems of the day and the complex issues facing by the people, which the Legislature in its wisdom CA.224 of 2003, etc. 15 through legislation seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. 18. In the Province of Punjab, in order to provide facility of high standard transport to the citizens/general public, licencing system has been made applicable under the provisions of the Ordinance and the rules framed thereunder. As per its Section 48 an applicant not being a Government servant having any financial interest in the stage carriage (vehicles) either directly or indirectly is eligible to apply for a route or routes of the area within which he intends to operate the vehicle for a permit. It is significant to point out that under Section 2 (37) of the Ordinance “stage carriage”, means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at a separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey”. On receipt of the application for grant of permit of the stage carriage the Regional Transport Authority after processing the same is competent to grant the route permit subject to the conditions to be attached thereto under Sections 50, 58 and 61 etc of the Ordinance . The Transport Authority also retains powers, under Section 62, for cancellation or suspension of the route permit. 19. In the instant case, appellants being the valid permit holders were plying their stage carriages in different cities of the Province of Punjab including Rawalpindi, Lahore, Faisalabad etc when vide Ordinance XXXV of 1998 dated 9th December 1998 Section 69-A was inserted in the Ordinance by the Government of Punjab and it was kept alive by issuing successive Ordinances as it could not be laid before Provincial Assembly, as per the mandate of Article 128 of the Constitution, when on 14th day of CA.224 of 2003, etc. 16 October 1999 National and Provincial Assemblies were suspended due to military take over, therefore, under Laws Continuation in Force Order 1999, it remained operative and subsequent thereto has been saved under Article 270-AA of the Constitution. Section 69-A of the Ordinance, reads as under thus :- “69-A. Franchise.—(1) The provisions of this Section shall have effect notwithstanding anything contained in this Ordinance. (2) In this Section “franchise” means a permit granted to an operator for operation of stage carriages with a carrying capacity of 70 or more passengers by a Bus Service providing and maintaining the prescribed facilities on routes in respect of which it is declared by the Government that only a Bus Service of the nature referred to above shall be allowed to operate stage carriages thereon to the exclusion of other stage carriages. (3) The Government may direct the Regional Transport Authority to grant a franchise. (4) Where the Regional Transport Authority grants a franchise under sub-section (3) all existing stage carriage permits in respect of routes or a route or a portion of a route to which the franchise relates shall stand cancelled on the date notified for the purpose by the Regional Transport Authority concerned and the Regional Transport Authority may not grant fresh stage carriage permits for such routes or a route or a portion of a route for duration of the franchise. (5) The provisions of 60 shall not apply to a franchise. (6) In the case of stage carriages in relation to which a franchise is granted the power to fix maximum fares shall vest in the Regional Transport Authority. (7) (a) The Regional Transport Authority concerned may cancel a franchise, or may suspend a franchise for such period as it deems fit:- (i) for the breach of any condition attached to the franchise or of any condition or on any ground contained in the prescribed franchise Agreement; or CA.224 of 2003, etc. 17 (ii) on any other ground mentioned in Section 62: Provided that no franchise shall be cancelled or suspended unless the holder of the franchise has been given an opportunity of being heard. Provided further that the Regional Transport Authority may after such hearing, rather than cancel or suspend the franchise, vary the terms and conditions thereof. (b) Where a franchise is cancelled or suspended or the terms and conditions thereof are varied, the Regional Transport Authority shall record in writing the reasons for such cancellation or suspension, or variations and shall deliver a copy thereof to the holder of the franchise. (c) On cancellation of a franchise, the holder of the franchise shall, unless the Regional Transport Authority in the order of cancellation directs to the contrary, be entitled to refund to the franchise fee for the unutilized portion of the franchise period. (8) Refusal to transfer a franchise or revise fares on routes to which a franchise relates shall be appealable under section 62. (9) A franchise shall not be transferable in any manner whatsoever except with the prior permission in writing of the Regional Transport Authority and subject to such conditions as may be stipulated in this behalf. (10) Notwithstanding anything contained in Chapter VIII of the Motor Vehicles Act, 1939 (IV of 1939) the Regional Transport Authority may attach to a franchise such conditions relating to insurances as it may deem fit. (11) Save in so far as provided otherwise in this section the provisions of this Ordinance or any other law relating to Motor Vehicles shall apply mutatis mutandis to a franchise. (12) all actions taken by the Government for introducing the franchise system before the coming into CA.224 of 2003, etc. 18 force of this Ordinance shall be deemed to have been validly taken.” 20. Perusal of Section 69-A of the Ordinance reveals that it has introduced “franchise system” for operating “stage carriages” absolutely different from the system prescribed by the Ordinance. One of the salient features of this law is that under its Sub-Section (2) Government has been empowered to declare the routes “franchise”, to be granted under its instructions by the Regional Transport Authority, to the exclusion of all other operators of stage carriages and upon grant of a “franchise” on a specified route, the Regional Transport Authority under Sub-Section (4) has been empowered to cancel all existing stage carriages permits on such routes or a portion of route. Such oppressive provision has been inserted in the statute without realizing that the operators of stage carriages are already carrying on a lawful trade under valid permits, since long without any allegation of violating the law under which route permits were granted to them. Further more, no notice, before cancelling their lawful licences, were given to them as Section 69-A does not envisage such provision. Thus it can be safely held that a right which has accrued to them to carry on a lawful business, according to the Ordinance, could not be denied to them by introducing “franchise” system by the Provincial Government, in view of the guarantees, provided to them under Article 18 of the Constitution. It is to be noted that under the scheme of the Ordinance, the Provincial Government, except supervising, had no administrative role to play as the trade of transport is regulated by the Regional or Provincial Transport Authority. Thus, we have reason to believe that under Section 69-A of the Ordinance, an administrative role has been given to the Provincial Government for effectively carrying out its object including the exclusion of all other transporters, who are already in a lawful business, because if an CA.224 of 2003, etc. 19 operator possesses valid route permit for plying the vehicles on a route or the routes obtained by it from Regional Transport Authority or the Provincial Transport Authority, legally Government cannot exclude him from the business except in terms of Section 62 of the Ordinance. However, it is no body’s case that the Regional Transport Authority after insertion of Section 69-A in the Ordinance ever exercised its jurisdiction under Section 62 of the Ordinance and cancelled their permits. 21. In view of above background it seems appropriate to examine the constitutionality of Section 69-A of the Ordinance, particularly power of Government of Punjab to grant franchise in the trade/business of transport. 22. The word “franchise” has been defined in a good number of cases by various Courts including the Courts of United State of America as reported in American Jurisprudence 2nd Edition Volume 36 (page 723), according to which it means:- i) “A franchise represents the right and privilege of doing that which does not belong to citizen generally, irrespective of whether net profit accruing from the exercise of the right and privilege is retained by the franchise holder or is passed on to a state, school or to vehicle sub- divisions of the state. State XREL Williamson Vs. the Garrison (Okla) 348 P-2 D 859. ii) Whether all persons including corporations are prohibited from transacting a banking business unless authorized by law the claim of a banking corporation to exercise the right to do a banking business a claim to a franchise. The right of banking under such a restraining act is a privilege or immunity by grant of the legislature and the exercise of the right is an assertion of a grant from the legislature to exercise that privilege and consequently it is usurpation of a franchise unless it can be shown that the privilege has been granted by the legislature, CA.224 of 2003, etc. 20 People State XREL Attny. Gen. Vs. Utica Ins. Johns (NY) 358. iii) Similarly in UTAH Light and Traction Company Vs. Public Serv Com. 101 UTAH 99, 118 P 2nd 683 has defined franchise as follows:- “A franchise is a right or privilege granted to a corporation or individual to do things which such corporation or individual otherwise could not do such as the construction, maintenance and operation of utility transmission lines either above or beneath the surface of the State street and allies. The ‘American Jurisprudence’ generally has explained the nature of the incidence of franchise that “as a rule, when a franchise is granted subject to the condition and the terms upon which it may be held it becomes the property of the “grantee” and is a private right subject only the Governmental control going out of it other enter has publicy juries”. Likewise in Black’s Law dictionary 5th Edition (page 592) ‘franchise’ has been defined as follows:- “A special privilege conferred by Government on individual or corporation, and which does not belong to citizens of country generally of common right. Artesian Water Co. v. State Dept. of High Ways and Transp. Del. Super 330 A. 2d 432, 439, In England it is defined to be a royal privilege in the hand of a subject. A privilege granted or sold, such as to use a name or to sell products of services. The right given by a manufacturer or supplier to a retailer to use his products and name on terms and conditions mutually agreed upon. In its simplest terms, a franchise is a license from owner of a trademark or trade name permitting another to sell a product or service under the name or mark. More broadly stated a “franchise” has evolved into an elaborate agreement under which the franchisee undertakes to conduct a business or sell a product or service in accordance with methods and procedures prescribed by the franchisor through CA.224 of 2003, etc. 21 advertising, promotion and other advisory services. H&R Block., Inc. v. Lovelace, 208 Kan. 538, 493 P.2d 205, 211.” From the above definitions it is concluded that “franchise” is a Privileged contract between the “grantor” and “grantee” in respect of a trade or business to the exclusion of any one else, which does not belong to citizens generally, with a view to create a “monopoly” in respect thereof, which is also known as CARTEL. 23. It is well settled that the right of trade/ business or profession under Article 18 of the Constitution is not an absolute right but so long a trade or business is lawful a citizen who is eligible to conduct the same cannot be deprived from undertaking the same, subject to law which regulates it accordingly. The word “regulation”, as used in Article 18 of the Constitution has been interpreted by the Courts of our country keeping in view the provisions of Article 19(1)(g)(6) of the Indian Constitution. It would be appropriate to reproduce it herein below for convenience:- “19. Protection of certain rights regarding freedom of speech etc.---- (1)All citizens shall have the right----- (a)……………………………………………. (b)……………………………………………. (c)…………………………………………….. (d) …………………………………………….. (e)…………………………………………….. (f)……………………………………………… (g) to practice any profession or to carry on any occupation trade or business. (2) …………………………………………….. (3)…………………………………………….. (4) …………………………………………….. (5) …………………………………………….. (6) anything in sub-clause (g) of the said clause shall effect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing, in the interest of the general public, reasonable restriction on the exercise of the right CA.224 of 2003, etc. 22 conferred by the said sub-clause and any particular [nothing in the said sub-clause shall effect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to--- (i) the profession or educational qualification necessary for practicing any profession or carrying on any occupation, trade or business (ii) the carrying on by the State or by a corporation owned or controlled by the State of any trade business industry or service] whether to the exclusion complete or partial of citizens or otherwise.” It may be noted that word “reasonable” was inserted in Article 19 of the Indian Constitution, vide Constitution (First Amendment Act 1951), but it has not defined the expression “reasonable restriction” itself. However, from different judicial pronouncements following definitions can be considered for purpose of ascertaining the meaning of “reasonableness of restriction” on the fundamental rights of the citizens, to conduct any lawful trade or business:- i) The limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public. M/s Dwarka Prasad v. State of U.P. (AIR 1954 SC 224), P.P. Enterprises v. Union of India (AIR 1982 SC 1016)]. ii) The Court would see both to the nature of the restriction and procedure prescribed by the statute for enforcing the restriction on the individual freedom. Not only substantive but procedural provisions of statute also enter into the verdict of its reasonableness. Kishan Chand v. Commissioner of Police (AIR 1961 SC 705). iii) The principles of natural justice are an element in considering reasonableness of a restriction but the elaborate rules of natural justice may be excluded expressly or by necessary implication CA.224 of 2003, etc. 23 where procedural provisions are made in the statute. Haradhan Saha v. State of W.B. [(1975) 3 SCC 198] iv) Absence of provision for review makes the provisions unreasonable. K.T. Moopil Nair v. State of Kerala (AIR 1961 SC 552). v) Retrospectivity of a law may also be the relevant factor of law, although a retrospectivity of law does not make it automatically unreasonable. Narottamdas v. State of Maddhya Pradesh and others (AIR 1964 SC 1667). vi) Reasonable restriction also includes cases of total prohibition of a particular trade or business which deprive a person of his fundamental right under certain circumstances. Narindra Kumar Vs. Union of India (AIR 1960 SC 430) 24. It is to be noted that our Constitution stands in sharp contrast to the corresponding provisions of Indian Constitution. A comparison of Article 18 of the Constitution and Article 19 (1)(g)(6) of the Indian Constitution manifestly makes it clear that in later Constitution, words “lawful” and “regulation” are conspicuously omitted but while defining the word “regulation” our Courts have followed the interpretation of Indian Supreme Court of expression “reasonable restriction”, while dealing with the concept of “free trade/business etc.” under Article 18 of the Constitution, despite the distinction noted herein above. In this behalf, reference may be made to Administrator Market Committee, Kasur, etc. v. Muhammad Sharif (1994 SCMR 1048). Whereas in Black’s law Dictionary the word ‘regulation’ has been defined as follows:- “Regulation. The act of regulating; a rule of order prescribed for management or government; a regulating principle; a precept. Rule of order prescribed by CA.224 of 2003, etc. 24 superior or competent authority relating to action of those under its control. Regulation is rule or order having force of law issued by executive authority of government.” Perusal of above definition persuades us to hold that there cannot be denial of the Government’s authority to regulate a lawful business or trade, but question would arise whether under the garb of such authority, the Government can prohibit or prevent running of such a business or trade. To find out the answer to this question, reference may be made to the case of Municipal Corporation of the City of Toranto v. Virgo (1896 A.C. 88, 93), where Lord Davey while discussing a statutory power conferred on a Municipal Council to make bye-laws for regulating and governing a trade made the following observation:- “No doubt the regulation and governance of a trade may involve the imposition of restrictions on this exercise………… Where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think that there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.” The above judgment has also been cited in Saghir Ahmed‘s case (ibid), which has also been relied upon by the learned counsel for appellants, particularly Mr. Muhammad Akram Sheikh, Sr. ASC. We may observe that some of the principles highlighted in this case may not be attracted in the facts of the case in hand because it was pronounced prior to Constitutional amendment in 1951, in pursuance whereof the word “reasonable’ was CA.224 of 2003, etc. 25 added before the word “restriction”. But at the same time this judgment also contained at least two other important observations, which will be referred to at a later stage. At this juncture, reference to the case of Government of Pakistan through Secretary Ministry of Commerce and another v. Zamir Ahmed Khan (PLD 1975 SC 667), seems to be important, with reference to proposition under discussion. In this case, respondent Zamir Ahmed challenged the amendment in SRO No.54(i)/72 dated 15th May 1972 in pursuance whereof cinematograph films were allowed to be imported from abroad subject to presentation of a licence form for authentication by the licencing authority etc. Subsequently this notification was amended as per gazette notified on 10th August 1972 whereby private respondents were disqualified from importing cinematograph films and the agencies to be specified by the Ministry of Information and Broadcasting were allowed to import the films. The licence to import the films was declined to the respondent, therefore, he invoked the constitutional jurisdiction of the High Court but no relief was given to him and the petition was dismissed on the ground that no right in his favour had been created. An appeal was filed against this order which was allowed by latter’s Patent Bench. The Government preferred appeal before this Court, wherein while interpreting Article 18 of the Constitution, this Court made following observations:- “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 CA.224 of 2003, etc. 26 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 profession, occupation, trade or business by declaring it to be unlawful which in common parlance means any thing 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 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.” The above judgment was maintained in review petition in the judgment reported as Zamir Ahmed Khan v. Government of Pakistan and another (1978 SCMR 327). Aforesaid conclusion seems to be in consonance with the judgment in the case of Municipal Corporation of the City of Toranto (ibid). 25. It may be noted that broad principles laid down in the judgments of Indian jurisdiction, some of which have been noted herein above, interpreting the word “reasonable restriction”, did not say that it would also mean “prohibition” or “prevention” completely, except under certain circumstances. 26. Now we have got before us the definition of the word “reasonable restriction” as defined by the Courts of Indian jurisdiction and the definition of the word “regulation” according to our own Court, and as per its dictionary meanings. Therefore, it would be seen that in order to resolve the controversy, which definition, out of two, is to be followed. But before doing so, we consider it appropriate to examine the judgments cited by the learned counsel for respondents, to contend that Government can prohibit and prevent any trade or business in the public interest:- CA.224 of 2003, etc. 27 Case Law Discussion i) Mehtab Jan and another v. Municipal Committee Rawalpindi (PLD 1958 W.P. Lahore 929) In this case while examining Article 12 of the Constitution of 1956, with regard to a case in which notice was issued by the Municipal Corporation Rawalpindi that “all owners, tenants, residents and prostitutes”, who reside in the area known as Serai Beli Ram for the purpose of adultery, should vacate their premises within a month, reason for the notice being that the use of the locality in question as “chakla” was injurious to the morals of the residents, held that “morality and decency are as fundamental as the fundamental rights themselves, and in the context of our Constitution, bearing in mind the preamble and the directive principles, a fundamental right is like the moon and morality like the disk of light surrounding it. A profession whose practice Pakistan’s Constitution guarantees to the citizen could not conceivably be a profession involving indecency or immorality”. It is further held that “the advocacy of a “full and free” right to practice prostitution violates both the spirit and the letter of the Constitution”. Therefore this case has no application to the instant case. ii) Government of Pakistan v. Syed Akhlaque Hussain and another (PLD 1965 SC 527) M/s Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623) In both these cases, the respondents, who were former Judges of the High Court were banned to practice before the High Courts, which were adorned by them as permanent Judges, under the Legal Practice (Disqualification) Ordinance (II of 1964), therefore, they challenged the vires of this Ordinance on the ground that it has violated their fundamental right of practice or profession. This Court keeping in view the peculiar facts and circumstances of the case, particularly the respect and dignity of the retired Judges of the Superior Courts held as under:- “The fact of partial disbarment is however plain, and where this occurs in diminution of a franchise which has been enjoyed for a period, the question would arise whether the law can effectively produce such a loss of a property right, consistently with the requirement of the Constitution. Speaking generally, the law as an instrument for the advancement of the public interest must be adapted to existing requirements, being specially sensitive to the existence of any elements of mischief or injury which it finds in operation. The law moves CA.224 of 2003, etc. 28 slowly, and therefore, conservatively, but instances are not uncommon of the law moving to remedy gross inefficiency and inequalities which have grown up under its protection in the past, even at the cost of deprivation of the existing rights of property. There is the instance of the land reform, which was found necessary in the entire sub- continent following upon the century during which, under British rule, a condition had developed leading to monopolization and inefficient exploitation of land, to the detriment of the prosperity of the common people. The technique of decartelization in industry and commerce in many countries through legal instruments, affords another example of the removal of existing mischiefs by the deprivation of existing rights of ownership, because such rights having developed in unbalanced fashion, so as to produce real dangers to the public interest in the shape of unhealthy monopolies. The Constitutional right in respect of property is expressed in the following simple terms, viz.:--- “No person shall be deprived of his property save in accordance with law.” In this case, the loss of a property right through partial disbarment has been operated by a law. It has no quality of a “bill of attainder” such as was found by the majority of the Supreme Court of the United States in the case of Garland. That Court had under consideration a law of Congress depriving attorneys of their entire right of practicing the profession of law, unless they took an oath denying that they had over participated on behalf of the Confederacy of the Southern States in the American Civil War. The case was one of the treason being visited with punishment through legislative instrumentation. Here, it is not a case of punishment at all. The Ordinance of 1964 operates in CA.224 of 2003, etc. 29 aid of maintenance of the judicial machinery at the apex of the system in that State of dignity, which is essential to its proper operation. In the case of Garland, it was found that the law also operated ex post facto, that is, it applied to an act not punishable when it was performed, a punishment of later devising. Such a prohibition is contained in the Pakistan Constitution in Fundamental Right No. 4, but that right is clearly not attracted, for here indeed there is nothing in the nature of a punishment being applied. Nor can it be said that there is violation of the right of equality of citizens expressed in Fundamental Right No. 15, in the following terms viz.:--- All citizens are equal before law and are entitled to equal protection of law.” As a result of above observation, the petition filed by the Government was accepted. Same rule has been followed in the case of Haider Automobile Ltd. , where this Court had examined the judgment of the High Court in the case of Manzoor Qadir, (former Judge). The above judgments are also not applicable because by means of Ordinance 1964, the former/retired Judges of the Superior Courts were completely debarred to practice later. However, they were prevented to do so before the High Court, which they had served as former Judge. As such the judgments are not applicable. iii) Government of Pakistan through Secretary Ministry of Commerce and another v. Zamir Ahmed Khan (PLD 1975 SC 667) The facts of this case in brief have already been noted herein above. Learned counsel has highlighted the principle namely that “licence does not create a right in favour of its holder”. There is no dispute with this principle but it is to be noted that the appeal filed by the Government had succeeded on the point that Section 3(1) of the Export (Control) Act (XXXIX of 1950) read with Import Policy Order 1972 were not challenged and the respondent had in fact show his grievance only in respect of amended notification dated 10th August 1972 whereby official agency through Ministry of Information and Broadcasting CA.224 of 2003, etc. 30 was allowed to import cinematographic films, therefore, he failed to get relief from the Court. Thus for this reason this judgment is also not applicable. iv) M/s East and West Steamship Co. v. Pakistan. (PLD 1958 SC 41) In this judgment it was held that “a right given by Article 12 has to be read subject to clause (a) of the proviso, which expressly states that a trade may be regulated by a licencing system, and if the effect of a licencing system is prohibition then it follows that prohibition of a trade by a licencing system was contemplated by the framers of the Constitution”. In our considered opinion, Article 12 of the Constitution of 1956 is distinguishable from proviso (b) of Article 18 of Constitution of 1973 which had introduced the element of competition amongst the traders and this Court in the case of Government of Pakistan (ibid) has explained the meaning of the “regulation” holding that prohibition or prevention of a trade is possible only if the same is unlawful. Therefore, this judgment is also not attracted. 27. The edifice of the arguments of Syed Ali Zafar, learned ASC is based on premises that as appellants were not qualified to get franchise of specified routes, therefore, in terms of Article 18 (a) of the Constitution, they were excluded from the business of transport as per the provisions of Section 69-A of the Ordinance. But in our opinion, in Article 18 of the Constitution, word “qualification” has been used to confer a right upon a citizen to enter upon any lawful profession or occupation and not to conduct any lawful trade or business. Admittedly Section 69-A of the Ordinance had not prescribed a qualification for the transporters. As per ordinary meanings of, “qualification” a quality, which is legally necessary to render a person eligible to fill an office or to perform any public duty or function like a qualified voter, who meets the residence, age and registration requirements etc. [Black’s law Dictionary (page 1116)], therefore, it can be safely concluded that a person without having a qualification can run a business or trade of transport. Perhaps learned counsel wanted to convey that as appellants were not in a position to CA.224 of 2003, etc. 31 operate stage carriages with capacity of carrying 70 or more passengers, therefore, under Section 69-A of the Ordinance, they were disqualified to get franchise. This assumption is not correct because, the appellants were not competing for franchise routes as they were already in possession of valid route permits, which were not cancelled for violation of the law, under which the same were issued to them i.e. Section 62 of the Ordinance, therefore, in absence of any competition between the appellants and respondents, they were qualified to ply their stage carriages on the same routes. It may be noted that in pursuance of sub-section (4) of Section 69-A of the Ordinance, route permits of the appellants have been cancelled in violation of principles of natural justice, as sub-section (4) of Section 69-A, expressly or by necessary implication provides that they would be entitled to right of hearing before the cancellation of their permits to run a valid stage carriage, which they were possessing since long and on the basis of the same, were plying their vehicle on the specified routes. Argument of learned counsel for respondents is that competent authority can regulate any trade or profession by a licencing system. There may be no cavil but this clause has to be read conjunctively with proviso (b) of Article 18 of the Constitution, according to which an element of free competition to regulate a trade, commerce or industry has been introduced because if competition in the trade is discouraged, it would negate the provisions of Article 3 of the Constitution, which deals with the elimination of all forms of exploitation and if due to non-competition, franchise is granted on specified routes, it would tantamount to monopolize the trade/ business of transport, as held in the case of Harman Singh v. R.T.A. Calcutta Region. (AIR 1954 SC 190). Relevant para therefrom is reproduced herein below for convenience:- CA.224 of 2003, etc. 32 “(8) The next contention of Mr. Choudhry that the introduction of small taxis in the streets of Calcutta will bring about a total stoppage of the existing motor taxi cab business of large taxi owners in a commercial sense and would thus be an infringement of the fundamental right guaranteed under Article 19(1)(g) of the Constitution is again without force. Article 19(1) (g) declares that all citizens have the right to practice any profession, to carry on any occupation, trade or business, Nobody has denied to the appellants the right to carry on their own occupation and to ply their taxis. This article does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right to carry on the same occupation and an element of competition is introduced in the business, that does not in the absence of any bad faith on the part of the authorities, amount to a violation of the fundamental right guaranteed under Article 19(1)(g) of the Constitution. Under the Motor Vehicles Act it is in the discretion of the Regional Transport Authority to issue permits at different rates of tariff to different classes of vehicles plying in the streets of Calcutta and if that power is exercised in a ‘bona fide’ manner by the Regional Transport Authority for the benefit of the citizens of Calcutta, then the mere circumstance that by grant of licence at different tariff rates to holders of different taxis and different classes of vehicles some of the existing licence holders are affected cannot bring the case under Article 19 (1)(g) of the Constitution.” In the instant case as well, the Government of Punjab, instead of promulgating Section 69-A of the Ordinance for the purpose of granting franchise on specified routes to the respondents by excluding all other transporters, running their stage carriages against valid route permits on the same routes, ought to have granted route permits to respondents as well under the Ordinance, in order to cater the pressure of the passengers on those routes with clear direction to them to charge less fare from passengers, compared to the fare which is being charged by the appellants CA.224 of 2003, etc. 33 transports, who are already plying their vehicle on the same routes and if owing to such free competition, if any of them had failed to compete, it could have excluded itself from the business, instead of providing a cause of grievance to the appellants, to whom right to live has been denied as they are not in a position to survive, on account of being excluded from the business in terms of Article 9 of the Constitution. The word “life” used in this Article of the Constitution has been defined in the case of Shehla Zia v. WAPDA (PLD 1994 SC 693), according to which “life” includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally”. It is further explained therein that the word “life” in the Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it. Moreover, under the objective resolution which is a part of the Constitution, it is the duty of legislature to ensure an egalitarian society, based on Islamic concept of fair play and social justice, as held in the case of Shaukat Ali v. Government of Pakistan (PLD 1997 SC 342). Relevant para therefrom reads as under thus:- “4. Since the Railways intend to grant licences in the above terms in order to ensure that no one is discriminated or favoured for the reason other than the well-being of the people and the country at large, no purpose will be served by granting leave. We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concept of fair play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his CA.224 of 2003, etc. 34 livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railways, will be treated fairly.” As observed herein above, Constitution is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare, amity among the citizens, therefore, while interpreting its different Articles particularly relating to the fundamental rights of the citizens, approach of the Courts should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. As such, following this principle and also keeping in view other provisions of the Constitution, including Article 3, 9, 18 as well as Article 38 of the Constitution, which deals with the principles of State policy, we are inclined to hold that if the definition of word “regulation” as laid down in the judgments cited herein above, is applied to hold that under licencing system, unless the business is unlawful or indecency is involved therein, the legislature can enact laws, which will promote a free competition in the fields of trade, commerce and industry. At any rate, if restrictions are to be imposed to regulate such trade or business, those should not be arbitrary or excessive in nature, barring a majority of persons to enjoy such trade. In the instant case, as per the requirement of Section 69-A of the Ordinance, the appellants, who are the owners of the stage carriages as per the definition under Section (2) 37 of the Ordinance, would not be in a position to run the business on the specified routes, franchise of which has been offered to the respondents because it has been inferred from the facts of the case put forward by parties’ counsel that for one route they have to arrange a fleet of stage carriages. Obviously the appellants are not in a position to arrange such fleet, on account of their financial position or CA.224 of 2003, etc. 35 being un-influential person. They are also not in a position to obtain hefty loans from the financial institutions, as have been given to respondents at 70% and 30% ratio, and thus unable to compete with the respondents. Consequently, such conditions would appear to be not only arbitrary but oppressive in nature and tend to deprive them from enjoying the fundamental right of freedom of trade and business, as per Article 18 of the Constitution. Therefore, in such situation it becomes duty of the Court to see the nature of the restrictions and procedure prescribed therein for regulating the trade and if it comes to the conclusion that the restrictions are not reasonable then the same are bound to be struck down. As discussed herein above, the conditions imposed under Section 69- A of the Ordinance are held to be very harsh, unjust, arbitrary, oppressive and contrary to principles of natural justice, because by the time it is well settled that if an adverse action is likely to be taken against a person, detrimental to his interest, he is entitled to the right of hearing before finalization of such action. In this behalf, reference can be made to the case of Pakistan International Airlines (PIAC) v. Nasir Jamal Malik (2001 SCMR 935). Relevant para therefrom is reproduced herein below for convenience:- “Though the principle of audi alteram partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken. To strengthen the arguments reference may be made to Chief Commissioner, Bahawalnagar and others (PLD 1964 SC 461), (iv) Abul Alla Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) (v) University of Dacca v. Zakir Ahmed (PLD 1965 SC 90), CA.224 of 2003, etc. 36 (vi) Muhammad Hayat v. Province of West Pakistan (PLD 1964 SC 321). (vii) Massers East-end-Export, Karachi v. The Chief Controller of Imports and Exports. Rawalpindi and another (PLD 1965 SC 605), (viii) Pakistan and others v. Public At Large and others (PLD 1987 SC 304), (ix) Khaliluz Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 Sc 885), (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299 and (xi) Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203).” 28. It may be noted that Section 69-A of the Ordinance is coached in such a language that one feels no difficulty to draw an inference that a new system is being introduced, which is absolutely different and distinct from the licencing system of running the transport as has been provided under the Ordinance 1965, without providing right of hearing to these stage carriages’ owners, who are being excluded from the trade, as observed herein above but no right of appeal or revision against the order of Secretary, Regional Transport Authority or the Government, has been provided, therefore, due to this reason as well, Section 69-A seems to be unreasonable law. Thus it can be safely concluded that the restrictions imposed by Section 69-A of the Ordinance leading to exclude the appellants from the trade/business of transport had prevented/prohibited the appellants and many other transporters to enjoy the guaranteed fundamental right of freedom of trade/business as per Article 18 of the Constitution. 29. Next question for consideration would be as to whether Article 18 of the Constitution permits introduction of franchise system in the trade/business. Definition of “franchise” from the American Jurisprudence and Black’s Law Dictionary has already been noted herein above, crux of CA.224 of 2003, etc. 37 which is that a special privilege granted to a particular person/party to do a specific business, to the exclusion of all other persons, dealing in the same business would not be reasonable . A perusal of proviso (b) of Article 18 of the Constitution indicates that regulation of the trade, commerce or industry is permissible in the interest of free competition therein. Meaning thereby that without free competition amongst traders, no trade commerce or industry can be regulated. To understand the concept of free competition, this clause may be read, keeping in view proviso (c) of Article 18 of the Constitution, according to which only Federal Government or Provincial Government or a Corporation controlled by such Government can carry on any trade, business, industry or service to the exclusion, complete or partial, of such other person, which would mean that under clause (c), a right has been given only to the Government to create monopoly and confer right of franchise to any of the functionaries mentioned therein for the purpose of carrying on a business. As far as private persons are concerned, they cannot be excluded from carrying on trade for the purpose of creating monopoly and granting franchise of a particular trade. The concept of franchise is alien to the Indian Constitution as well as to our own Constitution because with reference to running of transport on the route owned by the public, all citizens have equal rights and they cannot be deprived from the same for the reason that some of them had obtained franchise on the said route. In this behalf it is to be noted that we are informed that on some of the routes granted to the private respondents i.e. Varan Tours in Islamabad – Rawalpindi, the franchise holder is also plying the stage carriages on the highway i.e. Peshawar road etc. This fact has not been disputed by the other side, therefore, we are of the opinion that the provisions of Section 69-A of the Ordinance cannot be pressed into service to exclude all other citizens CA.224 of 2003, etc. 38 including the appellants, preventing them from use of the highways for the purpose of running the business of transport. In this behalf in the following para, Indian Supreme Court in Saghir Ahmed’s case (ibid) has elaborately discussed this aspect of the case:- “But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public right over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned Advocate General that the user of a public road for purposes of trade is an extra ordinary or special use of the highway which can be acquired only under special sanction from the State.” After having explained the public right to use a public road or highway their lordships proceeded to examine whether grant of franchise to a private person is permissible under the Indian Constitution or not and after taking into consideration the material available on record it was concluded as under:- “We do not think that this is the law of India under our Constitution. The cases referred to above were noticed by the Allahabad High Court in the Full Bench decision of Motilal v. Uttar Pradesh Government, and two of the learned Judges constituting the Full Bench expressed their opinion that this ‘doctrine of exceptional user’ might have been evolved by the American Courts in the same way as they evolved the ‘doctrine of police powers.’ They both held that this American rule did not embody the English or the Indian law on the subject. CA.224 of 2003, etc. 39 This identical point was investigated with considerable thoroughness in a recent decision of the Madras High Court in C. S. S. Motor Service v. State of Madras, and it was pointed out by Venkatarama Ayyar J. who delivered the judgment of the Court, that the rule of special or extraordinary use of highways in America had its roots in the doctrine of ‘franchise’, which is still a recognized institution in that country. The doctrine of ‘franchise’ or ‘privilege’ has its origin in English Common Law and was bound up with the old prerogative of the Crown. This doctrine continued to live in the American legal world as a survival of the pre- independence days, though in an altered form. The place of the royal grants under the English Common Law was taken by the legislative grants in America and the grant of special rights by legislation to particular individuals or companies is regarded there as a ‘franchise’ or privilege’ differing from the ordinary liberties of a citizen. The carrying on of transport buses by common carriers on the public road in America is a ‘franchise’ and not a common law right, which could be claimed by all citizens and a distinction is made, as the cases cited above will show, between contract carriers who carry passengers or goods under particular contracts and common carriers whose business is affected with public interest. Over the latter the State claims and exercises a plenary power of control. Ayyar J. has, in our opinion, rightly pointed out that this doctrine of ‘franchise’ has no place in our Constitution. Under the Indian Constitution the contract carriers as well as the common carriers would occupy the same position so far as the guaranteed right under article 19(1) (g) is concerned and both are liable to be controlled by appropriate regulations under clause (6) of that article. The law on the point, as it stands at present, has been thus summed up by the learned Judge. “The true position then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is CA.224 of 2003, etc. 40 entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally; ……… but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.” We are in entire agreement with the statement of law made in these passages. Within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in article 19 (1) (g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article”. The question of non-recognition of the doctrine of franchise, as per the mandate of Article 19 (1) (g) of the Indian Constitution as discussed above, was reaffirmed in the case of Krishna Kakkan v. Government of Kerala and others (AIR 1997 SC 128) i.e. under clause (1) (g) of Article 19 of the Indian Constitution, all citizens have a confirmed right to choose their own employment or take upon any trade or business subject to the limits as may be imposed by the State in the interest of public welfare and other guarantees mentioned in clause (6) of Article 19 but it may be emphasized that the Constitution does not recognize franchise or right to business which depends on the guarantees 30. In our opinion, there is no distinction in the Indian Constitution as well as our own Constitution to the extent of grant of franchise in a trade, therefore, we are persuaded to hold that in the trade of transport by inserting Section 69-A of the Ordinance, grant of franchise on specified routes is contrary to the provisions of Article 18(b) of the Constitution, therefore, deserves to be declared void, under Article 8 of the Constitution. CA.224 of 2003, etc. 41 31. It is important to note that Ordinance of 1999 could not be placed before the Provincial Assembly to make it an Act because during its subsistence Provincial Assembly was suspended on account of Military takeover on 12th October, 1999, therefore, it may be legitimately presumed that in the enactment of Section 69-A of the Ordinance the public views through elected representative are not included. Thus in the absence of public opinion in promulgating Section 69-A of the Ordinance, it may not be difficult to infer that it was not promulgated in the public interest and general welfare etc. Indeed had this law been discussed in the Assembly, through the representatives of the public, it might have changed its complexion, to bring it within the command of Article 18 of the Constitution. 32. In the alternative it may be observed that the High Court seized with the writ petition ought to have conducted an inquiry in the interest of justice to ascertain as to whether addition of Section 69-A of the Ordinance is for the public interest and general welfare and thus a valid law according to Article 18 of the Constitution. Such exercise can always be undertaken in the interest of justice or the Court can always direct the Government to conduct inquiry in this behalf and to decide the validity of Section 69-A of the Ordinance as done in the case of Pratap Pharma (Pvt.) Limited v. Union of India (AIR 1997 SC 2648). 33. Mr. Maqbool Ellahi Malik, learned ASC for respondents i.e. Varan Tours, raised altogether a novel of argument in an attempt to save Section 69-A of the Ordinance. According to him, respondent Varan Tours is an instrumentality of the Government of Punjab because the contents of the agreement signed between them specifically provide that “fares” in respect of the journey on the routes will be determined from time to time with the consultation of the Regional Transport Authority, therefore, according to CA.224 of 2003, etc. 42 him the system of franchise is permissible under proviso (c) of Article 18 of the Constitution. In support of his argument he relied upon Aitchison College Lahore v. Muhammad Zubair (PLD 2002 SC326). Learned counsel appearing for the appellants seriously controverted this view point. Similarly Mr. Aftab Gul learned ASC, who also appeared on behalf of Varan Tours did not subscribe to his contention. However, we have examined the proposition put forward by him but we are persuaded to disagree with his proposition because the Varan Tours is a private concern, who has got franchise on route No.1 and 7 of Rawalpindi - Islamabad, and neither the Federal Government nor the Provincial Government controls its business nor the company is setup or established by them. As far as the judgment cited by the learned counsel is concerned it is completely distinguishable because in that case Government of Punjab had taken over the administration of Atchison College under the control of Education Department by amending its Rules of Business. 34. There is no cavil with the proposition that the Federal Government or the Provincial Government or a Corporation controlled by any one of them can create a monopoly to the exclusion of any other person for the purpose of running a business, as per the mandate of clause (c) of the proviso to Article 18 of the Constitution, as held in Kondala Rao v. Andhra Pradesh S.R.T. Corporation (AIR 1961 SC 82). Relevant paras therefrom are reproduced herein below for convenience:- “(9) The only question is, how far and to what extent Art. 19(6) secures the validity of Ch. IVA of the Act from attack that it offends against Art. 19(1)(g)? Learned Counsel for the petitioners contends that Art. 19(6)(ii) provides only for partial exclusion of citizens, that is, the exclusion of a certain class of persons as a whole and not far partial exclusion of some among the same class. As S. 68C, the argument proceeds, enables the State Transport Undertaking to frame a scheme for CA.224 of 2003, etc. 43 excluding some among the same class, the said provision is not saved by Art. 19(6) of the Constitution. Relevant portions of S. 68C of the Act read: “Where any State transport undertaking is of opinion that ........ it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise...........”. Under this section a scheme may be framed in respect of road transport service in general or in respect of a particular class of such service empowering the State Transport Undertaking to run the said service; it may be in relation to any area or route or a portion thereof; it may also be to the exclusion of all or some of the persons running the said service in general or a particular class of it. The section enables the State to take over a particular class of a service, say, the bus service, and exclude all or some of the persons doing business in that class of service. Learned counsel says that this section confers a wide power beyond the permissible limits of Art. 19(6)(ii) of the Constitution. To State it differently, the argument is that while Art. 19(6)(ii) does not enable a partial exclusion of some among the same class of service, S. 68C permits the said exclusion. (10) The answer to this argument depends upon the true meaning of the provisions of the said Article. Under sub-cl. (ii) of Art. 19(6), the State can make a law relating to the carrying on by the State or by a corporation, owned or controlled by the State, of any particular business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. Article 19(6) is only a saving provision and the law made empowering the State to carry on a business is secured from attack on the ground of infringement of the fundamental rights of a citizen to the extent it does not exceed the limits of the scope of the said provision. Sub- cl. (ii) is couched in very wide terms. Under it the State can make law for carrying on a business or service to the exclusion complete or partial of citizens or CA.224 of 2003, etc. 44 otherwise. The law, therefore, can provide for carrying on a service to the exclusion of all the citizens; it may exclude some of the citizens only; it may do business in the entire State or a portion of the State, in a specified route or a part thereof. The word “service” is wide enough to take in not only the general motor service but also the species of motor service. There are, therefore, no limitations on the State’s power to make laws conferring monopoly on it in respect of an area, and person or persons to be excluded. In this view, it must be held that S. 68C does not exceed the limits prescribed by Art. 19(6) (ii) of the Constitution”. 35. Syed Ali Zafar, learned counsel for one of the private respondents argued that Government of Punjab in pursuance of a policy to eliminate congestion of traffic, to reduce inconvenience to the public at large during journey, to control pollution as well as to check unfortunate degradation of human being, introduced the franchise system of transport, therefore, interference in the policy decision of the Government is not called for. Reliance in this behalf was placed by him on Deputy Assistant Iron and Steel Controller, Madras v. L. Manickchand Proprietor K.M Corporation (AIR 1972 SC 935). It may be noted that in the above said judgment it was held that import licence cannot be claimed as of right. Similarly, in State of Maharashtra v. Lok Shikshan Sanstha (AIR 1973 SC 588), it was held as under:- “the question of policy is essentially for the State and such policy will depend upon an overall assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. If the over all assessment is arrived at after a proper classification on a reasonable basis, it is not for the CA.224 of 2003, etc. 45 Courts to interfere with the policy leading up to such assessment.” In the case of Government of Pakistan v. Zamir Ahmed Khan (ibid), it was observed as under:- “the amendment made on 10th August 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 Licencing Authority, which would have the effect of defeating the policy, competently made by the Federal Government.” Learned counsel also relied upon on M/s Illahi Cotton Mills (ibid). We have gone through the judgments cited by the learned counsel. The facts narrated therein are distinguishable. However, we are of the opinion that in the instant case, right of franchise on specified routes has not been granted to private respondents in pursuance of any directives of the policy but in accordance with provisions of Section 69-A of the Constitution and this Court is not debarred to examine its validity on the touchstone of Article 8 of the Constitution, because if any law is promulgated in derogation of fundamental rights, it would be declared void because at the cost of fundamental rights, guaranteed by the Constitution, the executive Government is not empowered to frame a policy. Resultantly, the argument so raised by learned counsel has no force. 36. Mr. Tariq Mehmood, learned counsel for one of the respondents contended that competent authority granted franchise of specified routes to respondents by adopting a transparent procedure as the offers/applications were invited through private media and competition was allowed, following the principle laid down in the case of Chairman RTA v. Pak. Mutual CA.224 of 2003, etc. 46 Insurance Co. (PLD 1991 SC 14). He further argued that appellants have been granted alternative routes, therefore, they should have no grievance against grant of franchise on specified routes to the respondents and for this reason, appeals are liable to be dismissed. In this behalf reliance was placed on Administrator Market Committee Kasur (ibid). The contentions raised by the learned counsel do not call for examination in depth for the reason that if a law, under which certain proceedings have been drawn, fails to stand the test of Article 8 of the Constitution and is liable to be declared void then any proceedings drawn under it, howsoever, solemn, cannot sustain in law. 37. It may be observed that so far we have considered the validity of Section 69-A of the Ordinance on the touchstone of Article 8 and 18 of the Constitution. We have not entered into factual controversy with regard to proper exercise of discretion by the competent authority, in the discharge of its functions under Section 69-A of the Ordinance and its effect, whether alternative routes have been granted to the appellants to operate their stage carriages and the controversy which has been raised in respect of grant of franchise on the specified routes with mala fide intention, as contended by Mr. Nasir Saeed Sheikh, learned counsel for appellants in Civil Appeal No.226 of 2003, and my Mr. Aftab Gul, learned ASC for one of the franchise holders, for the reason that in impugned judgments, learned High Court has not attended to the factual aspects of the case. In our view, it would not be fair and in the interest of justice to enter into factual controversy for the first time also because it would be against the well settled practice of this Court. 38. Learned counsel for appellants, also argued that the provisions of Section 69-A of the Ordinance are discriminatory in nature because by granting franchise to the respondents, contrary to the provisions of Article CA.224 of 2003, etc. 47 18 of the Constitution, Government has violated Article 25 of the Constitution, which guarantees equal protection of law amongst the persons, similarly placed. To elaborate their arguments, they contended that the respondents to whom franchise has been granted on specified routes are being treated differently because their induction has excluded the appellants from the same business. Reliance has been placed by them on I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad (1991 SCMR 1041). On the other hand learned counsel for respondents contended that the competent authority is empowered to make reasonable classification, which is permissible because equal protraction of law does not envisage that every citizen is to be treated alike in all circumstances, therefore, classification under Section 69-A of the Ordinance, is not contrary to Article 25 of the Constitution. It may be noted that appellants and the respondents both are similarly placed being owners of stage carriages and prior to the grant of franchise to the private respondents, appellants were in possession of valid route permits for plying their stage carriages on the specified routes but their route permits stood cancelled due to grant of franchise to the respondents in view of the provisions of Section 69-A of the Ordinance. It means that Section 69-A of the Ordinance has created a classification between franchise holders and appellants-transporters. Such classification is not permissible under Article 25 of the Constitution, because the differentia between both the classes must have rational nexus to the object, sought to be achieved by such classification. As such we are of the opinion that Section 69-A of the Ordinance is also violative of Article 25 of the Constitution. CA.224 of 2003, etc. 48 39. In view of above discussion, we are persuaded to observe that it is not too late for the Government of Punjab:- a) To suitably amend the Motor Vehicle Ordinance, 1965, if need be, in the public interest and welfare, consistent with the provisions of Article 8 of the Constitution of Islamic Republic of Pakistan, ensuring fair opportunity to the transporters to conduct their business freely, with a provision of better facilities of travel to the passengers in a dignified manner, through reliable stage carriages. b) It has been noticed that the respondents while obtaining franchise on specified routes have obtained 70% loans against their equity of 30%, therefore, the Government may examine to run transport on the specified routes itself, as contemplated by the proviso (c) of Article 18 of the Constitution. c) Government may take any other constitutional or administrative steps, which are deemed fit by it in the public interest for solving the problems of transport in the urban areas of the province of Punjab. Thus for the foregoing reasons, the appeals/petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan are accepted. Section 69-A of the Motor Vehicle Ordinance, 1965 (as amended) is hereby declared ultra vires of the Constitution of Islamic Republic of Pakistan, as a consequence whereof the impugned judgments are set aside. However, existing arrangements may continue for a period of four months enabling the Provincial Government to take appropriate legislative/administrative measures in accordance with Constitution and law. No order as to costs. CA.224 of 2003, etc. 49 Herein above are the reasons for the short order dated 29th October 2004.

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{'id': 'C.A.224_2003.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 226-P OF 2018 (On appeal against the judgment dated 17.04.2018 passed by the Peshawar High Court, Circuit Bench, Chitral in Civil Revision No. 352/2008) Rehmat Wali Khan and another … Appellants Versus Ghulam Muhammad and others …Respondent(s) For the Appellants: Mr. Asif Hameed Qureshi, ASC (Via video link from Peshawar) For the Respondent (1): Mr. Muhammad Aamir Malik, ASC Syed Rifaqat Hussain Shah, AOR For Respondents (2-6): Ex-parte Date of Hearing: 11.04.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973, the appellants have assailed the judgment dated 17.04.2018 passed by the learned Single Judge of the Peshawar High Court, Circuit Bench Chitral whereby the Civil Revision filed by the respondents was allowed, the judgment and decree of the learned Appellate Court dated 12.11.2007 was set aside and the judgment and decree of the learned Trial Court dated 26.08.2006 was restored. 2. Briefly stated the facts of the case are that predecessor-in- interest of the respondents namey Daud Ghulam filed a suit for declaration and permanent injunction in the PATA Court of EAC, Mastuj against the appellants claiming ownership of the land measuring 2 ½ CIVIL APPEAL NO. 226-P OF 2018 -: 2 :- chakorum situated in Boni, Tehsil Mastuj, District Chitral on the basis of an unregistered deed dated 08.06.1978. The learned Trial Court vide judgment and decree dated 04.11.1999 decreed the suit. The appellants filed appeal before the District Judge, Chitral, which was partly accepted and the case was remanded back to the Trial Court. The learned Trial Court again decreed the suit vide judgment and decree dated 09.07.2004. Feeling aggrieved by this judgment, both the parties filed separate appeals, which were again remanded to the learned Trial Court for a decision afresh. The learned Trial Court re-heard the parties for the third time and again decreed the suit vide judgment and decree dated 26.08.2006. Being aggrieved, the appellants filed two appeals before the learned Appellate Court, which were accepted vide judgment dated 12.11.2007 and decree in favour of the respondents was set aside. This led to filing of Civil Revision No. 352/2008 before the learned Peshawar High Court by the respondents. The learned High Court vide impugned judgment allowed the Civil Revision, set aside the judgment of the Appellate Court and restored that of the learned Trial Court dated 26.08.2006. Hence, this appeal. 3. At the very outset, learned counsel for the appellants contended that the alleged sale deed dated 08.08.1978 was an unregistered document, therefore, it did not confer any title on the respondents. Contends that the suit filed by the respondents was barred by time but the learned High Court did not consider this aspect of the matter. Contends that the appellant No. 2 Mir Nawaz was a bona fide purchaser from appellant Rehmat Wali on the basis of registered sale deed dated 22.10.1988, as such, his rights are protected under the law. Lastly contends that the impugned judgment is the result of mis-reading and non-reading of evidence, therefore, the same may be set at naught. 4. On the other hand, learned counsel for the respondent No. 1 has defended the impugned judgment by stating that the learned High Court has passed a well reasoned judgment, which is based on correct CIVIL APPEAL NO. 226-P OF 2018 -: 3 :- appreciation of the evidence available on the record, therefore, the same needs no interference. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 6. This case has a chequered history. There is no denial to this fact that the matter is lingering on since 1989 and it was twice remanded back to the learned Trial Court due to one reason or the other and the suit of the respondents was thrice decreed by the learned Trial Court. In the instant round of litigation, the judgment of the learned Trial Court was set aside by the learned Appellate Court. Probably, it was due to this reason that the learned High Court has exhaustively examined the evidence to come to a definite conclusion. It was the claim of the predecessor-in- interest of the respondents namely Daud Ghulam that he was doing private business as motor mechanic and was living in Karachi to earn livelihood for the last 36 years. The appellant No. 1 Rehmat Ali sold the suit land to the said Daud Ghulam on installments and possession was also handed over to him in the year 1971. Daud Ghulam regularly paid the installments and after the completion of the installments, Rehmat Ali executed an un-registered sale deed dated 08.08.1978 in favour of the said Daud Ghulam, predecessor-in-interest of the respondents. During trial proceedings, the appellant Rehmat Ali, vendor, not only admitted the execution of the sale deed but also admitted the payment of sale consideration. He also admitted that the possession of the suit property had also been delivered in consequence of the sale transaction. During the course of arguments, learned counsel for the appellants had argued that the appellant No. 2 Mir Nawaz was a bona fide purchaser from appellant Rehmat Wali on the basis of registered sale deed dated 22.10.1988 (which was subsequent in time), as such, his rights are protected under the law. However, we do not tend to agree with the learned counsel. In the case of Sardar Arshad Hussain Vs. Mst. Zenat-un-Nisa (2017 SCMR 608) the question whether the un-registered sale deed can be given preference over the registered one when on the basis of un-registered sale deed CIVIL APPEAL NO. 226-P OF 2018 -: 4 :- possession of the property has also been given, came up for consideration before this Court and this Court while relying on earlier judgments of this Court on the subject candidly held as follows:- “A registered deed reflecting transfer of certain rights qua a property though will have sanctity attached to it regarding its genuineness, and a stronger evidence would be required to cast aspersions on its correctness but cannot be given preference over an un-registered deed vide which physical possession of the property has also been given. Subsection (1) of section 50 of the Registration Act, 1908 also provides that a registered document regarding transfer of certain rights in an immovable property will have effect against every un-registered document relating to the same property and conferring the same rights in the property as shown in the registered document but the law has also provided certain exceptions to the above said provisions of law. If a person being in possession of an un-registered deed qua transfer of certain rights in property along with possession of the same he can legally protect his rights in the property and even a registered deed subsequent in time will not affect his/her rights. The first proviso to section 50 of the Registration Act, 1908 provides so that such rights in the property can be protected under section 53-A of the Transfer of Property Act, 1882. Reliance in this regard can well be placed on the cases of Fazla v. Mehr Dina and 2 others (1999 SCMR 837) and Mushtaq Ahmad and others v. Muhammad Saeed and others (2004 SCMR 530).” (underlined to lay emphasis) 7. Learned counsel for the appellanta had also argued that the suit filed by the predecessor-in-interest of the respondents was barred by time. However, we have noted that neither the appellants ever tried to get an issue framed on this point nor this question was ever considered by the courts below. Therefore, the same cannot be raised before this Court at this stage. Even otherwise, when pursuant to the un-registered sale deed, the respondents were put in possession of the suit land in the year 1971, a vested right had been created in their favour, which cannot be taken away merely on the basis of technicalities. In the case of Syed Hakeem Shah Vs. Muhammad Idrees (2017 SCMR 316) the sale consideration was totally paid and possession was also delivered to the vendee/transferee but the registered document could not be executed. This Court held that “Section 53-A of Transfer of Property Act, 1882, in itself creates a right in favour of transferee to retain possession. Such right comes into existence when CIVIL APPEAL NO. 226-P OF 2018 -: 5 :- transferor put the transferee in possession in part performance of the contract/sale deed. Right created by Section 53-A in favour of the transferee in possession can be termed as an equitable title which he held in the property. Where the transferee continued to enjoy a right then the statute of limitation cannot take away such right as the law of limitation is not meant to take away an existing right. Right created under Section 53-A of the Transfer of Property Act, 1882 is an existing right and is not extinguished by any length of time. Law of limitation does not come in the way of a transferee in possession when he as a plaintiff, filed his own suit to preserve his right to retain possession that was granted to him under Section 53-A of the Transfer of Property Act, 1882.” In this view of the matter, we are of the view that the learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the appellants has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. 8. For what has been discussed above, this appeal having no merit is dismissed with no order as to costs. JUDGE JUDGE Islamabad, the 11th of April, 2023 Approved For Reporting Khurram

{'id': 'C.A.226-P_2018.pdf', 'url': ''}

{'id': 'C.A.226-P_2018.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 23-P OF 2017 (On appeal against the judgment dated 12.05.2017 passed by the Peshawar High Court, Peshawar in Civil Revision No. 699- P/2013) Pirzada Noor-ul-Basar … Appellant Versus Mst. Pakistan Bibi and others …Respondent(s) For the Appellant: Mr. Javed Iqbal Gulbela, ASC (Through video link from Peshawar) For the Respondent (1): Mr. Abdul Sattar Khan, ASC (Through video link from Peshawar) For other Respondents: Ex-parte Date of Hearing: 29.03.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973, the appellant has assailed the judgment dated 12.05.2017 passed by the learned Single Judge of the Peshawar High Court, Peshawar whereby the Civil Revision filed by the respondent No. 1 was allowed, the judgments and decrees of the learned two courts were set aside and the suit of the respondent No.1/plaintiff was decreed. 2. Briefly stated the facts of the case are that respondent Mst. Pakistan Bibi was married to one Noor Muhammad Khan in the year 1967. She filed a suit on 23.12.1998 seeking declaration to the effect that she is the owner of the suit property measuring 122 kanals 5 marlas situated in Mouzas Gambti, Tolkai and Qila Sher Pao, Tehsil Tangi through dower deed dated 09.04.1967 and the defendants have nothing to do with the CIVIL APPEAL NO. 23-P OF 2017 -: 2 :- suit property. She also sought correction in the revenue record and sought permanent injunction against the defendants not to interfere in the possession of the plaintiff. It was averred by the respondent/plaintiff that her marriage took place with Noor Muhammad Khan, predecessor-in- interest of the defendant Nos. 1 – 9 in the year 1967 and at the time of Nikah, the said Noor Muhammad transferred the suit property being owner in the name of plaintiff. She also claimed that after the Nikah and dower, she became full owner of the suit property and also took possession but being a Parda Nashin Lady she was unaware that the dower deed is not incorporated in the revenue record. It was further averred that the defendants are taking benefit of the wrong entries in the revenue record and transferred certain property in their name vide inheritance mutation Nos. 41 & 42 and also want to transfer the suit property in their name. The defendants did not join the trial proceedings and were declared ex-parte. Vide judgment and decree dated 24.01.2000, the suit of the respondent/plaintiff was decreed ex-parte. The appellant/defendants sought setting aside of the ex-parte decree, which was accepted by the First Appellate Court, who vide order dated 29.05.2007 remanded the matter back to the Trial Court with the direction to give an opportunity of hearing to defendants. Ultimately, vide judgment and decree dated 31.07.2008, the suit of the respondent/plaintiff was again decreed. The appellant preferred appeal but the same was dismissed vide judgment dated 31.05.2010. The appellant then filed Civil Revision before the Peshawar High Court, which was accepted and the matter was again remanded to the Trial Court to record the cross-examination of the material witness RPW-8 and decide the case on its own merits. The learned High Court also directed to consider the evidence of the alleged tenants examined as PW-5 to PW-7 in the light of the revenue record. After post-remand proceedings, the learned Trial Court dismissed the suit of the respondent/plaintiff vide judgment dated 19.12.2012. Being aggrieved, she challenged the same before the First Appellate Court but it also met the same fate vide order dated 23.07.2013. Then she filed Civil CIVIL APPEAL NO. 23-P OF 2017 -: 3 :- Revision No. 699-P/2013 before the learned Peshawar High Court, which has been allowed vide impugned judgment. Hence, the instant appeal. 3. At the very outset, learned counsel for the appellant contended that the respondent No. 1 has claimed the property as dower but instead of seeking her remedy before the Family Court, she has filed the civil suit, which was not maintainable. Contends that the Nikah Nama was not authenticated document because neither any oral nor documentary evidence has been produced by the respondent/plaintiff in this regard. Contends that the learned High Court failed to take notice that according to Articles 103/104 of the Limitation Act, the time of limitation started from the year 1974 when the husband of the respondent died, therefore, the suit of the respondent/plaintiff was hopelessly barred by time. Lastly contends that the impugned judgment is the result of misreading and non-reading of the evidence, therefore, the same may be set at naught. 4. On the other hand, learned counsel for the respondent No. 1 defended the impugned judgment by stating that the learned High Court has passed a well reasoned judgment, which is based on correct appreciation of the evidence available on the record, therefore, the same needs no interference. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 6. This case has a chequered history. There is no denial to this fact that the matter is lingering on since 1998 and it was thrice remanded back to the learned Trial Court due to one reason or the other. In the first two rounds, the suit of the respondent/plaintiff was decided in her favour and the same was decreed. It was in the third round that the learned Trial Court dismissed the suit of the respondent/plaintiff, which judgment was upheld by the learned Appellate Court. Probably, it was due to this reason that the learned High Court has threadbare examined the evidence to find out as to what was the reason that the learned two courts below in the instant round of litigation have decided the case against the respondent/plaintiff. It was the case of the respondent that she is owner CIVIL APPEAL NO. 23-P OF 2017 -: 4 :- in possession of the suit property through dower deed dated 09.04.1967, which is Nikah Nama and the same has been exhibited in evidence as Ex.PW-4/2. It was further claimed that in the revenue record, the suit property was still in the name of her husband, due to which the defendants are bent upon to transfer the disputed property in their name and inheritance mutation Nos. 41 & 42 were wrongly attested. In the said Nikah Nama, it is clearly mentioned that the suit property was given to the respondent by her husband Noor Muhammad in lieu of dower in the year 1967. There is no denial to this fact that the said Noor Muhammad was owner of the suit property and there was no bar on him to transfer the property to her wife in his lifetime. Although the learned counsel for the appellant tried to challenge the authenticity of the Nikah Nama before this Court but it is an admitted position that the same was never objected to before the lower forums in any round of litigation. It is for the first time that the learned counsel has raised this question before this Court. This is settled law that this Court in its appellate jurisdiction would generally not determine any ground or question of fact that had not been pleaded or raised by the parties at early stage before the lower court & High Court and has been for the first time raised in appeal before this Court. The appellant has no right to raise an absolutely new plea before this Court and seek a decision on it nor could such plea be allowed to be raised as a matter of course or right on the pretext of doing complete justice. Reliance is placed on Wali Jan Vs. Government of KPK (2022 PLC(CS) 336). Even otherwise, we have noted that in the very plaint of the appellant before this Court, this fact has been admitted in para ‘E’. The learned High Court has rightly held that the Nikah Nama is a 30 years old document and according to Articles 100 & 79 of the Qanun-e-Shahadat Order, 1984, the presumption of correctness is attached to it. The land in question was in exclusive ownership of the respondent and she used to receive Ijjara from the tenants. The two tenants of the respondent namely Israr-ud-Din (RPW- 6) and Noor Muhammad (RPW-7) appeared in the witness box and stated on oath that they are cultivating the suit property for the last 40 years on behalf of the respondent. They also admitted that they are paying Ijjara to CIVIL APPEAL NO. 23-P OF 2017 -: 5 :- the respondent. Learned counsel for the appellant could not show us anything, which could suggest that the said tenants were ever approached by the appellant for payment of Ijjara even after the death of Noor Muhammad. The witness produced by the appellant namely Maqsood Ahmed also admitted that the property in question belonged to the said Noor Muhammad and that the respondent was his wife. So far as the question of limitation is concerned, the learned counsel argued that according to Articles 103/104 of the Limitation Act, 1908, the time of limitation to file a suit started from the year 1974 when the husband of the respondent died, therefore, the suit of the respondent/plaintiff was hopelessly barred by time. However, we do not tend to agree with the learned counsel. Article 103 speaks about the time period of three years by a muslim for exigible dower (mu’ajjal) “when the dower is demanded and refused or where, during the continuance of the marriage no such demand has been made when the marriage is dissolved by death or divorce.” Whereas Article 104 speaks about the time period of three years by a muslim for deferred dower (mu’wajjal) “when the marriage is dissolved by death or divorce.” Admittedly, the property was in the exclusive possession of the respondent and the tenants were also paying Ijjara to her. The respondent never said that she did not receive the dower rather it was her claim that she is enjoying the proceeds/fruit of the land. Therefore, the matter in-fact related to wrong entries in the revenue record and the same in no way can be termed as a matter relating to dower. The learned High Court by placing reliance on the judgment of this Court reported as Abdul Sattar Khan Vs. Rafiq Khan (2000 SCMR 1574) and Articles 120 and 144 of the Qanun-e-Shahdat Order, 1984 has rightly held that the period of six years is to be counted from the date when the right to sue accrued. In these circumstances, neither the suit of the respondent can be termed as barred by time nor she had to approach the learned Family Court for redressal of her grievances. The learned High Court has rightly held that respondent was a Parda Nashin Lady and under no circumstances it can be presumed that she had the knowledge that after the Nikah and the Nikah Nama, the registration as well as the CIVIL APPEAL NO. 23-P OF 2017 -: 6 :- incorporation in the revenue record was mandatory. Under the bona fide belief, in our part of the world, the presumption of completeness of transaction, after the execution of Nikah Nama is there and since the Ijjara was being received by her, as such, she was under bona fide belief that during the lifetime of Noor Muhammad as well as after his death, the transaction is complete and she is the owner of the property in question.” 7. For what has been discussed above, we are of the view that the learned High Court while passing the impugned judgment has scrutinized the evidence in its true perspective, which being well reasoned does not warrant interference. Consequently, this appeal having no merit is dismissed. JUDGE JUDGE Islamabad, the 29th of March, 2023 Approved For Reporting Khurram

{'id': 'C.A.23-P_2017.pdf', 'url': ''}

{'id': 'C.A.23-P_2017.pdf', 'url': ''}

P t *1 (APPELLATE JURISDICTION) PRESENT MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR (p4-) 304 & 3 —__a_ac.aau, 499, 3O0 06 OF 2020 AGAINST JUDGMENT DATED 14.10.2014 OF PESHAWAR HIGH COURT, PESHAWAR, PASSED IN WRIT PETITIONS Na 390-p OF 2012, ETC. Deputy Director, Finance & Administration FATA through Additional Chief Secretary, FATA Peshawar & others Additional Chief Secretary FATA, FATA Secretariat, Warsak Road, Peshawar & others Secretary, Govt. of K.P. Agriculture, Livestock & Dairy Development Cooperatives & Fisheries, Peshawar & others Govt. of KPK through Chief Secretary, Civil Secretariat, Peshawar and others Govt. of K.P. through Chief Secretary, Peshawar & others Province of KPK through Secretary Health Department Peshawar & others Govt. of KPK through Secretary Health, Peshawar and others Govt. of KPI< through Secretary Health, Peshawar and others Govt. of KPK through Chief Secretary, Peshawar Govt. of KPK through Secretary Higher Education, Peshawar & others Additional Chief Secretary FATA, FATA Secretariat, Peshawar & others Govt. of KPK through Chief Secretary Peshawar & others Additional Chief Secretary FATA, FATA Secretariat Peshawar & others Govt. of KPK through Chief Secretary Peshawar & others Directorate of Livestock & Dairy Development FATA through its Director, FATA Secretariat, Peshawar & others Additional Chief Secretary FATA, FATA Secretariat, Peshawar & others (in CA 23112020) (in CA 23312020) (in CA 23512020) (in CA 23612020) (in CA 23812020) (in CA 24112020) (in CA 24212020) (in CA 24312020) (in CA 25612020) (in CA 26012020) (in CA 26212020) (in CA 26312020) (in CA 26412020) fin CA 26612020) (in CA 27812020) fin CA 279/2020) .,. * El 1 294. 29_5 296, 9 97 299 300 304 & 006 OF2020 264. 266. 278. 279. 281, 2 Additional Chief Secretary FATA, FATA Secretariat, Peshawar & others Govt. of K.P. through Chief Secretary, Peshawar & others Govt. of KPK through Chief Secretary Peshawar & others Additional Chief Secretary, FATA , FATA Secretariat, Peshawar & others Additional Chief Secretary, FATA , FATA Secretariat, Peshawar & others Additional Chief Secretary, FATA , FATA Secretariat, Peshawar & others Additional Chief Secretary, FATA , FATA Secretariat, Peshawar & others Additional Chief Secretary, FATA , FATA Secretariat, Peshawar & others Additional Chief Secretary, FATA , FATA Secretariat, Peshawar & others Additional Chief Secretary, FATA , FATA Secretariat, Peshawar & others Additional Chief Secretary, FATA , FATA Secretariat, Peshawar & others Additional Chief Secretary FATA, FATA Secretariat, Peshawar & others Govt. of KPK through Secretary Health Department Peshawar & others Secretary Health Service, FATA Secretariat Warsak Road, Peshawar & others Govt. of KPK through Chief Secretary, Peshawar and others VERSUS Dr. Lal Marjari & another Sher Farooq Barkat Ali & others Lad Rehman & others Syeda Humaira Sultan & others Muqadar Shah & others Nazeerullah and others Muhammad Farooq and others Muhammad Waris Khan Umar Muhammad Farooq & others Gui Wali Shah & others Salih Shah & another Ria.z & another Irshad Hussain & others Dr. Sajjad ur Rehman & others Farzan UIlah & others Zaher Ud Din Saida Rehman Muhammad Tahir Afridi Ijaz Hussain & another Alipur Khan Qimat Khan (in CA 28112020) (in CA 28612020) (in CA 28712020) (in CA 29012020) (in CA 29112020) (in CA 29212020) (in CA 29312020) (in CA 29412020) (in CA 29512020) (in CA 29612020) fin CA 29712020) (in CA 29912020) fin CA 30012020) fin CA 30412020) fin CA 30612020) Appellants fin CA 23112020) fin CA 23312020) (in CA 23512020) (in CA 23612020) (in CA 23812020) (in CA 24112020) (in CA 24212020) (in CA 24312020) (in CA 25612020) fin CA 26012020) (in CA 26212020) (in CA 26312020) (in CA 26412020) (in CA 26612020) fin CA 27812020) (in CA 27912020) (in CA 28112020) (in CA 28612020) (in CA 28712020) (in CA 29012020) (in CA 29112020) (in CA 29212020) 1 - CIVIL APPEALS NO232. 233. 235, 236, 238, 241. 242, 243, 256, 260, 262, 263, 264, 266. 278, 279, 281, 286, 287, 290, 297, 292, 293, 294, 295, 296, 297, 299. 300.304 & 306 OF 2020 3 Sher Alam & another (in CA 29312020) Naikdar Khan (in CA 29412020) Yousaf Khan & another (in CA 29512020) Wall Khan (in CA 29612020) Saifur Khan & another (in CA 29712020) Nazir Gui & others (in CA 29912020) Nadeem Ahrnad & others (in CA 30012020) Muhammad Zada & another (in CA 30412020) Mst. Saeeda Rehman (in CA 30612020) Respondents For the Appellants Mr. Shumail Ahmad Butt, Advocate General Khyber Pakhtunkhwa. Mr. Atif Ali Khan, Addl. A.G. KPK Barrister Qasim Wadood, Addl.A.G. KPK with Erurn Shaheen, DD, HED Mr. Asif Khan, Litigation Officer, HED. Mr. Amin Jan, AD, Fisheries Mr. Guizar Mahmood, AD Fisheries KPK. Engr. Falak Niaz, AD(Dost) Rajbar Khan, SDO, PHE, KPK Mr. Sadullah, Asstt. Secretary, BOR, KPK Mr. Fahim Ullah Khan, Sr. Law Officer, KPPSC Mr. Assad Ullah Khan, SO, P&D Department. Mr. Amanat Ullah Qureshi, Dy. Secy. Finance Deptt. KPK For the Respondents Mr. Khalid Rahman, ASC (in CA .286/2020) R-2 In Person (in CA .231/2020) Haji Muhammad Zahir Shah, AOR (in CA .233/2020) Mr. Afrian Karim Kundi, ASC Syed Rifaqat Hussain Shah, AOR (in CA .235/2020) Mr. Liaquat Ali Tareen, ASC Syed Rifaqat Hussain Shah, AOR (in CA.241 and 30012020) Mr. Saleem Ullah Ranazai, ASC (in CA .242/2020 and 24312020) Mr. Nasir Mehmood-P, ASC (in CA. 6412020) Mr. Muhammad Asif Yousafai, ASC (in CA .262/2020 and CA28212020) Mr. Waseem ud Din Khattak, ASC (in CA.27812020 and CA.27912020) Mr. Muzammil Khan, ASC Syed Haziq Ali Shah, ASC (in CA .260/2020) R-1 In Person (w/o enter appearance) - - I -- CWTh APPEALS NO. 23I, 233 235, 236, 238, 241. 242, 243, 256. 260, 262, 263, 264, 266, 278 279, 281, 286, 287, 290, 291, 292, 293. 294. 295, 29 .6, 297, 299. 300.304 & 306 OF 2020 (in CA.26312020) Mr. Muhammad Asif, ASC (in CA .266/2020) Mr. Muhammad Munir Paracha, ASC Syed Rifaqat Hussain Shah, AOR CA .287/2020 Mr. Asad Jan, ASC CA .299/2020 N.R. CA .236/2020, CA23812020, CA .281/2020, CA .290.297/2020, CA.30412020 and CA30612020. Date of Hearing 25.11.2020 JUDGMENT JJAZ UL ABSAN, J-. Through this single judgment, we intend to decide Civil Appeals No.23 1, 233, 235, 236, 238, 241, 242, 243, 256, 260, 262, 263, 264, 2661 278, 279, 281, 286, 287, 290, 291, 292, 293, 294, 295, 296, 297, 299, 300, 304 & 306 of 2020, as they involve a common question of law. 2. Through the instant Appeals, the Appellants have challenged the impugned Judgments dated 14.10.2014 passed in Writ Petitions No.390-P Of 2012, etc by the Peshawar High Court, Peshawar. The Respondents had, through the Constitutional Petitions, sought the regularization of their services, which was allowed. 3. The brief facts giving rise to this us are that the Respondents were appointed on contract basis against different posts in the erstwhile FATA. The Respondents on different dates received termination notices and, certain others were appointed in their place. The said steps were assailed before the Peshawar High Court by way of I CIY LAPPEALS NO,231, 233, 235, 236. 23$.241 242, 243 256, 260, 262. 263. 264, 266 278, 279. 281. & 28& 287, 290.291,292.293. 294. 295, 296, 297,299, 300.304 & 305 012020 Constitutional Petitions which were allowed vide order of the High Court dated 05.10.2016. The said judgment of the High Court was challenged before this Court. This Court set aside the judgment of the High Court and remanded the matter back to the High Court for decision afresh vide order of this Court dated 28.11.2018. The High Court vide the impugned judgment allowed the Constitutional Petition of the Respondents. As a result, the Appellant-Department was ordered to regularize the services of the Respondents 4. Leave to appeal was granted by this Court vide order dated 09.03.2020 in the following terms: - "The learned Additional Advocate General, Khyber Pakhtunkhwa contends that all the Respondents in these petitions were employed either on project posts or on contract basis or were employees under Section 42 of the Companies Act, 2017 and in no circumstances their services were to be regularized. He further contends that in all impugned judgments, the learned High Court has merely allowed writ petitions on basis of similarly placed persons, but without at all adverting to the facts and circumstances of each and every case separately and without applying its mind to the same. He adds that even the laws under which their appointments were made were not adverted to. He submits that the Respondents who are employees on projects or contract employees or Section 42 employees were not liable to be regularized and thus their regularization by the learned High Court through the Impugned Judgment in these petitions was altogether illegal. In support of the contentions, the learned law officer has referred to a three-member judgment of this Court dated 24.06.2014 passed in Civil Appeal No. 687 of 2014 (Government of Khyber, Agriculture, Livestock CIVIL APPEALS NO.232. 233, 235, 236, 238. 24), 242, 243, 256, 250. 262, 263, 264, 266, 278. 279, 287, 286, 287, 290. 291 292, 293, 294, 295, 296, 297, 299 300, 304 305 OF 2020 and Cooperative Department through its Secretary and others v Ahmad Din and another). 2. We note that some of the petitions are time barred and in one of the petitions even no condonation of delay has been filed. The learned Law Officer states that such will be done by the petitioners. 3. The contentions raised by the learned Additional Advocate General, Khyber Pakhtunkhwa need consideration. Therefore, subject to limitation, leave to appeal is granted in these petitions to consider inter alia the same. 5. The learned Additional Advocate General, Khyber Pakhtunkhwa (hereinafter referred to as "KP") submits that the Respondents were employed on contract basis against project posts, hence, their employment was dependant on the life of the project. He further contends that the learned High Court erred in law by extending the application of the KP Employees (Regularization of Services) Act, 2009 (hereinafter referred to as "2009 Act") to the Respondents who were employees of different departments in FATA and hence were not covered by the provisions of the 2009 Act in terms of Article 247(3) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as "Constitution"). Further, that the jurisdiction of the High Court was specifically barred to deal with the controversy considering the provision of Article 247 of the Constitution as it existed at the relevant time and was then a part of the Constitution. He adds that the Presidential Order No. 13 of 1972 relied upon by the learned Counsel for the Respondents only provides relief to a specific class of employees, which was different and distinct C0L APPEALS M231. 233, 235, 236, 238, 241, 242, 243, 256, 260, 262, 263, 264, 266, 278, 279, 281. 7 286. 287, 290 292, 292, 293. 294. 295. 296, 297, 299 300 304 &306 OF 2020 from the class under which the Respondents fell. Further, the High Court has erred in law by misapplying Section 19 of the Civil Servants (Amendment) Act, 2005. 6. Learned Counsel for the Respondents mainly argued that the Respondents ought to be treated at par with other employees who have been regularized. He further contends that under the 2009 Act, the Respondents should be regularized as they were employed before the commencement date of the 2009 Act. Further, the High Court was vested with jurisdiction to adjudicate upon matters related to FATA in light of the 25th Amendment. It has been further contended that the Respondents were regularized because of certain letters of the Government which allowed regularization of certain employees, hence, on the same score, the Respondents ought to be regularized as of right. Moreover, most of the Respondents have been serving the Appellant-Department satisfactorily, hence, they deserve to be regularized on that score too. 7. The questions which are before this Court for determination are as follows:- 1. Could the High Court apply the 2009 Act on FA TA/PA TA P 11. Could the High Court exercise jurisdiction in matters related to FATA? iii. What was the effect of Presidential Order No. 13 of 1972? COULD THE HIGH COURT APPLY THE 2009 ACT ON FATA / PATA? CW!LAPI'EALS1i0.231 233 235, 236, 238, 242, 242, 243. 256 260, 262, 263, 264, 266. 278. 279, 281. 8 • 286 287, 290. 297. 292, 293. 294, 295, 296. 297, 299. 300.304 &306 OF 2020 8. The learned High Court has held in the impugned judgments that all the Respondents were employed before the cut-off date of the 2009 Act. Further, that, Section 3 of the 2009 Act provides a mechanism of regularization of employees' subject to the fulfillment of certain conditions. In this regard, the Preamble of the 2009 Act is reproduced below for ease of reference as:- WHEREAS it is expedient to provide for the appointment and regularization of services of certain employees appointed on ad-hoc basis against civil posts and contract basis against project posts in the Province of the Kht,sber Pakhtunkhwa" [Underlining is ours] The aforenoted preamble provides this Court with an insight of what the legislature intended when it promulgated the 2009 Act. The said preamble provides an insight into the purpose and scope of the object of regularization of certain categories of employees of the Province of Khyber Pakhtunkhwa. Nowhere in the said preamble does it provide that the 2009 Act shall be applicable on FATA/PATA. The provision which addresses the question of applicability of the 2009 Act relates to employees of KP and not of FATA/PATA. Section 2 provides definitions which must be taken into consideration while applying the 2009 Act. Section 2(d) specifically defines "Government" as the Government of KP. Therefore, we are unable to agree with the learned High Court in its application of the 2009 Act to FATA/PATA and resultantly, to the Respondents. I CIVIL APPEALS NO.232. 233. 235 236. 238. 241. 242. 243. 256, 260, 262, 253. 264, 20,278, 279. 282. • 286. 287. 290, 291. 292, 293. 294, 295, 296. 297. 299, 300. 304 &306 OF 2020 9. Even otherwise, it is worth noting that at the time when the Respondents were employed and subsequently when they were relieved; the 25th Amendment to the Constitution was not in force. As such, the applicable provision of the Constitution was Article 247 which provided an elaborate mechanism for the Parliament on the extension of the law to FATA/PATA. In this regard, Article 247(3) is reproduced as:- "(3) No act of a[Majlis-e-Shoora (Parliament)] shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of a[MajliseShoora (Parliament)] or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof have effect subject to such exceptions and modifications as may be specified in the direction." It is nobody's case that the provisions of the 2009 Act were extended to FATA / PATA by following the alorenoted provisions of the Constitution. As such, the learned High Court could not have extended the application of the 2009 Act, or any Act of Parliament or the Provincial Assembly for that matter, to FATA/PATA on the touchstone of the principle of casus omissus. The said principle categorically provides that, where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same 264, 206, 278, 279, 281. 10 would be ultra vires the powers available to the Court under the Constitution and would constitute an order without jurisdiction. The same would also be against the principle of Trichotomy of Powers upon which the State functions. All three organs of the State have been given specific powers under the law and as such, the said powers cannot be overstepped. We are therefore inclined to hold that the learned High Court in the impugned judgments has travelled beyond its jurisdiction in applying the 2009 Act to the Respondents which action is ex facie erroneous, beyond lawful authority and without jurisdiction. COULD THE HIGH COURT EXERCISE JURISDICTION IN MATTERS RELATED TO FATA/PATA? 10. The 25th Amendment was passed in the National Assembly on 24.05.2018 and subsequently by the Senate on 25.05.2018. Section 9 of the Constitution (Twenty-Fifth Amendment) Act, 2018 omitted Article 247 of the Constitution with effect from 04.06.2018 and, inter alia, merged FATA/PATA in the province of KP. The Respondents were employed before the incorporation of the 25 th Amendment in the Constitution and cannot be given retrospective effect. As such, Article 247 applies to the matter at hand because the Respondents were appointed at a time when the said Article was in force and had not been omitted from the Constitution. It has not even been argued and indeed could not be argued that the 25 th amendment to the Constitution has retrospective effect. N CIVIL APPEALS /10231. 233. 235, 236, 238, 242. 242. 243 256, 260, 262, 261 264, 265, 278, 279, 282, 286, 287.290. 292 292, 293, 294. 295. 296, 297, 299. 300, 304 6,306 OF 2020 11. Article 247 of the Constitution, inter alia, provided that the High Court or the Supreme Court could not exercise jurisdiction in a Tribal Area i.e. FATA/PATA unless the Parliament provided otherwise. The only exception provided in the said sub-article is that nothing would affect the jurisdiction of the High Court or Supreme Court in relation to a Tribal Area immediately before the commencing day. The said exception does not apply in the instant controversy, therefore, the main focus of our scrutiny will be Article 247(7) inasmuch as it provides for an ouster of jurisdiction. For ease of reference, Article 247(7) (as it was then) is reproduced below as:- "(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless a[MajliseShoora (Parliament)] by law otherwise provides: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day." A bare perusal of the abovementioned Article of the Constitution makes it clear that the lawmakers had specifically ousted the jurisdiction of the Supreme Court and the High Court in the exercise of jurisdiction under the Constitution in relation to FATA/PATA. The learned High Court in the impugned judgments has placed reliance on the 25th Amendment and exercised jurisdiction concerning the controversy which is before this Court. As stated above, the Respondents were appointed before the said Amendment was introduced. As such, the 25th Amendment could not have 264. 266. 278. 279. 281. 12 been given retrospective application. Consequently, the learned High Court, instead of examining the merits of the cases of the Respondents on the touchstone of Article 247, went beyond its powers and applied the 25 1h Amendment retrospectively. Giving the 25 th Amendment retrospective application would open a floodgate of unnecessary legal and constitutional complications which can and should be avoided by giving effect to the letter and spirit of the Constitution and the intent and purpose of Article 247 and its subsequent omission by way of the 25 th amendment to the Constitution. Reliance in this regard is placed on the case of Hidayat Ullah V. Muhammad Yourjas and Others [PLD 2020 SC 3621 the relevant part of which is reproduced below as:- "5. Learned Advocate General has supported those submission with the added ground that the orders passed by the relevant fora under the FCR are all dated prior to the 251h Constitutional Amendment which came to effect on 31.05.2018. Thus, the recommendations of the Council of Elders dated 15.12.2015 until the decision of the review by the PA TA Appellate Tribunal on 24.04.2018 predate the said Constitutional Amendment. Consequently, at the relevant time when the judgment was delivered, the provisions of Article 24 7(7) of the Constitution were in force. "6. The ouster of jurisdiction of the High Court under Article 199 of the Constitution is specific for the reason that cause of action for civil relief of such Sersaya as well as the residence of the parties and the locus of the corpus of the dispute, namely, the Coal mines are located within the Kohat Frontier Region. Consequently, the High Court had no jurisdiction to entertain the writ petition. Indeed, the aspect of the case has not been considered in the impugned judgment at all..." 12. It may also be noted that the Supreme Court and High Court (Extension of Jurisdiction to Federally Y - -- • PLIL APPEALS NO.232. 233,235. 236. 238. 242, 242. 243. 256. 260. 262. 263. 66 278 2 2. , 279. 281. * 286. Z 290. 291, 292, 293. 294, 295. 296. 297. 299, 300, 304& 306 OF 2020 64 13 Administered Tribal Areas) Act, 2018 was to be made applicable from a date which was to be notified by the Federal Government. However, no such date had been notified at the time the High Court took cognizance of the matter and in any event, it did not consider or apply its judicial mind to this material aspect of the us before it. Even otherwise, if the said Act is taken to be applicable from the date of its promulgation, the Respondents cannot take the benefit of its provisions because the Respondents were admittedly employed before the said Act was promulgated while Article 247 of the Constitution still held the field. As such, the learned High Court did not have jurisdiction to entertain the petitions in question. We note that, in one of the impugned judgments, the learned High Court has candidly conceded that it is unaware whether the 2009 Act has been made applicable to FATA/PATA or not. Given this, we are unable see how and on what basis the learned High Court proceeded to apply the said Act to the case of the Respondents. WHAT WAS THE EFFECT OF PRESIDENTLAJJ ORDER NO. 13 OF 1972? 13. We note that some of the Respondents seek the benefit of the Centrally Administered Tribal Areas (Employees' Status) Order, 1972 ("Presidential Order No. 13 of 2012"). In essence, the learned Counsel for the said Respondents has claimed that since all the employees recruited in FATA are deemed to be employees of the Provincial Government on deputation with the Federal Government, thus, the benefit of the 2009 Act should automatically extend to them. In this çJ%OL APPEALS N0,231. 233, 235, 236. 238, 241, 242. 243, 256, 260, 262, 263, 264. 266, 278, 279, 281. 14 • 286. 287, 290. 291, 292, 293, 294 295, 296.297. 299 300 304 & 306 OF 2020 regard, the Respondents have placed reliance on Paragraph 3 of the Presidential Order which reads as follows:- "3. Status of the employees of the Centrally Administered Tribal Areas:- Notwithstanding anything contained in their conditions of service, the employees shall, as from the appointed day, be employees of the Provincial Government and shall work under the overall administrative control of the Provincial Government, on the same terms and conditions of service as respects remuneration, leave and pension and the same rights as respects disciplinary matters or tenure of office as were applicable to them immediately before that day." A bare perusal of the aforenoted paragraph shows that the Presidential Order was applicable to those employees who were already in service on the appointed day. What this means, in essence, is that the said Presidential Order was specific, and, as such, its application could not be extended to cover the Respondents. The matter of interpretation of a Presidential Order has already been dealt with by this Court. In this regard, we find substance in the stance taken by the learned AAG that the Respondents were appointed at a time which is beyond the applicability of the Presidential Order which was applicable only to those who were in service at the time of promulgation of the said Order. The learned AAG has placed reliance on this Court's Order dated 22.06.20 10 to conclude that the Respondents were not in service at the time of promulgation of Presidential Order No. 13 of 1972, therefore, the same is inapplicable to them. We find that the learned High Court has erred in law in applying the said Presidential Order to the Respondents in a universal manner. Even otherwise, employees of FATA as such cannot be treated a 1 -.- CIVIL APPEALS NO.231, 233. 235. 236, 2,38,241, 242, 243, 255, 260, 262, 263, 264, 266, 278, 272 281, 286, 287, 290, 291, 292, 293, 294, 295, 296 297, 299, 300,304) 306 07 2020 as provincial employees as the same came under the control of the Federal Government and not the Provincial Government. For the said reasons, we are unfortunately unable to agree with the learned High Court in its findings to the effect that the Respondents were under the control of the Provincial Government and as such, came under the umbrella of the 2009 Act. 14. The learned High Court has in the impugned judgments held that, by not regularizing the Respondents and by regularizing others, the Appellants have committed discrimination. The said finding is not based on any legal or factual basis. Firstly, even when others have been regularized, the circumstances and terms and conditions of their employment were different. If some have illegally been regularized, the petitioners cannot claim equal treatment with them. If and when the question of legality and validity of their regularization comes before us, we will pass appropriate orders after considering the facts, circumstances and merits of each case. It has been repeatedly held by this Court that regularization is not a vested right but requires a statutory basis which is admittedly absent in the instant case. As such, the present Respondents merely rely on the fact that others have been regularized and so should they, which is not a legal ground per se. Where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such CS a claim, in the absence of which, relief cannot be granted solely on the principle of "similarly placed". Such a course of Cn'IL APPEALS N0.231, 233, 235. 236, 238, 241, 242, 243. 256, 260. 262, 263. 264, 266 278, 279, 282. 16 • 286, 287, 290, 291, 292, 293. 294. 295. 296, 297. 299 300. 304 & 306 OF 2020 action would tantamount to making one right out of two wrongs which is not permissible in the law. CAN THE RESPONDENTS, BEING PROJECT EMPLOYEES, CLAIM REGULARIZATION BASED ON LONG SERVICE? 15. It is trite that long service is no ground for regularization. As stated above, regularization has to be supported by legislation and is not an automatically accruing right. Even if we agree with the findings of the learned High Court that the Respondents have been serving efficiently for many years, it is worth noting that the fact that the Respondents were project employees has not been controverted. As such, Section 3 in its plain language excludes project employees from the benefit of regularization under the provisions of the 2009 Act. Therefore, keeping in view the language of the 2009 Act itself, there appears no lawful basis for the Respondents to claim beneficial interpretation of the 2009 Act as the Court cannot overstep its powers to add language to a statute which the legislature has not provided. 16. The Impugned Judgments of the learned High Court proceed on an incorrect factual and legal premise and have erroneously applied the law, rules and regulations to the facts and circumstances of the cases before it. A clear legal and jurisdictional error in exercise of jurisdiction by the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan is floating on the surface of the record which makes the judgments unsustainable. Announced in Court on 2..% .01 fl at Islamabad GIVE APPEALS N0.231. 233. 235. 236 238. 241. 242, 243 256. 260. 262. 263. 264, 266, 278. 279. 281, 286,287,290 291.292.293. 294, 995 29r.297299,300 304 306 0? 2020 17. Therefore, for reasons recorded above, we allow the titled Appeals and set aside the Impugned Judgments of the Peshawar High Court passed in Writ Petition No.390-P of 2012, etc. —Not Approved For Reportj4q

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{'id': 'C.A.231_2020.pdf', 'url': ''}

- -.4 V IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ-UL-AHSAN MR. JUSTICE MUNIB AKHTAR Civil Appeals No.232, 244, 247, 261 and 282 of 2020 (Against Judgments mentioned in Schedule-1 of this Judgment). Civil Appeal No.232 of Government of Khyber Pakhtunkhwa 2020 through Secretary Forest, Peshawar & Others V. Sher Aman Civil Appeal No.244 of Government of Khyber Pakhtunkhwa 2020 through Chief Secretary KPK, Peshawar & Others V. Naeem Khan & Others Civil Appeal No.247 of Government of Khyber Pakhtunkhwa, 2020 through Secretary Health, Peshawar & Others V. M. Kamran Khan & Others Civil Appeal No.261 of Additional Chief Secretary, FATA, 2020 Peshawar & Others V. Bilal Ahmed & Another Civil Appeal No.282 of Government of Khyber Pakhtunkhwa 2020 through Secretary Agriculture, Livestock & Cooperative Department Peshawar & Others V. Syed M. Iqbal & Others Mr. Shumail Ahmad Butt, AG KP Mr. Atif Ali Khan, Ad AG KP Barrister Qasim Wadood, Ad AG KP Ms. Irum Shaheen, DD, HED Asif Khan, Litigation Officer, HED Amin Jan, AD, Fisheries Guizar Mahmood, AD Fisheries KP Engr. Falak Niaz, AD (Dost) Rajbar Khan, SDO, PHE, KP Sadullah, Asst. Secretary, BOR, KP Faheem Ullah Khan, Sr. LO, KPPSC Assad Ullah Khan, SO, P&D Deptt. Amariatullah Qureshi, Dy. Secy. FDKP. Mr. Shahid Kamal Khan, ASC Mr. Ahmed Nawaz Chaudhry, AOR (in CA No. 232 of 2020) For the Appellant(s): For the Respondent(s) Qft4jA,peals No232, 244, 247. 261 and 282 of 2020 2 Date of Hearing: Mr. Khaled Rehman, ASC fin CA No. 244 of 2020) Mr. Mukhtar Abmad Maneri, ASC (in CA No. 247 of 2020) Mr. Aftab Alam Yasir, ASC (in CA No. 261 of 2020) Mr. M. Asif Yousafai, ASC (in CA No. 282 of 2020) 25.11.2020 JUDGMENT IJAZ UL AHSAN. J. - Through this single Judgment, we intend to decide Civil Appeals (hereinafter referred to as "CA") No. 232, 244, 247, 261 and 282 of 2020 as they involve a common question of law. I 2. Through the instant Appeals, the Appellants have challenged the judgments of different benches of the Peshawar High Court mentioned in Schedule I of this Judgment. The Respondents had, through their Constitutional Petitions, challenged the decisions of the I Appellants to terminate the services of the Respondents from their respective posts. Their Petitions were allowed, and the Appellants were ordered to reinstate and regularize the Respondents against their respective posts. 3. The necessary facts giving rise to this us are that the Respondents were appointed on contract basis in different projects against different posts. Their services were extended from time to time. They were subsequently terminated from service on completion of the respective projects in which they were appointed. They filed Constitutional Petitions to challenge this action of the Appellants which were allowed I El çjjgjApoeals No.232. 244, 247 262 and 282 of 2020 3 11 and, the Appellants were directed to reinstate and regularize the Respondents in their respective posts. Certain other Respondents then filed Constitutional Petitions for similar treatment which were also allowed, and the Appellants were ordered to treat the said Respondents at par with others who had been regularized pursuant to the orders passed by the High Court. Similarly, in CA No. 282 of 2020, the Respondents were initially appointed on contract and his services were regularized w.e.f. 01.07.09 vide order dated 04.02.10. The earlier order of termination of the services of the said Respondents was withdrawn and they were employed on a daily wage basis vide order dated 26.02.10. Aggrieved, they approached the High Court. The High Court disposed of their petition vide order dated 12.04.16 with direction to the Appellants therein to reconsider the impugned order. Vide order dated 31.10.16. Consequently, the Respondents in CA 282 of 2020 were given fresh appointments. They approached the High Court once again by filing a Writ Petition which was allowed, and the Appellants were directed to regularize the Respondents from the date of their initial appointment on 01.07.09 vide order dated 04.02.10. 4. Leave to appeal was granted by this Court vide order dated 09.03.2020 in the following terms:- "The learned Additional Advocate General, Khyber Pakhtunkhwa contends that all the Respondents in these petitions were employed either on project posts or on contract basis or were employees under Section 42 of the Companies Act, 2017 and in no circumstances their services were to be regularized. He further contends that in all impugned judgments, the learned High Court has merely allowed writ petitions on basis of similarly placed persons, but without at all adverting to the facts and circumstances of each case separately and without applying its mind to the same. He 0 , Civil Apaeals No.232, 244, 247, 261 and 282 of 2020 4 U adds that even the laws under which their appointments were made were not adverted to. He submits that the Respondents who are employees on projects or contract employees or Section 42 employees were not liable to be regularized and thus their regularization by the learned High Court through the Impugned Judgment in these petitions was altogether illegal. In support of the contentions, the learned law officer has referred to a three-member judgment of this Court dated 24.06.2014 passed in Civil Appeal No. 687 of 2014 (Government of Khyber, Agriculture, Livestock and Cooperative Department through its Secretary and others v Ahmad Din and another). 2. We note that some of the petitions are time barred and in one of the petitions even no condonation of delay has been filed. The learned Law Officer states that such will be done by the petitioners. 3. The contentions raised by the learned Additional Advocate General, Khyber Pakhtunkhwa need consideration. Therefore, subject to limitation, leave to appeal is granted in these petitions to consider inter alia the same. The appeal stage paper books shall be filed within a period of one month with permission to the parties to file additional documents, if any. As the matter relates to service, the office is directed to fix the same expeditiously preferably after three months. 4. In the meantime, operation of impugned judgment(s) shall remain suspended." 5. Learned Additional Advocate General Khyber Pakhtunkhwa (hereinafter referred to as "AAG") appearing for the Appellants contends that the Respondents were employed on contract basis, in different projects. As such, they had no automatic right to regularization. Therefore, the learned High Court has erred in allowing them regularization on sympathetic grounds which action has no legal basis. He maintains that the provisions of the KP Regularization Act 2009 (hereinafter referred to as "2009 Act") did not apply to the Respondents as the said Act specifically excluded project employees. The Respondents were employed in projects and had agreed to the terms and conditions of their contracts when they were being appointed against their posts. At this stage, they cannot claim regularization against project posts because such posts were temporary in nature. He further U CivilAppeatsNo232. 244. 247, 261 and 282 of 2020 5 contends that the Respondents in CA 244 and 247 of 2020 were employees of SRSP/PPHI which is a creation of a Memorandum of Understanding ("MoU") between Sarhad Rural Support Corporation Limited, a company registered under the erstwhile Companies Ordinance 1984 vide registration certificate number 01.01.01 and the Respondents being employees of the company are governed by the principle of master and servant. Further, that the Company's project was closed, and the Respondents did not have any vested right to be regularized in service of the province, thereafter 6. The Learned ASC for the Respondents on the other hand submits that the Respondents were validly appointed to their respective posts and as such, could not have arbitrarily been terminated given that the Appellants were satisfied with their performance. Learned Counsel further submits that other similarly placed colleagues of the Respondents have been regularized by the Appellants and there is no reason why the Respondents should not be regularized. Lastly, it is submitted that the Respondents have been against their respective posts working to the entire satisfaction of their employers and deserve to be regularized. 7. We have heard the learned AAG and the learned ASC for the Respondents. It is an admitted position that all the Respondents were appointed on contract basis, in different projects in KP. The issues which fall for determination before this Court are as follows: - Civil A ppeals No.232, 244, 247. 261 and 282 of 2020 I (i) Could the Appellants terminate the services of the Respondents after the period of the respective projects in which the Respondents were appointed had elapsed? (ii) Were the Respondents in CA No. 244 and 247 governed by the principle of "Master and Servant"? (iii) What is the effect of the terms and conditions of the appointment orders of the Respondents? (iv) What would be the effect of the withdrawal of the regularization order of the Respondents in CA No. 282 of 2020? COULD THE APPELLANTS TERMINATE THE SERVICES OF THE RESPONDENTS AFTER THE PERIOD OF THE RESPECTIVE PROJECTS IN WHICH THE RESPONDENTS WERE APPOINTED HAD ELAPSED 8. In CA No. 232 of 2020, the Respondent was admittedly employed in the erstwhile N.W.F.P Forestry Sector Project, Peshawar on purely contract basis. His appointment on contract basis was subject to continuation of the project. This is evident from the office order dated 06.02.97 issued by the Conservator of Forests who was also the Director of the said Project. The words "subject to continuation of the project" clearly mean that the appointment of the Respondent was to last till the life of the Project. A perusal of the document dated 22.05.06 clearly establishes that the said project was to close on 30.06.06 and the Respondent was informed that his employment contract would expire 24.06.06. Keeping these facts and circumstances in mind, the learned High Court could not have "adjusted" the said 1 , Civil Aovea?s No.232, 244, 247. 261 and 282 of 2020 . 7 Respondent against the permanent post of a Forester, which was lying vacant in the Forest Department. Such posts are required to be filled in a transparent manner, after due advertisement, open competition, a level playing field for all eligible candidates, the best and most qualified of them being employed in accordance with a merit list prepared after fulfilling all necessary testing, interview and short-listing requirements. There is no concept of "adjusting" employees against permanent posts without following the process described above. The High Court cannot step into the shoes of r the appointing authority. When the High Court is exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, it cannot extend the scope of a contract that has been signed by an employee as the same goes against the spirit of the very concept of contract employment. The conclusion in this regard reached by the learned High Court is neither supported by law nor the relevant rules and is patently erroneous. When an employee accepts a post in a project, he is aware of the fact that the project will come to an end on its completion or cessation of its funding (as the case may be) and with that, his employment will also come to an end. Forcing the Government to "accommodate/ adjust" such employees is not only a transgression of the powers vested with the High Court under Article 199, but is also a burden on the Government Exchequer which the court is not at liberty to place. There is nothing in the order dated 22.05.2006 passed by the competent authority which is illegal. We are therefore unable '9 D CM? A ppeots No.232. 244. 247. 261 and 282 of 2020 3 U to agree with the learned High Court that the Respondent in CA No. 232 of 2020 should have been adjusted against a permanent post, more so, when his employment had already been terminated, in accordance with the terms and conditions of his contract. 9. The Respondents in CA No. 261 of 2020 were appointed in the project "FATA Urban Centre Project" by the World Bank. The said Project was later wound up on 30.06.15, and, the Respondents were relieved from their services. The learned ASC appearing on behalf of the Respondents in CA 261 of 2020 contends that since the said Respondents were appointed after a transparent and fair process, they ought to have been adjusted against regular posts created in the subsequently established Municipal Committee of the erstwhile FATA. The learned High Court has opined that the constitution of a fresh Committee for fresh appointments would be "wastage of time and money" and that the Respondents have a preferential right to serve in the project till its life. We are unable to understand or agree with these conclusions reached by the High Court. Firstly, it is not the domain of the High Court to ascertain what and what does not constitute wastage of resources. This goes against the basic principle of separation of powers and entering the domain of executive policy making which under the scheme of our Constitution, falls in the domain of the executive. The role of the courts is to interpret the law and delve in matters involving policy issues. The learned High Court could not civil Aooeats No. 232, 244, 247, 262 and 282 of 2020 9 have assumed the role of the executive or a policy maker and held that constituting a committee for fresh appointments would have been "wastage of time and resources". If a private organization or project, or the government thinks fit to constitute a committee, the only interference which may be warranted is in exceptional circumstances showing mala fides and/or arbitrary exercise of power by any of the members of a committee so constituted. The learned AAG has drawn our attention to two letters dated 08.12.15 /26.01.16 respectively. In the said letters, it has clearly been stated that recruitment must be completed in a transparent and efficient manner and in accordance with the prevailing rules/ regulations. It is settled law that in order to join government service, proper procedures have to be followed which may include inter alia scrutiny by the Public Service Commission or any recruitment committee and an open and competitive process. Depriving other aspiring candidates of an opportunity to seek employment is neither transparent, nor efficient. Even otherwise, the letter dated 26.01.16 clearly states that under the prevailing project policy, transfers/ adjustments could not be done and, the Director LC}&DD, FATA Secretariat, Peshawar categorically stated that the process of appointment against approved posts be started afresh. We are unable to understand how the learned High Court reached the conclusion that it did, in the presence of settled law repeatedly and consistently laid down by this Court that contract employees have no vested right to be regularized. The case law referred to by the learned High Court is Civil Appeals No.232. 244, 247. 261 and 282o[2020 10 distinguishable on facts as well as law and does not in any manner help the case of the Respondents. The findings of the learned High Court in this regard are therefore unsustainable. WERE THE RESPONDENTS IN CA NO. 244 AND 247 GOVERNED BY THE PRINCIPLE OF "MASTER AND SERVANT? 10. The Sarhad Rural Support Program/Peoples Primary Healthcare Initiative (hereinafter referred to as "SRSP/PPHI") was created under a MoU between the Sarhad Rural Support Corporation Limited, a limited liability company registered under the erstwhile Companies Ordinance 1984, vide notification dated 01.01.01. The Respondents in CA No. 244 and 247 of 2020 were employed against their respective posts in SRSP/PPHI. The Respondents filed an application before the DSM of PPHI for regularization of their temporary service. Ultimately, the Respondents were regularized, however, their orders of regularization were cancelled on the ground that under the MoU, there was no provision for regularization of employees. Aggrieved, they approached the High Court. Their Writ Petition was allowed vide the impugned judgment and the Appellants were directed to regularize the Respondents against their respective posts. 11. We have gone through the Agreement between the Government of Khyber Pakhtunkhwa Health Department and SRSP for the Provision of Primary Healthcare (hereinafter referred to as "Agreement"). The Agreement states that SRSP Civil A ppeals No.232. 244, 247. 261 and 282 of 2020 11 is a company incorporated under the Companies Ordinance 1984 having its registered office at House No. 129, Street No. 08, Defence Officers Colony, Peshawar Cantt. The learned AAG has submitted that the Respondents were employees of a private company, were paid by it and were never on the payroll of the Government. There is no provision in the MoU for regularization of SRSP/PPHI's employees, which is why the regularization orders of the Respondents were cancelled. The said fact is supported by findings of the inquiry dated 15.07.16 wherein it has been stated that the order of the District Health Officer, Peshawar dated 13.06.13 was beyond his powers and not covered under the rules. The learned AAG has stated that because of the findings in this inquiry, order dated 18.08.16 was passed and the status of the Respondents as civil servants which had been wrongly conferred by an official who had no power or authority to do so, was withdrawn and there was no illegality in such action. Similarly, the Respondent in CA No. 247 of 2020 was employed in SRSP as Chowkidar. He was relieved from his services on 12.04.15. He filed a Writ Petition in the Peshawar High Court which was allowed on the ground that since Ii other similarly placed colleagues of the said Respondent had been regularized, so should he. 12. It is an admitted fact that the Respondents were I project employees, who were working for SRSP/PPHI which is a creation of a MoU between the Government of Khyber Pakhtunkhwa and the Sarhad Rural Support Corporation Cm/A ppeals No.232, 244, 247, 261 and 282 of 2020 12 Limited. It was essentially an outsourcing exercise where funds were to be provided by the Government in lieu of services rendered by the company by hiring its own staff. For all intents and purposes, it was an arms length transaction. The appointment orders of the Respondents mention that they were appointed on contract in the PPHI project, which has not been denied by the Respondents' Counsel. The learned High Court has held that since the Respondent in CA fl No. 244 of 2020 had been appointed on regular basis through a Departmental Selection Committee, therefore, his regular appointment could not be changed. We are unable to agree with this conclusion. Firstly, the MoU is the foundation on which the PPHI project was to be built. We have examined the said MoU and find that there is no provision/ section related to regularization of employees therein. Secondly, the Appellants have corrected the wrong committed by them by initiating an inquiry and after recording findings, cancelling the regularization of the Respondents which they are empowered to do. There was a mistake committed by the DSM and it was promptly corrected by the Appellants by issuing the order cancelling the regularization of the Respondents. The learned High Court has erred in holding that an inquiry was not conducted. The record shows that a proper inquiry was conducted. A copy of the inquiry report was sent to the DHO and DG Health Services vide letter dated 15.07. 16. A Departmental Appeal was also filed by the Respondents against orders passed on the basis of such inquiry report. As such, the conclusions reached by the Civil A ppeals No.232. 244, 247. 261 and 282 of 2020 13 learned High Court in this regard are contrary to the record and factually incorrect. 13. Even otherwise, the Respondents were contractual employees of a project which was governed by a MoU. They were employees of a corporate entity. In our opinion, they were governed by the principle of "Master and II Servant". The stance taken by the learned High Court is overly simplistic and against the principles of employment law. It is the prerogative of the employer to decide the terms and conditions of an employee's contract. It is not for the court to step into the shoes of the employer and force him to employ someone for whom there is no available post and II even if there is one, without following due process, procedure and criteria. The relationship is governed by the principle of master and servant and except in exceptional circumstances; disputes arising there from are beyond the jurisdiction and parameters of the powers of the High H Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. We have asked the learned ASC for the said Respondents to point us to any rule creating a right to regularization of the Respondents. He has been unable to do so. It is trite that regularization cannot take place without statutory backing. The Respondents, being H contract employees, were governed by the principle of "Master and Servant" and could not approach the High Court to seek redressal of their grievances. Reliance in this regard is placed on Government of Khgber :1 Civil A ppeals No.232. 244. 247. 261 and 282 of2020 14 Pakhtunkhwa, Workers Welfare Board v. Raheel All Gohar (2021 PLC(CS)N 125 Supreme Court) where in it was held that:- "In addition to these issues, we also find ourselves at odds with the fact that the present Respondents approached the High Court in its writ jurisdiction to seek reqularization without there being any law conferring a right that may have been denied and was sought to be enforced by way of a petition under Article 199 of the Constitution. It is settled law that as contractual employees, the relationship between the Respondents and the A ppellant is governed by the principle of master and servant. In these circumstances, the Respondents did not have the right to approach the High Court to seek redressal of their grievances relating to regularization. As noted above, in case of a contractual dispute the Respondents could have sought appropriate redressal of their grievances before a competent court of law. However, only by virtue of being contract employees, no automatic right of regularization has accrued in their favour." (Underlining is ours) WHAT IS THE EFFECT OF THE TERMS AND CONDITIONS OF THE APPOINTMENT ORDERS OF THE 14. Regularization is a policy matter which necessarily requires backing of the law. In the absence of any law, policy or rules, an employee cannot knock on the door of the High II Court for regularization of his/her services. The learned High Court, despite the fact that there is ample material on the record that establishes that the Respondents had agreed to the terms and conditions of their contracts, regularized the services of the Respondents. The Project Policy governing the projects in which the Respondents were working clearly and unequivocally states that after the said projects come to an end, employees working in the said projects would have no right to claim regularization. The same stipulation is made in the service contracts of the Respondents. That being the case, the order of regularization lacked any legal basis or foundation. Reliance in this regard is placed on the case of Civil A ppeals No.232, 244, 247. 261 and 282 of 2020 15 Khushal Khan Khattak Universit y through Vice Chancellor and Others v. Jabran AU Khan and Others (2021 SCMR 977) wherein, in an identical situation, this court held as follows:- "The learned Counsel for the Respondents has not been able to show us any law which conferred a right upon the Respondents to be regularized. The assertion of the learned ASC that since others were regularized, the Respondents should also be regularized despite there being no statutory basis has not impressed us. As noted above, the Respondents could not claim regularization as a matter of right. Even otherwise, all the appointment orders of the Respondents clearly state that they would have no right to claim regularization. Therefore, the Respondents cannot disown the terms and conditions of their own employment contracts and claim permanent em ployment when at the vent' inception of their em ployment they had accepted contractual employment on the conditions that the y would have no right to claim regularization". (Underlining is ours) 15. The aforementioned excerpt makes it amply clear that the High Court in its Constitutional Jurisdiction cannot alter the scope of the terms that have been agreed upon by the parties and put an additional burden upon the employer. At best, a contract employee can approach the appropriate forum for recovery of damages against an employer for breach of contract, if a case is made out against the employer. The High Court cannot in exercise of constitutional jurisdiction assume the role of the appointing authority and direct employers to amend/alter terms and conditions in favour of employees which have been agreed upon by the said employee. 16. It is not denied by either side that all of the Respondents were appointed on temporary posts as stipulated in their employment contracts. We note that the learned High Court has not adverted to this aspect of the Civil A ppeals No.232, 244, 247. 261 and 282 of 2020 16 case and has simply applied the principle of "similarly placed employees" to grant relief to the Respondents. It has specifically been mentioned in the appointment orders of the Respondents that they cannot claim regularization and further, that they are employed on contract for a specific period of time. In this view of the matter, the learned High Court has incorrectly applied the law to the cases of the Respondents. We find the view of the learned High Court is neither supported by the law nor the policy of regularization and is patently erroneous. Further, it is not in consonance with the settled principles of law on the subject and is therefore unsustainable. 17. The Respondents have themselves conceded that they were employed in different projects on temporary basis This fact has been admitted before us. The employment of the Respondents was governed by the Project Policy which specifically provides that project employees cannot claim regularization and that the posts in questions would be filled per the rules of the KPPSC or the DSCs. We are therefore of the view that the learned High Court has erred in law in ignoring the Project Policy and ordering regularization of the Respondents on the basis of vague theories without relying on or even identifying any statutory instrument which may have created a right in their favour. Discretionary Jurisdiction under Article 199 of the Constitution cannot be exercised in a vacuum. It must be grounded on valid basis, showing violation of specific and enforceable legal or Civil A ppeals No.232. 244. 247. 261 and 282 of 2020 17 constitutional rights. The discretion must be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as this Court. The impugned judgments are unfortunately lacking the alorenoted factors and are found to be unsustainable. WHAT WOULD BE THE EFFECT OF THE WITHDRAWAL OF THE REGULARIZATION ORDER OF THE RESPONDENTS IN CA 282 OF 2020? 18. The Appellant in CA No. 282 of 2020 was appointed in the project known as Expansion of Breed Improvement Service in KP. Subsequently, the said project was closed on 30.06.09 and as per the project policy of 2008, the Respondent was issued one month prior notice vide order dated 26.05.09. The project was subsequently converted to the regular budget vide notification dated 27.01.10 w.e.f. 01.07.09. The Respondent's services were regularized w.e.f. 01.07.09 vide order dated 04.02.10, however, the said regularization order was cancelled and the Respondent was appointed on daily wage basis vide order dated 26.02.2010. Ultimately, the Respondent was given fresh appointment on regular basis pursuant to an order of the Peshawar High Court vide order dated 31.10.16. The Respondent filed a Writ Petition, which was allowed vide the impugned judgment and the learned High Court ordered regularization from the date of initial appointment. 19. We are unable to agree with the conclusions reached by the learned High Court in the impugned judgment that he was entitled to be regularized from the date • Ciud Appeals No.232. 244, 247. 261 and 282 of 2020 18 of his initial appointment on contract basis. It is settled law that regularization requires backing of law, rules or policy. In absence of any of the same, an employee cannot claim regularization. The learned High Court has regularized the Respondent w.e.f. 01,07.2009 and has revalidated the office order dated 04.02.2010. The High Court lacks the power to pass an order of this nature, for the simple reason that the order on which the learned High Court has placed reliance to regularize the Respondent has been cancelled. The effect of such cancellation is that the said order is no more in the field. We have examined the order dated 12.04.16 passed in WP No. 501-P/2013 on which the learned Counsel for the said Respondents has placed reliance. There is nothing in the order directing the Appellants to regularize the Respondents from 01.07.09. The only direction in the said order is to grant personal hearing to the Respondents. The Appellants complied with the said order and offered fresh appointment on the basis of the order dated 31.10.16. Nothing has been shown to us which could establish any illegality in the said order. The learned High Court has transgressed its powers under Article 199 of the Constitution of the Islamic Republic of Pakistan to revive a document which is otherwise dead, and confer rights on the Respondents which otherwise do not exist either in law or in fact and that too in retrospective effect. 20. The impugned judgments of the learned High Court proceed on erroneous grounds have jurisdictional Civil A ppeals No.232. 244, 247. 267 and 282 of 2020 19 II errors and are suffering from legal defects which warrant interference of this Court. The learned Counsel for the Respondents has been unable to persuade us to endorse the view taken by the learned High Court which was found to be legally and factually unsustainable. 21. For the reasons recorded above, these appeals are allowed. Accordingly, the impugned judgments listed below in Schedule-I are set-aside. SCHEDULE-1 COURT Peshawar High Court, Peshawar Peshawar High Court, Peshawar Peshawar High Court, Peshawar Peshawar High Court, Peshawar Peshawar High Court, Peshawar APPEAL DATE Civil Appeal No.232 of 2020 17.02.20 15 Civil Appeal No.244 of 2020 11.01.20 17 Civil Appeal No.247 of 2020 12.04.20 14 Civil Appeal No.261 of 2020 125.10.2017 Civil Appeal No.282 of 2020 108.11.2018 Announced in Open Court ont%.ULtflt at Islamabad Hans LC/* Not Approved for Reporting T

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEAL NO.233/2015, CIVIL MISC. APPEAL NO.175/2017 IN CONST. PETITION NO.NIL OF 2017, CIVIL MISC. APPLICATION NO.1535/2013 IN CIVIL APPEAL NO.191-L/2010, CIVIL MISC. APPLICATION NO.1536/2013 IN CIVIL APPEAL NO.409/2010, CIVIL MISC. APPLICATION NO.3470/2013, CIVIL REVIEW PETITIONS NO. 81/2013, 86/2013, 87/2013, 206/2011, 218/2013 IN CIVIL PETITIONS NO.492, 493/2013, 494/2013, 1485/2011 AND 1033/2013, CIVIL REVIEW PETITION NO.223/2013 IN CIVIL MISC. APPLICATION NO.3470/2013 IN CIVIL APPEAL NO.409/2010, CIVIL REVIEW PETITION NO.38/2014 IN CIVIL APPEAL NO.47/2014, CIVIL PETITIONS NO.770/2013, 668/2014 & CIVIL APPEAL NO.476 AND 689/2014, 204-L/2016 AND CIVIL PETITION NO.2620-L/2016 AND CIVIL MISC. APPLICATION NO. 845 OF 2018. C.A.233/2015: Sami Ullah Baloch Vs. Abdul Karim Nousherwani & others C. M. Appeal No.175/2017 Chaudhry Atta ur Rehman Vs. Election Commission of Pakistan, Islamabad. C.M.A.1535/2013: Implementation/Modalities of judgment passed in C.A.191-L & 409/2010 regarding submission of fake/bogus degrees at the time of Election C.M.A.1536/2013: Implementation/Modalities of judgment passed in C.A.191-L & 409/2010 regarding submission of fake/bogus degrees at the time of Election C.M.A.3470/2013: News Clipping Published in Daily Jang dated 04.06.2013 C.R.P.81/2013: Moulvi Muhammad Hanif Vs. Election Tribunal Balochistan thr. Additional Registrar, Quetta & others C.R.P.86/2013: Sardar Fateh Ali Khan Umrani Vs. Returning Officer, PB 28 Nasirabad-I, Dera Murad Jamali and others C.R.P.87/2013: Sardar Fateh Ali Khan Umrani Vs. Returning Officer, PB 29 Nasirabad-I, Dera Murad Jamali and others C.R.P.206/2011: Senator Mir Muhammad Ali Rind Vs. Obaidullah and others C.A.No.233 of 2015, etc. - 2 - C.R.P.218/2013: Allah Dino Khan Bhayo Vs. Election Commission of Pakistan and others C.R.P.223/2013: In Re case of Ms. Samina Khawar Hayat, Ex-MPA C.R.P.38/2014: Qaimous Khan v. Dr. Haider Ali Khan & others C.P.770/2013: Sardar Fateh Ali Umrani v. Samiullah & others C.P.668/2014: Abdul Ghafoor Lehri Vs. Election Commission of Pakistan thr. its Secretary & others C.A.476/2014: Khan Muhammad Khan Jatoi Vs. Sardar Samiullah Khan & other C.A.689/2014: Sardar Sami Ullah Khan Vs. Khan Muhammad Khan Jatoi C.A.204-L/2016: Ch. Nazir Ahmad Jatt Vs. Chief Election Commissioner of Pakistan, etc. C.P.2620-L/2016: Shamona Badshah Qaisarani Vs. Election Tribunal, Multan, etc. C.M.A No.845/2018 Implementation/Modalities of judgment passed in C.A.191-L & 409/2010 regarding submission of fake/ bogus degrees at the time of Election. For the petitioner(s)/ Applicant(s)/appellant(s): Dr. Babar Awan, Sr. ASC Ch. Akhtar Ali, AOR Assisted by: Mr. Shahid Naseem Gondal, Advocate. (In C.A.233/2015) Syed Iftikhar Hussain Gillani, Sr. ASC Mr. Mehr Khan Malik, AOR (In C.R.P.206/2011) Mr. Wasim Sajjad, Sr. ASC (In C.R.P.218/2013) Mian Muhammad Hanif, ASC Raja Abdul Ghafoor, AOR (For HEC in C.M.As.1535 & 1536/2013) Mr. Ahmed Raza, ASC (In C.M.A.3470/2013) Mr. Tariq Mehmood, Sr. ASC (In C.R.Ps.81, 86, 87, 233/2013, 38/2014 & C.P.770/2013) Mr. Shehzad Shaukat, ASC (In C.P.2620-L/2016) C.A.No.233 of 2015, etc. - 3 - Mr. Kamran Murtaza, Sr. ASC Syed Rifaqat Hussain Shah, AOR (In C.P.668/2014) Sardar Muhammad Aslam, ASC Ch. Akhtar Ali, AOR (In C.A.476/2014) Mr. Mehr Tanvir Ahmed Jangla, ASC (In C.A.689/2014) Sardar Muhammad Aslam, ASC Mr. Zubair Khalid, ASC (In C.A.204-L/2016) Malik Muhammad Qayyum, Sr. ASC. (In C.M.A. No.175 of 2017) For the respondent(s): Syed Iftikhar Hussain Gillani, Sr. ASC Mr. Mahmood A. Sheikh, AOR (Respondent No.1 in C.A.No.233/2015) Mr. Tariq Aziz, AOR Mr. Imran-ul-Haq Khan, Spl. Prosecutor, NAB (Respondents 2 & 3 in C.A.No.233/2015) Mr. Mehr Tanvir Ahmed Jangla, ASC (In C.A.476/2014) Mr. Nazir Ahmed Bhutta, ASC (In C.A.204-L/2016) Mr. Umer Aslam, ASC (In C.P.2620-L/2016) Mr. Sattar Sardar, Election Officer, Rajanpur (In C.P.2620-L/2016) Syed Haziq Ali Shah, ASC (In C.R.P.38/2014) Mr. Salman Akram Raja, ASC. Assisted by: Mr. M. Asad Lada, Advocate. (In CMA No. 4275/2013) Amicus Curiae: Mr. Munir A. Malik, Sr. ASC Syed Ali Zafar, ASC Assisted by: Mr. Zahid Nawaz Cheema, ASC. On Court’s notice: Mr. Ashtar Ausaf Ali, Attorney General for Pakistan C.A.No.233 of 2015, etc. - 4 - Assisted by: Barrister Asad Rahim Khan, Advocate Mirza Moiz Baig, Associate Lawyer Mr. Muhammad Waqar Rana, Additional Attorney General Nemo. (On behalf of Mian Mohammad Nawaz Sharif) Mrs. Asma Jehangir, Sr. ASC Assisted by: Ms. Noor Ejaz, Ms. Ayesha Malik, Mr. Usama Malik, Mr. Arsalan Khalid, Advocates. (On behalf of Rai Hassan Nawaz, Ex-MNA) Mr. Sikandar Bashir Mohmand, ASC Assisted by Mr. Zulqarnain, Advocate. (On behalf of Mr. Jehangir Khan Tareen Nawabzada Ghazanfar Ali Gull, Ex-MPA In-person (CMA No.656/2018) Mr. Mudassar Khalid Abbasi, ASC. (CMA No.767/2018) Mr. Kamran Murtaza, Sr. ASC (CMA No.845/2018) Mr. Faisal Farid Hussain, ASC (in-person) For ECP: Mr. M. Arshad, D.G. (Law) Dates of hearing: 30.01.2018, 31.01.2018; 01.02.2018; 07.02.2018; 08.02.2018; 12.02.2018 & 14.02.2018. JUDGMENT: UMAR ATA BANDIAL, J. – All these connected matters seek a common relief, namely, an authoritative pronouncement about the effect of provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan (“Constitution”). The crucial question raised is whether the incapacity imposed by Article 62(1)(f) of the Constitution upon a person interested to contest an election to a seat in the National Assembly or Senate (“Parliament”), is of perpetual effect if there is a declaration against him by a Court to the effect C.A.No.233 of 2015, etc. - 5 - that he lacks sagacity or righteousness or is profligate or is dishonest or is not Ameen (untrustworthy). This question is posed because Article 62(1)(f) of the Constitution does not stipulate the duration of incapacitation of a judgment debtor under a judicial declaration on one or more of the aforementioned grounds for contesting an election to a seat in Parliament. Article 62(1)(f) of the Constitution provides as follows: “62. (1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless − (a) … (b) … (c) … (d) … (e) (f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and (g) …” In the absence of a fixed period of incapacity of a candidate for election to a seat in Parliament being specified for complying the requirements under Article 62(1)(f) of the Constitution, one point of view urged before the Court is that such incapacity ought to be construed as perpetual. The other point of view canvassed before the Court is that the period of disqualification under Article 63 of the Constitution for the character flaw of moral turpitude ought to be construed along with Article 62(1)(f) of the Constitution. In this regard Article 63(1)(h) of the Constitution creates a bar for a period of five years for contesting an election after serving no less than a two year sentence for conviction for an offence involving moral turpitude. The said disability ought to be construed along with C.A.No.233 of 2015, etc. - 6 - Article 62(1)(f) of the Constitution to limit the period of incapacity imposed by the latter provision to five years as well. 2. Article 113 of the Constitution makes the qualifications under Article 62 of the Constitution and disqualifications under Article 63 of the Constitution applicable to the candidates for election to a seat in the Provincial Assemblies. Therefore, the Constitution has applied the same criteria of eligibility for election to a seat in all Constitutional Legislatures together referred in this opinion as ‘Parliament’. Article 113 of the Constitution provides as follows: “113. The qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein to “National Assembly” were a reference to “Provincial Assembly”.” Submissions by the Counsel: 3. Mr. Babar Awan, Sr. ASC appearing before this Court (in Civil Appeal No.233 of 2015) has supported the lifetime bar under Article 62(1)(f) of the Constitution on the eligibility of a candidate to contest election to Parliament. He argued that the Constitution and the law contemplate permanent and transient disqualifications. Thus, Article 62(1)(d), (e), (f) and (g) of the Constitution do not fix a time limit for the incapacity of a candidate to contest an election. Within this category of provisions Article 62(1)(f) ibid above requires that a declaration by a Court of law indicating delinquent conduct be in existence before incapacity upon a candidate for election can be imposed thereunder. The remaining C.A.No.233 of 2015, etc. - 7 - three clauses do not provide for any such mechanism. These provisions were added to the Constitution pursuant to Islamic provisions and whenever attracted to a case they create a perpetual bar. He read from the verses of the Holy Qur’an to emphasise the meaning of the expression “Ameen” used in Article 62(1)(f) of the Constitution. These verses include Surah Nisah verse 58 and Surah Aal-e-Imran verse 75. As a threshold for the requirement of honesty, he referred to Surah Al- Ma’aidah verse 119; Surah At’ Taubah verse 119; Surah Al Ahzab verse 23, 24 and 35. He pointed out further that the permanent bar created under Articles 62(1)(f) of the Constitution was endorsed by Parliament in the Constitution (Eighteenth Amendment) Act, 2010 (“18th Constitutional Amendment”). No omission is attributable to the Constitution nor reading into a provision thereof is permissible under the settled rules of Constitutional interpretation. If at all the period of embargo under Article 62(1)(f) of the Constitution is to be relaxed, then such an outcome can follow only from a Constitutional amendment by the Parliament. 4. Mr. Sikandar Bashir Mohmand, learned ASC appearing for Jehangir Khan Tareen, Ex-MNA has argued against the imposition of a permanent embargo under Article 62(1)(f) of the Constitution on the eligibility of a candidate for election to Parliament. He contended that the absence of a specified term of the bar on eligibility in the said constitutional provision made the same amenable to interpretation and that a life time bar amounted to an excessive restriction on the fundamental right guaranteed under C.A.No.233 of 2015, etc. - 8 - Article 17(2) of the Constitution. That the principle of proportionality ought to be applied to Article 62(1)(f) of the Constitution in the light of the embargo on eligibility for election provided in similar provisions. Particular emphasis was placed on Article 63(1)(h) of the Constitution wherein more serious misconduct by a candidate for election who has been convicted and sentenced for an offence involving moral turpitude has been subjected to an embargo on contesting election to Parliament for a fixed term rather than permanently. Moreover, gross acts of dishonesty catered by Section 15 of the NAB Ordinance and similar acts by Section 100 of the Representation of the People Act, 1976 (“ROPA”) provide for an embargo for fixed periods. In these circumstances, the lack of specification of the duration of the bar created under Article 62(1)(f) of the Constitution ought not be given permanent effect. Under the principle of proportionality the Court ought to impose a bar that is commensurate with the wrong committed by a candidate for election. In this respect, the Court had discretion to fix the term but unfitness to contest for five years should be treated as an outer limit. He read from Section 100 of the ROPA which creates a disqualification of five years for exceeding the limit of election expenses and Section 15 of the NAB Ordinance for imposing disqualification for ten years after release from prison on conviction for offences of corruption and corrupt practices. On the other hand, the inadvertent non-disclosure of certain assets by a candidate without any intention to deceive the authorities or the public appears to be a trivial misdemeanor in comparison, yet the C.A.No.233 of 2015, etc. - 9 - Courts have under Article 62(1)(f) of the Constitution applied a permanent time bar in consequence thereof. 5. Ms. Asma Jehangir, Sr. ASC appearing for Rai Hassan Nawaz Ex-MNA explained that her client was disqualified under Article 62(1)(f) of the Constitution for not declaring his inherited property in his statement of assets. This is because the said asset was held in the name of a family company. Her client derived no advantage from the said non-disclosure but has been subjected to a life time bar for misdeclaration and concealment of his assets. She argued that Article 62(1)(f) of the Constitution is vague in its language for lacking a specific period of incapacitation of a candidate for election and sets an exceptionally high standard of human character to be met by him. She also contended that sagacity and non-profligacy are subjective terms for which determination or quantification can be onerous and irrational. Although the meaning and effect of these terms was a matter for Parliament to determine, yet the Courts have the authority and power to apply the rule of proportionality in order to avoid the harsh consequence of permanent incapacitation of a candidate under Article 62(1)(f) of the Constitution. She submitted that Section 99(1)(f) of the ROPA provides the same substantive qualifications as expressed in Article 62 of the Constitution but these do not create a permanent embargo. Consequently, for the lack of the same qualification to contest election for the Parliament, there are divergent provisions in the statute and in Article 62(1)(f) of the Constitution. The Constitutional C.A.No.233 of 2015, etc. - 10 - mandate in Article 62(1)(f) of the Constitution ought to be construed and enforced in the light of the aforesaid statutory provisions. 6. Sardar Muhammad Aslam, Sr. ASC appearing for the two disqualified appellants in two Civil Appeals (No.476 of 2014 & No.204-L of 2016) respectively, submitted that the commission of the wrong, namely, the misdeclaration of assets did not cause an injury or loss to any person and ought to be treated lightly on the principle of Touba (repentance) and Maghfirat (forgiveness), which are the foundations of Islamic law and jurisprudence. He was, however, candid to accept that except for submitting their affidavits in Court, his clients had not made any expression of remorse, regret or repentance before the concerned authorities or the public. 7. Learned amicus curiae, Mr. Munir A. Malik, Sr. ASC stated that a settled principle of interpretation of the Constitution is that it should be read as a whole. The chapter of fundamental rights lies at the heart of the Constitution and the right to contest elections emanates therefrom. Articles 62 and 63 of the Constitution are not preceded by a non-obstante clause, therefore, these provisions must be read in a manner that advances the fundamental right to contest election and not curtail the same. Furthermore, Articles 62 setting out qualifications and Article 63 laying down disqualifications for election to a seat in Parliament ought to be read together as these provisions are complementary to each other. According to the textual history of the Constitution, the provisions, inter alia, of Article 63(1)(g) and (h) belong to a set of disqualifications that are based on past delinquent conduct of a candidate. Prior to the 18th C.A.No.233 of 2015, etc. - 11 - Constitutional Amendment, the conviction for such delinquent conduct resulted in disqualification without a time limitation, hence these were construed as being of permanent effect. 8. The 18th Constitutional Amendment, however, introduced a time limit in respect of both these disqualifications. Article 63(1)(h) of the Constitution is relevant for present purpose. After the 18th Constitutional Amendment, it lays down that a person who is convicted and sentenced to more than two years imprisonment for an offence involving moral turpitude stands disqualified to contest and election for a period of five years after the date of his release from prison. The 18th Constitutional Amendment has similarly made the incapacity cast upon a candidate for election under Article 62(1)(f) to be contingent upon an adverse declaration by a Court of law being made against the candidate. Learned amicus curiae submits that this step dilutes the rigours of the sanction under Article 62(1)(f) of the Constitution which otherwise does not fix a time limit for the incapacity imposed by it. The learned amicus curiae has argued that according to his understanding, every act of dishonesty conceivably falls within the ambit of moral turpitude. Therefore, dishonesty under Article 62(1)(f) of the Constitution is a subset of moral turpitude in Article 63(1)(h) thereof. The imposition of a lifetime bar on contesting election to Parliament under Article 62(1)(f) of the Constitution would render Article 63(1)(h) thereof redundant. Therefore, the two provisions of the Constitution ought to be construed to derive substance and meaning from each other. Consequently, the period of incapacity under Article 62(1)(f) of the C.A.No.233 of 2015, etc. - 12 - Constitution ought to be limited to the period of disqualification imposed on a candidate for election under Article 63(1)(h) of the Constitution. 9. Syed Ali Zafar, learned ASC also appearing as amicus curiae argued that the present exercise is essentially a journey to discover the silence of the Constitution. This is because no time limitation has been prescribed for the incapacity imposed on a candidate by Article 62(1)(f) of the Constitution. From the historical perspective, the disqualification under Article 62(1)(f) of the Constitution is permanent which represents one extreme; on the other hand, the other extreme perspective can be that disqualification is for one election term, that is five years. However, he advocated a third approach for fixing a time period between those two extremes to be determined by the Court as it deems fit. The learned amicus curiae stated that in doing so, the Court will be adopting the structural methodology of constitutional interpretation. He then referred to six modalities of construction of constitutional provisions as per Philip Babbitt in his book “Constitutional Interpretation” referred to in Al-Jehad Trust vs. Federation of Pakistan (PLD 1997 SC 84). By following the structural modality for interpretation of the constitutional provisions in the present case, the Court would give due importance to the fundamental right of citizens to contest election under Article 17 of the Constitution. Moreover, qualifications for and disqualifications to contest election for a seat in Parliament under Articles 62 and 63 of the Constitution in essence deal with a common subject and therefore the two C.A.No.233 of 2015, etc. - 13 - provisions are complementary to each other and ought to be read together. A person who has committed a criminal offence involving moral turpitude is permitted to contest election after a lapse of five years of his release from prison, therefore, the constitutional intention cannot be to inflict a graver punishment of a life time bar to contest election upon a person who has committed a dishonest act. Finally, he submitted that by omitting to prescribe a period of incapacity for lack of qualification of a candidate for election, Article 62(1)(f) of the Constitution purposefully left the extent of the exclusionary bar to the discretion and judgment of the Court. 10. At the end of the proceedings, learned Attorney General for Pakistan also assisted the Court with his succinct and candid submissions. He submitted that omission by the Constitution to provide a time limit for the incapacity imposed under Article 62(1)(f) of the Constitution cannot mean that such incapacity is of permanent character. Such a result would deprive a person of his fundamental right under Article 17 of the Constitution. Furthermore, the effect of a judicial declaration under Article 62(1)(f) of the Constitution has to be weighed on a case to case basis. A case of breach of trust differs from forgery or a misdeclaration of fact made under oath. However, he accepted that a judicial declaration of a person being dishonest or not ameen under Article 62(1)(f) of the Constitution does not end with the efflux of time. Finally, he stated that it is only for the Legislature to put a time limit on the period of incapacity suffered by a candidate under Article 62(1)(f) of the Constitution in consequence of an adverse judicial declaration. Until C.A.No.233 of 2015, etc. - 14 - such time as Parliament intervenes, the incapacity to contest elections shall continue under Article 62(1)(f) of the Constitution for so long as an adverse judicial declaration against a candidate is in force. Analysis: 11. Before we proceed to examine the respective contentions of the learned counsel appearing before us, it would be useful to reproduce the provisions of Articles 62 and 63 of the Constitution as originally framed in the year 1973 (“1973 Constitution”), followed by their version after amendments expanding the list of qualifications and disqualifications laid down therein for becoming or remaining a Member of Parliament: 1973 Constitution: “62. A person shall not be qualified to be elected or chosen as a member of Parliament unless— (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than twenty- five years of age and is enrolled as a voter in any electoral roll for election to that Assembly; (c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; and (d) he possesses such other qualifications as may be prescribed by Act of Parliament.” “63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament, if— (a) he is of unsound mind and has been so declared by a competent court; or C.A.No.233 of 2015, etc. - 15 - (b) he is an undischarged insolvent; or (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or (d) he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (e) he is so disqualified by Act of Parliament. (2) If any question arises whether a member of Parliament has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.” 12. During the Martial Law regime of General Zia-ul-Haq, amendments were made in 1973 Constitution including some that were meant to supplement the Islamic content of the Constitution. In the present context, the President’s Order No.14 of 1985 introduced, inter alia, new qualifications and disqualifications for membership to Parliament. These are reproduced below: 1985 Amendment: “62. A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless— (a) he is a citizen of Pakistan; (b) he is, in the case of National Assembly, not less than twenty- five years of age and is enrolled as a voter in any electoral roll for election to a Muslim seat or a non-Muslim seat as the case may be in that Assembly; (c) he is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; (d) he is of good character and is not commonly known as one who violates Islamic Injunctions; C.A.No.233 of 2015, etc. - 16 - (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as well abstains from major sins; (f) he is sagacious, righteous and non-profligate and honest and ameen; (g) he has not been convicted for a crime involving moral turpitude or for giving false evidence; (h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan: Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation; and (i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament).” The new disqualifications for election incorporated by the President’s Order No.14 of 1985 in Article 63 of the Constitution recapitulated the prescriptions made in certain existing statutes but without emphasizing the Islamic law: “63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e- Shoora (Parliament), if— (a) he is of unsound mind and has been so declared by a competent court; or (b) he is an undischarged insolvent; or (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or (d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or (f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from C.A.No.233 of 2015, etc. - 17 - being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or (g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or (h) he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or (i) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or (j) he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or (k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or (l) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or (m) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or (n) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government: Provided that the disqualification under this paragraph shall not apply to a person— C.A.No.233 of 2015, etc. - 18 - (i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him; (ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or (iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or Explanation.— In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply. (o) he holds any office of profit in the service of Pakistan other than the following offices, namely:- (i) an office which is not whole time office remunerated either by salary or by fee; (ii) the office of Lumbardar, whether called by this or any other title; (iii) the Qaumi Razakars; (iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or (p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e- Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force. (2) If any question arises whether a member of the Majlis- e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.” C.A.No.233 of 2015, etc. - 19 - 13. The above amendments made by the President’s Order No.14 of 1985 were affirmed by the elected Parliament vide 8th Constitutional Amendment in the year 1985. Constitutional amendments were also made in the year 2002 by the Legal Framework Order, 2002 during the Martial Law regime of General Pervez Musharraf. However, these amendments are not significant for our present discussion regarding eligibility to contest an election for a seat in Parliament. This is because in the year 2010, Parliament discarded these changes through the 18th Constitution Amendment Act, 2010 and substantially reformed the constitutional scheme regarding candidature for election to the Parliament. Therefore, it is the post 18th Amendment version of Articles 62 and 63 of the Constitution that is relevant to the present controversy and may now be examined in order to comprehend the improvement made in the clarity and enforceability of the said provisions: Post 18th Amendment: “Qualifications for membership of Majlis-e-Shoora (Parliament). – 62. (1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless− (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll in − (i) any part of Pakistan, for election to a general seat or a seat reserved for non- Muslims; and (ii) any area in a Province from which she seeks membership for election to a seat reserved for women. C.A.No.233 of 2015, etc. - 20 - (c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; (d) he is of good character and is not commonly known as one who violates Islamic Injunctions; (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; (f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and (g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan. (2) The disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation.” “Disqualifications for membership of Majlis-e-Shoora (Parliament). 63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e- Shoora (Parliament), if − (a) he is of unsound mind and has been so declared by a competent court; or (b) he is an undischarged insolvent; or (c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or (d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or (e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or (f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or C.A.No.233 of 2015, etc. - 21 - (g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release; or (h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or (i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or (j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or (k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or (l) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government: Provided that the disqualification under this paragraph shall not apply to a person − (i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him; (ii) where the contract has been entered into by or on behalf of a public company as C.A.No.233 of 2015, etc. - 22 - defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or (iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; Explanation.− In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply; or (m) he holds any office of profit in the service of Pakistan other than the following offices, namely:− (i) an office which is not whole time office remunerated either by salary or by fee; (ii) the office of Lumbardar, whether called by this or any other title; (iii) the Qaumi Razakars; (iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or (n) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or (o) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers; or (p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e- Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force. Explanation.− For the purposes of this paragraph “law” shall not include an Ordinance promulgated under Article 89 or Article 128. C.A.No.233 of 2015, etc. - 23 - (2) If any question arises whether a member of the Majlis- e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fails to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission. (3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.” 14. It will be seen that the introduction in 1985 of Islamic provisions in Article 62 of the Constitution were retained by the 18th Constitutional Amendment. However, certain overlap in the subject matter of the provisions of clauses (g) and (h) of Article 62(1) and Article 63 of the Constitution was removed by deleting repetitive text in Article 62(1) of the Constitution. The salient Islamic provisions of Article 62, retained by the 18th Constitutional Amendment are contained in its clauses (d), (e) and (f) of Article 62 of the Constitution. These carry Quranic qualifications under Islamic law for establishing eligibility to hold public office of trust or authority. Although introduced in the year 1985, these clauses continue to remain part of the Constitution. Clauses (d) and (e) of Article 62 lay down the following conditions of eligibility for election to Parliament, namely, good character, observance of Islamic injunctions, knowledge of Islamic teachings and abstention from major sins. These conditions are subjective and under Article 62(2) obligate only the Muslim candidates for election to Parliament. It C.A.No.233 of 2015, etc. - 24 - may also be noted that these provisions do not prescribe objective standards of conduct. Therefore, only cases of blatant deviation from commonly recognized and accepted standards of Islamic norms can form the subject matter of such restraints. 15. On the other hand, Article 62(1)(f) of the Constitution also imposes Islamic ethical conditions for eligibility of a candidate for election to Parliament but these are made applicable to both Muslim as well as non-Muslim candidates for Parliamentary membership. One reason that the conditions of Article 62(1)(f) are made a criterion of eligibility of all candidates for election is the universality of their ethical prescription. Their content constitutes a basic norm in all progressive democratic societies that are governed by the rule of law. It is a matter of fact that in Pakistan the members of Parliament occupy leadership roles for the people of Pakistan and constitute the political and ruling elite in society. According to the Preamble of the Constitution, these persons are representatives of the people of Pakistan to whom the former are ultimately responsible as fiduciaries. It was held by this Court in Muhammad Yasin vs. Federation of Pakistan (PLD 2012 SC 132 at p.164) that: “56. … holders of public office are first and foremost 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.” An instructive observation in this behalf was also made in Habibullah Energy Limited vs. WAPDA (PLD 2014 SC 47 at p.69) in the following terms: C.A.No.233 of 2015, etc. - 25 - “6. … 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 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.” 16. The Holy Qur’an narrates the accounts of different exalted personalities having leadership roles. Amongst these, the Holy Prophet Muhammad (PBUH) is regarded as the finest example for emulation by mankind; not only for his exceptional spiritual qualities as a Messenger of Almighty Allah Subanahu Wa Ta’ala (“SWT”) but also his remarkable capabilities of humanity and leadership that distinguished him as the best role model. With such qualities the Holy Prophet Muhammad (PBUH) escaped persecution in his own land of Mecca to establish without any coercion a just and egalitarian society in the distant land of Madina. This city state was governed by the laws laid down in the Holy Qur’an and exemplified in the Sunnah of the Holy Prophet Muhammad (PBUH). Likewise, for his conquest of Mecca without the use of any force. A prominent American author, Michael H. Hart explains in his book titled “The 100, a Ranking of the Most Influential Persons in History”; Citadel, 1992 that: “My choice of Muhammad [PBUH] to lead the list of the world’s most influential persons may surprise some readers and may be questioned by others, but he was the only man in history who was supremely successful on both the religious and secular levels. … Muhammad [PBUH] was a secular as well as a religious leader. In fact, as the driving force behind the Arab conquests, he may C.A.No.233 of 2015, etc. - 26 - well rank as the most influential political leader of all time. … We see then, that the Arab conquests of the seventh century have continued to play an important role in human history, down to the present day. It is this unparalleled combination of secular and religious influence which I feel entitles Muhammad [PBUH] to be considered the most influential single figure in human history.” [emphasis provided] For his extraordinary character qualities and impeccable ethical values the Holy Prophet Muhammad (PBUH) is described in Surah Al-Ahzab Ayat 21 (33:21) in the Holy Qur’an as follows: “Indeed in the Messenger of Allah (Muhammad SAW) you have a good example to follow for him who hopes in (the Meeting with) Allah and the Last Day and remembers Allah much.” The qualities of sagacity, righteousness, honesty and trustworthiness laid down in Article 62(1)(f) of the Constitution as qualifications for membership to the elected Houses are actually derived from the Sunnah of the Holy Prophet Muhammad (PBUH). Such strengths can never be equaled by ordinary mortals for whom these are goals to strive for and more importantly not to consciously violate. 17. The Holy Qur’an recognizes the temporal significance of the character qualities specified in Article 62(1)(f) of the Constitution. These qualities are since acknowledged in political thought as attributes of a public leader. One account of some qualities is are narrated by the Holy Qur’an in the story of Hazrat C.A.No.233 of 2015, etc. - 27 - Yusuf (AS) in Surah Yusuf, Ayat No.54-55 (12:54-55) with a clear message: “And the king said, "Bring him to me; I will appoint him exclusively for myself." And when he spoke to him, he said, "Indeed, you are today established [in position] and trusted. [Joseph] said, “Appoint me over the storehouses of the land. Indeed, I will be a knowing guardian.” [emphasis supplied] These verses are often quoted to demonstrate Allah (SWT)’s guidance that the qualities of honesty, trustworthiness, guardianship, knowledge and skill are necessary attributes of persons holding public office involving trust and responsibility. These requirements are echoed in the conditions of sagacity, honesty and Ameen (trustworthiness) specified as qualifications in Article 62(1)(f) of the Constitution for membership to Parliament. As observed above, the laws of mature secular democracies emphasise the importance of the above-noted qualities to dignify persons holding parliamentary office. These standards are generally lodged in laws, enforced, inter alia, through a code of conduct for lawmakers; or as regulations that provide amongst others, for a duty to act honestly solely in public interest, avoidance of conflict of interest and setting out the terms and extent of disclosure of their pecuniary and other interests. The priority of the duties owed by Parliamentarians and of accountability for their actions that are C.A.No.233 of 2015, etc. - 28 - established in the current Code of Conduct for Members of Parliament (United Kingdom) are such that deserve review: “The Code of Conduct for Members of Parliament Prepared pursuant to the Resolution of the House of 19 July 1995 I. Purpose of the Code 1. The purpose of this Code of Conduct is to assist all Members in the discharge of their obligations to the House, their constituents and the public at large by: (a) establishing the standards and principles of conduct expected of all Members in undertaking their duties; (b) setting the rules of conduct which underpin these standards and principles and to which all Members must adhere; and in so doing (c) ensuring public confidence in the standards expected of all Members and in the commitment of the House to upholding these rules. II. Scope of the Code 2. The Code applies to Members in all aspects of their public life. It does not seek to regulate what Members do in their purely private and personal lives. 3. The obligations set out in this Code are complementary to those which apply to all Members by virtue of the procedural and other rules of the House and the rulings of the Chair, and to those which apply to Members falling within the scope of the Ministerial Code. III. Duties of Members 4. By virtue of the oath, or affirmation, of allegiance taken by all Members when they are elected to the House, Members have a duty to be faithful and bear true allegiance to Her Majesty the Queen, her heirs and successors, according to law. 5. Members have a duty to uphold the law, including the general law against discrimination. 6. Members have a general duty to act in the interests of the nation as a whole; and a special duty to their constituents. 7. Members should act on all occasions in accordance with the public trust placed in them. They should always C.A.No.233 of 2015, etc. - 29 - behave with probity and integrity, including in their use of public resources. IV. General Principles of Conduct 8. In carrying out their parliamentary and public duties, Members will be expected to observe the following general principles of conduct identified by the Committee on Standards in Public Life in its First Report as applying to holders of public office. These principles will be taken into account when considering the investigation and determination of any allegations of breaches of the rules of conduct in Part V of the Code. Selflessness Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends. Integrity Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties. Objectivity In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit. Accountability Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. Openness Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. Honesty Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. Leadership Holders of public office should promote and support these principles by leadership and example.” C.A.No.233 of 2015, etc. - 30 - V. Rules of Conduct 9. Members are expected to observe the following rules and associated Resolutions of the House. 10. Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest. 11. No Member shall act as a paid advocate in any proceeding of the House. 12. The acceptance by a Member of a bribe to influence his or her conduct as a Member, including any fee, compensation or reward in connection with the promotion of, or opposition to, any Bill, Motion, or other matter submitted, or intended to be submitted to the House, or to any Committee of the House, is contrary to the law of Parliament. 13. Members shall fulfill conscientiously the requirements of the House in respect of the registration of interests in the Register of Members’ Financial Interests. They shall always be open and frank in drawing attention to any relevant interest in any proceeding of the House or its Committees, and in any communications with Ministers, Members, public officials or public office holders. 14. Information which Members receive in confidence in the course of their parliamentary duties should be used only in connection with those duties. Such information must never be used for the purpose of financial gain. 15. Members are personally responsible and accountable for ensuring that their use of any expenses, allowances, facilities and services provided from the public purse is in accordance with the rules laid down on these matters. Members shall ensure that their use of public resources is always in support of their parliamentary duties. It should not confer any undue personal or financial benefit on themselves or anyone else, or confer undue advantage on a political organisation. 16. Members shall never undertake any action which would cause significant damage to the reputation and integrity of the House of Commons as a whole, or of its Members generally. …” [emphasis supplied] The substantive content of the Code of Conduct is derived from centuries of parliamentary experience in the United Kingdom. However, these principles mirror and build upon the basic values C.A.No.233 of 2015, etc. - 31 - and standards of public conduct that were espoused by the Holy Qur’an and the Holy Prophet (PBUH) fourteen centuries ago. Be that as it may, the universality of standards of honourable conduct in public life in the contemporary democratic world, irrespective of faith or culture, makes it plausible that firstly, the conditions of eligibility for election under Article 62(1)(f) of the Constitution are made applicable to all candidates for the Parliament including non- Muslim candidates; and secondly, that these conditions have been retained by the elected Parliament in the 18th Constitutional Amendment. 18. The foregoing view is further reinforced by the Constitutional duty of honesty, devotion of best ability in decisions, faithfulness and fidelity to the Constitution and the law that are sworn by every member of Parliament in his Oath made in pursuance of Article 65 of the Constitution read with its Third Schedule and by every member of the Provincial Assemblies sworn under Articles 65 and 127 read with the Third Schedule to the Constitution. Such a firm and robust commitment enjoined by the Constitution upon members of the elected Legislatures conforms the Constitutional architecture envisaged in its Preamble providing for the exercise of authority over the people of Pakistan, within the limits prescribed by Almighty Allah (SWT), as a sacred trust. For the State is to be run through the chosen “representatives of the people” observing principles of democracy, freedom, tolerance and social justice as envisaged by Islam, enabling Muslims to order their lives individually and collectively in accordance with the teachings and C.A.No.233 of 2015, etc. - 32 - requirements of Islam, as set out in the Holy Qur’an and Sunnah of Prophet Muhammad (PBUH). [emphasis supplied]. 19. With the foregoing structure of normative values enshrined in and reiterated by our Constitution, there can be no doubt that the qualifications in Article 62(1)(f) occupy a crucial place in the exercise of political rights conferred by the Constitution. These political rights are guaranteed by Article 17 of the Constitution, which is reproduced herein below: “Freedom of Association: 17.(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity or Pakistan, public order or morality. (2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final. (3) Every political party shall account for the source of its funds in accordance with law.” In the case of Muhammad Nawaz Sharif vs. Federation of Pakistan (PLD 1993 SC 473 at p.559), the right to contest an election and to form government has been held to emanate from the right conferred by Article 17(2) of the Constitution, that guarantees the freedom to form and to be a member of a political party. The fundamental right under Article 17(2) of the Constitution has been a C.A.No.233 of 2015, etc. - 33 - subject of repeated scrutiny by this Court as and when actual or perceived threats to the democratic dispensation were challenged before the Courts. A celebrated judgment in this behalf was delivered in the case of Miss Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416). It laid down a threshold for ensuring the lawful exercise of the fundamental right of political association and action. The precedent hold that the exercise of political rights and action is not absolute in character and is subject to any reasonable restriction imposed by law in the interest of sovereignty or integrity of Pakistan. These observations made in the said judgment (at page 570 of the law report) are presently relevant and are reproduced below: “The right to form associations or unions or political parties, like all other Fundamental Rights, is not absolute. Article 17 explicitly authorises the State to impose reasonable restrictions on the exercise and enjoyment of this right. The restrictions which the State is empowered to impose on the right to form or be a member of a political party will have to satisfy criteria embodied in Article 17(2), firstly that these restrictions should have a statutory sanction which means that the executive cannot, without the backing of law, impose any restriction on the exercise and enjoyment of the right. Second, the restrictions imposed should pass the test of reasonableness before they can validly restrict the exercise of the right. Third, these restrictions in order to be constitutional will have to have a clear nexus with one of the grounds i.e. sovereignty or integrity of Pakistan. These requirements are implicit in the expression “in the interest of” the sovereignty or integrity of Pakistan.” The expression “integrity of Pakistan” used in Article 17(2) of the Constitution has been construed in the said judgment to include C.A.No.233 of 2015, etc. - 34 - “morality” as one of its features. This is because the word “integrity” means moral soundness, morality and sound moral principles. These ought to be read as forming part of the expression “integrity of Pakistan.” After quoting the Holy Qur’an, it is observed (at page 526 of the law report) that: “… [N]ot only individually but also collectively Muslims have to live within an exclusively moral framework as enjoined by the Holy Quran and the Sunnah. No civilised society can deny this standard of morality. The concept of democracy in our Constitution should, therefore, be regarded to be imbued with individual and collective morality as according to Islam (Holy Quran and Sunnah). It goes without saying that morality provides the basis for the society’s spiritual values and in terms of democracy-- freedom, equality, tolerance and social justice. Collectively the political parties are now expected to protect public morals in the same way as other legal institutions protect public truthfulness and public symbols of authority. To leave the political parties entirely free to do as they please is to suggest that morality does not matter. A situation like this might prove ultimately subversive to the fabric of the State in the maintenance of the law and order. Therefore, political parties should conform to stringent obligations of high ethical standard.” 20. Pursuant to the said criteria the political rights of action under Article 17(2) of the Constitution are subject to reasonable restrictions that may be imposed by statutory law. These would include conditions imposed upon a candidate to contest election. The stature of the qualifying limitations under Article 62(1)(f) of the Constitution occupy an insular and superior pedigree than statutory limitations. This is because the test under Article 17(2) of the Constitution applies to statutory but not to constitutional restrictions. The latter enjoy an autonomy that is discussed below. C.A.No.233 of 2015, etc. - 35 - 21. The matter of curtailment of the fundamental right of freedom of expression of parliamentarians under Article 19 of the Constitution came up for scrutiny by this Court in the case of Wukala Mahaz Barai Tahafaz Dastoor vs. Federation of Pakistan (PLD 1998 SC 1263). The issue was whether safeguards against defection by parliamentarians incorporated by Article 63A in the Constitution amounted to a violation of the parliamentarians’ political right of freedom of expression guaranteed under Articles 19 and 66 of the Constitution. It was held that Article 8 of the Constitution giving overriding effect to Fundamental Rights over conflicting statutes did not, however, operate to judge or invalidate other provisions of the Constitution (at p.1313 of the law report). As a result Article 63A of the Constitution was held to be valid law although it made parliamentarians liable to dismissal by their parliamentary party leader: for breach of party discipline expressed through the party’s constitution, code of conduct and declared policies or for voting contrary to the directions issued by the parliamentary party to which they belong or for abstention from voting in the House contrary to the party’s policies against any bill. It was held that forfeiture of parliamentary membership as a consequence of the breach of party discipline by a parliamentarian nevertheless did not wrest his freedom of speech and expression under Article 19 of the Constitution. 22. Just as the validity of a Constitutional provision cannot be tested at the touchstone of Article 8 and fundamental rights thereof [Ref: Mahmood Khan Achakzai vs. Federation of Pakistan C.A.No.233 of 2015, etc. - 36 - (PLD 1997 SC 426)], it is also an established rule that Article 2A of the Constitution cannot be made a benchmark to test the validity of another Constitutional provision [Ref: Hakim Khan vs. Government of Pakistan (PLD 1992 SC 595 at pp.630 & 634)]. In the above scenario, the overriding principle of Constitutional interpretation is that every word, clause and Article of the Constitution must be given effect and the attribution of redundancy to any part of the Constitution be avoided. [Ref: Reference by the President (PLD 1957 SC 219 at p.235). As such, the Constitution must be interpreted as a whole because it is an organic document that is meant to apply to the changing circumstances of time and space. Consequently, each provision of the Constitution or part thereof has a purpose, meaning and integral place that must be understood, acknowledged and applied harmoniously. It is only when a conflict between two provisions of the Constitution is irreconcilable and one of such provisions was inserted when the Constitution was held in abeyance, then the provision which was made part of the Constitution during the period of its abeyance would yield, provided that the other provision conflicting therewith was enforced by parliamentary will and is closer to the provisions of the Preamble of the Constitution. Reference is made to District Bar Association, Rawalpindi vs. Federation of Pakistan (PLD 2015 SC 401). 23. In the background of aforesaid principles of interpretation of the Constitutional provisions and the equal standing of both Article 17(2) and Article 62(1)(f) of the Constitution, the task of harmoniously interpreting the fundamental right under C.A.No.233 of 2015, etc. - 37 - Article 17(2) of the Constitution and the pre-conditions for reposing responsibility and authority upon persons vying for parliamentary office under Article 62(1)(f) of the Constitution may now be undertaken. The substantive content of Article 62(1)(f) finds support from the Preamble of the Constitution emphasising Islamic values in Society and from the Oath of parliamentary office which enjoins honesty, faithfulness to public interest and the law. Endorsement of such conditions is also given by the 18th Constitutional Amendment passed by an assertive Parliament in the year 2010. Several important adjustments were made by this Amendment in the contours of the Constitution. Most notably, these include the distribution of State functions and authority between the Federation and the Provinces; and also a new mechanism for appointment of superior Court Judges. In the present context, the conditions and qualifications in Article 62(1)(f) of the Constitution were retained in toto; and made objectively and transparently enforceable by the prescription of a judicial declaration for precipitating the loss of the electoral qualification specified in the said clause. Where a declaration made by a Court of law against a candidate for election warrants a conclusion of his misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. to be derived from such a verdict, then it stands to reason that the consequential incapacity imposed upon the candidate for election should last for as long as the declaration is in force. This result follows as a rational consequence of the judicial declaration and from the lack of any time C.A.No.233 of 2015, etc. - 38 - period of incapacity of the candidate being laid down in Article 62(1)(f) of the Constitution. In other words, if the declaration by the Court has attained finality, the embargo under Article 62(1)(f) of the Constitution acquires permanent effect. 24. The foregoing aspects of Article 62(1)(f) of the Constitution do not encumber but regulate the fundamental right of political association and action under Article 17(2) of the Constitution. The incorporation of the requirement of declaration by a Court (in terms of Article 62(1)(f) of the Constitution) necessarily involves delinquent conduct by a candidate for election that is in violation of the law. A Court of law does not issue a declaration that offends mere sentiments or sensibilities. Consequently, a valid declaration by the Court would involve the breach of a legal duty or obligation owed by the candidate for election to another person or the violation of the latter’s legal right or privilege. 25. In our legal system the rights and duties of parties in a legal correlation are broadly speaking of two kinds. One species concerns the breach of rights or duties involving the commission of criminal offences. The convictions after trial for such offences carry punishments including the capital penalty, imprisonment, proprietary forfeitures and pecuniary fines. The other kind of legal correlation involves the breach of rights and duties that carry civil liability. A decree by a Court of civil jurisdiction can grant pecuniary or specific relief, including, a declaration with respect to a legal right, status or legal character. Such a decree that is based on admissions or evidence and sustained by reasons attains finality C.A.No.233 of 2015, etc. - 39 - after remedies before the higher fora are exhausted. A final decree has binding effect and is commonly described as a past and closed transaction having permanent effect. Therefore, the consequence of permanent nature i.e. incapacity, following a final and binding decree of Court of civil jurisdiction, is the ordinary and lawful outcome of civil litigation. 26. To advance the plea against permanent ineligibility under Article 62(1)(f) of the Constitution reference has been made to the constitutional disqualification to contest an election to a seat in Parliament on account of a conviction and sentence for commission of any offence involving moral turpitude. The provisions of Article 63(1)(h) of the Constitution lay down this disqualification in the following terms: “63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e- Shoora (Parliament), if − (a) … (b) … (c) … (d) … (e) … (f) … (g) … (h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or …” [emphasis supplied] We have already observed that a conclusion about a judgment debtor having character failings specified in Article 62(1)(f) of the C.A.No.233 of 2015, etc. - 40 - Constitution, that emanate or can be derived from a final judicial declaration, would cause the permanent incapacity of a candidate for elected office. It has been argued before us that the character flaws covered by Article 62(1)(f) of the Constitution falls within the ambit of wrongs that involve moral turpitude under Article 63(1)(h) of the Constitution. A conviction and sentence by a Court of law for offences involving moral turpitude is subjected to a disability to contest an election to Parliament for a period of five years following release of the convict from prison. The expression “moral turpitude” is not a defined expression in our codified law; however, it has been examined in authoritative legal commentaries and precedents. Words and Phrases, Permanent Edition 27-A, assigns the following meaning to the said expression: “Moral turpitude” is a vague term, and its meaning depends to some extent on the state of public morals; it is anything that is done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man; it implies something immoral in itself, regardless of fact whether it is punishable by law.” [emphasis supplied] The foregoing definition was considered by this Court in Ghulam Hussain vs. Chairman, POF Board (2002 SCMR 1691) and it was held that: “7. Perusal of the meaning of above expression clearly indicates that anything which is done contrary to the good principles of morality is within the circuit of above expression. In fact, any act which runs contrary to justice, C.A.No.233 of 2015, etc. - 41 - honesty, good moral values, established judicial norms of a society, falls within the scope of above expression. …” According to the said definition, it is clear that offences of moral turpitude would include delinquent conduct involving, inter alia, misrepresentation, fraud, breach of trust or fiduciary duty, dishonesty, misappropriation, forgery, cheating, conflict of interest, etc. 27. It is apparent straightaway that the offences of moral turpitude should cover certain errant conduct that falls within the terms of Article 62(1)(f) of the Constitution. Consequently, delinquent conduct under Article 63(1)(h) of the Constitution would to such extent eclipse the criteria of qualifications set out in Article 62(1)(f) thereof. However, both these provisions of the Constitution are distinct and separate which possess their respectively different place, meaning and effect under the Constitution. Article 63(1)(h) of the Constitution deals with the consequences of criminal liability of a delinquent action. Such action may also fall within the ambit of Article 62(1)(f) of the Constitution. However, the distinct place, purpose and meaning of Article 62(1)(f) of the Constitution becomes obvious from the civil consequences of its provisions as opposed to Article 63(1)(h) of the Constitution which deals with the cognizance of the same action by a criminal court followed by criminal punishment. The two provisions of the Constitution, namely, Article 62(1)(f) and Article 63(1)(h) deal with different laws, remedies, fora, and relief although the underlying subject matter of the legal action is the same. It is settled law that the outcome of criminal C.A.No.233 of 2015, etc. - 42 - proceedings for a particular misconduct cannot foreclose the outcome of civil proceedings in relation to the same act. If the exclusivity of jurisdiction and proceedings in a Court and their outcome, that is civil or criminal respectively, is disregarded as is urged before us, redundancy would attach to the provisions of either Article 62(1)(f) or Article 63(1)(h) of the Constitution, as the case may be. This is impermissible; the result of a judicial declaration envisaged in Article 62(1)(f) of the Constitution cannot be overshadowed by the outcome of a criminal proceeding for the same conduct. 28. Article 62 of the Constitution provides the qualifications that must necessarily be possessed by a candidate for contesting election to Parliament. These qualifications are enumerated in Article 62(1)(a) to (g) of the Constitution. On the other hand, Article 63(1) of the Constitution enumerates the disqualifications for the membership to the Parliament and Provincial Assemblies. These disqualifications are enumerated in clause (a) to clause (p) of Article 63 of the Constitution. Although the ultimate result of a candidate for election lacking a qualification under Article 62 of the Constitution or for incurring disqualification under Article 63 of the Constitution is the same, namely, his ouster from the election contest, yet the object, meaning and effect of the two provisions is very different. The view that qualifications and disqualifications are interchangeable and therefore, the consequences of incurring either, namely, period of ouster from the election contest should be similar because the same misconduct can form the subject matter of both C.A.No.233 of 2015, etc. - 43 - provisions, is flawed. In the case of Govt. of Pakistan vs. Akhlaque Hussain (PLD 1965 SC 527 at p.579), the two facets of ineligibility for vying a professional office were analysed in the following terms: “While sometimes qualification and disqualification may present two aspects of the same matter the two concepts are obviously distinct and it is not possible to contend that there can be no classification into qualification and disqualification of the attributes of a person in relation to a profession, etc. Reference may in this connection be made to Article 103 of this very Constitution which in two separate paragraphs provides for qualifications and disqualifications for membership of an Assembly. “Qualification” as will appear from Aiyar’s Law Lexicon means “that which makes person fit to do an act.” The Lexicon goes on to state: “qualification relates to the fitness or capacity of the party for a particular pursuit or a profession”. Webstor defines qualifications to mean “any natural endowment or acquirement which fits a person for a place, office or employment, or enables him to sustain any character with success”. It should be quite appropriate to refer by qualifications to the competence or the positive qualities needed for carrying on a profession and to regard the obstacles in the carrying on of a profession as disqualifications. Every profession requires for the efficient performance of the duties involved in it (1)knowledge, (2)skill and (3)a moral standard. In short whatever goes to his competence or makes a person fit to discharge the duties involved in his profession is a qualification. On the other hand, if a person is debarred from entering a profession though he is admittedly quite competent to discharge his duties for some reason not connected with his competence that is a disqualification. A person may be disqualified because he has served under a foreign Government or because he belongs to a particular tribe or his father was a rebel or because he has already sufficient income from lands or he is a shareholder of a company and so on. He may be the most competent person for carrying on a profession yet he may be debarred because of some other attributes which he possesses. That will be a disqualification.” C.A.No.233 of 2015, etc. - 44 - Another pronouncement on the same point but on different facts was made in the case of Hamid Sarfaraz vs. Federation of Pakistan (PLD 1979 SC 991) wherein the issue addressed was that when Article 207 of the Constitution required a person appointed as Attorney General to possess the qualifications for appointment as Judge of the Supreme Court of Pakistan, then would such person be deemed to be under the same ‘disability’ that was placed by the Constitution on a Judge of the Supreme Court in the matter of accepting another assignment carrying the right to remuneration. It was held that: “… The argument is clearly misconceived, as merely prescribing a certain qualification for appointment as Attorney-General for Pakistan does not mean that he would be governed by the same disability as applies to a Judge of the Supreme Court.” Subsequently, the same view has been followed in a reasoned judgment given by the learned High Court in Muhammad Shahbaz Sharif vs. Muhammad Altaf Hussain (PLD 1995 Lahore 541). On the other hand, the two aspects of eligibility, namely, qualifications and disqualifications to hold office, were held to be interchangeable by a learned Single Judge of the High Court in Muhammad Yousaf vs. Irshad Sipra (1988 CLC 2475). This view has subsequently been shared by individual members of this Court but never as an opinion of a majority and without considering the afore-noted two judgments of this Court. One of the basic rules of construction of a Constitutional instrument is that effect should be given to every part and every word of a Constitution. Therefore, the Court must lean in C.A.No.233 of 2015, etc. - 45 - favour of a construction which gives effect to every word without rendering it idle or nugatory. Reliance is placed upon the judgments in Reference by the President (PLD 1957 SC 219) and Mr. Fazlul Quader Chawdhry vs. Mr. Mohd. Abdul Haque (PLD 1963 SC 486). Both on the said principle of Constitutional interpretation as well as the distinct nature and purpose of qualifications vis-a-vis disqualifications, the provisions of Article 62(1)(f) of the Constitution containing qualifications cannot be used interchangeably with the disqualification under Article 63(1)(h) of the Constitution. The two provisions have their separate spheres of operation. Although the ultimate result of the enforcement of each provision is the exclusion of a candidate from an election contest on account of his delinquent conduct, yet each provision is worded differently and must be interpreted and construed in accordance with its terms. It goes without saying that since the two provisions pertain to the same subject matter, therefore, they ought to be construed harmoniously. However, in the discussion that follows, it is concluded that the two provisions address significantly different situations which ought to, in the proper scheme of things, be interpreted differently. 29. Under Article 62(1)(f) of the Constitution, the judicial declaration by a Court of civil jurisdiction against a candidate for election to Parliament would adjudicate misconduct of the candidate that has not resulted in his criminal conviction and sentence for more than two years by the competent Court. Accordingly, we now consider the argument that a civil law declaration involving C.A.No.233 of 2015, etc. - 46 - personal flaws mentioned in Article 62(1)(f) of the Constitution should not carry ineligibility for contesting election that is longer in duration to the disability provided in Article 63(1)(h) of the Constitution for the same misconduct. 30. At this juncture, two important considerations must be kept in mind; firstly, according to Article 63(1)(h) of the Constitution, the torment of a minimum of two years imprisonment upon conviction of an offence involving moral turpitude is necessary. This is of some importance. The reason for such an approach may be noticed in the view expressed by this Court on the concept of punishment awarded to an accused in a criminal case. In Dadullah vs. State (2015 SCMR 856 at p.862) it is held that: “9. Conceptually punishment to an accused is awarded on the concept of retribution, deterrence or reformation. The purpose behind infliction of sentence is two fold. Firstly, it would create such atmosphere, which could become a deterrence for the people who have inclination towards crime and; secondly to work as a medium in reforming the offence. Deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society. …” 31. Retributive justice entails several serious consequences apart from deprivation of personal liberty of the convict. Such a convict in fact suffers a loss of life by being immobilized, endures loss of his livelihood, watches disruption and hurt to his family and lives with the lasting stigma of conviction on his reputation. It is, therefore, said that a convict, who has undergone a sentence of C.A.No.233 of 2015, etc. - 47 - corporal punishment has “paid his dues to society.” Even after his release from jail, the convict faces many daunting challenges for rehabilitating himself in society as a responsible, productive and acceptable member thereof. It is in this context that one should look at the disqualification under Article 63(1)(h) of the Constitution for a limited period of five years imposed upon a convict after his release from jail. Even so, with the limited period of his disqualification as an ex-convict for offences involving moral turpitude, he still carries the odium of his past conviction before the voters in his constituency, whose hearts and minds he has yet to win. An ex- convict suffers huge handicaps to find dignity and acceptance for himself in society. The notable effort by the Constitution to allow him an opportunity to reform himself and to strive for such a position in society cannot be deprecated for providing him relief rather than longer disenfranchisement. 32. Secondly, on the other hand, a candidate for election who has committed misconduct falling within the terms of Article 62(1)(f) of the Constitution, in particular, misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. as declared by a Court of civil jurisdiction has on the Islamic and also universal criteria of honesty, integrity and probity, rendered himself unfit to hold public office. He cannot be compared to the case of an ex-convict under Article 63(1)(h) of the Constitution because he has not paid a personal price for his delinquent act. It is in such circumstances that a person declared to be dishonest or in breach of C.A.No.233 of 2015, etc. - 48 - his trust or fiduciary duty or being non-righteous or profligate must suffer the burden of that finding of incapacity for as long as the Court decree remains in force. Considering that the Constitution does not fix the period of incapacitation of such a judgment debtor shows a clear intention that the lack of qualification under Article 62(1)(f) of the Constitution should extend so long as the declaration of law envisaged in Article 62(1)(f) remains in the field. If such declaration is final and binding, then the incapacity to contest elections to any of the Legislatures provided by the Constitution becomes permanent. There is no reason for applying the rule of proportionality to the incapacity of a candidate for election following a final decree against him in term of Article 62(1)(f) of the Constitution. Indeed the Court has no jurisdiction whatsoever to read into the Constitution nor any grounds for treating civil and criminal proceedings alike in relation to their respective consequences. 33. In order to complete the picture it will be helpful to record the past view taken by this Court on the question presently in issue. There are several reported cases of this Court adjudicating deficiency in qualification under Article 62(1)(f) of the Constitution of a candidate but some that deal with the duration of his ouster from election. The first among these is reported as Imtiaz Ahmed Lali vs. Ghulam Muhammad Lali (PLD 2007 SC 369). For the General Elections held in the year 2002, Chief Executive’s Order No.7 of 2002 enacted that if the candidate had been dismissed from service of Pakistan or a Province on the ground of misconduct C.A.No.233 of 2015, etc. - 49 - involving moral turpitude, he shall be disqualified for contesting an election to Parliament. The relevant provision did not impose any time limitation. Consequently, the appellant who had been dismissed for misconduct from police service on 28.10.1990 was denied eligibility to contest election. It was held that the appellant suffered a life time embargo on his eligibility for election because his dismissal from service for misconduct barred him permanently from future employment as that would be prejudicial to the good order and discipline of the police force. 34. In the post-18th Constitutional Amendment scenario, an adverse declaration by a Court of law against a candidate is necessary to oust him from an election. It was held in Abdul Ghafoor Lehri vs. Returning Officer, PB-29 (2013 SCMR 1271) that a false declaration made in the nomination papers by a candidate about his academic qualification led to a permanent embargo on the candidature for election. This is because Article 62 of the Constitution did not provide any period for which a person would stand debarred from contesting elections and, therefore, the appellant before the Court could not become qualified merely by efflux of time. To the same effect is the judgment in Muhammad Khan Junejo vs. Federation of Pakistan (2013 SCMR 1328 at p.1336) wherein a deficiency in qualification under Article 62(1)(f) of the Constitution led to a permanent disqualification. This outcome was followed in Allah Dino Khan Bhayo vs. Election Commission of Pakistan (2013 SCMR 1655), in which the following observations were made with respect to the duration of embargo C.A.No.233 of 2015, etc. - 50 - imposed by a deficiency in qualification under Article 62(1)(f) of the Constitution: “11. … The provisions of the said Articles when examined in the light of the judgment of this Court referred to and reproduced herein above reveal that certain disqualifications are removed by the afflux of time e.g. disqualification on account of conviction or removal from service. Similarly, the qualifications can be acquired by some future act of the candidate e.g. by acquiring exclusive citizenship so as to become qualified in terms of Article 62(1)(a) of the Constitution. However, with regards to a qualification in terms of Article 62(1)(f) of the Constitution, the framers of the Constitution have chosen not to prescribe any period of time through the flux whereof or any act or omission through which such qualification can be acquired if a candidate or a member has been held not to possess the same. Consequently, if a person, is held not to be qualified in terms of Article 62(1)(f) of the Constitution such absence of qualification in law will haunt him forever.” 35. It is clear from the findings recorded in the afore-noted four judgments by this Court that the absence of a time limit for the ineligibility of a candidate for election in Article 62(1)(f) of the Constitution is the basis for holding his incapacity to be incurable by efflux of time. The reasons recorded in our judgment reinforce that conclusion. It may also be noted that the Constitution envisages other situations in which a permanent bar to the eligibility of a candidate for election is enforced so long as the judgment that records or justifies the disability of the candidate remains in existence and occupies the field. This view is supported by Articles 63 (1)(a) and 63(1)(b) of the Constitution that provide disqualifications on account of judicial declaration regarding the C.A.No.233 of 2015, etc. - 51 - mental unfitness or the undischarged insolvency of a candidate for election. These disabilities also continue so long as the adverse judgment is in the field. Finally, it may be noted that the prescription by the 18th Constitutional Amendment of an adverse judicial declaration to precipitate the ineligibility of a candidate for election has provided a lawful, transparent and fair mechanism to a candidate under challenge both for contesting and for avoiding the onset of an embargo on his eligibility to contest elections. The restriction imposed by Article 62(1)(f) of the Constitution for the eligibility of a candidate for election to Parliament serves the public need and public interest for honest, upright, truthful, trustworthy and prudent elected representatives. The judicial mechanism in Article 62(1)(f) of the Constitution grants a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself. Therefore, the permanent incapacity of a candidate for election under Article 62(1)(f) of the Constitution is not an arbitrary, excessive or unreasonable curtailment of his fundamental right under Article 17(2) of the Constitution. 36. In the result, we are inclined to hold that the incapacity created for failing to meet the qualifications under Article 62(1)(f) of the Constitution imposes a permanent bar which remains in effect so long as the declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f) of the Constitution remains in effect. 37. In view of the above, all these cases are directed to be fixed before appropriate Benches for decision in accordance with the C.A.No.233 of 2015, etc. - 52 - law laid down in this judgment, keeping in view the respective facts and circumstances of each case. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Islamabad, Announced in Court on 13th day of April, 2018 CJ. APPROVED FOR REPORTING. Irshad Hussain /* C.A.No.233 of 2015, etc. - 53 - Sh. Azmat Saeed, J.- I have had the privilege to go through the judgment of my learned brother Umer Ata Bandial, J., though I concur with the conclusions drawn in the said judgment but I do not find myself in agreement with reasoning employed in its entirety. 2. The adjudication of the lis at hand requires the interpretation of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 so as to determine the period of time to which the lack of qualification in terms thereof shall extend. The aforesaid provision is reproduced herein below for ease of reference:- “62. (1) A person shall not be qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) unless:- ……………………………………………. ……………………………………………. (f) he is sagacious, righteous, non- profligate, honest, and ameen, there being no declaration to the contrary by a court of law; and ………………………………………………. …………………………………………….... The words and expressions denoting the attributes for being qualified to be a Member of Majlis-e-Shoora (Parliament), as spelt forth in the aforesaid provision, leaves no manner of doubt that C.A.No.233 of 2015, etc. - 54 - the same i.e. Article 62(1)(f) of the Constitution is rooted in and inspired by our Islamic values. It is not necessary to dwell further on this aspect of the matter in the instant proceedings. However, the said provision must be interpreted with great care, caution and respect. 3. The historical background and various amendments, which have been periodically introduced into Articles 62 and 63 of the Constitution have been very ably dealt with by my learned brother in his judgment and need not to be repeated. However, Article 62(1)(f) of the Constitution is required to be interpreted as it stands today. A plain reading of Article 62(1)(f) of the Constitution reveals that in order to be a Member of Majlis-e-Shoora (Parliament), the person must be, inter alia, sagacious, righteous, non-profligate, honest, and ameen. However, if there is a declaration by a Court of Law to the contrary i.e. he is not sagacious or righteous or non-profligate, honest, and ameen then such person shall not be qualified to be a Member of Majlis-e-Shoora (Parliament). A declaration by the Court of Law would mean a C.A.No.233 of 2015, etc. - 55 - conclusive finding. Obviously, such finding would be with regard to a lis before the Court, arising out of the violation of a law or non-fulfillment of a legal obligation. It is clear and obvious that lack of qualifications in terms of Article 62(1)(f) of the Constitution is the effect of a declaration by a Court of Law to the contrary, which is the cause. The obvious, legal and logical conclusion would be as long as the cause i.e. the declaration of a Court of Law holds the field its effect i.e. the lack of qualification shall also prevail. This appears to be the only possible interpretation of Article 62(1)(f) of the Constitution. 4. The expression “declared by a Court” has also been used in Article 63(1)(a) of the Constitution, which is reproduced hereunder: “63(1)(a) he is of unsound mind and has been so declared by a competent court; or” (underlining is for emphasis) 5. Obviously, in the aforesaid circumstances, the disqualification would continue as long as the declaration regarding the mental incapacity subsists. No sane person could seriously urge to the contrary. C.A.No.233 of 2015, etc. - 56 - 6. During the course of hearing of the instant proceedings, a large number of counsels addressed at the bar, both on behalf of various parties and as amicus curie. Each and every counsel was confronted with the above mentioned obvious interpretation of Article 62(1)(f) of the Constitution that the lack of qualification was the effect of the declaration by a Court of Law, which was the cause and the duration of such effect would be the duration of the cause i.e. declaration. The response on behalf of the learned counsels by and large that upon an accumulative reading of Articles 62 and 63 of the Constitution pertaining to the qualifications and disqualifications of a Member of Majlis-e-Shoora (Parliament) would reveal that disqualifications resulting from acts and omissions of much greater gravity the period of disqualification is limited, hence that lack of qualification in terms of Article 62(1)(f) of the Constitution cannot be perpetual. It was also contended that lack of qualifications in terms of Article 62(1)(f) of the Constitution also falls squarely within the disqualification as is set forth in Article C.A.No.233 of 2015, etc. - 57 - 63(1)(h) of the Constitution and the negative impact thereof is for a limited period of time. 7. Adverting first to Article 63(1)(h) of the Constitution, the reasons for disqualifications provided therein do not appear to be congruent with the lack of qualifications as set forth in Article 62(1(f) of the Constitution. More importantly, if such an interpretation is accepted, it would make Article 62(1)(f) of the Constitution superfluous and redundant. It is an elemental principle of the interpretation of the Constitution that surplusage cannot be attributed to any provision of the Constitution, hence, it is legally impossible to accept this contention. 8. No doubt the period of disqualification in certain sub-Articles of Article 63 of the Constitution has been provided but such a sunset clause is not found in Article 62(1)(f) of the Constitution. The framers of the Constitution chose not to do so. This Court is empowered to interpret the Constitution but not to amend it. It is an equally elemental principle of interpretation of the Constitution that nothing can be added thereto, therefore, we cannot read into C.A.No.233 of 2015, etc. - 58 - Article 62(1)(f) of the Constitution, a period of such lack of qualification, which is not mentioned therein. 9. Some of the learned counsels also voiced that perhaps the effect of Article 62(1)(f) of the Constitution qua the period of lack of qualification may be disproportionate and a little harsh. Such arguments are perhaps more suitable to the floor of Majlis-e-Shoora (Parliament) than at the bar before this Court. We, as stated above, can only interpret the Constitution not amend or change it. This aspect of the matter is rather ironic as several persons before us were or had been the Members of Majlis-e- Shoora (Parliament) at some point of time and may have passed the amendments, which now stand in their way. 10. None of the learned counsels, who appeared before us confronted the elephant in the room i.e. the obvious interpretation of Article 62(1)(f) of the Constitution is that lack of the qualification to a Member is the effect of declaration by a Court of Law, which is the cause and period of lack of qualification would be co-extensive with the period to the cause i.e. declaration. None of the learned C.A.No.233 of 2015, etc. - 59 - counsels refuted the aforesaid obvious interpretation but only sidestepped the issue. 11. However, at the very end, the learned Attorney General for Pakistan addressed the Court and in no uncertain terms stated that once declaration has been made by a Court of Law that a person is not sagacious or righteous or non-profligate or honest and ameen, such a person is not qualified to be a Member of Majlis-e-Shoora (Parliament). This lack of qualification is the effect of the aforesaid declaration, which is the cause and as long as the declaration by the Court holds the field, the person in respect of whom such declaration has been made will continue to be deprived of the qualifications to be a Member of Majlis-e-Shoora (Parliament). 12. The stand taken by the learned Attorney General for Pakistan is not only fair but is also in accordance with the obvious and self-evident intent of Article 62(1)(f) of the Constitution. Incidentally, this Court on more than one occasions has already held that lack of qualification suffered under Article 62(1)(f) of the Constitution is in perpetuity. Reference, in this behalf, may be made to the judgments of this C.A.No.233 of 2015, etc. - 60 - Court reported as Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad (PLD 2009 SC 107) and Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), and no reason has been advanced to persuade me to take a different view. Judge

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present Mr. Justice Anwar Zaheer Jamali Mr. Justice Dost Muhammad Khan Mr. Justice Umar Ata Bandial CIVIL APPEAL NO. 2352 OF 2008 (On appeal from the judgment/order dated 05.11.2003 passed by Lahore High Court, Lahore in FAO No. 189 of 1994) United Bank Limited … … Appellant. Versus Fateh Hayat Khan Tawana & others … … Respondents. For the appellant : Ms. Raisa Sarwat, ASC. For respondents (5&6) : Syed Najamul Hassan Kazmi, ASC. Respondents (1-4, 7, 8) : Ex-parte. Date of hearing : 13.04.2015. JUDGMENT UMAR ATA BANDIAL, J. – By order of this Court dated 26.12.2008 leave to appeal was granted to examine whether a second execution application filed on 16.01.1989 by the appellant during the pendency of its first execution application for the enforcement of a money decree dated 20.01.1981 suffers a time bar under Section 48 CPC read with Article 181 of the Limitation Act, 1908? 2. Briefly stated the facts of the case are that an ex-parte judgment/decree was passed on 20.01.1981 by a learned Special Judge Banking in favour of the appellant and against the CA.2352/2008 2 respondents/judgment debtors for the amount of Rs.4.205177 million together with costs in the sum of Rs.35,127/-. The first execution application for the enforcement of the said decree was filed by the appellant on 27.06.1983 before the learned High Court under the Banking Companies (Recovery of Loans) Ordinance, 1979 (“Ordinance”). That application was registered and numbered as Ex.A.7-B/1983. Another application by the appellant seeking attachment of properties in the said execution proceedings was withdrawn at its first hearing vide order dated 23.11.1983 to “make an appropriate application after seeking proper instructions from his client.” The main execution application bearing Ex. A.7-B/1983, however, continued to remain pending. 3. On 16.01.1989, the appellant filed an application under Order XXI Rule 11 CPC read with Section 8(3) of the Ordinance containing updated particulars for execution of the aforementioned decree dated 20.01.1981. This application mentions its file number as Ex.A. 7-B/1983 and refers the contents of the order dated 23.11.1983, allowing the appellant to file an appropriate application after seeking instructions from the client (decree holder). Its contents add accrued interest of Rs.6.268 million to the outstanding amount payable under the decree and attaches revenue record of properties subject to attachment and realization pursuant to the aforementioned decree. Thereafter, the order of the Court dated 07.02.1989 passed in the first execution application bearing CA.2352/2008 3 Ex.A.No.7-B/1983 records the following statement by the learned counsel for the appellant: “7.2.1989 Mr. Ayyaz Hassan, Adv. For the decree holder. States that the decree holder-Bank has filed a fresh Execution Application giving all the details of the properties sought to be attached and sold in execution of the decree and therefore this Ex. Application may be consigned to record. Order accordingly.“ 4. Simultaneously, the learned Executing Court on 07.02.1989 issued notice to the respondents/judgment debtors in the above mentioned second execution application which was, however, registered and numbered by the office as Ex.A.1-B/1989. In reply thereto, the respondents/judgment debtors filed objections. The first of these is that the second execution application filed more than 8 years after the passing of the decree under execution is time barred in terms of limitation period provided in Section 48 CPC read with Article 181 of the Limitation Act, 1908. Meanwhile, the pecuniary jurisdiction of the Banking Court was enhanced; accordingly the said execution matter was transferred to the said Court. The learned Banking Court at the outset took up for adjudication the objection of limitation raised by the respondents/judgment debtors. Vide order dated 14.07.1994, the Banking Court held that the pending execution proceedings of decree dated 20.01.1981 were time barred. The view taken by the learned Special Judge Banking, Lahore was affirmed by the learned High Court in exercise of its appellate jurisdiction vide judgment dated 05.11.2003. That judgment is presently impugned before us in this appeal. CA.2352/2008 4 5. It is a common ground between the parties that the limitation period for filing the first execution application of a money decree passed by a Court of original jurisdiction is three years from the date of the decree under the residuary Article 181 of the Limitation Act, 1908. Therefore, the first execution application submitted by the appellant bearing No.7-B/1983 is admittedly filed within time. However, both the learned Courts below have taken the view that the second application filed by the appellant on 16.01.1989 is, according to its own terms, a “fresh” execution application. Having been filed beyond the period of six years prescribed in Section 48 of the CPC, this application has been held to be time barred. Both sides rely on the judgment given by this Court in Mahboob Khan vs. Hassan Khan Durrani (PLD 1990 SC 778) to canvas their opposing stands on the said finding. The whole controversy revolves around the meaning of the expression “fresh application” used in Section 48 of the CPC in the context of a second execution application being filed by the appellant during the pendency of its first execution application. 6. The learned counsel for the appellant contends that the second application was filed bearing the same number Ex.A.7- B/1983 that is given to the first application but it was registered by the office and wrongly assigned a new number Ex.A.1-B/1989. This application is filed in continuation of the original execution application and contains, inter alia, updated particulars of the properties subject to attachment in terms of the order dated CA.2352/2008 5 23.11.1983 by the learned Executing Court. Since the original application was filed within time, therefore, the additional particulars contained in the second execution application filed on 16.01.1989 are in elaboration of and ancillary to the first application. Therefore, the impugned finding that the execution proceedings of decree dated 20.01.1981 are time barred is erroneous. 7. On the other hand, the contention on behalf of the respondents/judgment debtors is that the contents of the para-5 of the second execution application by the appellant acknowledge the withdrawal of the first execution application. Also, the order dated 07.02.1989 passed in Ex.A.7-B/1983 records the statement of the counsel for the appellant that a fresh execution application has been filed and consequently the only application in the field is the second execution application filed by the appellant. 8. During the course of hearing it became apparent that the impugned judgments have treated the order dated 07.02.1989 passed in Ex.A.7-B/1983, consigning the said application to the record as amounting to disposal of such application. To fortify this view the learned counsel for the respondents/judgment debtors has relied on Muhammad Yaqoob v. Qudsia Kishwar (1988 MLD 1379). In the facts of that case, the expression “consigned to record” has been interpreted to mean “dismissal for non-prosecution.” It is clear in the present case that the second execution application was filed on 16.01.1989 during pendency of the first execution application. The order sheet in Ex.A.7-B/1983 does not record any CA.2352/2008 6 default by the appellant in complying any judicial order. Therefore, the consignment to record of Ex.A.7-B/1983 vide order dated 07.02.1989 cannot be presumed to be its dismissal for non- prosecution or disposal otherwise. Accordingly, the precedent relied by the respondents has no relevance to the present case. 9. Significantly, the terms of the order dated 07.02.1989 are amenable also to the rival interpretation given to it by the appellant. It is urged that the said order of the learned Executing Court treats the second execution application to be a substitute or a continuation of the first execution application. This is because the second application contains better particulars for the already prayed mode of execution of the decree. Accordingly, the learned Executing Court has consigned the first application to record and proceeded with its substitute. The argument has some force. The question of time bar is not considered by the order dated 07.02.1989. It arose for determination after the respondents/judgment debtors were issued notices on the second execution application. Whilst examining that objection, the learned Courts below were obliged to consider whether the first execution application could at all be terminated without an order dismissing or disposing of the same. This aspect of the matter was ignored on the presumption that the consignment of an application to the record amounts to its dismissal. The fact is that in the absence of a clear order disposing of the first execution application there is no justification for treating the proceedings CA.2352/2008 7 therein to have been concluded. The fate of an execution proceeding in similar situations is explained by a learned full Bench judgment of the High Court of Sindh in Amir Begum vs. Mir Fateh Shah (PLD 1968 Karachi 10) wherein Wahiduddin J. (as he then was) opined as follows: “… It is a well settled rule of law that an execution application must be deemed to be pending so long as no final order disposing it of judicially has been passed thereon. A subsequent application in such a case for execution will be deemed to be one merely for the continuation of the original proceedings. In this connection the Privy Council in Qamar-ud-Din Ahmed vs. Jawahirlal (32 I A 102) observed as under:-- “Their Lordships are of opinion that the execution proceedings commenced by the petition of the 24th August 1888 were never finally disposed of and that the application now under consideration was in substance, as well as in form, an application to revive and carry through a pending execution, suspended by no act or default of the decree- holder, and not an application to initiate a new one.” …. This principle has also been applied in cases where the application is dismissed or struck off or consigned to the record room or returned. Such order is not to be regarded as finally disposing of the petition and a subsequent application will be regarded as one of revival and continuation of the original proceedings. …”(underlining supplied). 10. The judgment in Mahboob Khan’s case ibid is relevant in laying down that where the first execution application has been filed within a period of three years from the date of decree under execution, then any fresh application for execution of the said decree may be filed within a period of six years from the date of the said decree. According to the said judgment a fresh application is CA.2352/2008 8 conceived to be filed “after disposal of the first execution application.” Therefore, an application that is filed during the pendency of a timely first execution application cannot be considered a ‘fresh application.’ This is because it elaborates or amends the pending first execution application. For that reason the subsequent application is liable to be treated as a continuation of or ancillary to the pending execution application. In such a case, quite obviously the objection of limitation cannot have any relevance. 11. On the other hand, when a subsequent execution application has been filed after the disposal of the first execution application, the objection of limitation may be relevant. However, even in such a case, the subsequent execution application may survive notwithstanding its belated institution beyond six years after the decree under execution, if it satisfies the test and criteria of amendment of a previously disposed of execution application that had been filed timely. In such event, the subsequent application shall be treated as a continuation of or ancillary to the decided execution application. In the present case, the first execution application has not been disposed of by a judicial order. Therefore, the second execution application filed on 16.01.1989 should plausibly be treated as a continuation thereof or ancillary thereto. Indeed, for ascertaining the legal status and effect of proceedings before a Court of law, it is the content and meaning of judicial orders about such proceedings that are determinative and not the CA.2352/2008 9 description or name given to the proceedings by a party thereto. Therefore, in the light of the legal position of the pending execution proceedings in the present case, the descriptions given thereto by the appellant or its learned counsel are inconsequential. 12. For the forgoing discussion, we allow this appeal. The subsequent execution application filed by the appellant shall be deemed to be pending before the learned Executing Court which shall decide the same on merits but subject to the outcome of any other preliminary objection already taken by the respondents/judgment debtors to the executability of the decree dated 20.01.1981. No order as to costs. J. J. J. Islamabad, 13.04.2015. Irshad Hussain /* APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE SARMAD JALAL OSMANY CIVIL APPEALS NOs. 239 TO 241 OF 2011 (Against the consolidated judgment of the High Court of Sindh, Karachi dated 3.6.2010 passed in C.Ps. Nos.D- 520/2009, D-2414/2007 & D-827/2007 respectively). Masood Ahmed Bhatti … Appellant (in CA 239/2011). Syed Muhammad Dilavez … Appellant (in CA 240/2011). Nasir Uddin Ghori … Appellant (in CA 241/2011). VERSUS Federation of Pakistan thr. Secretary, M/o Information Technology & Telecommunication etc. …Respondents (in all cases). For Appellants: In person, (in CAs 239 & 240/2011) For the Appellants: Mr. Abdur Rahim Bhatti, ASC a/w (in CA 241/2011): Raja Abdul Ghafoor, AOR For the Respondents: Mr. Zulfiqar Khalid Maluka, ASC (PTCL, in all cases) Date of Hearing: 11.8.2011. J U D G M E N T JAWWAD S. KHAWAJA:- These appeals have been filed by three individual appellants who admittedly were civil servants employed by the Federation in the Telephone and Telegraph (‘T&T’) Department prior to the enactment of the Pakistan Telecommunication Corporation Act 1991 (the ‘PTC Act’). To provide context to the discussion which follows, the backdrop of this litigation may briefly be stated. Nasir Uddin Ghori, the appellant in CA 241/2011 had earlier obtained a judgment from the Service Tribunal dated 28.5.2004 which held that he “will be deemed to have been promoted as ADE (B-17) with effect from the date of qualifying degree of B-Tech (Hons)”. The seniority list of the ADE cadre was also directed by the Tribunal, to be corrected accordingly. Since this judgment was not implemented by the respondent namely, Pakistan Telecommunication Company Limited (‘PTCL’), Mr. Ghori approached the High Court seeking implementation of the same but his Constitution CAs 239 to 241/2011 2 Petition No.D-827/2007 has been dismissed by a learned Division Bench of the Sindh High Court vide impugned judgment dated 3.6.2010. 2. The other two appellants namely, Masood Ahmed Bhatti (CA 239/2011) and Syed Muhammad Dilavez (CA 240/2011) had different grievances against PTCL relating, inter alia, to pensionary benefits, promotion and a voluntary separation scheme. They had approached the Sindh High Court through Constitution Petitions Nos.D-520/2009 and D-2414/2007. These two petitions have also been dismissed by the Sindh High Court through the same common judgment dated 3.6.2010 which has been impugned by Mr. Ghori. The appellants have been non-suited by a learned Division Bench of the High Court on the short ground that their employment with PTCL is not governed by statutory rules and therefore, they are not entitled to invoke the jurisdiction of the High Court under Article 199 of the Constitution. For reasons considered below and with great respect to the learned Judges, it has not been possible for us to agree with their conclusion. 3. The learned Bench, through an elaborate judgment has concluded that PTCL “is and shall continue to be amenable to the jurisdiction of [the Sindh High] Court under Article 199 of the Constitution”. However, it has been held that “since PTCL does not have statutory rules, writ petitions of employees of PTCL are liable to be dismissed”. The merits of the individual cases set up by the three appellants have not been considered or adjudicated upon by the High Court. The Court has founded its decision on the case of Pakistan International Airlines Corporation and others versus Tanweer- ur-Rehman and others (PLD 2010 SC 676). 4. From the foregoing narrative, it will be evident that the controversy between the appellants and PTCL which is now before us has been narrowed down considerably. PTCL supports the impugned judgment for the reason given therein by the High Court. The appellants on the other hand have challenged the finding of the Court by contending that the rules relating to the terms and conditions of employment of the appellants have statutory force and are, therefore, statutory rules. It has thus been contended by them that the ratio of the cited precedent has been misapplied. CAs 239 to 241/2011 3 5. Since the judgment of the High Court is based on the case of Tanweer-ur- Rehman supra, it firstly is to be seen if indeed the principle of law enunciated therein supports the conclusion in the impugned judgment. Para 18 of the cited precedent is of particular relevance in this context. It sets out the circumstances which led to the Court’s finding that the regulations which were under consideration in the said case could not be treated as being statutory in nature. The test laid down for deciding if the regulations were in fact statutory, was stated with great clarity. These regulations had been framed by the Board of Directors of the Pakistan International Airlines Corporation (‘PIAC’) under the PIAC Act 1956. It was observed by the Court that “if the relationship between the [PIAC] and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee ... may maintain an action for reinstatement”. It was further observed that “the PIAC has regulations which have been framed by the Board of Directors of the PIAC, pursuant to the power contained in section 30 of the [PIAC] Act; however, there is nothing on record to indicate that these regulations have been framed with the previous sanction of the Central Government or that they were gazetted and laid before the National Assembly in terms of section 31 of the [PIAC] Act”. This finding of the Apex Court was, in turn, based on the case titled Raziuddin v. Chairman, PIAC (PLD 1992 SC 531). In short, the reason for holding that the regulations in question were not statutory was that the requirements of sections 30 and 31 of the PIAC Act had not been complied with. 6. The observations in the case of Tanweer-ur-Rehman supra have necessitated an examination of sections 30 and 31 of the PIAC Act to see if these provisions have any parallel or relevance in the present appeals. It is quite clear from the PIAC Act that in order for the regulations to have statutory force, it was necessary that the same be framed “with the previous sanction of the Central Government”. Additionally, under section 31 of the PIAC Act, the regulations were required to be gazetted and laid before the National Assembly. It is only because these contentious regulations had not been framed with the previous sanction of the Central Government and had not been published in the official Gazettee, that the Court came to the conclusion the regulations CAs 239 to 241/2011 4 were not statutory in nature. It follows from the cited judgment that if in fact the regulations had fulfilled the requirements of sections 30 & 31 of the PIAC Act, there would have been no dispute or contention as to the statutory status of the said regulations. The circumstances of the present appeals (considered below) are very different from the facts in Tanweer-ur-Rehman’s case. 7. The learned Division Bench of the Sindh High Court which passed the impugned judgment has not considered the relevant provisions in the PTC Act and the Reorganization Act relating to the service of employees. This exercise, in our view, was necessary for deciding the question as to whether the rules of employment applicable to the three appellants had statutory status and also to see if Tanweer-ur- Rehman’s case was distinguishable. It is, as noted above, not in dispute that prior to the establishment of the Pakistan Telecommunication Corporation (the ‘Corporation’) under the PTC Act in 1991, the appellants were civil servants. It is also not a matter in contention that at that time (prior to 1991) the appellants were governed by the various rules and regulations governing the services of civil servants. The Civil Servants (Efficiency and Discipline) Rules, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provide instances of rules which, among others were applicable to the relationship between the appellants and their employer namely, the Federal Government. Such rules undeniably, were statutory, having been framed under rule-making powers granted to the Federal Government, inter alia, under the Civil Servants Act 1973. 8. In 1991, the PTC Act was legislated by Parliament. It was by virtue of section 3 of the PTC Act that the Corporation was established. The PTC Act also contained provisions in respect of the employees of the T&T Department such as the present appellants. These employees were referred to as ‘Departmental Employees’ as defined in section 2 (e) of the PTC Act. Section 9 of the PTC Act expressly stipulated that “notwithstanding anything contained in any law, contract or agreement, or in the conditions of service, all departmental employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the CAs 239 to 241/2011 5 same terms and conditions to which they were entitled immediately before such transfer”. The Corporation, however, was authorized to take disciplinary action against such employees. 9. It is clear from this legal provision, that the rules relating to the terms and conditions of employment of the appellants were given statutory status. This status was on a higher plane than the status of regulations framed by way of subordinate legislation under section 20 of the PTC Act. Consequently, whatever rules were in place governing the employment of the appellants in the T & T Department, were adopted by reference in the statute itself and were made applicable to and binding on the Corporation. There can be little doubt that by virtue of section 9 ibid such rules acquired statutory status having been sanctified by the PTC Act itself. We can, therefore, conclude without difficulty that the rules of employment which were applicable to the appellants during their service with the Corporation were statutory rules. 10. Thereafter in 1995 and 1996, after a series of Ordinances, the Pakistan Telecommunication Corporation (Reorganization) Act 1996 (the “Reorganization Act”) was passed. These statutes split up the Corporation into five distinct entities. The biggest of these five entities in terms of assets and employees was PTCL. It may be noted, at this stage, that PTCL was incorporated as a limited liability company under the Companies Ordinance, 1984 as per mandate in section 34 of the Re-organization Act. The other four entities were crated by the Reorganization Act itself. These were, first, the Pakistan Telecommunication Authority (the ‘Authority’) under Section 3, second, the Pakistan Telecommunication Employees Trust (the ‘Trust’) under Section 44, third, the National Telecommunication Corporation (the ‘NTC’) under Section 41 and fourth, the Frequency Allocation Board (the ‘Board’) under Section 42 of the Reorganization Act. As the title and other provisions of the Reorganization Act indicate, its object was to ‘reorganize’ the Corporation. This law was also meant to ensure the transition of the Corporation and its affairs to the five entities referred to above and to provide statutory cover for such transition. CAs 239 to 241/2011 6 11. We have already observed that between 1991 and 1996 when the Corporation was in existence, the rules of employment applicable to the appellants were statutory rules having been given such status by virtue of section 9 of the PTC Act. What now needs to be seen is the effect of the Reorganization Act on the rules of employment applicable to the appellants and to determine if such rules underwent any change so as to relegate their status to that of non-statutory rules. However, before making this determination it is necessary to take note of certain provisions of the Reorganization Act which have relevance to the issue at hand. The first such provision relates to “Telecommunication Employees”. This term has been defined in Section 2 (t) of the Reorganization Act. It means such employees “of the Corporation who are transferred to the employment of the Company under this Act, other than those to whom sub-section (3) of Section 36 applies”. Section 36 (3) relates only to those persons who were employees of the Corporation but subsequent to be Reorganization Act have been transferred to or employed by the Authority, the NTC, the Trust or the Board. Since the present appellants were neither transferred to nor employed by any of these four entities, Section 36 (3) has no application to them. 12. Reverting back to the provisions of Section 2(t) of the Reorganization Act the appellants would fall within the definition of “Telecommunication Employees” if transferred to PTCL under the Reorganization Act. Section 35 of the Reorganization Act is most relevant for the purpose of determining the status of the appellants in terms of the said Act and also for the purpose of ascertaining if the rules of their employment can be categorized as statutory rules. In view of their relevance to the controversy before us, sub-sections (1) and (2) of section 35 ibid are reproduced as under: - “35. Vesting of the rights, property and liabilities of the Corporation. – (1) The Federal Government may, by orders, direct that all or any property, rights and liabilities to which the Corporation was entitled or subject to immediately before such orders, and identified therein, shall, on such terms and conditions as the Federal Government may determine, vest in – (a) the Company; (b) the National Telecommunication Corporation (NTC); (c) the Authority; (d) the Trust; or (e) the Board through the Federal Government, and become the property, rights and liabilities of the respective entity. CAs 239 to 241/2011 7 (2) An order issued under sub-section (1) shall specify the employees of the Corporation who shall, as from the effective date of the order, be transferred to and become employees of the entity referred to in the order: Provided that such order shall not vary the terms and conditions of service of such employees to their disadvantage. (the underlining is ours). 13. Mr. Abdul Rahim Bhatti, learned ASC submitted that there was no order issued under section 35 supra whereby any employees of the Corporation were transferred to or became employees of PTCL. Learned counsel for PTCL, however, controverted the submission and was, therefore, asked to refer to the order, if any, issued under sub- section (2) whereby the appellants became employees of PTCL. He produced before us S.R.O.115(I)/96 dated 7.2.1996 and contended that the order contained in this Notification (the ‘Vesting Order’) was an order under Section 35 (2) of the Reorganization Act. Although the said Notification was issued, under the Pakistan Telecommunication (Reorganization) Ordinance 1995, prior to the passing of the Reorganization Act, it has been expressly saved. Under section 59(2) of the Reorganization Act the Vesting Order was to remain in force “unless amended, varied, withdrawn, rescinded or annulled by a person or authority competent to do so under this [Reorganization] Act”. It is not disputed that the Vesting Order has not been amended, varied, etc. and, therefore, remains in full force and effect. Certain relevant extracts from the Vesting Order will facilitate our understanding of the scheme whereby the Corporation was restructured and reorganized into the five entities referred to above. The Vesting Order, to the extent relevant for our purposes stipulates as under: - “ Islamabad , the 7th Feb.1996. ORDER S.R.O.115(I)/96 – In exercise of the powers conferred by section 35 of the Pakistan Telecommunication (Re-organization) Ordinance, 1995 (CXV of 1995), hereinafter referred to as “the said Ordinance” and in supersession of its Order No.S.R.O.1(1)/96, dated the 1st January, 1996, the Federal Government is pleased to direct that- (1) all properties, rights and liabilities (including business undertaking, goodwill, contingent rights and liabilities) to which the Pakistan Telecommunication Corporation (Corporation) was entitled and subject to, after the transfer of the properties, rights and liabilities to the Authority, National Telecommunication Corporation, Pakistan Telecommunication Employees Trust and Frequency Allocation Board through the Federal Government, on the 31st of December, 1995, with effect from the 1st January, CAs 239 to 241/2011 8 1996, vest in and has [sic] become the properties, rights and liabilities of the Pakistan Telecommunication Company Limited (Company); (2) all employees of the Pakistan Telecommunication Corporation, after the transfer of the employees to the Pakistan Telecommunication Authority, National Telecommunication Corporation and Frequency Allocation Board of the Federal Government, on the 31st of December, 1995, stood transferred to and has [sic] become the employees of the Pakistan Telecommunication Company Limited with effect from the 1st January, 1996”. It is evident from the above extract that all properties, rights and liabilities of the Corporation were vested in PTCL with effect from 1.1.1996 except for those transferred to the remaining four entities. Likewise, all employees of the Corporation other than those transferred to the other four entities referred to above, stood transferred and became employees of PTCL with effect from 1.1.1996 by virtue of the Vesting Order. 14. We may now consider the effect of this transfer of the appellants to PTCL alongwith the assets and liabilities of the Corporation and the implications of such transfer on the nature of the rules of employment applicable to the appellants from the date (i.e. 1.1.1996) they became employees of PTCL. The proviso to Section 35 (2) of the Reorganization Act provides a clear answer to this controversy. It specifies that even after the transfer of the appellants to PTCL their terms and conditions of service which existed on 1-1-1996, would be the base and bare minimum in matters of their employment with PTCL. These terms and conditions were imposed on PTCL by the Reorganization Act, as a legal obligation and the Vesting Order was issued by the Federal Government “in exercise of powers conferred by section 35” of the Reorganization Act. The Federal Government, it will be noted, had been granted limited powers only; the constraint on it was that the terms and conditions of service of employees of the Corporation could not be varied to their disadvantage. PTCL, as the recipient of the properties and rights of the Corporation, also assumed the liabilities of the Corporation. Such liabilities necessarily included the liabilities owed to the employees, arising from the terms and conditions of their service as these could not be varied to their disadvantage. CAs 239 to 241/2011 9 15. Thus it is evident that at the moment of transition when the appellants ceased to remain the employees of the Corporation and became the employees of PTCL, they admittedly were governed by rules and regulations which had been protected by the PTC Act. The said rules, therefore, by definition were statutory rules as has been discussed above. PTCL, no doubt, could make beneficial rules in relation to its employees which were in addition to the rules of employment prevailing on 1-1-96. However, by virtue of the aforesaid proviso, PTCL had no power to “vary the terms and conditions of service” of its employees who were previously employees of the Corporation, “to their disadvantage”. Even the Federal Government was debarred by virtue of section 35 ibid, from varying such terms and conditions of service to the disadvantage of the appellants. 16. An easy and uncomplicated test becomes available to us to help determine the status of the employment rules governing the appellants. If the current employer of the appellants viz. PTCL is constrained by legislation such as section 35 (2) of the Reorganization Act, and as a consequence, cannot vary the existing rules to the disadvantage of the appellants, because of such legislation, it must follow that such law has the effect of saving the rules which existed when the appellants became employees of PTCL. Such existing rules, having been protected by section 35 (2), therefore, can only be categorized as statutory rules. 17. Section 36 of the Reorganization Act also has relevance in determining the controversy which arises in these appeals. Sub section (2) of Section 36 gives protection to the terms and conditions of service of employees such as the appellants who stood transferred from the Corporation to PTCL on 1-1-96. Their terms and conditions of service cannot be altered adversely by PTCL “except in accordance with the laws of Pakistan or with the consent of the transferred employees and the award of appropriate compensation”. When this legal provision is read together with section 35, it becomes abundantly clear that by operation of the Reorganization Act, the terms and conditions of service of the appellants as on 1-1-96 stood conferred on them as vested rights under the said law. CAs 239 to 241/2011 10 18. Learned counsel for PTCL stressed certain provisions of section 36 of the Reorganization Act to contend that the employment rules applicable to the appellants could not be treated as statutory rules. In particular, he adverted to the proviso to section 36 (1) ibid wherein it has been stipulated “that the Federal Government shall guarantee the existing terms and conditions of the service and rights including pensionary benefits” of employees who stood transferred from the Corporation to PTCL. It was submitted on behalf of PTCL that there would be no occasion or necessity for the Federal Government to provide a guarantee as aforesaid, if PTCL stood saddled with the liability of pensionary benefits and the terms and conditions of service of employees transferred to it. From this provision, learned counsel wanted us to infer by implication that PTCL was left free to deal with its employees regardless of any constraints specified in sections 35 and 36 of the Reorganization Act. This contention has no force. The guarantee does not change the nature or status of PTCL as the principal obligant required under law to adhere to the protected terms and conditions of service of transferred employees such as the appellants. The only effect of the guarantee is to ensure that in the event PTCL becomes incapable of fulfilling its obligations as to pensionary or other benefits, for reasons such as bankruptcy etc., the employees do not suffer from such event of default. It is important, at this point, to draw a distinction between employees who stood transferred to PTCL by virtue of section 35 ibid and the Vesting Order, on the one hand and those employees, who joined PTCL after 1-1-1996. The protection under the Federal Government guarantee would not be available to the latter category whose terms and conditions of service would be contractual in nature and would, therefore, be non-statutory. 19. Since the decision in the case of Muhammad Mubeen-us-Salam and others supra the employees of various government controlled organizations have found themselves faced with uncertainty as to the forum having jurisdiction to redress their employment related grievances. Such uncertainty, as in these appeals, arises on the basis of whether or not their terms and conditions of service are statutory. We may, however, venture to state that this uncertainty, in many cases, stems from a lack of CAs 239 to 241/2011 11 in-depth analysis of precedent rather than confusion or lack of clarity in a previously decided case. The present appeals highlight the validity of this observation. It is likely the High Court did not receive adequate assistance at the Bar and, therefore, proceeded to rely on the case of Tanweer-ur-Rehman supra, to arrive at the conclusion that the terms and conditions of service governing the appellants, as a matter of law, were non- statutory. The High Court, we say with respect, fell in error as it did not consider the circumstances noted above or the principle of law enunciated by this Court in terms of Article 189 of the Constitution. The case of Tanweer-ur-Rehman, in fact, supports the plea of the appellants that the circumstance considered above ought to have been examined alongwith the merits of each Constitution Petition because such examination was essential for the purpose of determining if the respective grievances of the three appellants were based on statutory rules. 20. The case of Tanweer-ur-Rehman supra provides guidance in respect of the consequences which would follow where statutory rules of service are violated by any employer. To this extent the said case does constitute precedent even in these cases. Thus, the High Court rightly relied on the observations made by this Court “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 writ jurisdiction”. The difficulty in this case has only arisen because the reasoning in the case of Tanweer-ur-Rehman in respect of regulations framed by the Board of Directors of PIAC has been applied in these cases even though the same is not attracted. 21. We can now consider the case titled Ejaz Ali Bughti vs P.T.C.L and others (2008 PSC 1224). Great stress was placed on this judgment by the learned counsel representing PTCL who contended that it was authority for the proposition that the employees of PTCL were not governed by statutory rules of service. This submission, of course, is not correct as it is based on a cursory and superficial reading of the decision in the case. It will be noted from the concluding paragraph of the cited judgment that the conclusion therein was based on a concession made by learned counsel representing the petitioner Ejaz Ali Bughti. It was noted by the Court that he CAs 239 to 241/2011 12 conceded that PTCL did not have statutory rules providing for the terms and conditions of service of employees. No argument was advanced in line with the above noted submissions made by learned counsel for the appellant Nasir Uddin Ghori which submissions were adopted by the other two appellants who were heard in person. It is well settled that a concession made by a party binds such party alone. It cannot preclude others such as the present appellants, to argue their case on its merits. 22. We can now take up the individual appeals for consideration in the light of the foregoing discussion. 23. Civil Appeal No.241/2011, titled Nasir Uddin Ghori v. Federation of Pakistan and others. It is important to take into account firstly that the appellant Nasir Uddin Ghori had obtained a judgment dated 28.5.2004 from the Service Tribunal in the following terms:- “In view of the above facts the appeal is allowed and the Appellant will be deemed to have been promoted as ADE (B-17) with effect from the date of qualifying degree B-Tech (Hons). The seniority list of ADE should be corrected. Appellants’ subsequent promotion will be governed as per rules.” PTCL had filed an appeal (CA 331/2005) by leave of the Court to challenge the aforesaid judgment of the Service Tribunal. This appeal was dismissed on 25.6.2009 by means of the following order:- “Hafiz S.A. Rehman, learned Sr. ASC is present on behalf of appellants and does not press these appeals as, according to him, in view of the law laid down by this Court in case titled Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) and Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681), these appeals stand abated. These appeals are accordingly dismissed being not pressed. 24. It is, therefore, clear from the above referred proceedings before the Service Tribunal and before this Court, that the judgment of the Service Tribunal dated 28.5.2004 had attained finality and had conclusively determined the rights and obligations of the parties inter se. It is only because the judgment of the Service CAs 239 to 241/2011 13 Tribunal had not been implemented by PTCL that Mr. Ghori was compelled to file Constitution Petition No. D-827/2007 in the High Court. Among other reliefs the appellant had sought enforcement of the judgment of the Service Tribunal and had prayed for a declaration that the “respondent is under obligation to implement the same”. Learned counsel for the appellant submitted that the appellant now presses his right to the fruits of the judgment of the Service Tribunal dated 28.5.2004. The other reliefs mentioned in Constitution Petition No.827/2007 were not pressed by him. We are not in any doubt that for the reasons discussed above, the appellant Nasir Uddin Ghori was entitled to implementation of the judgment of the Service Tribunal dated 28.5.2004. This appeal (CA 241/2011) is, therefore, allowed. The judgment of the High Court in Constitution Petition No.827/2007 is set aside and the respondent PTCL is directed to implement the aforesaid judgment of the Service Tribunal dated 28.5.2004 within thirty days from today. 25. Civil Appeal No.239/2011, titled Masood Ahmed Bhatti v. Federation of Pakistan and others. The appellant Masood Ahmed Bhatti had approached the High Court through Constitution Petition No.D-520/2009. It was, inter alia, alleged by him that termination of his services w.e.f. 10.3.2008 was invalid and also that PTCL had unilaterally and without his concurrence imposed a Voluntary Separation Scheme on him. Since this aspect of the appellant’s case and the other merits of his Constitution Petition were not discussed or adjudicated upon by the High Court, the impugned judgment to the extent it relates to the appellant, is set aside. The said petition shall be deemed pending before the High Court and shall be decided afresh in the light of this judgment. 26. Civil Appeal No.240/2011, titled Syed Muhammad Dilavez v. Federation of Pakistan and others. The appellant Syed Muhammad Dilavez had also sought relief from the High Court by filing Constitution Petition No.D-2414/2007 alongwith others. The contents of the Constitution Petition and the relief sought by Mr. Dilavez, prima facie, indicate that his grievance was against violation by PTCL of his legally protected terms and conditions of service. The appellant, who appeared before us in person, requested that CAs 239 to 241/2011 14 his rights be determined by this Court because he had been in Court seeking redress since 2007. We are afraid this request cannot be acceded to because the merits of the appellant’s Constitution Petition have, in the first instance, to be decided by the High Court after affording an opportunity of hearing to the appellant and to PTCL. Since the merits of the appellant’s Constitution Petition were neither discussed nor adjudicated by the High Court, the impugned judgment to the extent it relates to the appellant, is set aside. The said petition shall be deemed pending before the High Court and shall be decided afresh in the light of this judgment. Judge Judge Judge Islamabad, the A.Rehman. Announced on 7th October, 2011. APPROVED FOR REPORTING.

{'id': 'C.A.239_2011.pdf', 'url': ''}

{'id': 'C.A.239_2011.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT; MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR NT k (Against the judgment dated 27.09.2026, 17.07.2018 and 14.11.2018 passed by the Peshawar High Court, Peshawar in Writ Petitions No. 767-P, 1674-P of 2026 and 3108-P of 2018). Government of Khyber Pakhtunkhwa through Secretary Public Health Engineering, Peshawar and others. (in CA .239/2020) Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and others. (in CA .2 74/202 0) Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and others. (in CA .283/2020) .Appellant(s) Versus Abdul Manan and others. (in CA .239/2020) Ijaz Ali Shah and others. (in CA.27412020) Muhammad Nawaz and others. (in CA .283/2020) ...Respondent(s) For the Appellant(s): Mr. Shumail Abmad Butt, A.G. KP. Mr. Atif All Khan, Addl. A.G. KP. .4 Barrister Qasim Wadood, Addl. A.G. KP. Mr. 1mm Shaheen, DD. HED. Mr. Asif Khan, Litigation Officer, .4 I-lED. Mr. Amin Jan, AD, Fisheries, KP. Mr. Guizar Mahmood, A.D. Fisheries, KP. Engr. Falak Niaz, AD (Dost). Rajbar Khan, SDO, PHE, KR Mr. Saadullah, Asstt. Secretary, BOR, KP. U _ CIVIL APPEALS NO. 23 9, 274 AND 283 OF 2020 2 For the Respondent(s): Date of Hearing: Mr. Faheem Ullab Khan, Sr. Law Officer, KPPSC. Mr. Assad UIlah Khan, SO, P&D, Department. Mr. Amanatullat Qureshi, Deputy Secretary, Finance Department, KP. Mr. Khaled Rahman, ASC. (in CA.27412020) Mr. M. Ijaz Khan Sabi, ASC. (in CA .283/2020) N.R. (in CA.23912020) 25.11.2020 (Judgment Reserved) JUDGMENT IJAZ UL AHSAN, J.- Through this single judgment, we intend to decide Civil Appeals No. 239, 274 and 283 of 2020 (hereinafter referred to as "CA") as they involve a common question of law. 2. Through the instant appeals, the Appellants have sought to challenge the judgments of the Peshawar High Court, Peshawar dated 14.11.18 passed in Writ Petition No. 3108-P/2018, 17.07.18 passed in Writ Petition No. 1674- P12016 and 27.09.2016 passed in Writ Petition No. 767- P/2016 (hereinafter referred to as "Impugned Judgments"). Through the impugned judgments, the Respondents had challenged the action of the Appellants to not regularize them. Their respective petitions were allowed, and, the Appellants were ordered to regularize the Respondents in their respective posts. q CJVIL APPEALS NO239, 274 AND 283 012020 3 3. The brief facts giving rise to this Us are that the Respondents in CA 239 of 2020 were appointed against different posts on a contract basis. They were subsequently regularized with effect from 2008 and not from the dates of their respective initial appointments. The Respondents in CA 283 of 2020 were appointed as Office Assistant, Typist, and Naib Qasid. Respondent No. Olin CA 283 of 2020 was later promoted out of turn as Settlement Tehsildar in 2009 and later on, was demoted, because the correct mechanism to appoint him as provided in Section 7 of the Civil Servant Promotion and Transfer Rules, 1989, was not followed. The Respondents in CA 274 of 2020 were appointed in the project known as "Capacity Building Phase-IT" and, after the expiry of the said project, were relieved. All of the Respondents filed their respective writ petitions before the learned High Court, Ii which were allowed. The Appellants are aggrieved and have approached this Court. J 4. Leave to appeal was granted by this Court ride order dated 09.03.2020 which is reproduced below for ease of reference: "The learned Additional Advocate General, Khyber Pakhtunkhwa contends that all the Respondents in these petitions were employed either on project posts or on contract basis or were employees under Section 42 of the Companies Act, 2017 and in no circumstances their services were to be regularized. :1 He further contends that in all impugned judgments, the learned High Court has merely allowed writ petitions on basis of similarly placed persons, but without at all adverting to the facts and circumstances • of each and every case separately and without U applying its mind to the same. He adds that even the laws under which their appointments were made CD/IL APPEALS NO.239, 274 AND 283 OF 2020 4 were not adverted to. He submits that the Respondents who are employees on projects or contract employees or Section 42 employees were not liable to be regularized and thus their regularization by the learned High Court through the Impugned Judgment in these petitions was altogether illegaL In support of the contentions, the learned law officer has referred to a three-member judgment of this Court dated 24.06.2014 passed in Civil Appeal No.687 of 2014 (Government of Khyber, Agriculture, Livestock and Cooperative Department through its Secretary and others v Ahmad Din and another). 2. We note that some of the petitions are time barred and in one of the petitions even no condonation of delay has been filed. The learned Law Officer states that such will be done by the petitioners. 3. The contentions raised by the learned Additional Advocate General, Khyber Pakhtunkhwa need consideration. Therefore, subject to limitation, leave to appeal is granted in these petitions to consider inter alia the same. The appeal stage paper books shall be filed within a period of one month with permission to the parties to file additional documents if any. As the matter relates to service, the office is directed to fir the same expeditiously preferably after three months. 4. In the meantime, operation of impugned judgment(s) shall remain suspended." S. The Learned Additional Advocate General, Khyber PaXhtunkliwa (hereinafter referred to as "KP") contends that the Respondents in CA's 283 and 274 were project employees with no right to regularization. He has further argued that the Respondents being project employees are not covered under the HIP Civil Servants (Amendment) Act, 2005 (hereinafter referred to as the "2005 Act") because the 2005 Act specifically excludes project employees from its purview, Further, that the HIP (Regularization of Services) Act, 2009 (hereinafter referred to as the "2009 Act") also specifically excludes project employees from its application, arid, as such, the Respondents are not covered under the 2009 Act. He adds CIVIL APPEALS NO. 239,274 AND 283°F 2020 that the Respondent in CA 239 of 2020 was appointed on a stop-gap arrangement which is not covered for regularization under Section 19 of the 2005 Act. As such, the High Court erroneously held that the judgment rendered in W.P 854/2000 applied to the said Respondent's case because the said judgment applied to employees of District Swat only. He further submits that, whenever a position is advertised, it has to be filled alter following correct procedure and formalities. As such, the Respondents could not have been arbitrarily appointed against their respective posts without following the procedure of transparent appointment or, the procedure provided by the KP Public Service Commission (hereinafter referred to as "KPPSC") 6. The learned ASC appearing on behalf of the Respondents argued that other similarly placed employees were regularized whereas the Respondents were not, as such, this amounts to discrimination on part of the Appellants which is impermissible under the law. He further argued that all Respondents were validly appointed and, the Appellants could not relieve them from their positions arbitrarily when they have regularized other similarly placed employees. He further submits that the Respondents in CA 239 of 2020 should have been regularized from the date of their initial appointment as opposed to 2008. Since the Respondents had been working against their respective posts before the promulgation of the 2005 Act, they ought to have been treated as civil servants and thus, regularized from before GB'S. APPEALS NO.239.274 AND 283 OF 2020 04.11.92. He adds that not extending benefits to the Respondents in CA 239 of 2020 from 04.11.92 amounts to an illegality when the same benefits have been extended to other employees who stood on the same footing. 7. We have heard the learned AAG and also the learned Counsel for the Respondents. The questions which fall before this Court for determination are as follows:- (i) Could the Respondents be regularized under the 2009 and 2005 Acts; (ii) Could the Respondents in CA 239 of 2020 be regularized with effect from an earlier date as opposed to 2008. COULD THE RESPONDENTS BE REGULARIZED UNDER THE 2009 AND 2005 ACTS? 8. The learned AAG submits that the 2009 Act was inapplicable to all of the Respondents because they were project employees. To examine this issue, Section 3 of the 2009 Act is reproduced as under for ease of convenience:- "Regularization of services of certain employees.---- All employees including recommendees of the High Court appointed on contract or ad-hoc 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 for a regular post: Provided that the service promotion quota of all service cadres shall not be affected." The word employee has been defined in Section 2(b) of the 2009 Act supra which is produced as under:- " "employee" means an adhoc or a contract employee appointed by Government on adhoc or contract basis or second shift/night shift but does not include the employees for project post or appointed on work charge -fl CIVIL APPEALS NO.239, 274 AND 283°F 2020 7 basis or who are paid out of contingencies;" (Underlining is ours) A bare perusal of the aforenoted provision of the 2009 Act reveals that, to be regularized under the 2009 Act the employee in question may be an ad hoc or a contract employee who must be appointed by the Government. There are three categories of employees who cannot take benefit of Section 3 supra and claim regularization. First, project employees, that is, employees who are appointed against a project post. Whenever the said project comes to an end unless otherwise provided, the posts in the said project too come to an end and all appointees stand relieved. Second, employees appointed on a work charge basis. Third, those employees who are paid out of contingencies. The last proviso is perhaps there because funds for contingencies are limited and mostly lime-bound. As such, whenever the contingent funds run out, employees may be relieved, by following the proper procedure. 9. It is an admitted fact that the Respondents in CA 274 of 2020 were project employees. Section 2(b) of the 2009 Act specifically excludes project employees from its purview, therefore, by no stretch of the imagination could the learned High Court have read into the 2009 Act what it does not specifically provide. When the intent of the legislature is I manifestly clear from the wording of the statute, the rules of interpretation require that such law be interpreted as it is by Li assigning the ordinary English language and usage to the words used, unless it causes grave injustice which may be --------------ii CA'iL APPEALS NO.239, 274 AND 2830? 2020 8 irremediable or leads to absurd situations which could not have been intended by the legislature. Only then, the Court may see the mischief which the legislature sought to remedy and interpret the law in a manner that meets the intent of the legislature. We are therefore of the view that the conclusion to this effect reached by the High Court is quite erroneous and unsustainable in law. 10. The learned High Court has held that the Respondents were fully covered by Section 19(2) of the 2005 Act. For ease of reference, the relevant portion of Section 19(2) is reproduced as under: - "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, shrill, with effect from the commencement of the said Act, be deemed to have been appointed on regular basis." (Underlining is ours) It has been argued by the learned AAG that the posts against which the Respondents were appointed are specifically excluded from the application of Section 19 and consequently, they could not have been regularized. A bare perusal of the alorenoted provision shows that anyone who wishes to avail the benefit of Section 19 has to be appointed in the prescribed manner. What this effectively means is that an incumbent has to go through the process of selection and appointment which consists of advertisement, open competition, a level playing field for all, and transparency and other processes followed by the Federal or Provincial Public Service Commission. Admittedly, none of the Respondents . t CIVIL APPEALS Na 239, 274 AND 283 OF 2020 9 were appointed through the said Commission or the alorenoted processes as is evident from their appointment orders, and, were initially appointed on contract. As such, the Respondents cannot claim that they were covered under the said provision of the law unless they prove that they went through the process of the KP Public Service Commission or equivalent or had come through the processes alluded to above and, were then appointed against their respective posts. 11. Even otherwise, the class of employees to which the Respondents belong has been specifically excluded from the definition of a civil servant as provided in Section 2(b) of the KP Civil Servants Act, 1973 which is reproduced as under: - "(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 charge 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); The Respondents in CA 283 were appointed in the Settlement Operation, which, according to the learned AAG, was to be run as a project. As such, upon expiry of the Settlement Operation, the Respondents were to be relieved and no regular appointments thereto were to be made. The .. .. CIVIL APPEALS NO.239. 274 AND 283 OF 2020 10 learned AAG further submits that the matter of regularization of the Respondents relates to the terms and conditions of their appointments, which squarely falls within the jurisdiction of the Service Tribunal in light of Article 212 of the Constitution of the Islamic Republic of Pakistan. When confronted with this argument, the learned ASC for the Respondents merely stated that since others were regularized, therefore, the Respondents should have been regularized as well. We note that the Respondents have conceded that they were working in a Project as evident from their Writ Petition before the High Court where they have stated the following:- "That the services of the petitioners are retained by the respondents in the Settlement Project Chitral till date" (Underlining is ours) 11. When the Respondents themselves are conceding that they were project employees, they cannot change their stance at this stage and claim that they ought to have been regularized under Section 19 of the 2005 Act which specifically excludes project employees from its purview. As such, the High Court without examining this position taken by the Respondents held that they were entitled to regularization. This amounts to reading into the 2005 Act so also the KP Civil Servants Act, 1973, something which has not been provided in the said Acts. This is, in our view, a transgression of the mandate of Article 199 of the Constitution of the Islamic Republic of Pakistan which is impermissible and constitutes an excessive exercise of jurisdiction. Section 19 has to be read with the rest of the KP CIVIL APPEAlS NO.239274 AND 283 OF 2020 Civil Servants Act, 1973. Though Section 19 of the 2005 Act provides the regularization of certain employees subject to the fulfilment of certain conditions and deems all those appointed while following the prescribed procedure as civil servants, nevertheless, the ambit of Section 19 cannot be stretched to include a separate class of employees into the definition of civil servant provided in Section 2(b) of the KP Civil Servants Act, 1973. When the definition is unambiguous, the High Court cannot stretch it to include the Respondents in its purview. This amounts to a usurpation of the powers of the Legislature and the Executive as envisaged in Article 7 of the Constitution of the Islamic Republic of Pakistan. COULD THE RESPONDENTS IN CA 239 OF 2020 BE REGULARIZED WITH EFFECT FROM AN EARLIER DATE AS OPPOSED TO 2008? 12. The learned AAG argued that the services of the Respondents in CA 239 were regularized according to the law i.e. Section 19(2) of the 2005 Act read with the First Proviso of Section 19 of the KP Civil Servants (Amendment) Act, 2003. Further, that the judgment in W.P No. 854/2000 is specific to the employees of District Swat only and has no bearing on the present Respondent's case. As such, the Respondents in CA 239 could not have been regularized from the date of their appointments, and, were properly regularized with effect from 2008. As noted above, Section 19(2) of the 2005 Act provides that all those employed on contract on or before 01.07.01 till the commencement of the 2005 Act shall be deemed to be appointed on regular basis. The 2005 Act was published in CIVIL APPEALS Na239, 274 AND 283 07 2q20 12 the official gazette on 23.07.05. By no means can the Respondents mentioned above claim that they ought to have been regularized with effect from their respective dates of appointments whiáh predate the cut-off dates of the 2005 Act. As such, the learned High Court erred in concluding that they should have been regularized from the dates of their appointments. When the law itself provides a date of its application, the learned High Court cannot, on any ground, amend the said date and extend the application of the 2005 Act to the extent that those who are not covered under it, gain its benefit. 13. The learned High Court has based reliance on the judgment in W.P No. 854/2000 to hold that the Respondents should have been regularized from the date of their initial appointments. We find this reliance to be misplaced for the reason that the said judgment pertains to employees of a different department and, only relates to the regularization of the petitioners therein. It does not talk about pre-dating the regularization of the petitioners therein. As such, placing reliance on the said judgment is erroneous and is distinguishable from the circumstances. When the competent authority has regularized the Respondents per the law, merely by stating that since others were regularized in a different set of facts and circumstances from an earlier date, the High Court has erred in law and its findings to this effect are unsustainable. t±.t ..fl I 14.11.2018. CIVIL APPEALS 11a239, 274 AND 283 OP 2020 13 14. The Impugned Judgments of the learned High Court proceed on an incorrect factual and legal premise and have incorrectly applied the relevant law, rules, and regulations to the facts and circumstances of the cases before it. We are therefore in no manner of doubt that the impugned judgments are unsustainable in law as well as facts and are liable to be set aside. 15. For reasons recorded above, we allow these appeals and set aside the Impugned Judgments of the Peshawar High Court dated 27.09.2015, 17.07.2018 and 14,01. 19 Hans, L.C. _Atot Approved For Reporting'

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— 9 IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr- Justice Ijmar Atta Bandial Mr. Justice Sajjad Ali Shah Mr. Justice Munib Akhtar ) Civil Appeal No. 24-K of 2019. Against the order dated 19-10-2018 passed by the High Court of Sindh at Karachi in FA No. 15 of 2018) Pak Leather Crafts Limited and others. Appellants Versus Al-Barka Bank Pakistan Limited. ... Respondent For the Appellant (s) Mr. Hassan Khurshid l-'ashmi, ASC. For the Respondent(s) r Mr. Ghulam Mohiuddin Qureshi, ASO. Date of Hearing 18032021 !p4g !!M Said All Shah. J. The appellants have impugned the judgirent of the Sindh High Court, "hereby their appeai under Section 22 of Ihe Financial Institutions (Recovery of Finances) Ordinance. 2001, was dismissed after having been found barred by rime. 2. The admitted position as emerges from the record appears to he that the appellants applied for certified copy of the decree after 5 days of its preparation and consumed 23 days in filing appeai after obtaining the certified copy which makes in ah 28 days and the lime for filing appeal prescribed under the Ordinance, 2301 admittedly is 30 days. The only point therefon,, in the instant appeal is as to whethcr the time of 38 days consumed by the appellants in paymeru of fee/cost for the cerUlied copies after it was estimated could he excluded under Section 12(5) of the Limitation Act. The High Court came to the conclusion that such tirnt CA 244. f2(119 2 cannot be termed as time requisite for obtaining copy of judgment or decree and, therefore, could not be excluded under Section 12 of Limitation Act, 3. Leave was granted by this Court on 29.5.2019 inter alia, to "consider whether the scope and effect of the decisions of this Court relied upon in the impugned judgment (Fateh Muhammad and others vs. Malik Qadir Bakhsh, 1975 SCMR 257 and Mst. Jarnila Khatoorz and another vs. Mst. Tajunnisa and others, PLD 1984 Sc 208) have (as concluded by the learned Division Bench) been left unaffected notwithstanding the addition of the aforementioned subsection (5) to s.12, and also to consider whether (also as held) the facts and circumstances of the present case came within the scope of the judgment of this Court reported as Mian Muhammad Sabir vs. Malik Muhammad Sadiq through legal heirs and others PLD 2008 SC 577". 4. Learned ASC for the appellants has contended that the rule 128 of the Sindh Chief Court Rules (Appellate side) and Rule 324 of the Sindh Civil Court Rules, which require the deposit of cost before the certified copies are prepared, are not applicable to the Banking Court and, therefore, there was no requirement to first deposit the cost. When inquired as to whether the certified copies of judgment and decree or order in the Banking Court are issued free of cost, the learned counsel fairly conceded that such copies are always issued on payment of cost in advance but submitted that the period consumed by an applicant in depositing the required cost would be excluded under the provisions of sub-Section 5 of Section 12 of the Limitation Act. It was next contended that in accordance with the provision of sub-Section 5, the period of limitation stops upon filing of an application for certified copy and then starts once the notice for delivery of certified copy of the judgment in terms of section 12(5) of the Act is received. In this very perspective, learned counsel extended his arguments by submitting that since the Banking Court has no system of chits or receipts to intimate the date on which certified copy is to he tA24-Ko12019 3 collected, therefore, notice in that respect was necessary. It was lastly contended that the case law relied upon to support the impugned judgment pre-date the amendment in Section 12 by introducing sub-Section 5 and, therefore, the dicta laid in judgments relied upon by the respondent are not applicable to the case in hand. 5. On the other hand, learned counsel for the respondent supported the judgment by contending that the exclusion of time as envisaged under Section 12 consumed in obtaining the certified copies of judgment and decree by employing the words "time requisite" means the time consumed by the Court for preparing the certified copy and does not cover the time which is consumed by a litigant. It was next contended that cost was estimated on the very day when the application for certified copy of judgment and decree was made and the appellant consumed 38 days in payment of costs which could not be excluded for computing the limitation. In support of his contentions, reliance has been placed on the judgment of this Court in the case of Fateh Malik vs. Malik Qadir Bakhsh (1975 SCMR 157) Jamila Khatoon us. Tai-un-Nissa (PLD 1984 SC 2081 and Mkzn Mohammad Sabir Vs. Malik Muhammad Sadig throu gh his legal heirs & others (PLD 2008 Supreme Court 577). 6. We have heard the learned counsel for the respective parties and have perused the case law cited at bar. 7. The main point which requires our consideration is as to whether the time consumed by a litigant in payment of cost of the certified copy could be excluded under the newly added sub section (5) of section 12 of the Limitation Act while computing the period of limitation. OR, in other words upon filing of application for the grant of certified copies of the judgment, decree or order, the time would stop, leaving upon the Court to repare the certified copies at its own expenses and then issue intimation CA 24-K of2O9 4 notice to the litigant to collect so that the period of limitation could commence 8. In the instant case the admitted facts are that judgment was announced by the Banking Court on 28.11.2017 whereas the decree was prepared on 30.11.2017. The application for certified copies of judgment and decree was made by the appellant on 05.12.20 17 and on the same day the copyist estimated the fee for certified copies. The appellant admittedly paid the fee for the certified copies on 13.01.2018 i.e. after 38 days, the copies were made ready on 15.01.2018 and were received on the same date and thereafter the appeal ultimately was filed before the High Court on 7.2.2018. The appellants or their counsel did not file any Affidavit at any stage explaining the time consumed in payment of fee/cost for making copies or obtaining the same; on the contrary it is claimed that the period of limitation stops from the day the application for certified copies was made, and would commence from the day the notice, intimating that certified copy was ready for delivery is served would be time requisite as there was no requirement and/or rule requiring payment of cost/fee of copies. Though the submission made by the counsel contradict his own stance of depositing cost/fee for certified copies well before commencement of preparation of copies, despite the same, we would examine as to whether there was any requirement of payment cost/fee for obtaining certified copies of judgment, decree or order etc., and further that if the copies were to be issued on payment of fee then the time consumed in payment of such fee would fall within the ambit of time requisite as envisaged under section 12 of the Act. In order to understand the legislative intent we need to first examine the original text of Section 12 and the manner in which it was interpreted and then the purpose behind legislative intervention to add up Section 12 by introducing sub-Section 5 thereto. The original text of Section 12 ofthe Limitation Act read as follows: C k 24-K of 2019 5 "12. Exclusion of time in legal proceedings.- (1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. (4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded." 9. A bare perusal of the pre-amended Section 12 of the Act reveals that it details the manner in which period of limitation prescribed for any suit, appeal or application, is to be reckoned. It provides for the exclusion of certain time period for obtaining the certified copies by prescribing it as "Lime requisite" for obtaining a copy of the order appealed. However, the provision of Section 12 of the Limitation Act providing exclusion of "time requisite" are applicable only after the application for certified copies is submitted, and the consistent view of this Court has been that the "time requisite" includes only that period of time which is taken up in drawing up the judgment, decree or order by the official of the Court in preparing and issuing the same, and does not include the period of time consumed by the litigant. The reason being that these provisions were always interpreted keeping in view the rules in the field for obtaining certified copies of decree or order such as rule 128 of the Sindh Chief Court Rules as well as rule 324 of the Sindh Civil Court Rules which provided that "the preparation of copies not commenced until prescribed fee deposited". A similar provision is found in "Rules & Orders of the Lahore High Court Court; volume V Chapter (-14-Koi2OI9 6 5, Part B(6)(v) which provides that every application for attested copy will be entertained subject to deposit of cost in advance. It appears that these rules were adopted by rest of the High Courts except Sindh, which as stated, had its own rules. Likewise, rule 133 of the Sindh Chief Court Rules as well as rule 329 of the Sindh Civil Court Rules provide for the manner in which copies were to be certified and were to contain the endorsement of following particulars:- "(I) the date of application for copy; (2) the date of estimate offee; (3) the date of deposit of estimate fee & the day of supply of stamps; (4) the date of certification by Chief Ministerial Officer; and (5) the date of delivery of the copy. The case-law developed on the pre-amendment Section 12 throughout would reflect that the period prescribed for filing of appeal or the other prescribed proceedings would not stop, merely upon filing of application for the certified copies unless the fee/cost for the certified copies was paid. However, the time consumed by the office of the Court, for assessment of cost/fee would be excluded while computing the period of limitation. However, filing of application was treated as complete for the purposes of excluding time when it was entertained after payment of cost/ fee. The case- law on pre-amended Section 12 revolved upon the interpretation of the keyword in that section i.e. "time requisite" and the consistent view of this Court was that the time consumed by the office of the court in preparing copies and/or at times failure on their part to intimate that the copies were made ready or that the fee was estimated, was held to be 'time requisite", and was accordingly excluded while computing the period of limitation but not the time consumed by a litigant on account of his negligence or default. 10. The term "time requisite" was first considered by the Privy Council almost hundred years ago in the case of Jell Dhot, N. Surtu Vs. T. S. Chettuar (AIR 1928 PC 123) to the following effect:- CA 24K ol 2019 The word requisite is strong word; it may be regarded as meaning something more than the word required It means 'properly required, and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. But for that time which is taken up by his opponent in drawing up the decree or by the officials of the Court in preparing and issuing the two documents, he is not responsible". 11. Likewise, in the case of West Pakistan Industrial Development Corporation Vs. Aziz Qureshi (PLD 1973 Supreme Court 222), the view taken by Lahore High Court in the case of Gui Mohammad Vs. Allah Ditta (PLD 1960 Lahore 443) was affirmed by this Court by holding:- "In the case under report it has been held that the "time requisite 'for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when the copies are ready, but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong Information to the applicant as to the date on which the copies would be ready, or in giving no information at all". 12. In the case of Fateh Muhammad and others VaiialikD_241r Bakhsh (1975 SCMR 157), the term time requisite" was elaborated in the following terms:- 'It is well settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay. unless such as was caused by circumstance over which he had no control and which he could not by due diligence be avoided, can form part of time requisite for obtaining the copy- The time between the date on which the copy is -- I - CA 24-K of 2(119 8 ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of the time requisite for obtaining a copy" 13. In the case of Mst. Jarnila Khatoon and another Vs. Mst. Taiunnisa & others (PLD 1984 Supreme Court 208), again the term "time requisite" came for consideration before this Court and after observing that the appellant in order to claim exclusion of time under Section 12 of the Limitation Act must act with reasonable promptitude and diligence in order to satisfy the Court that the time which he claims to be excluded was properly required in obtaining copies, it was held:- "In failing to deposit the stamps and wasting 37 days, without any sufficient cause the appellant was clearly to blame and the time thus spent cannot be held to be "time requisite" for obtaining copies." 14. In the case of Ahmed Nawaz Vs. Muhammad Aijub (PLD 1988 Supreme Court 258), the petitioner in the stated case was relying on West Pakistan Industrial Development Corporation Karachi Vs. Aziz Qureshi (1973 SCMR 555) by claiming that the time between the date when the copy is ready and the date when it was delivered, should have been excluded as of a right being "time requisite" for obtaining the copy, and this Court while relying on its own judgment in the case of Fateh Muhammad (supra) held that under the existing law, (Section 12 of the Limitation Act) the period, as in dispute in this case, could not be excluded as of a right, however, in a given case, the delay could be condoned only on furnishing of sufficient explanation in that behalf. In this background to eliminate uncertainty and difficulty faced by the litigants regarding the period spent between the date when the copy is ready for delivery and the date for obtaining delivery a legislative intervention was proposed and consequently in 1991 sub section (5) was introduced in Section 12 of the Limitation Act, which reads as follows: - CA 24-K of 2010 19 "For the purposes of subsections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery". 15. Before we proceed to examine the effect of afore-stated deeming provision, we would like to examine the cases decided by this Court after the introduction of sub-Section 5 to Section 12 of the Act through a deeming provision. The first judgment in time was in the case Nooruddin vs. Pakistan (2000 SCMR 354). In this case though the provisions of sub- Section 5 were examined but no findings thereon were recorded as the controversy was the announcement of judgment during vacation without notice to the parties and the commencement of limitation from the date of knowledge of the judgment intended to be challenged or otherwise. Thereafter another two-Member Bench of this Court in the case of Shuiahat Hussain us. Muhammad Habib (2003 SCMR 176) accepted the contention that notice as required under Section 12(5) of the Limitation Act for collecting the copies was not received and in case the time was calculated from the day of certifying copy, the petition was well within time. The relevant portion from the judgment reads as under:- "According to learned counsel, the office of the Copyist Branch had not issued notice to petitioner for collecting the certified copy of the judgment for a particular date in terms of section 12(5) of the Limitation Act and if the time is calculated from, the date of certifying the copy i.e. 11th December, 2001, then the petition is within time which was bmitted on 121h January, 2002. in view of above position, we are of the optfliOfl that the petition is within time". CA 24-K of 2019 10 16. However, no reasons whatsoever for accepting such contentions were laid down. Thereafter this Court in the case of iftikhar AU vs. Abdul Rashid (2003 SCMR 1560) had the opportunity of examining the provision of sub-Section 5, on an argument that according to Section 12(5) of the Limitation Act, the time spent for obtaining certified copy would extend to the date when the certified copy of the judgment was delivered. A three-Member Bench of this Court was of the view that the intimation of the day when the copy is made ready is to be stated by the applicant by producing a chit issued by the copying agency. The observations in para 4 are to the following effect but again the observations were without examining the effect of the deeming clause:- "4. Learned counsel for the petitioner when questioned has no answer as in the said application, it was not disclosed as to the date which was indicated to the petitioner on the chit issued by the Copying Agency to obtain certified copy because that would have been the determining factor, because originally in routine on the Chit, date is indicated by the Copying Agency on which date the applicant is required to inquire from the Copying Agency about the readiness of the copy. If the same was not ready on the said date, then the question would have arisen whether further notice should be given to the petitioner or not, therefore, in our view even if the reasons given by the learned Judge of the High Court that section 5 of the Limitation Act was not applicable are ignored and the arguments of the learned counsel for the petitioner is considered, the same has no factual basis as no pleading was made as observed above as to the date which was given to the petitioner originally to procure copy from the Copying Agency" 17. Finally the last judgment which came to our notice on the question of limitation was again of a three-Member Bench of this Court in the case of Muhammad Sabir vs. Muhammad Sad ip (PLD 2008 SC 577) CA 24-K of 2019 ii wherein this Court refused to accept the proposition as is propounded today and held that to claim the benefit of newly introduced sub-Section 5, the applicant has to discharge his burden by producing the chit issued by the copying agency mentioning the date on which certified copy will be made ready. The relevant portion of the observations reads as follows:- "This Court in a case reported as Fate/i Muhammad and others vs. Malik Qadir Bakhsh (1975 SCMR 157) has held that the time "requisite" for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908, means only the interval between the date of application for supply of copy and the date when it is ready for delivery and that the time between the date on which the copy was ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of time "requisite" for obtaining a copy. Even section 12(5) of the Limitation Act is of no help to the appellant as he failed to produce the chit/receipt issued by the copying agency showing the date for preparation of certified copy, inasmuch as, no such date has been indicated in the application for condonation of delay. Had the appellant produced a chit issued by the copying agency and the copy was not ready on the date indicated in the chit, then the appellant could have taken shelter under section 12(5) of the Limitation Act. 18. A study of post amendment case law shows that the effect, purpose and limits of the newly added sub-Section 5 through a deeming provision was never examined, consequently, this brings us to the core issue of examining the newly added sub-Section. A bare reading of sub- Section 5 reflects that this legislative intervention has been made through a deeming provision, a legal fiction, to treat the intervening time between the day of making an application for the certified copy and the day actually intimated to the applicant by which the copy will be made ready for delivery to be the time requisite for obtaining the required copies, however, CA 14.K 0r2w9 12 this provision cannot be read in isolation by employing literal meaning to it. The principles to interpret deeming provisions in a statute have been settled by this Court in its various pronouncements while interpreting deeming provisions in a statute by holding that the Court is bound to ascertain the limits, purpose and object for which the legislature has created the fiction by adopting deeming provision. In the case of Mehreen Zaibun Nisa vs. Land Commissioner, Multan and others (PLD 1975 SC 397), the effect of deeming clauses was summarized as under:- (i) "V/hen a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. (ii) Where a statute says that you must imagine the state of affairs) it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. (iii) At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction, (iv) When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to". 19. This principle was again reiterated by this Court in the case of Begum B.H. Sued vs. Mst. Afzal Jehan (PLD 1980 Sc 29) by holding that the Court has to determine the limits within which and purpose for which the legislature has created a fiction". Likewise in the case of Muhammad Mubeen-us-Salam vs. Federation of Pakistan (PD 2006 SC 602), this Court while taking note from "Understanding Statutes" by S.M. Zafar, observed:- CA 24-K 4209 13 alt is important to note that two important concepts have been introduced by the learned author in the construction of the provision creating a statutory fiction, namely; 'statutory fiction should be carried to its logical conclusion as held in Muhammad Y asin vs. Sheikh Ghulam Murtaza and another (PLD 1988 Sc 163) but the fiction cannot be extended beyond the language of the section by which it is created or by importing another fiction', therefore, to find out a solution, it has been observed that 'principle of harmonization shall be attracted' and ultimately it was held that 'the impact of deeming clause could be curtailed if it produces a disgraceful result". 20. Keeping in mind the principles of interpreting a deeming provision, we need to determine the limits within which and the purpose for which the legislature has created this fiction. It appears that the legislature, by introducing subsection (5) to Section 12 of the Act has eliminated the controversy regarding the term "time requisite" and for the first time has defined the term by laying down that the "time requisite" for obtaining a certified copy of the decree, order or such other prescribed proceedings, would be deemed to be the time intervening between the day on which an application for certified copy is made and the day actually intimated to the applicant to be the day on which the certified copy is ready for delivery. The interpretation proposed by the learned ASC for the appellants that mere filing of an application would be suffice to stop the period of limitation would not only be against the spirit and purpose for which the legislature has created the fiction, but would also be against the purpose and object for which the legislative intervention was suggested by this Court. Besides, this interpretation would not only render the scheme of law behind the limitation Act as redundant but at the mercy of the litigant. Admittedly, the application for certified copies referred to is not entertained and/or processed till the prescribed fee/cost is paid and in case such interpretation is accepted that mere filing of application would stop the CA 24-K At 2019 14 period of limitation then by not paying the prescribed fee/cost one could prolong the period of limitation as has happened in the instant case, which would be against the intention and purpose of the legislation. This interpretation not only appears to be against the reasons and object of the law of limitation but would substantially frustrate it. The law of Limitation seeks to prescribe the time limit for invoking remedies in order to curtail period of suspense and uncertainty and ensure peace of mind to the parties, and such interpretation would be against the very purpose of the statute as it would prolong the period of uncertainty and suspense. 21. It is also very important to note that the computation of period of limitation prescribed by Section 12 mainly deals with appeals, application for leave to appeal, application for review judgment and application to set-aside an Award and these proceedings have the minimum time period prescribed in the Limitation Act which ranges between 15 to 90 days excluding the time consumed for obtaining the certified copies. In case the interpretation proposed by the learned ASC for the appellants is accepted then one would file an application for certified copy and by not paying the cost could prolong the restricted period of limitation which would frustrate the very purpose by which the legislature has curtailed the period of suspense and uncertainty for the litigants to ensure their peace of mind. Coming back to the limits and the purpose for which the legislature has created this fiction by introducing sub-Section 5 to Section 12 of the Act. Admittedly, this legislative intervention of adding sub-Section 5 to Section 12 was proposed by this Court in the case of Ahmed Now (supra) and this Court before proposing the legislative intervention had examined the case law and to eliminate uncertainty and difficulty faced by the litigants regarding the period spent between the date when the copy is readyfor delivery and the date of obtaining the delivery of copy. A minute examination of pre-amendment case law would reflect that the dispute was N CA24.Ko12019 15 mostly with regard to non intimation or wrong intimation of date on which the copy was ready for delivery. In the cases of Gui Muhammad us. Allah Ditta (PLD 1960 Lah. 443), West Pakistan Industrial Development Corporation of Pakistan us. Aziz Qureshi (PLD 1973 SC 222), Saleh Muhammad and others vs. Malik Qadir Bakhsh (1975 SCMR 157) and Ahmed Jvawaz vs. Muhammad Auub (PLD 1988 Supreme Court 258) (which led to proposing legislative intervention). In all these cases, the dispute was the period between the date on which copy was made ready and the date on which it was delivered. 22. In the circumstances subscribing to the proposed view that filing of application would stop the period of limitation appears to be against the spirit and purpose of the proposed amendment and is bound to bring disgraceful results unless all the rules requiring payment of cost/fee for the certified copies in advance are suitably amended/ repealed and provisions for supply of free certified copies are introduced. Consequently, we are of the view that filing of application pre-supposes the payment of cost for obtaining certified copies. In the instant case, since the appellants have consumed almost 38 days in payment of cost/fee for the certified copies and there appears to be no explanation on record to show that this non-payment could be attributed to the office in estimating the cost/fee for preparing the certified copies, therefore, cannot be excluded while computing the period of limitation. 23. Coming to the second submission that the limitation to commence from the date intimated through notice on which date the copy was ready for delivery. A perusal of sub-Section 5 shows that it provides commencement of period of limitation from the day actually intimated to the applicant to be the day on which the copy will be ready for delivery. The proposition propounded by the ASC that the intimation notice shall be issuedonce the copy is made ready and on receipt of such intimation the CA 24-K of2019 16 period of limitation would commence, in our opinion, from the very reading of sub-Section 5 appears to be ill-founded. A careful reading of sub-Section 5 shows that the intimation of the day on which the copy will be ready for delivery by the very language adopted by sub-Section 5 appears to be an intimation of a future date, a date expected by the office by which it would be in a position to make the copy ready for delivery. It does not envisage a notice after the certified copy is ready for delivery. In our opinion, it is a date intimated to the applicant after he has effectively made the application for the certified copies i.e. upon payment of cost/fee to be a date acknowledging receipt of cost/fee and providing a date on which copy would be ready for delivery. It also cast a duty upon the applicant that while making the payment of cost/fee for certified copy to obtain a receipt containing a date when the certified copies will be ready for delivery to eliminate once for all the pre-amendrnent dispute of non-intimation of date on which the certified copies are ready for delivery. Since the burden to demonstrate that the copies were not ready on the day intimated to the applicant to be the day on which the copy will be ready for delivery is upon the applicant, therefore, in case of non delivery of certified copy on the date intimated to the applicant then in order to eliminate the controversy and to discharge his burden the applicant should accordingly take a fresh date so that the dispute of applicant having different date and the copy containing different date of "copy ready for delivery" comes to an end. 24. Coming to the last contention regarding the non-applicability of Sindh Civil Court Rules or Sindh Chief Court Rules and/or no requirement under any statute for payment of cost in Banking Courts, suffice it to observe that Financial Institution (Recovery of Finances) Ordinance, 2001 does not envisage providing of certified copies free of cost/fee, unlike other atutes/rules relating to criminal administration of justice or service related matters and unless the statute/rules itself provides for supply of CA 24-K (112019 17 t copies of orders, judgments, decree etc. free of cost/fee, it has to be obtained by the applicant on payment of cost. Even otherwise, the practice and procedure adopted by the Banking Courts since its inception in respect of issuance of certified copy is the same as adopted by the Civil Courts or the High Court and even the applicant himself has fairly conceded that such procedure is being adopted since the inception of the Banking Court and the appellant itself has obtained copy of the judgment/decree upon payment of cost, therefore, the submission is without any force. 25. In the circumstances, this appeal, for our own reasons as recorded above, is dismissed leaving the parties to bear their own costs. Islamabad, nnounced on t--2 ao-1 A.Reirnmn st Approved for Reporting.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal No.240-P of 2014 (Against judgment dated 29.11.2010 passed by Peshawar High Court Peshawar in C.R. No.1845 of 2010 with C.M. No.1887 of 2010) Liaqat Ali & others …Appellant(s) Versus Safdar Khan …Respondent(s) For the Appellant(s): Mr. M. Shoaib Khan, ASC For the Respondent(s): Mr. Abdul Sattar Khan, ASC Date of hearing: 02.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- A piece of land measuring 15-Kanal 3-Marla, situate within the remit of Chak Turangzai District Charsadda has been a proverbial battle field for a contest, raging since its sale on 13.6.2005; it was purchased by the appellant, ostensibly for a consideration of Rs.600,000/-, a transaction pre-empted by Safdar Khan respondent/plaintiff, on account of his acclaimed superior rights to the land as enumerated in Section 6 of the K.P.K. Pre-emption Act, 1987. The suit was dismissed by the learned trial Court vide judgment and decree dated 13.09.2008 for pre-emptor’s failure to perform Talabs in accordance with law; the failure plunged adjudication on collateral issues into irrelevance; plaintiff’s appeal before a learned Additional District Judge met with no better fate vide judgment and decree dated 13.6.2009; undeterred by consecutive failures, the plaintiff successfully impugned dismissals in the High Court; a learned Judge-in-Chamber vide judgment dated 5.7.2010 remanded the case to the Appellate Court to re-appraise entire evidence regarding performance of “Talabs” in consequence whereof, the learned Additional District Judge allowed plaintiff’s Civil Appeal No.240-P of 2014 2 appeal vide judgment and decree dated 8-9-2010, impugned by the vendee defendant in the High Court with no success. It is in this backdrop that High Court judgment dated 29.11.2010 is being assailed by leave of the Court granted, inter alia, to consider whether the respondent had succeeded in establishing Talabs in accordance with law, his superior right on the basis of his being a co-sharer as well as the actual sale price; in his last ditch effort, the appellant, through C.M.A. No.10899 of 2019 seeks permission to produce additional documents. 2. Learned counsel for the appellant contends that the respondent/pre-emptor miserably failed to establish performance of Talabs, an inherent flaw that escaped notice both by the Appellate Court as well as the High Court; it is next argued that the defendant was intimated prior to the sale and he had acquiesced the transaction; appearance of Fazal Majeed, Registration Clerk GPO Charsadda, as PW-2, to establish dispatch of postal notice, has been assailed on the ground that he was not the postman who had actually delivered the notice. Sale consideration as Rs.600,000/- was vehemently defended as real by the learned counsel while concluding his submissions. The judgment has been defended by the respondent being well within the remit of law. 3. Heard. Record perused. 4. Respondent’s preferential right to pre-empt the sale, on account of his being Shafi Jar is recognized even by the learned trial Judge who otherwise had dismissed the suit; cross-objections raised by the appellant before the learned Additional District Judge were also repelled on the strength of statement of Fazal Karim Patwari (PW-1) who produced relevant revenue record, i.e. Aks Shajjra Kashat (Ex.PW-1/2) to clinch the question of contiguity. Regarding the actual sale price as Rs.3,61,240/- there has been judicial consensus throughout. In this backdrop, performance of Talabs is the moot point. Supported by Syed Muhammad Arshad (PW-6) and Salar (PW-7), the plaintiff entered the witness box as PW-5 to solemnly affirm as under:- ہعمب ںیم دوخ ہرجح عقاو روٹس لکیڈیم ناکود ےنپا ںیم ہک تقوب نارود یسا ہک ےھت ےھٹیب اچاب دشرا فلز مہ5 جب ے 02.08.2005 روا ۔ایآ رلااس راکتشاک اریم رہپ ہہس Civil Appeal No.240-P of 2014 3 دمحم ناج بحاص یجاح تسویپ ےک پآ ہک اہک ےھجم سُا ےن ںیم وت یل دیرخ ےن مہیلع اعدم یضارا یک ہریغو ہخروم ۔ایک راہظا اک ےنرک رئاد عفش ٰیوعد فلاخ ےک عیب 03.08.2005 یرٹسجر ےس سفآ رارٹسجر ےن ںیم وک م ٹیٹس وٹوف اک عیب ہخروم رھپ ۔ایک لوصو لقن ہقدص 06.08.2005 ےد عفش سٹون وک مہیلع اعدم ےن ںیم وک مہیلع اعدم مانب لقن ٹیٹس وٹوف اک روکذم سٹون ۔ید EX- EX-PW 5/3 ات PW 5/1 ۔ےہ Syed Muhammad Arshad (PW-6) and Salar (PW-7) corroborated plaintiff’s position; the witnesses are in a comfortable unison on all the relevant details as well as the manner, the plaintiff declared his intention to pre-empt the sale; positions inconsonance with the pleadings. Argument that the witnesses were discrepant is beside the mark; “contradictions” blown out of proportion are merely narrative variations that inevitably occur in a truthful discourse, particularly after flux of time. A statutory right cannot be allowed to be defeated on subjective hyper technical assertions, as held by this Court in cases reported as Abdul Qayum through Legal Heirs Vs. Mushk-e-Alam and another (2001 SCMR 798), Hameed ullah Khan and others Vs. Mst. Zeenat Khatoon (2008 SCMR 1444), Muhammad Tariq and 4 others Vs. Asif Javed and another (2009 SCMR 240), Abdul Latif alias Muhammad Latif alias Babu Vs. Dil Mir and others (2010 SCMR 1087), Daud Shah Vs. Waris Shah and others (2014 SCMR 852). Appellants’ claim that they had intimated the respondent about their intention to purchase the land and transacted the sale only after they forewent the option, fails to inspire us. Afsar Ali (DW-2), Shoaib (DW-3) and Liaqat Ali (DW-4) are diametrically apart in their quest to establish plaintiff’s acquiescence; statement of one witness cannot be accepted without first excluding the remainders and vice versa. 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 & 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. Conclusions concurrently Civil Appeal No.240-P of 2014 4 drawn by the courts below do not call for interference. Appeal fails. Concomitantly, C.M.A. No.10899/2019 is also dismissed. Judge Judge Islamabad, the 2nd March, 2020 Not approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ ULAHSAN MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI CIVIL APPEAL NO.2433 OF 2016 (Against the judgment dated 28.07.2015 of the Peshawar High Court, D.I. Khan Bench, D.I. Khan passed in C.R.No.25-D/2014) Muhammad Iqbal etc. Appellant(s) Versus Nasrullah Respondent(s) For the Appellant(s): Ms. Afshan Ghazanfar, ASC Syed Mastan All Shah Zaidi, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s): Malik Ghulam Mustafa Kandwal, ASC Date of Hearing: 15.09.2022 JUDGMENT SAYVED MAZAHAR All AKBAR NAQVI, J. Through this appeal by leave of the Court, the appellants have called in question the vires of the judgment dated 28.07.2015 passed by the learned Single Judge of the Peshawar High Court, D.I. Khan Bench whereby the Civil Revision filed by the respondent was allowed and the judgments of the learned two courts below dismissing the suit filed by the respondent were set at naught. 2. Briefly stated the facts of the matter are that one Haji Kamal Din was owner in possession of a house and three shops situated at Paniala Road, Paharpur, D.I. Khan. The said Haji Kamal Din agreed to sell the said property to the appellants for a total sale consideration of Rs.57,00,000/- and both parties entered into an agreement to sell dated 25.01.2010. An amount of Rs.30,00,000/- was paid in cash whereas the remaining sale consideration of Rs.27,00,000/- was to be paid on 28.02.2010. It was further agreed that CIVIL APPEAL NO.2433 OF 2016 -: 2 delivery of possession of the property and proper documentation of sale will be made after payment of entire sale consideration. However, the remaining sale consideration was paid on 11.04.2010 instead of 28.02.2010. On 18.05.2010, the respondent/plaintiff filed a suit before the learned Civil Judge, Paharpur, for possession of the said property through pre-emption. The appellants joined the proceedings and filed an application under Order VII Rule 11 CPC seeking dismissal of the suit being pre-mature. After hearing the parties, the learned Trial Court rejected the application vide order dated 15.10.2010. The appellants challenged the said order before the Additional District Judge-V 1 D.I. Khan by filing Civil Revision, which was accepted vide order dated 10.012011 and the matter was remanded back to the learned Trial Court to decide the application afresh. On remand, the learned Trial Court again heard the arguments of the parties and ultimately vide order dated 17.03.2011 accepted the application filed by the appellants and dismissed the suit for pre-emption filed by the respondent. Being aggrieved by the dismissal of his suit, the respondent filed an appeal before the Additional District Judge, Paharpur, D.I. Khan, which was dismissed vide order dated 21.11.2013. The respondent assailed the concurrent findings of two courts below before the learned Peshawar High Court by filing Civil Revision No. 25-D/2014. The learned High Court vide impugned judgment dated 28.07.2015 allowed the Civil Revision, set aside the concurrent findings of the learned two courts below, dismissed the application filed by the appellants for dismissal of suit and remanded the matter back to the learned Trial Court to proceed in accordance with law. Hence, this appeal by leave of the Court. 3. At the very outset, learned counsel for the appellants contended that on 23.02.2010 when the respondent allegedly performed Talb-e- Muwathibat neither the sale was complete nor possession of the property was delivered to the appellants, therefore, performance of 'Talabs' before the completion of sale was pre-mature and the suit for pre-emption could not stand over it. Contends that an agreement to sell does not confer title of the subject matter and there always remain a risk that in case of any default of any clause of agreement to sell, the same may be revoked. Contends that in the agreement to sell, it was expressly mentioned that the possession would CIVIL APPEAL NO.2433 OF 2016 -. be delivered after payment of balance sale consideration, which was paid on 11.04.2010. Lastly contends that the learned High Court has erred in comprehending the terms "sale" and "agreement to sell", as such, the impugned judgment reversing the concurrent findings of the two courts below is not sustainable in the eye of law. 4. On the other hand, learned counsel for the respondent has defended the impugned judgment. He contended that in the agreement to sell it was clearly mentioned that a complete sale has been made. Further contended that once possession is transferred, the sale becomes complete even if the balance sale consideration has not been paid, therefore, the learned High Court has passed a well reasoned judgment to which no exception can be taken. In support of his arguments, he relied on Muhammad Nazeef Khan Vs. Gulbat Khan etc (2012 SCMR 235). 5. We have heard learned counsel for the parties at some length and have perused the impugned judgments as also the case law cited by them. The moot points, which need our consideration, are as to whether (i) an agreement to sell confers title; (ii) the agreement dated 25.01.2010 was conclusive at the time when the respondent allegedly performed Talb-e-Muwathibat i.e. 23.02.2010, (iii) if the sale was not complete, whether the suit filed by the respondent was competent/maintainable? A bare perusal of the agreement to sell shows that it had expressly been stipulated therein that sale deed would be executed and the possession would be delivered to the appellants after payment of outstanding balance out of total consideration. It is an admitted position that the balance sale consideration of Rs.27,00,000/- was paid on 11.04.2010, which means that agreement to sell between the parties had not been concluded at the time when the respondent had performed his first talab. It is settled law that an agreement to sell does not create any title or claim over the property. It also does not create ownership in the land and, as such, a person in whose favour such an agreement is made cannot claim a decree of title on the basis of incomplete sale consideration. Even if such an agreement CML APPEAL NO.24330? 2016 -: 4 contains an acceptance of receipt of an earnest or partial payment of the total sale consideration, it does not need to be registered because all it does in lieu Of is grant the right to get another document i.e. sale deed. Unless the sale deed is registered and title IS transferred, the possibility always exists that the agreement to sell might be terminated in the event of breach of any provision contained therein. In this view of the matter, it can safely be concluded that 011 23022010 when the respondent performed Talb-eMuwathibat the sale was not Complete therefore, the subsequent performance of Talb-e-lshhad and filing of suit for pre-emption was pre-mature. In almost similar circumstances, this Court in the case of Abdul Nasir Vs. Hail Said Al<bar (2010 SCMR 1770) while elaborately discussing the relevant provisions of Khyber Pakhtunkhwa Pre-emption Act, 1987, held as under:- "From the above statutory provisions it's clear that the right of pre- emption becomes enforceable within 120 days from the four situations noted above in clauses (a),(b),(c) and (d) of section 31, ibid. In the p resent case we have gone through the a greement to se l l dated 30-7-20Q1 wherein it has expressly been stipulated that a sale deed shall be executed after payment of the balance consideration amounting to Rs6.00,000 The obvious conclusion to be drawn from the contents of the a greement to sell between the vendor and the Detitionersvendees is that a sale as yet has not been concluded This is so notwithstanding the fact that possession apparently has been delivered to the petitioners in anticipation of the sale. 2. Clause (c) of section 31 of the N.-W.f. p, Pre-emption Act reproduced above does speak of the period of limitation starting from the date a vendee takes physical possession, but this clause is also posited on the fact that a sale has taken place. Section 2(d) of the N.-WFp. Pre-em ption Act defines sale. It is evident from this definition that it is not different from the usual connotation of the word "sale" which, encompasses the conveyance of title to the vendee. The a greement referred to above clearly specifies that the title in the Property will be conveyed at a subsequent date after the balance consideration has been paid. It follows, therefore, that a sale has not, as yet, taken place. (Underlined to lay emphasis) 6. So far as Muhammad Nazeef supra case cited by the learned counsel for the respondent is concerned, the same is distinguishable In the said case, the appellant/preemptor did not make Talb-e-Muwathjbat upon cquiring knowledge of the sale but proceeded to verify from the Patwari CIVIL APPEAL NO.2433 OF 2016 -: 5 regarding attestation of the sale mutation and made Talabs when the mutation was attested. This Court while discussing various provisions of law held that the law does not allow the pre-emptor to postpone the making of Talb-e-Muwathibat in order to make further inquiry or probe as to whether or not the sale was complete in all respects. The "Talab" is to be made regardless of the credibility of the information. Learned counsel for the respondent had argued that once possession is transferred, sale becomes complete even if the balance sale consideration has not been paid. This aspect does not sound sense as it does not create any right or title as per law. However, even if this argument is accepted, the same could not be of any help to the respondent because admittedly the possession was delivered to the appellants after they had paid the balance sale consideration on 11.04.2010, much after the performance of Talb-e-Muwathibat on 2302.2010. It was also contended by learned counsel for the respondent that pursuant to Section 5 of the Transfer of Property Act, 1882, an agreement to sell also falls within the ambit of "permanent sale" as defined in Section 2(d) of the Khyber Pakhtunkhwa Pre- emption Act, 1987. Before discussing this aspect of the matter, it would be in fitness of things to reproduce the relevant provisions of law, which read as under:- KIRK Pre-em ption Act. 1987 "2(0) "sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba- bil-iwaz or hiba-bi-shart al-iwaz.." Transfer of Property Act. 1882 "S. Transfer of property defined. In the following sections 'Transfer of Property means and act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or to himselfi and one or more other living persons: and to transfer property' is to perform such act." 7. A bare perusal of Section 2(d) of the KPK Pre-emption Act clearly suggests that the word "sale" has been defined in the same terms as it usually encompasses. In common parlance a transaction between the buyer and the seller in which the seller sells intangible or tangible goods, assets, or services against money is known as a sale. In the present case, the agreement to sell CIVIL APPEAL N0.2433 OF 2016 -: 6 mentions in unequivocal terms that the title to the property will be transferred at a later time once the remaining amount has been paid: Therefore, as discussed above, the sale had yet not taken place at the time when the respondent performed TaIbeMuWathibat. Section 5 of the KPK Pre-emption Act, clearly states that "the right of pre-emption shall arise in case of sale" meaning thereby that when there is no sale i.e. conveyance of title from vendor to vendee, there would be no right of pre-emption. The ratio laid down in Abdul Nasir supra case is also to this effect. So far as Section S of Transfer of Property Act, 1882, is concerned, the same has wide connotation. It is nowhere mentioned in this Section that an agreement to sell would be considered as complete sale. it generally states that transfer of Property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons. Conveyance of property means conveyance of title to the vendee. Even otherwise, the Khyber Pakhtunkhwa Pre-emption Act is a special law and it is settled that where-ever there is a special and general principle of law applicable to a certain matter, the special law will prevail. Reliance is placed on Safi-ud-Din Kazi Vs. Pranab Chandra Ro y ChoudharM (PLD 1950 Dacca 37). 8. For what has been discussed above, this appeal is allowed, the impugned judgment of the learned Peshawar High Court dated 28.07.2015 rendered in Civil Revision No.25-D/2014 is set aside and the judgments of the lowerfora are affirmed. The above are the detailed reasons of our short order of even date. Islamabad, the 15" of September, 2022 Approved For Reporting lliuItrlth

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Civil Appeal No. 248-P of 2010.doc 1 SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present Mr. Justice Nasir-ul-Mulk Mr. Justice Amir Hani Muslim Civil Appeal No. 248-P of 2010. (Against the judgment dated 17.5.2010 passed by Peshawar High Court in C. R. No. 444 of 2010). Muhammad Wahid and another …………………………….Appellants Versus Nasrullah and another …………………….………………Respondents For Appellants : Mr. Abdul Sattar Khan ASC. For Respondents : Mr. Mian Saadullah Jandal, ASC. Date of hearing : 06.02.2014 JUDGMENT Amir Hani Muslim, J.-Through the instant Civil Appeal, the Appellants have challenged the judgment passed by learned Peshawar High Court in C.R.No. 444 of 2010, whereby, the learned High Court while accepting the Revision Application, set aside the judgments of the Courts below, dismissed the suit and terminated the execution proceedings. 2. The facts relevant for disposal of the present Appeal are that Appellants No.1 and 2 filed a suit for specific performance of an agreement Civil Appeal No. 248-P of 2010.doc 2 to sell dated 2.12.2007 against the Respondents in the Court of Civil Judge, Samar Bagh. It was pleaded in the plaint that the suit property was devolved upon the Respondents, who agreed to alienate the same, by way of sale in their favour for a sum of Rs.14,00,000/- and an agreement to sell dated 2.12.2007 was executed in presence of the witnesses; whereby the Respondents No.1 and 2 agreed to transfer their respective shares in favour of the Appellants for a sum of Rs.7,00,000/- each. The Respondent No.2 received his share of sale consideration whereas a sum of Rs.3,00,000/- was paid to the Respondent No.1 as earnest money and the remaining sale consideration of Rs.4,00,000/- was agreed to be paid to the Respondent No.1 upon completion of sale and delivery of possession. It was further pleaded in the plaint that the Appellants pursued the Respondent No.1 to receive the remaining sale consideration and delivery of possession, who on one pretext or the other, avoided to abide by the terms of the agreement. It is pertinent to mention here that the suit was not pressed against Respondent No.2 and he was only impleaded as performa Respondent. 3. The trial Court proceeded with the case. The Respondent No.1 though was personally served did not appear and contested before the Court, therefore, on 15.7.2008, the trial Court decided to proceed with the case ex- parte. On 23.7.2008, the Respondent No.2 filed his cognovits, admitting the averments of the plaint. On 30.7.2008, the trial Court recorded ex-parte evidence of the Appellants and fixed the case on 31.7.2008 for announcement of order. On 31.7.2008, the trial Court passed ex-parte decree Civil Appeal No. 248-P of 2010.doc 3 against the Respondents, with direction to the Appellants to deposit remaining amount of sale consideration of Rs.4,00,000/- within forty days, failing which the suit would be deemed to be dismissed. 4. Admittedly, the Appellants failed to deposit the remaining amount of sale consideration with the trial Court within the stipulated time and on 14.10.2008, they made an application before the trial Court for extension in time to deposit the said amount, inter alia, on the ground that they were abroad and hence could not deposit the amount within time. Alongwith this Application, an Application for condonation of delay was also moved. Notice of these Applications was directed to be issued to the Respondents. On 31.10.2008, the trial Court allowed the Applications ex- parte and extended the time to deposit the said amount for ten months, holding that it had ample power under section 148 C.P.C to extend the time and that the decree was a preliminary decree. 5. On 4.11.2008, the Appellants filed an Application for passing the final decree, which was allowed and the trial Court passed final decree on 20.12.2008 in favour of the Appellants. On 20.4.2009, during the execution proceedings, the Respondent No.1 filed an Application before the trial Court for setting aside the ex-parte as well as final decree, inter alia, on the ground that he was in Kashmir in connection with earning his livelihood and that the Appellants had promised to withdraw the suit upon the intervention of the elders, therefore, he was unaware of the decree. An Application for Civil Appeal No. 248-P of 2010.doc 4 condonation of delay in filing the Application for setting aside the ex-parte decree was also moved. The Appellants resisted the Application. However, the trial Court, by order dated 5.12.2009 dismissed the Application for setting aside the ex-parte decree dated 31.7.2008 and final decree dated 20.12.2008. 6. The Respondent No.1 filed Appeal before the First Appellate Court, which was dismissed vide judgment dated 19.2.2010 against which the Respondent No.1 filed Civil Revision No.444 of 2010, which was allowed, the judgments and decrees of the Courts below were set aside and the suit of the Appellants was dismissed. The execution proceedings were also directed to be terminated. Hence this direct Appeal by the Appellants. 7. The learned Counsel for the Appellants has contended that the learned High Court has erred in law in allowing the Application of the Respondent No.1 for setting aside the ex-parte decree and dismissing the suit of the Appellants. He contended that the trial Court has rightly allowed the Application of the Appellants for extension in time to deposit the balance sale consideration in the Court, as under Section 148 CPC it has the power to extend the same. He submits that the impugned judgment of the learned High Court is liable to be set aside. 8. He next contended that the Application of the Application for extension in time was within time, as the final decree was passed on Civil Appeal No. 248-P of 2010.doc 5 20.12.2008 where the said Application was made on 14.10.2008 before the passage of the final decree. 9. On the other hand, the learned Counsel for the Respondent No.1 has contended that once the time fixed by the trial Court for deposit of the balance sale consideration was over, it had no jurisdiction to extend the same, as after passing the ex-parte decree the Court had no control over the lis. 10. We have heard the learned Counsel for the parties at length and have perused the record. It is an admitted fact that the trial Court passed the preliminary ex-parte decree on 31.7.2008 with direction to the Appellants to deposit the remaining sale consideration within 40 days, but the Appellants failed to comply with the direction of deposit of amount within the stipulated time. On 14.10.2008, after lapse of 40 days, they made an Application before the trial Court for extension in time, which was also proceeded with ex-parte and allowed. The trial Court fell in error in allowing the Application of the Appellant after the stipulated period of 40 days and that too after the passing of the preliminary ex-parte decree. The Application of the Appellants for extension in time was not competent, as after the lapse of period of 40 days it had no control over the lis and jurisdiction to entertain such Application. 11. As far as the contention of the learned Counsel for the Appellants that the trial Court passed the final decree after allowing the Application of the Appellants, suffice it to observe that the basic decree was Civil Appeal No. 248-P of 2010.doc 6 a nullity, therefore, the edifice built no it would fall to ground and no sanctity could be attached to it. In our view, the impugned judgment of the learned High Court, doing complete justice between the parties, is plainly correct to which no exception can be taken. 12. For the aforesaid reasons, we do not find any merit in this Appeal, which is dismissed with no order as to costs. JUDGE JUDGE Announced in Open Court on _____________ at Islamabad. Judge Not approved for reporting Sohail/**

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ-UL-AHSAN MR. JUSTICE MUNIB AKHTAR Civil Appeals No.249, 250, 255 & 257 of 2020 And Civil Appeals No.273, 285, 289 & 301 of 2020 Against judgments dated 04.10.2017, 22.11.2017, 22.11.2017, 25.10.2017, 04.10.2017, 29.11.2018, 22.01.2019 & 14.03.2019 of Peshawar High Court passed in Writ Petitions No.1298-P/17, 287-M/13, 1800/17, 2234-P/17, 449-P/15, 3289-P/17, 818-B/17 &6347-P/17. CA.249 of 2020 Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock & Cooperative Department Peshawar & Others Vs. Saeed-ul- Hassan & Others CA.250 of 2020 District Officer On Farm Water Management Dir Lower & Others Vs. Shahzada CA.255 of 2020 Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar & Others Vs. Muhammad Imran Humayun Khan CA.257 of 2020 Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar & Others Vs. Muhammad Yasir Jamshed & Others CA.273 of 2020 Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar & Others Vs. Muhammad Irfan & Another CA.285 of 2020 Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock, & Cooperative Department Peshawar & Another Vs. Iltaf CA.289 of 2020 Government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock, & Cooperative Department Peshawar & Others Vs. Matiullah CA.30 1 of 2020 Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar & Others Vs. Muhammad Arif & Another For the Appellant(s): Mr. Shumail Ahmad Butt, AG KP Mr. Atif Ali Khan, Addl.AG, KP Barrister Qasim Wadood, Addl.AG, KP Irum Shaheen, DD, HED - j1 Asif Khan, Litigation Officer, HED Amin Jan, AD, Fisheries Guizar Mahmood, AD Fisheries KP Engr. Falak Niaz, AD (Dost) Rajbar Khan, SDO, PHE, KP Sadullah, Asst. Secretary, BOR, KP Faheem Ullab Khan, Sr. LO, KPPSC Assad Ullah Khan, SO, P&D Deptt. Amanatullah Qureshi, Dy. Secy. FDKP. For the Respondent(s): Mr. Muhammad Asif Yousafzai, ASC in CA No. 249 of 2020 Mr. Nasir Mahmood-P, ASC in CA No. 250 of 2020 Mr. Khalid Rehman, ASC in CA No. 257 of 2020 Mr. Muhammad Ijaz Khan Sabi, ASC in CA No. 273 of 2020 Mr. Naveed Akhtar, ASC and Mr. M. SharifJanjuha, AOR in CA No. 285 of 2020 R-2 in Person (w/o enter appearance) in CA No. 303 of 2020 Date of Hearing: 25.11.2020 JUDGMENT IJAZ UL AHSAN, J.- Through this single Judgment, we intend to decide Civil Appeals (hereinafter referred to as "CA") Nos.249, 250, 255, 257, 273, 285, 289 and 301 of 2020 as they involve a common question of law. 2. Through the instant Appeals, the Appellants have challenged the judgments of different benches of the Peshawar High Court mentioned in Schedule I of this Judgment. The Respondents had, through their Constitutional Petitions, challenged the decisions of the Appellants to terminate the services of the Respondents from their respective posts. Their Petitions were allowed, and the Appellants were ordered to reinstate and regularize the Respondents against their respective posts. 3. The necessary facts giving rise to this its are that the Respondents were appointed on contract basis in different £ CM ts/D .'2-'% vt7o2oeZC1. 3 projects against different posts. Their services were extended from time to time. They were subsequently terminated from service on completion of the respective projects in which they were appointed. They filed Constitutional Petitions to challenge this action of the Appellants which were allowed and, the Appellants were directed to reinstate and regularize the Respondents in their respective posts. Certain other Respondents then filed Constitutional Petitions for similar treatment which were also allowed, and the Appellants were ordered to treat the said Respondents at par with others who had been regularized pursuant to the orders passed by the High Court. 4. Leave to appeal was granted by this Court vide order dated 09.03.2020 in the following terms:- "The learned Additional Advocate General, Khyber Pakhtunkhwa contends that all the Respondents in these petitions were employed either on project posts or on contract basis or were employees under Section 42 of the Companies Act, 2017 and in no circumstances their services were to be regularized. He further contends that in all impugned judgments, the learned High Court has merely allowed writ petitions on basis of similarly placed persons, but without at all adverting to the facts and circumstances of each case separately and without applying its mind to the same. He adds that even the laws under which their appointments were made were not adverted to. He submits that the Respondents who are employees on projects or contract employees or Section 42 employees were not liable to be regularized and thus their regularization by the learned High Court through the Impugned Judgment in these petitions was altogether illegal. In support of the contentions, the learned law officer has referred to a three-member judgment of this Court dated 24.06.2014 passed in Civil Appeal No.687 of 2014 (Government of Khyber, Agriculture, Livestock and Cooperative Department through its Secretary and others v Ahmad Din and another). 2. We note that some of the petitions are time barred and in one of the petitions even no condonation of delay has been filed. The learned Law Officer states that such will be done by the petitioners. 3. The contentions raised by the learned Additional Advocate General, Khyber Pakhtunkhwa need consideration. Therefore, subject to limitation, leave to appeal is granted in 11 these petitions to consider inter alia the same. The appeal stage paper books shall be filed within a period of one month with permission to the parties to file additional documents, if any. As the matter relates to service, the office is directed to fix the same expeditiously preferably after three months. 4. In the meantime, operation of impugned judgment(s) shall remain suspended." 5. Learned Additional Advocate General, Khyber Pakhtunkhwa (hereinafter referred to as "AAG") appearing for the Appellants contends that the Respondents were employed on contract basis, in different projects. As such, they had no automatic right to regularization. Therefore, the learned High Court has erred in allowing them regularization on sympathetic grounds which action has no legal basis. The Project Policy dated 02.07.08 (the "Project Policy") issued by the Government of Khyber Pakhtunkhwa (hereinafter referred to as "KP") specifically states that all the Respondents employed in projects would stand terminated from service upon completion of their respective projects. He adds that, clause 10(vi) of the Project Policy specifically ousts any project employee from claiming regularization and, the posts converted to the regular side were to be filled through the prescribed procedure as determined by the KP Public Service Commission (hereinafter referred to as "KPPSC"). He maintains that the provisions of the KP Regularization Act 2009 (hereinafter referred to as "2009 Act") did not apply to the Respondents as the said Act specifically excludes the class of employees to which the Respondents belong. 6. The Learned ASC for the Respondents on the other hand submits that the Respondents were validly appointed to their respective posts and as such, could not have been arbitrarily terminated given the Appellants were satisfied with their performance. Learned Counsel further submits that the projects in which the Respondents were employed had been converted to the regular side and as such, the Respondents had a right to be regularized against their respective posts. As such, the learned High Court has correctly held that they ought to be regularized. Further, that the Appellants could not have advertised the posts against which the Respondents were working, and such action amounts to exploitation and discrimination because others who were similarly placed were appointed on regular basis whereas, the Respondents were left out. 7. We have heard the learned AAG and the learned ASC for the Respondents. It is an admitted position that all the Respondents were appointed on contract basis, in different projects of KP. The issues which fall for determination before this Court are as follows: - (i) Could the Appellants terminate the services of the Respondents after the period of the respective projects in which the Respondents were appointed had elapsed; and (ii) Are the Respondents covered by the 2009 Act; and (iii) What is the effect of the terms and conditions of the appointment orders of the Respondents; and (iv) What is the principle to be applied when giving relief in the cases of similarly placed employees? COULD THE APPELLANTS TERMINATE THE SERVICES OF THE RESPONDENTS AFTER THE PERIOD OF THE RESPECTIVE PROJECTS IN WHICH THE RESPONDENTS WERE APPOINTED HAD ELAPSED. 8. The learned ASC for the Respondents has submitted before us that the employment of the Respondents was governed by the Project Policy issued by the Government of KP. We have gone through the Project Policy. It categorically states that those employed in different projects would stand relieved from employment upon completion of the Project in question. Clause 10 (v) of the Project Policy is reproduced herein below for ease of reference: - "On completion of the project, the services of the project employees shall stand terminated. However, they shall be re-appointed on need basis, if the project is extended over any new phase or phases" A bare perusal of the afore-noted clause of the Project Policy makes it clear that employees, who were employed in a project, would stand terminated, on the completion of the project. The only exception is that the said employees would be re-appointed on need basis if the project is extended over any "new phase or phases". The record reveals that the Respondents were terminated after the projects in which they were appointed came to an end or, were converted to the regular side. The learned High Court in the impugned judgments has held that the Respondents had a vested right to be regularized, on the basis of satisfactory service, because of the conversion of different projects to the regular side. We are unable to agree with the view taken by the High Court for the reason that it is by now a settled principle of law that, long or satisfactory contractual service does not confer a vested right for regularization as conversion from contractual to regular appointment requires statutory support. We note that, even in those Appeals before us where posts were created on the regular side, such as CA No. 255 of 2020 and CA 301 of 2020, the posts in question - 0• O4M.2A lOj)v)4t& were limited. If the Government has created a limited number of posts on the regular side, the learned High Court could not have stepped into the shoes of the appointing authority and order the regularization of each Respondent irrespective of availability of regular posts. Appointments on the regular and newly created posts was to be made through advertisement, open competition through a transparent process via the KP Public Service Commission. It was essentially a policy matter within the domain of the Executive. The High Court therefore erred in law in interfering with the same for no valid or justifiable reason. 9. The creation of a post or posts on the regular side does not confer, in the absence of any statutory support, an automatic right of regularization in favour of the employees employed on contractual basis against project posts. Therefore, we hold that the conclusion reached by the High Court in this regard is not sustainable. 10. Further, clause 10(vi) of the Project Policy reads as under: - "In case the project posts are converted into regular budgetary posts, the posts shall be filled in accordance with the rules prescribed for the post through the Public Service Commission or the Department Selection Committee, as the case may be. Ex-Project employee shall have no right of adjustment against the regular posts) however, if eligible, they may also apply and compete for the posts with other candidates" The afore-noted clause of the Project Policy makes three stipulations. First, that the project posts converted to the regular side shall be filled in accordance with the rules prescribed by the KPPSC or the Departmental Selection 8 Committee. Second, that a project employee shall have no right of adjustment against the regular post. Third, if eligible, a project employee may apply for the post in question for regular appointment in accordance with the rules i.e. through KPPSC or DSC, as the case may be. The learned High Court has held that the Respondents had the right to be regularized on the posts which were created on the regular side, and not appointing the Respondents amounts to discrimination. We are unfortunately unable to agree either with the reasons given nor with the conclusion reached. We note that all posts created on the regular side were to be filled in accordance with the procedure of the KPPSC or DSC. The aforenoted provision makes is clear that ex-project employees could not claim regularization as a matter of right. Nothing is on record to suggest that the Respondents applied for the regular posts again, however, they approached the learned High Court in Constitutional Jurisdiction directly for their reinstatement and subsequent regularization which, the learned High Court did, without considering the aforenoted Project Policy which held the field and the vires of which or, any provision thereof, was not under challenge. 11. We note that, in CA 257 of 2020, the regular posts in question were created in the KPPSC and not the project in question. This is evident from the letter dated 02.05.20 17 of the Government of KP, Finance Department. The said letter further states that the incumbents of the posts which were to be shifted to the regular side would not be entitled to regularization and, the regular posts would be filled in accordance with the law. We note that the learned High Court has circumvented and, literally changed the tenor of this letter altogether by inserting in it, that which was never there, nor was it intended to be there. Even otherwise, if posts are sanctioned by the provincial government, it does not mean that anyone may be appointed against the same arbitrarily or whimsically without regard to any policy, procedure or legal basis. ARE THE RESPONDENTS COVERED BY THE 2009 ACT? 12. Section 2(b) of the 2009 Act defines 'employee' as follows:- "employee means an ad hoc or a contract employee appointed by Government on ad hoc or contract basis or second shift/night shift but does not include the employees for project post or appointed on work charge basis or who are paid out of contingencies" The aforenoted provision of the 2009 Act has three conditions. First, that the employee in question has to be appointed by the government. Second, that the employee has to be appointed on ad hoc or contract basis or second shift/night shift. Thirdly, an employee to be able to benefit from the 2009 Act must not have been employed against a project post or, appointed on work-charge basis or, be paid out of contingencies. The impugned judgments ignore the definition of 'employee' and the exclusions incorporated therein which has led to an erroneous conclusion being drawn. F- 10 13. Section 3 of the 2009 Act lays down further guidelines as to who may be regularized. The said Section is reproduced as:- "Regularization of services of certain em p logees. -- All employees including recomendees of the High Court appointed on contract or ad hoc basis 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 for a regular post". A bare perusal of the aforementioned provision makes it clear that those employees who have been appointed by the Government on or before 03.12.08 or till the commencement of the 2009 Act i.e., 24.10.09 (hereinafter referred to as "Cut-off Dates") would be entitled to regularization. We have gone through the record and note that all of the projects in which the Respondents were employed were converted to the regular side after the Cut-off Dates. The learned High Court has incorrectly applied and stretched the application of the 2009 Act to cover the Respondents without any lawful basis. It needs no repetition that the job and jurisdiction of the High Court is to interpret the law, test its vires on the touchstone of the Constitution and examine the legality of executive / administrative actions in exercise of its powers of judicial review. Reading provisions or interpreting existing provisions in a manner which has the effect of virtually adding new provisions constitutes excessive and arbitrary exercise of jurisdiction and encroaches upon the domain of the executive and legislative authority. Such modus operandi militates against the fundamental principle ICA of trichotomy of powers which is a cornerstone of the Constitution. 14. It is clear and obvious to us that project employees have specifically been excluded from the purview of the 2009 Act. We note that in CA No. 257 of 2020, the learned High Court has itself noted that the Respondents in the said CA are not covered by the 2009 Act. Yet they were directed to be regularized on sympathetic grounds without any lawful basis, foundation or justification. 15. In CA No. 285 of 2020, the project in question, namely, "Expansion of Breed Improvement Service in NWFP' was converted to the regular side after the services of the Respondent (Mr. Iltaf) were terminated w.e.fi 30.06.09. The said Respondent was issued a notice of termination which was in line with the Project Policy, before his services were terminated. The High Court has in our opinion incorrectly applied the principle of non-discrimination and similar treatment for similarly placed employees and has directed that the Respondent in question be regularized. We note that the learned High Court, without applying judicial mind to ascertain the facts and circumstances of each case, has passed an omissus order directing the regularization of all the Respondents without adverting to the record on a case to case basis, or applying the law to each case. Where the 2009 Act itself excludes project employees and also mentions Cut- off dates, we are at a complete loss to understand how and on what basis the High Court concluded that that the Respondent was eligible for regularization. Even otherwise, the services of the Respondent were validly and lawfully terminated before the said project was converted to the regular side i.e. vide notification dated 27.01.10. As such, there was no question of regularization. 16. The learned High Court has, in one of the Impugned Judgments, on the question of deleted posts, held that the Appellants were duty bound to convert all posts to the regular side without deleting any one of them. As noted above, executive policy making is not the domain of the High Court in the scheme of the Constitution and, is the prerogative of the executive to ascertain on the basis of its need, requirement, available resources and fiscal space, which posts it wishes to keep and which it wishes to abolish. Separation of powers is a well-entrenched principle of jurisprudence which requires that the Court cannot step into the shoes of the Executive. As such, when the posts of the Respondents in CA No. 273 of 2020 have been deleted by the Finance Department, the learned High Court could not have ordered the Appellants to reinstate the Respondents on non- existent posts. WHAT IS THE EFFECT OF THE TERMS AND CONDITIONS OF THE APPOINTMENT ORDERS OF THE 17. The learned AAG has submitted before us that all of the Respondents were appointed on temporary posts as stipulated in their employment contracts. We note that the learned High Court has not adverted to this aspect of the case and has simply applied the principle of similarly placed employees to give relief to the Respondents. It has been specifically mentioned in the appointment orders of the Respondents that they cannot claim regularization and further, that they are employed on contract for a specific period of time. In this view of the matter, the learned High Court has incorrectly applied the law to the cases of the Respondents and as such, we find the view of the learned High Court to be erroneous, and not in consonance with the settled principles of law on the subject. 18. The Respondents have themselves conceded that they were employed in different projects on temporary basis. This fact has been admitted before us. The employment of the Respondents was governed by the Project Policy which specifically provides that ex-project employees cannot claim regularization and that the posts in questions would be filled per the rules of the KPPSC or the DSC. We are therefore of the view that the learned High Court has erred in law in ignoring the Project Policy and ordering regularization of the Respondents without relying on any statutory instrument which may have created a right in their favour. Discretionary Jurisdiction under Article 199 of the Constitution cannot be exercised in a vacuum. It must be grounded on a valid basis of violation of specific and enforceable legal or constitutional rights. The discretion must be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as by this Court. The o •, •t 2,4q OkWO-otZ impugned judgments are unfortunately lacking all the aforenoted factors and are found to be unsustainable. WHAT IS THE PRINCIPLE TO BE APPLIED WHEN GIVING RELIEF IN THE CASES OF SIMILARLY PLACED EMPLOYEES? 19. The learned High Court in all the Appeals before us has applied the principle of similar treatment of similarly placed persons and has found the Respondents eligible for Regularization. It is settled principle of law that each case turns on its own facts and circumstances. When the record is clearly suggestive of the fact that the Respondents could not be regularized, and there were valid and sustainable reasons to do so, the principle of similar treatment of similarly placed employees could not blindly and indiscriminately circumvent the record to regularize those employees who are otherwise not entitled to regularization. Further, some judgments were mechanically rendered without examining the specific facts and circumstances of individual cases by relying on earlier judgments directing regularization and those too in incorrect and erroneous basis. This, by itself, furnishes justification to set aside such judgments. Even otherwise, the rule of similar treatment for similarly placed persons has wrongly and incorrectly been applied in the instant cases. 20. The Court is supposed to interpret the law and apply it in letter and spirit. The Court cannot go beyond what the law is, and what interpretation permits. Courts lack jurisdiction to provide remedies which are otherwise not in .' .' IS' the law or the Constitution by inventing remedies of their own. This is a dangerous trend which threatens to weaken the very fabric of constitutionalism and rule of law and, this must be discouraged. The learned High Court cannot alter, amend or renegotiate the terms and conditions of the appointment orders of the Respondents for the simple reason that it does not have jurisdiction to do so. 21. For the reasons recorded above, these appeals are accordingly allowed, and the impugned judgments unsustainable are therefore set-aside. Chie ANNOUNCED IN COURT ON 2i .04 .21 AT ISLAMABAD. SCHEDULE I DATE 04. 10.20 17 22.11.2017 22.11. 20 17 25. 10.20] 7 04.10.2017 11 2018 22.01.2019 14.03.2019 ED FOR REP COURT Peshawar High Court, Peshawar Peshawar High Court Bench at Mingora (Dar-ul-Qaxa) Swat Peshawar High Court, Peshawar Peshawar High Court, Peshawar Peshawar High Court, Peshawar Peshawar High Court, Peshawar Peshawar High Court, Bannu Bench Peshawar High Court, Peshwu No. 250 of 2020 CA No. 255 CA No. 273 of 2020 CA No. 285 CA No. 289 of 2020 CA No. 301 of 2020 S

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{'id': 'C.A.249_2020.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Faisal Arab Mr. Justice Ijaz ul Ahsan Civil Appeal No.25-K of 2018 (On Appeal against the impugned judgment dated 07.05.2018 passed by the High Court of Sindh, Karachi in F.R.A.No. 22/2017) Abdul Latif and another …Appellant(s) Versus M/s Parmacie Plus Respondent(s) For the appellant(s): Mr. Shahid Qadeer ASC with Abdul Latif, appellant in person For the respondent(s): Mr. Muhammad Pervaiz Khan Tanoli, ASC Date of hearing: 25.02.2019 JUDGMENT Faisal Arab, J.- The respondent was inducted as a tenant in the premises in question at a monthly rent of Rs.331,700/-. The tenancy agreement dated 30.11.2014 was for a period of eleven months starting from 25th September, 2014 to 24th August, 2015. Clause 15 of the tenancy agreement stipulated that rent shall be increased by seven percent after every eleven months. When the period of eleven months expired and the rent became due, the respondent remitted rent at the rate of Rs.287,262/- per month i.e. less than the rate of rent that was initially agreed upon at the time of execution of the agreement i.e. Rs.331,700/- per month. As the rent i.e. of Rs.354,919/- per month with seven percent increase as envisaged by clause 15 of the tenancy agreement was not remitted by the respondent, the appellant demanded the same. As the demand for increased rent was resisted by the Civil Appeal No.25-K of 2018 -: 2 :- respondent, who kept on remitting rent at original rate, the appellant filed eviction application before the Controller of Rents, Clifton Cantonment, Karachi seeking eviction of the tenant on the ground of default and also sought eviction on the ground of personal need. 2. During the pendency of the rent case, the Controller of Rents passed an order under Section 17(8) of the Cantonments Rent Restriction Act, 1963 (the Act) directing the respondent to deposit the rent at the rate of Rs.354,919/- i.e. with seven percent increase in terms of clause 15 of the tenancy agreement. As the respondent failed to deposit the same, the appellant filed an application under Section 17(9) of the Act for striking off the defence of the respondent. Vide order dated 15.05.2017 the Controller of Rents struck off the defence and directed the respondent to vacate the rented premises and handover its possession to the appellant within a period of 60 days. Aggrieved by such decision, the respondent filed an appeal before the learned High Court which was allowed by the learned Single Judge after holding that the provisions of Section 7(5) of the Act prohibits increase in rent beyond what is determined under the tenancy agreement unless a period of three years has elapsed, therefore, no default in the payment of rent has been committed. Hence, this appeal with the leave of this Court. 3. The tenancy agreement was for eleven months and clause 15 of the tenancy agreement provided that the rent of the premises shall be increased by seven percent after every eleven months. Under the urban rent laws tenancy continues even after the expiry of the term provided under the tenancy agreement. Hence where the tenant continues to occupy the tenement after the expiry of the term mentioned in the agreement the covenants of the agreement continue to apply except such covenants that are in conflict with the provisions of the applicable rent Civil Appeal No.25-K of 2018 -: 3 :- law. In that eventuality rent law would prevail. In the present case seven percent increase in rent as provided in clause 15 of the tenancy agreement has been called in question on the basis of Section 7(5) of the Act which reads as follow:- “When the fair rent of a building has been fixed under this section, or where the rent of any building has been determined by an agreement between the landlord and the tenant, no further increase in such fair rent shall, during the continuance of tenancy be permissible within a period of three years from the date fixed by the Controller under sub-section (3) or from the date of the agreement, as the case may be, except in case where some addition, improvement or alteration has been carried out at the landlord’s expense and at the request of the tenant.” 4. Parties are free to agree to a fixed rate of rent or a rate that is variable to be increased either by a certain amount or by a certain percentage of the existing rent after a specified period of time. There is no prohibition in law. So the periodical increases agreed between the parties under the tenancy agreement has to be regarded as the rent determined by an agreement between the landlord and the tenant within the meaning of Section 7(5) of the Act. What is meant by the prohibition contained in Section 7(5) of the Act is that no unilateral increase to the surprise of the tenant is permissible before the expiry of three years. An increase, which is not unilateral but with the consent of both the parties cannot be subsequently disputed by the tenant unless it is called in question through an application made for fixation of fair rent. So it becomes quite clear that what is prohibited under Section 7(5) of the Act is that no unilateral increase is to be made beyond what is determined under the tenancy agreement, be it fixed or variable rate. On the contrary, Section 7(5) of the Act acknowledges the sanctity of the rent determined by an agreement between the parties. So only unilateral increase in rent or where fair rent has been fixed by a Court of Controller Civil Appeal No.25-K of 2018 -: 4 :- of Rents that rent cannot be increased unless a period of three years has elapsed. 5. In the present case, seven percent increase after every eleven months term of tenancy has been agreed upon between the parties under clause 15 of the tenancy agreement, this is to be treated as the rent determined by an agreement between the landlord and tenant. Such rate of rent gets unaffected by the bar contained in Section 7(5) of the Act, which only prohibits unilateral increase within a period of three years. As stated earlier, the only way to challenge a rate of rent agreed upon with the consent of the parties is by moving the Rent Controller to fix fair rent under the provisions of rent law not otherwise. In the present case no application for fixation of fair rent has been moved by the respondent, therefore, the consequence of non-payment of agreed rent within the period prescribed by law would amount to commission of default in the payment of rent and would make it liable for eviction. In the present case as the respondent failed to pay the rent in terms of clause 15 of the tenancy agreement, this appeal is allowed and the impugned judgment is set aside. Judge Judge Judge Karachi, the 25th of February, 2019 Approved For Reporting

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{'id': 'C.A.25-K_2018.pdf', 'url': ''}

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 APPEALS NO. 2561 TO 2568 OF 2016 AND CIVIL PETITION NOS. 2779-L TO 2785-L, 2793-L, 3182-L, 3183-L, 3224-L, 3225-L, 3328-L, 3253-L, 3299-L, 3300-L, 3345-L, 3553-L TO 3557-L OF 2016 AND CRIMINAL PETITION NO. 1050-L OF 2016 (On appeal against the judgment dated 26.05.2016, 27.09.2011, 17.11.2016 and 23.06.2016 of the Lahore High Court, Lahore passed in W.P. No.31284, 35792, 36199, 36555 & 36556 of 2015, 6720/2016, 3932/2011, 36331/2015, 22010/2013, 22011/13, 22013/13, 22015/13, 13821/16, 13845/16, 13855/16, 22012/2013, 9712/2009, 14030/2011, 1379/2011, 4428/2011, 23901/2009, 1456-Q/2012, 15460/2011, 15461/2011, 19532/2014, 14898/2011, 19731/2012, 19732/2012, 19733/2012, 19734/2012 and Crl.Rev.487/2016 respectively) Syed Mushahid Shah etc. (in CA 2561/16) Mian Naseer Ahmed, etc. (in CA 2562/16) Tahir Naseem, etc. (in CA 2563/16) Umar Hayat, etc. (in CA 2564/16) Muhammad Shafique (in CA 2565/16) Naseer Ahmed (in CA 2566/16) Pervaiz Sadiq, etc. (in CA 2567/16) Jahangir Ahmed & others (in CA 2568/16) …Appellant(s) Gulshan Spinning Mills Ltd, etc. (in CP 2779-L/16) Gulistan Textile Mills Ltd, etc. (CPs 2780-L to 2782-L/16) Haji Iftikhar-ud-Din, etc. (in CP 2783-L/16) Noureen Imran, etc. (in CP 2784-L/16) Muhammad Ahsan, etc. (in CP 2785-L/16) Hassan Aftab (in CP 3182-L/16) Hamid Waheed Khawaja (in CP 3183-L/16) Dr. Hassan Sohaib Murad (CPs 3224-L to 3225-L,3299-L/16) Sheikh Niaz Anjum, etc. (in CP 3328-L/16) Shamsher Ali (in CP 3253-L/16) Gulraiz Akbar (in CP 3300-L/16) Irfan Ahmed Ayub (in CP 3345-L/16) Amir Saleem Anwar Khan, etc. (in CP 3553-L/16) Naeem Omer (CPs 3554-3556-L/16) Farrukh Mehmood Butt, etc. (in Cr.P.1050-L/16) …Petitioner(s) VERSUS Federal Investment Agency, etc. (CAs 2561-2563/16) Government of Pakistan, etc. (in CAs 2564,2565/16) S.H.O. PS Bhikki District Sheikhupura, etc. (in CA 2566/16) The Bank of Punjab, etc. (CA 2567/16, CPs 2783-L to 2785-L) Government of Pakistan thr. Secretary M/o Law Justice Human Rights and Parliamentary Affairs Islamabad & others (in CA 2568/16) Burj Bank Ltd, etc. (CPs 2779 to 2782-L, 2793-L/16) The State through Advocate General Punjab etc. (in CP 3182-L/16) Civil Appeals No.2561 of 2016 etc. - 2 - S.H.O. PS Sarwar Road, Lahore, etc. (in CP 3183-L/16) S.H.O. PS Qila Gujjar Singh, (CPs 3224-L, 3299-L & Lahore, etc. 3300-L/16) S.H.O. PS Civil Lines, Lahore, etc. (in CP 3225-L/16) S.H.O. Police Station, B-Division, Okara, etc. (in CP 3328-L/16) S.H.O. PS Purani Anarkali, Lahore, etc. (in CP 3253-L/16) S.H.O. Civil Line, Gujrat, etc. (in CP 3345-L/16) The State, etc. (in CP 3553-L/16) Additional Sessions Judge, Lahore, etc. (CPs 3554-3557-L/16) Askari Bank Ltd, etc. (in Cr.P. 1050-L/16) …Respondent(s) For the Appellant(s): (in CA 2561/16) (in CAs 2562-2568/16) Mr. Shahid Ikram Siddiqi, ASC. (also for petitioners in CPs 3182, 3183, 3224, 3225, 3228, 3299, 3300-L/16) (did not appear on 01.03.2017) Mr. Salman Aslam Butt, Sr. ASC. (also for petitioners in CPs 2779-2785, 2793-L/16) For the Petitioners(s): (in CP 3253-L/16) (in CP 3345-L/16) (CPs 3553-3557-L/16) (in Crl.P 1050-L/16) Nemo. Mr. Haq Nawaz Chatha, ASC. Mr. Shazaib Masud, ASC. (did not appear on 01.3.2017) Mian Asghar Ali, ASC. For the Respondent(s): For Bank of Punjab For First Women Bank & UBL For Burj Bank For MCB For FIA For the State: Mr. Rashdeen Nawaz Qasuri, ASC. Sardar Qasim Farooq Ali, ASC. Mr. Amir Wakeel Butt, ASC. Mr. Abdul Hameed Chohan, ASC. Raja Nadeem Haider, ASC. Nemo. Mr. Sajid Ilyas Bhatti, DAG. Raja Abdul Ghafoor, AOR. Mr. Razzak A. Mirza, Addl. AG, Pb. Rana Abdul Majeed, Addl. PG. Dates of Hearing: 21, 22, 28.02.2017 and 01.03.2017 ... JUDGMENT MIAN SAQIB NISAR, CJ.— These appeals with the leave of the Court and petitions for leave to appeal (civil and criminal) are being disposed of together as they involve a common question of law: whether Civil Appeals No.2561 of 2016 etc. - 3 - the Banking Courts constituted under the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance, 2001) have exclusive jurisdiction to try the offences mentioned therein to the exclusion of the Special Courts constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (the ORBO), the courts of ordinary criminal jurisdiction under the Code of Criminal Procedure, 1898 (the Code) read with the Pakistan Penal Code, 1860 (the PPC) and from inquiry and investigation by the Federal Investigation Agency (the Agency) under the Federal Investigation Agency Act, 1974 (the Act, 1974). 2. The appellants/petitioners are customers of the respondents (financial institutions) who may be divided into two categories. In the first category, the customers are alleged to have committed offence(s) of either removing the hypothecated or pledged goods, disposing of the mortgaged properties and/or of breaching the terms of the finance agreement, instrument, etc. The financial institutions filed complaints against them before the Special Courts constituted under the ORBO and the Agency under the Act, 1974. In the second category, cheques issued by the customers to the financial institutions were dishonoured and cases (FIRs) were registered against the former under the provisions of Section 489-F of the PPC. Aggrieved, the customers approached the learned High Court directly by filing either constitution or revision petitions, or under Section 561-A of the Code, claiming that action could only be taken against them under the Ordinance, 2001 (in particular Section 20 thereof) and no other law, and exclusive jurisdiction vests with the Banking Courts constituted under the said Ordinance. Through the impugned judgments, the learned High Court dismissed the matters holding that concurrent jurisdiction vests in the Banking Civil Appeals No.2561 of 2016 etc. - 4 - Courts constituted under the Ordinance, 2001, the Special Courts constituted under the ORBO, the ordinary criminal courts and the Agency, and the jurisdiction of the latter two courts and the Agency would not be ousted on account of Sections 4 and 20 of the Ordinance, 2001. Thereafter, the customers approached this Court and leave in the appeals was granted in the following terms:- “It is contended by the learned counsel for the Petitioners that by way of the impugned judgment dated 26.05.2016 passed in Writ Petition No.33423 of 2013, titled Faisal Farooq and 3 others v. SHO and another, the learned Lahore High Court has misinterpreted Sections 7(4) and 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, to hold that the Banking Court did not have exclusive jurisdiction to try offences mentioned in the Ordinance of 2001 and that criminal proceedings can be launched independently in a forum, which is mentioned in the said Ordinance, 2001. It is further contended that the learned Lahore High Court has failed to take into consideration the dictum laid down by this Court in the judgment, reported as Waris Meah v. The State and another (PLD 1957 Supreme Court (Pak.) 157) and the Articles 4, 10-A and 25 of the Constitution of Islamic Republic of Pakistan, 1973. 2. Leave is granted, inter alia, to consider the aforesaid contentions of the learned counsel for the petitioners.” The extensive arguments of the learned counsel for the parties are not recorded separately, but shall be reflected during the course of this opinion. 3. We begin with the concept of general and special law. General law is one that is unrestricted in terms of its applicability to all issues covered by its subject matter. In juxtaposition special law may be restricted to certain localities, persons or types of cases. Whether a law Civil Appeals No.2561 of 2016 etc. - 5 - is general or special depends on the particular features of the statute in issue and is ultimately a question of relativity between two or more statutes on the common subject matter. The PPC is a comprehensive code for creating all criminal offences in Pakistan and applies throughout the country (Section 1). Every person is liable to punishment under the PPC for every act or omission contrary to its provisions (Section 2). Accordingly, the PPC is undoubtedly a general law. Similarly, the Code is also a general law as it applies to the whole of Pakistan [Section 1(2)] and deals with investigation, inquiry and trial etc. of all offences under the PPC [Section 5(1)]. 4. Initially, all criminal offences (barring a few) in Pakistan were tried by the courts of ordinary criminal jurisdiction under the Code and the PPC, i.e. the general law, and this included offences committed with respect to banks. Subsequently, the Banking Companies (Recovery of Loans) Ordinance, 1978 (the Ordinance, 1978) was promulgated to provide for a summary procedure for recovery of loans of banking companies and connected matters. Section 3 of the Ordinance, 1978 provided that “The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force.” According to this law, banking disputes pertaining to the recovery of loans by a banking company from a borrower were made subject to the jurisdiction (civil and criminal) of the Special Courts constituted thereunder, and no Court other than a Special Court was to possess or exercise any jurisdiction with respect to any matter to which the jurisdiction of such Court extended under the Ordinance, 1978 [Section 8(4)]. Banking offences (and their punishments) Civil Appeals No.2561 of 2016 etc. - 6 - evident from its salient features, the Ordinance, 1978 was a special law. The Ordinance, 1978 was repealed and replaced with the Banking Companies (Recovery of Loans) Ordinance, 1979 (the Ordinance, 1979) which re-enacted the former with some modifications. 4. On 31.12.1984, the Banking Tribunals Ordinance, 1984 (the Ordinance, 1984) was promulgated to provide a machinery for the recovery of finance provided by banking companies under a system of financing which is not based on interest (Preamble). This law closely followed the Ordinance, 1979 to quite an extent. One major difference was the phrase “without prejudice to any other action which may be taken against him under this Ordinance or any other law for the time being in force” which appeared in the provisions relating to offences (Section 7). In 1997, both the Ordinances of 1979 and 1984 were repealed and replaced by the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 (the Ordinance, 1997) which eventually culminated into the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (the Act, 1997). The Act, 1997 essentially amalgamated the Ordinances of 1979 and 1984 creating one single statute for banking companies to recover loans or finances (interest based and interest-free) from borrowers or customers respectively. Like its predecessors, the Act, 1997 contained a non-derogation clause, and the ‘without prejudice’ clause in the provisions relating to offences (Section 19), akin to the one in the Ordinance, 1984. The Ordinances of 1984 and 1997 and the Act, 1997 were indubitably special laws, containing features similar to those of the Ordinances of 1978 and 1979. 6. The final link in the chain is the Ordinance, 2001. It repealed and re-enacted the Act, 1997, albeit with certain modifications. Civil Appeals No.2561 of 2016 etc. - 7 - The Ordinance, 2001 established Banking Courts which deal with disputes (civil and criminal) between financial institutions and customers in respect of finances availed by the latter. Sections 4, 7 and 20 of the Ordinance, 2001 are important and read as follows:- 4. Ordinance to override other laws. The provisions of this Ordinance, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 7. Powers of Banking Courts.–(1) Subject to the provisions of this Ordinance, a Banking Court shall– (a) ………………………………………………………… (b) in the exercise of its criminal jurisdiction, try offences punishable under this Ordinance, and shall, for this purpose have the same powers as are vested in a Court of Sessions under the Code of Criminal Procedure 1898 (Act V of 1898): Provided that a Banking Court shall not take cognizance of any offence punishable under this Ordinance except upon a complaint in writing made by a person authorised in this behalf by the financial institution in respect of which the offence was committed. … (4) 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) Nothing in sub-section (4) shall be deemed to affect– (a) the right of a financial institution to seek any remedy before any court or otherwise that may be available to it under the law by which the financial institution may have been established; or Civil Appeals No.2561 of 2016 etc. - 8 - (b) the powers of the financial institution, or jurisdiction of any Court such as is referred to in clause (a); or require the transfer to a Banking Court of any proceedings pending before any financial institution or such Court immediately before coming into force of this Ordinance. 20. Provisions relating to certain offences.– (1) Whoever– (a) dishonestly commits a breach of the terms of a letter of hypothecation, trust receipt or any other instrument or document executed by him whereby possession of the assets or properties offered as security for the re- payment of finance or fulfillment of any obligation are not with the financial institution but are retained by or entrusted to him for the purposes of dealing with the same in the ordinary course of business subject to the terms of the letter of hypothecation or trust receipt or other instrument or document or for the purpose of effecting their sale and depositing the sale proceeds with the financial institution; or (b) makes fraudulent mis-representation or commits a breach of an obligation or representation made to a financial institution on the basis of which the financial institution has granted a finance; or (c) subsequent to the creation of a mortgage in favour of a financial institution, dishonestly alienates or parts with the possession of the mortgaged property whether by creation of a lease or otherwise contrary to the terms thereof, without the written permission of the financial institution; or (d) subsequent to the passing of a decree under section 10 or 11, sells, transfers or otherwise alienates, or parts with possession of his assets of properties acquired after the grant of finance by the financial institution, including assets or properties acquired benami in the name of an ostensible owner shall, without prejudice to any other action which may be taken against him under this Ordinance or any other law for the time being in force, be punishable with imprisonment of either description for a term which may extend to three years and shall also be liable Civil Appeals No.2561 of 2016 etc. - 9 - to a fine which may extend to the value of the property or security as decreed or the market value whichever is higher and shall be ordered by the Banking Court trying the offence to deliver up or refund to the financial institution, within a time to be fixed by the Banking Court, the property or the value of the property or security. Explanation.– Dishonesty may be presumed where a customer has not deposited the sale proceeds of the property with the banking company in violation of the terms of the agreement between the financial institution and the customer. (2) Whoever knowingly makes a statement which is false in material respects in an application for finance and obtains a finance on the basis thereof, or applies the amount of the finance towards a purpose other than that for which the finance was obtained by him, or furnishes a false statement of stocks in violation of the terms of the agreement with the financial institution or falsely denies his signatures on any banking document before the Banking Court, shall be guilty of an offence punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both. (3) Whoever resists or obstructs, either by himself or on behalf of the judgment debtor, through the use of force, the execution of a decree, shall be punishable with imprisonment, which may extend to one year, or with fine, or with both. (4) Whoever dishonestly issues a cheque towards re- payment of a finance or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to one year, or with fine or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque. Civil Appeals No.2561 of 2016 etc. - 10 - (5) ………………………………………………………… [(6) All offences under this Ordinance shall be triable by a Banking Court in accordance with section 7. All offences, except for the offence of willful default, shall be bailable, non-cognizable and compoundable.]1 [(7) Notwithstanding anything to the contrary provided in any other law for the time being in force, action in respect of an offence of willful default shall be taken by an investigating agency, to be nominated in this behalf by the Federal Government, on a complaint in writing filed by an authorized officer of a financial institution after it has served a thirty days (sic) notice upon the borrower demanding payment of the loan, advance or financial assistance.]2 (8) An offence of willful default shall be cognizable, non-bailable and non-compoundable and punishable with imprisonment which may extend to seven years or fine not exceeding the amount of default or with both. (9) ………………………………………………………… [Emphasis supplied] Like its predecessor statutes, the Ordinance, 2001 is also a special law as it created a special forum, i.e. Banking Courts, to deal with the recovery of finance by financial institutions from customers, and created certain offences in respect thereof which were also to be tried by such Courts. The Ordinance, 2001 basically carved out a portion of the jurisdiction of the ordinary courts, both civil and criminal. 7. A few months before the Ordinance, 1984 was enacted the ORBO was promulgated on 23.02.1984. It provides for the speedy trial of certain offences committed in respect of banks and for matters connected therewith or incidental thereto (Preamble). Special Courts were 1 Subs. and added by Act XXXVIII of 2016, Section 9. 2 Ibid. Civil Appeals No.2561 of 2016 etc. - 11 - created (Section 3) to try ‘scheduled offences’ defined in Section 2(d) to mean “an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank;” Clause (a) of the First Schedule provides “Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely:– Sections [201, 204, 217, 218, 380]3, 403, 406, 408, 409, [419, 420]4, 467, 468, 471, 472, 473, 475 and 477-A” (some of which are subject to certain modifications as set out in the Second Schedule of ORBO read with Section 6(2) thereof). Sections 4, 5 and 12 (relevant parts) of the ORBO read as under:- 4. Scheduled offence to be tried by Special Court.__(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court. 5. Procedure of a Special Court.-(1) A Special Court may take cognizance of any scheduled offence upon receiving a complaint of the facts which constitute such offence or upon a report in writing of such facts made by any police officer. 12. Ordinance to override other laws. The provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. The ORBO created Special Courts which were given exclusive jurisdiction to try various offences (Section 4) stipulated in the PPC but incorporated into the ORBO by way of legislative reference (scheduled offences) which were/are committed in respect of or in connection with the ‘business of a bank’. Furthermore, no new offences specific to the ORBO were created by it: instead the existing offences in the PPC were 3 Inserted by SRO No.396(I)/85 dated 24.8.1985. 4 Inserted by SRO ibid. Civil Appeals No.2561 of 2016 etc. - 12 - incorporated through legislation by reference (note:- punishment was increased). It is patently clear that the ORBO is a special law in light of its aforementioned features, as it wrests some of the jurisdiction of the ordinary criminal courts. 8. As established, the Code and PPC are general laws whilst the ORBO and the Ordinance, 2001 are special laws. The appellants’ case is that an offence committed in relation to a finance agreement inter se the financial institution and the customer, that falls within the orbit of the Ordinance, 2001 can only be tried by the Banking Courts constituted thereunder and that the Special Courts constituted under the ORBO or the ordinary criminal courts under the Code would have no jurisdiction. Equally the jurisdiction of the Agency under the Act, 1974 would also stand excluded by the criminal complaint procedure provided in Section 20 of the Ordinance, 2001. In the above configuration of laws, does the Ordinance, 2001 have an overriding effect over the Code and the PPC, the ORBO and the Act, 1974? 9. Section 7(4) of the Ordinance, 2001 confers exclusive jurisdiction on the Banking Courts with respect to certain matters albeit sub-section (5) creates an exception to the exclusive jurisdiction of the Banking Courts. This confers a right on the financial institution to seek any remedy before any court or otherwise which may be available to it under the law by which the financial institution may have been established [Section 7(5)(a)]. According to Section 4 of the Ordinance, 2001 reproduced above, its provisions “shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.” This is essentially a non obstante clause which is defined as “A phrase used in documents to preclude any interpretation contrary to the stated object or Civil Appeals No.2561 of 2016 etc. - 13 - purpose.”5 ‘Notwithstanding’ means despite, in spite of or regardless of something. In this respect Justice G. P. Singh6 has aptly explained:- “A clause beginning with ‘notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force’, is sometimes appended to a section in the beginning, with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment.” In the judgment reported as Packages Limited through its General Manager and others Vs. Muhammad Maqbool and others (PLD 1991 SC 258) this Court observed:- “In our opinion a 'non-abstante' (sic) clause operates as an ouster of the earlier provisions only where there is a conflict and inconsistency between the earlier provisions and those contained in the later provision and, therefore, must be read in the context in which it is operating. Accordingly, a non-obstante clause will operate as ouster only if an inconsistency between the two is found to exist.” In the judgment reported as Muhammad Mohsin Ghuman and others Vs. Government of Punjab through Home Secretary, Lahore and others (2013 SCMR 85), this Court cited with approval a passage from Interpretation of Statutes by N. S. Bindra which reads as under:- 5 Black’s Law Dictionary (9th Ed.) 6 Principles of Statutory Interpretation (13th Ed.) Civil Appeals No.2561 of 2016 etc. - 14 - “It has to be read in the context of what the legislature conveys in the enacting part of the provision. It should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with the new enactment. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously, for even apart from such clause a later law abrogates earlier laws clearly inconsistent with it. The proper way to construe a non obstante clause is first to ascertain the meaning of the enacting part on a fair construction of its words. The meaning of the enacting part which is so ascertained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another provision one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clauses. It does not, however, necessarily mean that there must be repugnancy between the two provisions in all such cases. The principle underlying non obstante clause may be invoked only in the case of 'irreconcilable conflict'.” From the above it is clear that the non obstante clause of Section 4 of the Ordinance, 2001 has been used by the legislature to give the provisions of the said Ordinance an overriding effect over any other law for the time being in force which may be contrary thereto. The use of the word ‘notwithstanding’ in Section 4 ibid indicates the legislative intent to avoid the operation of conflicting provisions, by providing that Civil Appeals No.2561 of 2016 etc. - 15 - in the event of such conflict, the provisions of the Ordinance, 2001 would take precedence over any such inconsistent law. 10. So, does the Ordinance, 2001 override the provisions of the Code and the PPC? This question pertains to the second category of cases (identified in the second paragraph of this opinion) in which cheques issued by the customers to the financial institutions were dishonoured and FIRs were registered against the former under the provisions of Section 489-F of the PPC. It is a settled canon of interpretation that where there is a conflict between a special law and a general law, the former will prevail over the latter. In Muhammad Mohsin Ghuman’s case (supra) this Court observed that “special statute overtakes the operation of general statute”. At this juncture, it is useful to point out certain relevant provisions of the Code and the PPC. Section 1(2) of the Code provides that “…in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” According to Section 5(1) of the Code, all offences under the PPC “shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained”, whereas sub-section (2) thereof states that “All offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” Section 29(1) of the Code provides “Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.” While Section 5 of the PPC stipulates that “Nothing in this Act [PPC] is intended to repeal, vary, suspend or affect any of the Civil Appeals No.2561 of 2016 etc. - 16 - provisions…of any special or local law.” These provisions make it clear that not only do the Code and the PPC recognize special laws, but they indicate that such general laws would cede to the special laws. The phrase ‘for the time being in force’ [in Section 1(2) of the Code] has been interpreted by a five member bench of this Court in the judgment reported as (1) Mian Iftikhar-ud-Din, and (2) Arif Iftikhar Vs. (1) Muhammad Sarfraz Administrator, Progressive Papers Ltd. (2) The Government of Pakistan (PLD 1961 SC 585) to mean that it will apply not only to those existing statutes enacted in the past, but also to those which may be enacted in the future. Thus the Code does not affect any special laws including the Ordinance, 2001. 11. This overriding effect of Section 20(4) of the Ordinance on Section 489-F of the PPC is brought out by the following comparison:- Inconsistency Ordinance, 2001 PPC Elements of the offence Punishment Burden of proof 20(4). Whoever dishonestly issues a cheque towards re-payment of a finance or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to one year, or with fine or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque. 489-F. Dishonestly issuing a cheque. Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punished with imprisonment which may extend to three years or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque. Civil Appeals No.2561 of 2016 etc. - 17 - The above comparison of Sections 20(4) of the Ordinance, 2001 and 489-F of the PPC suggests that there is a clear conflict between them – they are worded in identical terms [save for the word ‘finance’ in Section 20(4) as opposed to ‘loan’] but the former provides for a lesser punishment of imprisonment which may extend to one year, or with fine or with both, whereas the latter stipulates a punishment of imprisonment which may extend to three years or with fine, or with both. Therefore Section 489-F cannot simultaneously apply to a situation where an offence under Section 20(4) of the Ordinance, 2001 is made out on account of the disparity in punishment. The law providing greater punishment must relent in favour of the law ordaining the lesser punishment. The ineluctable conclusion is that the Ordinance, 2001 overrides the Code and the PPC where an offence has been committed which falls within the purview of the former; and exclusive jurisdiction would vest in the Banking Courts constituted thereunder (the Ordinance, 2001) to the exclusion of the ordinary criminal courts. We are not convinced by the argument of the learned counsel for the respondents that the Ordinance, 2001 could not override Section 489-F of the PPC as the former law was promulgated on 30.08.2001 whereas the latter was inserted into the PPC by way of amendment on 25.02.2002, because as mentioned above, the phrase “for the time being in force” applies to future enactments as well, thus mere insertion of a provision in a general law after the special law comes into force would not make the general law override the special law. In fact, this insertion after the promulgation of the Ordinance, 2001 negates the respondents’ argument for the reason that it shows that the object was to also make the dishonouring of cheques to be an offence in ordinary cases apart Civil Appeals No.2561 of 2016 etc. - 18 - from those cases involving a customer and a bank which are dealt with by the Ordinance, 2001. 12. The other question which arises is, does the Ordinance, 2001 override the provisions of the ORBO? This relates to the first category of cases (identified in the second paragraph of this opinion). As established above, both the Ordinance, 2001 and the ORBO are special laws, therefore their respective scope and sphere of application needs to be examined in order to determine the relationship between the two. In other words, which law is the more special? To answer this question, it is necessary to elucidate the law on this subject. Case law from the Indian jurisdiction on this subject is quite extensive. In the case of Shri Ramah Narain Vs. The Simla Banking and Industrial Co. Ltd. (1956 SCR 603), the Indian Supreme Court, while considering the effect of the overriding effect of two special laws, held as follows:- “On the other hand, if the rule as to the later Act overriding an earlier Act is to be applied to the present case, it is the Banking Companies (Amendment) Act, 1953, that must be treated as the later Act and held to override the provisions of the earlier Displaced Persons (Debts Adjustment) Act, 1951. It has been pointed out, however, that section 13 of the Displaced Persons (Debts Adjustment) Act, uses the phrase "notwithstanding anything inconsistent therewith in any other law for the time being in force" and it was suggested that this phrase is wide enough to relate even to a future Act if in operation when the overriding effect has to be determined. But it is to be noticed that section 45-A of the Banking Companies Act has also exactly the same phrase. What the connotation of the phrase "for the time being" is and which is to prevail when there are two provisions like the above each containing the same phrase, are questions which are not free from difficulty. It is, therefore, desirable to determine Civil Appeals No.2561 of 2016 etc. - 19 - the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.” In Kumaon Motor Owners’ Union Ltd. and another Vs. The State of Uttar Pradesh (AIR 1966 SC 785 = [1966] 2 SCR 122) the Indian Supreme Court compared the provisions of the Motor Vehicles Act, 1939 and the Defence of India Act, 1962, particularly Sections 68-B and 43 thereof respectively, and held that the latter would prevail over the former. In the judgment of Sarwan Singh Vs. Kasturi Lal (AIR 1977 SC 265), the Indian Supreme Court relied upon Shri Ram Narain’s case (supra) and observed as under:- “When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration.” [Emphasis supplied] In Ashok Marketing Ltd. and another Vs. Punjab National Bank and others [(1990) 4 SCC 406], the Supreme Court of India referred to the cases of Shri Ram Narain, Kumaon Motor Owners’ Union and Sarwan Singh (supra) and held as under:- “The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the Civil Appeals No.2561 of 2016 etc. - 20 - clear intendment conveyed by the language of the relevant provisions therein. We propose to consider this matter in the light of this principle.” In Solidaire India Ltd. Vs. Fairgrowth Financial Services Ltd. and others [(2001) 3 SCC 71], it was observed:- “It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. The decisions cited in the above context are as follows: Maharashtra Tubes Ltd. v. State Industrial & Investment Corpn of Maharashtra Ltd; [1993] 2 SCC 144]; Sarwan Singh v. Kasturi Lal [1977] 2 SCR 421]: Allahabad Bank V. Canara Bank [(2000) 4 SCC 406] and Ram Narain v. Simla Banking & Industrial Co, Ltd. [1956] 1 SCR 603].” The Court went on to quote, with approval, the ratio of the decision in Bhoruka Steel Ltd v. Fairgrowth Financial Services Ltd. [5 (1997) 89 Comp Cas 547 (Special Court)], the relevant extract of which reads as under:- “It is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed then the latter must be adopted.” In Messrs Maruti Udyog Ltd. Vs. Ram Lal and others [(2005) 2 SCC 638] the Indian Supreme Court relied on Solidaire India’s case (supra) and held that:- “The said Act contains a non-obstante clause. It is well- settled that when both statutes containing non-obstante clauses are special statutes, an endeavour should be made to give effect to both of them. In case of conflict, the latter shall prevail." Civil Appeals No.2561 of 2016 etc. - 21 - The Indian Supreme Court in State of Bihar and others Vs. Bihar M.S.E.S.K.K. Mahasangh and others (AIR 2005 SC 1605) reiterated the principles in Swaran Singh’s case (supra) and the Principles of Statutory Interpretation by Justice G. P. Singh (9th Ed.). In Morgan Securities and Credit Pvt. Ltd. Vs. Modi Rubber Ltd. (AIR 2007 SC 683), it was held that:- “Both the Acts contain non-obstante clauses. Ordinary rule of construction is that where there are two non obstante clauses, the latter shall prevail. But it is equally well- settled that ultimate conclusion would depend upon the limited context of the statute.” In the judgment reported as Employees Provident Fund Commissioner Vs. O. L. of Esskay Pharmaceuticals Limited (AIR 2012 SC 11) the Court reiterated the principles enunciated in the cases of Shri Ram Narain, Kumaon Motor Owners’ Union and Ashok Marketing (supra) and held that:- “Another rule of interpretation of Statutes is that if two special enactments contain provisions which give overriding effect to the provisions contained therein, then the Court is required to consider the purpose and the policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions.” 13. As regards the case law from the Pakistani jurisdiction, in the judgment reported as State Vs. Syed Mir Ahmed Shah and another (PLD 1970 Quetta 49) Justice Muhammad Afzal Zullah comprehensively dealt with the issue of implied repeal. He discussed and compared the various features of the Pakistan Criminal Law Amendment Act (XL of 1958) and the Criminal Law (Special Provisions) Civil Appeals No.2561 of 2016 etc. - 22 - Ordinance (II of 1968) and concluded that for an accused person the mode of trial under the Act is far more beneficial than that under the Ordinance, that both the statutes are inconsistent with each other and clearly exclude the application of the other. He enunciated the accepted general principles for the avoidance of conflict between different statutes as under:- “(i) If the provisions of a later Act are so inconsistent with those of an earlier Act that both cannot stand together, the earlier stands impliedly repealed by the later. This principle is based on the maxim leges posteriores priores contrarias abrogant. In other words, it means that the latest expression of the will of the Legislature must prevail. This, of course, is subject to the condition contained in the next principle. That is: if the prior enactment is special and the subsequent enactment is general, the earlier special Legislation will not be, indirectly, repealed, altered or derogated from merely by force of the general words of the later statute, without any indication of a particular strong intention to do so. (ii) A general later law does not abrogate, by mere implication, an earlier particular or special law which deals with a special object or a special class of objects. This principle is based on the maxim generalia specialibus non derogant. But when a general Act is incorporated into a special one, the provisions of the latter would prevail over any of the former with which they are inconsistent. If one statute enacts something in general terms, and afterwards another statute .is passed on the same subject, which, although expressed in affirmative language, introduces special conditions and restrictions, the subsequent statute will usually be considered as repealing by implication the former, for "affirmative statutes introductive of a new law do imply a negative". However, if a subsequent statute merely creates an exception from the operation of a previous statute, the previous statute is not necessarily repealed. Civil Appeals No.2561 of 2016 etc. - 23 - (iii) When the later of two general enactments is couched in negative terms or in such affirmative terms which unequivocally involve negative which proves fatal to the earlier enactment, the earlier one is impliedly repealed. (iv) When the two statutes are expressed in negative terms, they may be affirmative inter se and may not be contradictory to each other; though the effect of both may be that they are negative as regards a third statute ‘at which both of them may have made some inroads’. When seen in this light, an apparent conflict of two statutes is found as without any reality. Because they (sic) objects may be different and both may be parallel; and each may be restricted to its own particular subject or locality. (v) If the co-existence of the two inconsistent statutes would be destructive of the object for which the later was passed, the earlier would be deemed to have been repealed. (vi) In so far as the Penal Acts are concerned, if a later statute again describes an offence created by a former one, and provides a different punishment, creates a new jurisdiction and remedy and varies the procedure-modifying the manner or changing the forum of trial or appeal, the earlier statute is impliedly repealed by the later unless, of course, both of them can exist in parallel application to different localities, subjects or objects. (vii) When the words are clear and capable of proper operation, the revocation or alteration of a statute by construction is not permissible. The Legislature is normally not presumed to have intended to keep two contradictory enactments on the statute-book with the intention of repealing the one with the other, without expressing an intention to do so. Such an intention cannot be imputed to the Legislature without some strong reasons and unless it is inevitable. Before adopting the last-mentioned course, it is necessary for the Courts to exhaust all possible and reasonable constructions which offer an escape from repeal by implication. Civil Appeals No.2561 of 2016 etc. - 24 - (viii) All other consideration being equal, if the inconsistency, in spite of applying all general principles of interpretation of statutes, cannot be resolved, a statute more beneficial in remedy or method of taking action will override the statute which is not so beneficial. The list of the principles on the subject is, by no means, exhaustive. Departures from the above principles have been made in individual cases on the basis of the language used in, and the intention found in respect of, particular statute. The approach in Pakistan on various questions of interpretation of statutes, as compared to India, has usually been pragmatic rather than technical. It was observed in the case of Badrul Haque (PLD 1963 SC 704), that "the fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent of them that made it". Therefore, it has to be laid down as a governing rule that whenever there are two possible interpretations, the one destroying the intention of the Legislature in passing the Act should not be adopted. But once the intention having been discovered and words having been given correct meaning and interpretation, the Courts will not refuse to give effect to the Legislation merely because it appears to be harsh, unreasonable or even vindictive; because these attributes of a statute fall within the field of policy of the Legislature and go beyond the ambit of the jurisdiction of the Courts. This, of course, is subject to the question of mala fides of the Legislature in enacting a law and the further question whether or not on that basis the Courts can go into validity of a particular law. That subject is not relevant to the discussion of the present case. Therefore, no comments are made thereon. The principles laid down in Mir Ahmed Shah’s case (supra) were cited with approval in the judgment of this Court reported as I. G. HQ Frontier Corps and others Vs. Ghulam Hussain and others (2004 SCMR 1397). Thus, when there are two special laws both of which contain overriding clauses, in the case of conflict between the two laws generally the statute later in time will prevail over the statute prior in Civil Appeals No.2561 of 2016 etc. - 25 - time. However, we are of the opinion that this presumption is not automatic: instead a host of other factors including the object, purpose and policy of both statutes and the legislature’s intention, as expressed by the language employed therein, need to be considered in order to determine which of the two special laws is to prevail. 14. In the light of the above, a comparison of the salient features of both the laws is necessary:- Inconsistency Ordinance, 2001 ORBO Object Providing a special forum and procedure for redressal of grievances, both civil and criminal, between a “financial institution” [Section 2(a)] and a “customer” [Section 2(c)] arising out of or in relation to “finance” [Section 2(d)] [proviso to Section 7(1)(b)] Providing a forum and procedure for trial of offences committed in respect of or in connection with the “business of a bank” [Sections 2(d) and 4] Subject Civil Customer and financial institution (Section 9) Criminal Whoever commits an offence in relation to obligations arising out of the finance in respect of a financial institution (Section 20) No civil jurisdiction Criminal Any person committing a scheduled offence in relation to the business of a bank [Sections 2(d) and 4] Procedure Initiation of proceedings Only upon a complaint in writing made by a person authorised by the financial institution in respect of which the offence was committed No First Information Report as the offences are non-cognizable other than willful default [Section 20(6)] Initiation of proceedings Upon a complaint by any person; or A report in writing made by any police officer [Section 5(1)] Civil Appeals No.2561 of 2016 etc. - 26 - Bail All offences, other than willful default, are bailable [Section 20(6)] Compounding All offences, other than willful default, are compoundable [Section 20(6)] Forum To be exclusively tried by a Banking Court [Section 7(4)] Bail Not to be released on bail if there appear reasonable grounds of guilt [Section 5(6)] In case of bail, the amount of bail bond to be fixed in relation to the amount involved and cannot be less than such amount [Section 5(7)] Compounding Most of the scheduled offences are non-compoundable Forum To be exclusively tried by a Special Court [Section 4(1)] Punishment For offences falling in Section 20(1) and (2), three years imprisonment and fine For offences falling in Section 20(3) and (4), one year imprisonment and fine For the PPC offences in the Second Schedule, not less than seven years, and/or fine, while the other PPC offences in the First Schedule, which may extend to seven/three/two/one- fourth part of the longest term of the imprisonment provided for the offence, and/or fine (First and Second Schedule) Amount of fine to be fixed having regard to the gravity of the offence, and where the offence is committed with respect to a specific amount, not less than twice the said amount [Section 6(3)] Impediments and burden of proof Dealing with property After taking cognizance, an accused, relatives of the accused and persons acting on his behalf are barred from dealing with moveable and Civil Appeals No.2561 of 2016 etc. - 27 - immoveable properties without permission of the Special Court (Section 7) Bar against leaving Pakistan After taking cognizance, an accused cannot travel abroad without permission of the Special Court [Section 8(1)] Bar against employment After taking cognizance, an accused cannot be employed for any service without permission of the Special Court [Section 8(2)] Burden of proof Presumption of guilt against an accused and burden of proof on accused in respect of his assets as well as those of his relatives (Section 9) 15. As mentioned earlier, Section 4(1) of the Ordinance, 2001 is an overriding clause. However, an almost identical overriding clause can be found in Section 12 of the ORBO, save for the fact that it does not contain the words ‘inconsistent therewith’ after ‘notwithstanding anything’. We find this omission to be insignificant, as the legislature’s intent is clear; that the provisions of the ORBO be given effect in spite of anything contained in the Code or any other law for the time being in force. Thus both laws are special and contain competing overriding clauses. As stated earlier in this opinion, the object and purpose of the ORBO was to create Special Courts to provide for the speedy trial of ‘scheduled offences’ which are offences committed in respect, or in connection with the business of a bank. ‘Business of a bank’ has been Civil Appeals No.2561 of 2016 etc. - 28 - elaborately explained in the judgment reported as A. Habib Ahmed Vs. M. K. G. Scott Christian and 5 others (PLD 1992 SC 353) to mean:- The definition of scheduled offence as contained in section 2 (d) of the Ordinance does include a rider to be to the offences which are mentioned in the schedule and which undoubtedly are alleged in this case. The rider is that those offences should have been alleged to have been committed "in respect of or in connection with the business of bank". It needs to be emphasized that the expression "business of a bank" used in the definition would have to be given extended meaning on account of the use of two such further open ended expressions which connote very wide meaning for the words "business" and the "Bank". These are "in respect of” or "in connection with". The scrutiny of the meanings of these words and expressions in the classical sources together with the modern usages and scope of Banking business, leave absolutely no doubt that there will be left out of their ambit only extremely rare cases. They somehow or the other, are linked with the modern extended banking practices in trade business, industry and finance, domestic and other; besides the earlier known scope of their operation. Take, for example, the word "Business" as separate from the word "Bank". Again take all that goes with the modern banking business and all that is included in the banking procedures. Not only this, banking activities both with regard to the depositors dealings as well as dealings in trading and other enterprises are their business. There is no need to dilate upon the scope of the expressions "in respect of” and "in connection with" any further. …The intention being that all conceivable situations, linked with the business of the bank, would make the offences mentioned in the schedule as scheduled offences. Thus to take away all such cases from the ordinary Courts, for purpose of their trial before the Special Courts (Banks). [Emphasis supplied] Civil Appeals No.2561 of 2016 etc. - 29 - Thus the conceptual construct of ‘business of the bank’ and the scope of the ORBO are interlinked. Furthermore, the number as well as the ambit of the offences specified in the First Schedule to the ORBO is relatively wide. The following cases illustrate the variety of offences that fall within the purview of the ORBO:- i. Misappropriation of funds by bank employee – Muhammad Yaqub Ali Vs. The State (PLD 1985 Lah 48); ii. Forgery of title deeds by mortgagee and non- verification of documents by bank employee Asif Mahmood Vs. The State (1987 PCrLJ 896); iii. Bank guarantee forged by a bank employee – The State Vs. Muhammad Iqbal (1987 PCrLJ 1096); iv. Cashier running away with the cash of a bank – Manzoor Ahmed Vs. The State (1989 MLD 4890); v. Forgery of banking instrument by an account holder to claim a higher sum– Asmat Qadri Vs. The State (PLD 1989 Kar 276); vi. Embezzlement of money from bank account maintained with a bank – Allied Bank of Pakistan Ltd. Vs. Khalid Farooq (1991 SCMR 599); vii. Fraudulent sale of shares by a bank employee, which were held as security by the bank – A. Habib Ahmed’s case (supra); viii. Forgery of cheques for withdrawal of amount by an account holder – Ghulam Mustafa Vs. Presiding Officer, Special Court (Offences Against Banks), Rawalpindi and 2 others (2003 MLD 841); ix. Manipulation of pay order by an account holder – Muhammad Moinuddin Vs. Presiding Officer, Civil Appeals No.2561 of 2016 etc. - 30 - Special Court (Offences in Banks), Singh at Karachi and 3 others (2011 PCrLJ 1488); and x. Fraudulent misappropriation from bank account by a bank employee and embezzlement – Hamad Raza through Special Attorney Vs. The State and 2 others (2014 CLD 1493). On the other hand, the Ordinance, 2001 established Banking Courts which deal with disputes (civil and criminal) between financial institutions and customers in respect of finances availed by the latter and investigate and try offences stipulated therein. Section 20 of the Ordinance, 2001 indicates that there are numerous elements of each offence, making such offences far more specific than those triable by the Special Courts under the ORBO. Thus, perchance if a customer commits an act which constitutes an offence under any of the provisions of Section 20(1) of the Ordinance, 2001 and the same act also constitutes an offence under the ORBO, and but for the Ordinance, 2001 being in force, such customer would have been tried under the ORBO, then it could be said that there was/is a definite overlap between the two laws and the Courts established under the ORBO may not exercise concurrent jurisdiction with respect to those acts/omissions which constitute offences under the Ordinance, 2001. The examples of cases listed above, falling within the purview of the ORBO, demonstrate that they do not extend to customers who are alleged to have committed offences which fall squarely within the purview of the Ordinance, 2001; rather they are restricted to the employees of banks, any third parties (vis-à-vis customer and financial institution) or in some instances customers but only when the act/omission does Civil Appeals No.2561 of 2016 etc. - 31 - not fall within the ambit of the offences in the Ordinance, 2001. Therefore it is categorically held that the Ordinance, 2001 shall have an overriding effect on all those cases which are covered by it. Concomitantly, offences not covered by the Ordinance, 2001 would be triable under the ORBO. A comparative analysis shows that generally, proceedings before the Special Courts under the ORBO are more onerous and relatively disadvantageous to the accused. Under the ORBO, proceedings can be initiated on the basis of a complaint by any person or a report by a police officer (as opposed to only a complaint by a financial institution under the Ordinance, 2001), the accused is not to be released on bail if there appear reasonable grounds of guilt (whereas all offences apart from willful default are bailable under the Ordinance, 2001), most offences are non- compoundable, punishment of the offences is generally of greater severity, the accused and persons acting on his behalf are barred from dealing with moveable and immoveable property without permission of the Special Court, the accused can neither leave Pakistan nor be employed for any service without the permission of the Special Court, and there is presumption of guilt and the burden of proof is on the accused. 16. The learned counsel for the respondents have argued that the Banking and Special Courts under the Ordinance, 2001 and the ORBO respectively enjoy concurrent jurisdiction, giving the financial institutions/banks a choice of forum before which the trial should take place: in this behalf they have relied upon Section 20(1) of the Ordinance, 2001, according to which whoever commits any of the offences made out in parts (a) to (d) would be punishable to the extent mentioned therein, “without prejudice to any other action which may be taken Civil Appeals No.2561 of 2016 etc. - 32 - against him under this Ordinance or any other law for the time being in force” [Emphasis supplied]. Provisions enacted ‘without prejudice’ to other provisions means that the former would not affect the operation of the latter.7 The ‘without prejudice’ clause reproduced above can be divided into two parts:- (i) any other action which may be taken against him under the Ordinance, 2001; and (ii) any other action which may be taken against him under any other law for the time being in force. As regards the first part, it means that if a person commits an offence which falls within the purview of Section 20 of the Ordinance, 2001, action can be taken against him under the said Ordinance, including, inter alia, a civil suit filed by a banking company before the Banking Court under Section 9 thereof quite apart from action for committing another offence. As far as the second part is concerned, when the Ordinance, 2001 came into force, the ORBO was already in existence. Would this mean that if a person committed an offence which fell within the purview of Section 20 of the Ordinance, 2001, parallel action could be taken against him under the ORBO? The answer depends on the scope of the phrase ‘without prejudice’. In isolation this expression would speak to the legislature’s intention that a financial institution be not confined to having recourse to only one specific remedy against a customer for offences committed by him in relation to the obligations of the finance availed, but to allow the banking company to choose its remedy. However, we cannot subscribe to this point of view. Were both laws to apply concurrently and permit of parallel platforms for the adjudication of offences under both laws then banks/financial institutions would always choose to initiate proceedings under the 7 Justice G. P. Singh in Principles of Statutory Interpretation (13th Ed.) Civil Appeals No.2561 of 2016 etc. - 33 - more onerous law, in this case the ORBO. Such an interpretation would give banks/financial institutions unbridled power to choose the forum before which trial of offences should take place, and they would obviously choose the Special Courts under the ORBO being more burdensome and prejudicial to the accused (as demonstrated above). A natural corollary is that in such circumstances the Ordinance, 2001 would, in effect, be rendered redundant. This is not permissible under any principle of interpretation of law when the Courts are trying to reconcile two potentially conflicting laws: our duty is to bridge the gap between what is and what was intended to be. We are not willing to attribute redundancy to the legislature. We do not wish to give financial institutions the unrestricted power to choose, when there has been an alleged dishonour of a cheque, between Section 20(4) of the Ordinance, 2001 and Section 489-F of the PPC, as they would of a certainty opt to initiate proceedings under the latter which offence carries a greater punishment than the former. In this context, the judgment reported as Waris Meah Vs. (1) The State (2) The State Bank of Pakistan (PLD 1957 SC 157) is relevant in which a five member bench of this Court held as under:- In the present case, the question to be determined is whether the impugned Act is ex facie discriminatory, and we have no hesitation in saying that it is. Three tribunals with different powers and procedures have been set up. The Act creating them contains no indication as to which class or classes of cases are to go before a Court and which before the Tribunal and the Adjudication Officer and it does not impose upon the Central Government, the obligation, or expressly confer on it the power, of making rules with a view to classifying the cases to be tried by each Civil Appeals No.2561 of 2016 etc. - 34 - of thesee (sic) tribunals. Nor does it define the principle or policy on which such classification may be made by the Central Government or the State Bank. The Central Government has not exercised its power of issuing any directions to the State Bank or of making any rules under section 27 for carrying into effect the provisions of the Act. The result, therefore, is that in the present state of the law no person who is alleged to have contravened any provision of the Act can know by which Court he is to be tried, and the question whether on conviction he shall be punished with imprisonment or should be punished with imprisonment and fine which may extend to any amount, or whether he should be let off with a mere penalty of three times the value of the amount involved rests entirely on the action that the Central Government or the State Bank may choose to take. It was contended on behalf of the State that in the present cases, it could not be said that discretion had not been exercised in a fair and reasonable manner by the State Bank, in electing to send the cases to a Tribunal. On the allegations, the cases were of a serious character, and merited severe punishment. The mischief of the Act is, however, not susceptible of so simple a cure. It confers discretion of a very wide character upon stated authorities, to act in relation to subjects falling within the same class in three different modes varying greatly in severity. By fur- nishing no guidance whatsoever in regard to the exercise of this discretion, the Act, on the one hand, leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and, on the other, prevents him from invoking his fundamental right to equality of treatment under the Constitution. The Constitution declares in Article 5 (1) that "All citizens are equal before law and are entitled to equal protection of law" and Article 4 (1) provides that "Any existing law . . . . . in so far as it is inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void." That duty of declaring that a law is void, for violating a Fundamental Right defined in Part II rests on the Courts. That duty cannot be performed, so as to ensure that a law operates equally in relation to all persons within its Civil Appeals No.2561 of 2016 etc. - 35 - mischief, if the law itself provides for differential operation in relation to such persons, not in accordance with any principle expressed or implicit in the law, not on the basis of any classification made by or under the law, but according to the unfettered discretion of one or more statutory authorities. Here, not only is there discretion in the specified authorities whether they will proceed at all against any member of the class concerned, viz. offenders against the Act, but there is also an unfettered choice to pursue the offence in any one of three different modes which vary greatly in relation to the opportunity allowed to the alleged offender to clear himself, as well as to the quantum and nature of the penalty which he may incur. The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial viewpoint, arbitrary to a greater or less degree. The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5 (1) of the Constitution. In our view such a law has the effect of doing indirectly i.e., by leaving the discrimination within the unguided and unfettered discretion of statutory authorities, what it could not do directly i.e., to treat unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purposes of the law. The Act is, therefore, in our opinion, in relation to its discriminatory provisions, inconsistent with the declaration of equality in Article 5 (1) of the Constitution. 17. In addition to our opinion expressed above about the redundancy of the Ordinance, 2001 (see paragraph No.16), to allow forums Civil Appeals No.2561 of 2016 etc. - 36 - under the Ordinance, 2001 and the ORBO to operate concurrently would offend the provisions of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) which provides that all citizens are equal before the law and are entitled to equal protection of the law; there being no defined guidelines on the basis of which cases may be tried under either law, it would tantamount to conferring unfettered discretion on financial institutions to pick and choose the forum as per their free will. Allowing them to do so would be violative of the rule against discrimination therefore we deem it best to restrict the applicability of the ORBO and hold that the Ordinance, 2001 is to have an overriding effect on the former. Furthermore, Article 4 of the Constitution confers upon the citizens the inalienable right to enjoy the protection of law and to be treated in accordance with law. This provision is reflective of the seminal concept of the rule of law, one of the elements of which is, as identified by Tom Bingham, that the law must be accessible and so far as possible intelligible, clear and predictable.8 If both the Ordinance, 2001 and the ORBO were to enjoy concurrent jurisdiction, citizens alleged to have committed an offence in respect of finance would be left wondering which offence they would be charged with, which Court they would be tried in and under what procedure. Thus, to our minds, such a situation would also be an affront to the provisions of Article 4 of the Constitution. 18. There is another aspect to this matter. The ‘without prejudice’ clause was first introduced in the Ordinance, 1984. As mentioned in the beginning of this opinion, the Ordinance, 1984 was enacted to deal with the recovery of interest-free finance(s) as there 8 The Rule of Law (2010) by Tom Bingham. Civil Appeals No.2561 of 2016 etc. - 37 - already existed the Ordinance, 1979 to deal with regular loans. Both the laws were meant to operate side by side as they catered to two different types of finance/loan – interest free and otherwise. This is why the Ordinance, 1984 did not repeal the Ordinance, 1979, instead Section 7 (of the Ordinance, 1984) included the phrase “without prejudice to any other action which may be taken against him under this Ordinance or any other law for the time being in force” This was to cater for situations where a customer/borrower had, for instance, taken a loan and an interest-free finance, and he had breached his obligations with respect to both: if action were to be taken against him under the Ordinance, 1984 for breach of his obligations with respect to the interest-free finance, it would not preclude any action that may be taken against him in respect of breach of his obligations with regard to the regular loan. Unfortunately this ‘without prejudice’ clause was retained in the Ordinance, 1997, the Act, 1997 and the Ordinance, 2001 when there was absolutely no need to do so since these enactments dealt with both regular and interest-free loans. It is a mere remnant and representative of thoughtless drafting. 18. It is for the aforesaid reasons that the phrase “without prejudice to any other action which may be taken against him under… any other law for the time being in force” appearing in Section 20(1) of the Ordinance, 2001 has to be read down in order to arrive at a harmonious interpretation to the laws in question, without which the said Ordinance would be rendered superfluous (at least to the extent of the offences). The principle of ‘reading down’ has been employed by this Court in numerous cases such as Haroon-ur-Rashid Vs. Lahore Development Authority and others (2016 SCMR 931) and Province of Sindh through Chief Civil Appeals No.2561 of 2016 etc. - 38 - Secretary and others Vs. M.Q.M. through Deputy Convener and others (PLD 2014 SC 531) in order to save a statute and this is precisely what we are doing today. By reading down the aforementioned phrase in Section 20(1) supra, we are adopting a harmonious interpretation in order to save the Ordinance, 2001, particularly the provisions of Section 20 thereof from being rendered nugatory. The principle of harmonious interpretation has often been endorsed by this Court in cases such as Lucky Cement Ltd. Vs. Commissioner Income Tax, Zone Companies, Circle-5, Peshawar (2015 SCMR 1494) and Aftab Shahban Mirani and others Vs. Muhammad Ibrahim and others (PLD 2008 SC 779). Thus, it is held that the scope of the offences in the ORBO is wider than those set out in the Ordinance, 2001, leading us to the conclusion that the ORBO would not apply to any acts or omissions which constitute an offence under the Ordinance, 2001. The same applies to the argument of the learned counsel for the respondents that the Agency had the jurisdiction under the Act, 1974 (Section 3 and the Schedule) with regard to the offence committed under Section 83A of the Ordinance, 1962 (and other provisions of the PPC). When an act/omission that falls within Section 83A supra (or other provisions of the PPC) also constitutes an offence under Section 20 of the Ordinance, 2001, then the latter will prevail over the former and only the Banking Courts constituted under the Ordinance, 2001 would have the jurisdiction in the matter, to the exclusion of the Agency. 19. In conclusion, we find that the provisions of the Ordinance, 2001 are to have an overriding effect on anything inconsistent contained in any other law for the time being in force, including the ORBO, the Code (read with the PPC) and the Act, 1974 (read with the Ordinance, Civil Appeals No.2561 of 2016 etc. - 39 - 1962). In essence, whenever an offence is committed by a customer of a financial institution within the contemplation of the Ordinance, 2001, it could only be tried by the Banking Courts constituted thereunder and no other forum. The Special Courts under the ORBO, the ordinary criminal Courts under the Code and the Agency under the Act, 1974 read with the Ordinance, 1962 would have no jurisdiction in the matter. In the light whereof, all these appeals are allowed, the petitions are converted into appeals and allowed and all the impugned judgments are set aside. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 15.5.2017 at Islamabad Approved for reporting Mudassar/

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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. 2564/2001, 2658/2006, 1670/2008, 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 (On appeal from the judgment dated 25.6.2001/27.8.2002/2.6.2008/17.12.2012/ 23.10.2013/7.4.2014/3.10.2014 of the Lahore High Court, Lahore/Peshawar High Court, Peshawar/Lahore High Court, Multan Bench/Peshawar High Court, D.I. Khan Bench/Lahore High Court, Lahore/Peshawar High Court, D.I. Khan Bench passed in C.R.No.1611/2000, R.F.A.No.29/1996, R.F.A.No.230/2005, R.S.A.No.4/1996, R.F.A.No.185/2011, R.F.A.No.4/2014 and C.R.No.124-D/2014) Khushi Muhammad (deceased) through L.Rs. (in C.A.2564/2001) LDA through its D.G. (in C.A.2658/2006) Fazal-e-Yasir etc. (in C.A.1670/2008) Kh. Muhammad Mehmood etc. (in C.A.60-L/2013) Muhammad Yousaf etc. (in C.A.280-L/13) Muhammad Yousaf (in C.A.60/2014) Malik Akhtar Khan (in C.A.965/2014) Muhammad Ramzan (in C.A.218/2015) …Appellant(s) VERSUS Mst. Fazal Bibi etc. (in C.A.2564/2001) Muhammad Latif etc. (in C.A.2658/2006) Qazi Hamidduddin (in C.A.1670/2008) Muhammad Yousaf etc. (in C.A.60-L/2013) Kh. Muhammad Mehmood etc. (inC.A.280-L/2013) Muhammad Younas etc. (in C.A.60/2014) Ashiq Hussain (in C.A.965/2014) Mst. Saira Bibi (in C.A.218/2015) …Respondent(s) C.A.2564/2001 For the Appellant: Raja Muhammad Ibrahim Satti, Sr. ASC Mr. M. S. Khattak, AOR For the Respondents: Malik Muhammad Qayyum, Sr. ASC Mian Hamid Farooq, ASC Syed Rifaqat Hussain Shah, AOR C.A.2658/2006 For the Appellant: Mr. Khurram Raza Chaudhry, ASC For Resp. No.12: Nemo Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 2 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 For Resp. No.16: Mr. Waqar Ahmed Sheikh, ASC Gulzar Hussain, Asstt. Director (Hort.), PHA Mr. Muhammad Tariq Nazir, Asstt. Law, PHA L.Rs. of Resp.1, 10 & 11: Ex-parte L.Rs. of Resp.2-9, 13-15: Ex-parte C.A.1670/2008 For the Appellant: Mian Muhibullah Kakakhel, Sr. ASC For the Respondent(s): Mr. Abdul Sattar Khan, ASC C.A.60-L/2013 For the Appellant: Ch. Mushtaq Ahmed Khan, Sr. ASC For the Respondent(s): Ch. Nusrat Javed Bajwa, ASC (Resp.Nos.1-3(i-vi),4(A-D),7(iv-viii),10-19,24- 48,54(A-C),55,56(ii-v),57-65) For Respondent 7(i-iii): Mr. Zahid Hussain Khan, ASC C.A.280-L/2013 For the Appellant: Ch. Nusrat Javed Bajwa, ASC For Respondents 1-4: Ch. Mushtaq Ahmed Khan, Sr. ASC L.Rs. of Resp. No.5: Not represented C.A.60/2014 For the Appellant: Mr. Muhammad Munir Peracha, ASC For Respondents 1-2: Mr. Gulzarin Kiyani, Sr. ASC For Respondent No.3: Not represented C.A.965/2014 For the Appellant: Sardar Muhammad Aslam, ASC For the Respondents: Ch. Muhammad Munir Akhtar Minhas, ASC C.A.218/2015 For the Appellant: Mr. Gulzarin Kiyani, Sr. ASC For the Respondent(s): Syed Mastan Ali Shah Zaidi, ASC Dates of Hearing: 08.02.2016, 09.02.2016 & 10.02.2016 … Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 3 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 JUDGMENT MIAN SAQIB NISAR, J:- Through these matters we have been called upon to answer the question as to whether the time spent in pursuing an appeal before a wrong forum can be condoned and/or excluded from the prescribed period of limitation. In the above context certain ancillary and incidental propositions also require resolution:- (i) Whether Section 14 of the Act applies to appeals and if not, whether the principles enshrined therein (Section 14) can be made applicable while considering if a sufficient cause has been made out under Section 5 of the Act; (ii) Whether the institution and the pendency of the appeal before a wrong forum i.e. one having no jurisdiction on account of wrong advice of the counsel constitutes a sufficient cause for condonation of delay in terms of Section 5 of the Limitation Act, 1908 (the Act); (iii) Where an appeal which has been entertained by the staff of the court or the court itself which has no pecuniary jurisdiction and is ultimately returned to the appellant or is dismissed, whether this protects the appellant from the bar of limitation and/or constitutes a sufficient cause for the condonation of delay on the principle of actus curiae neminem gravabit; and (iv) Whether the discretion exercised by the court(s) below in condoning the delay cannot be interfered with by the higher court(s) unless the discretion is shown to have been exercised arbitrarily. It may be pertinent to mention here that this is not the first time that the superior Courts have been asked to provide answers to these Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 4 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 questions; on the contrary it has been a recurring issue coming before the courts time and again and unhappily there happen to be drastically divergent/conflicting views on the subject. Thus we wish to resolve the conflict so as to have a binding effect on all those concerned in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). As the aforesaid propositions are common to all these matters we intend to resolve the same before examining and deciding the individual cases on their own merits. 2. Extensive arguments have been made by the learned counsel for the parties for and against the propositions which are summarized hereinbelow; their pleas/counter-pleas and the law cited in support thereof (note: including case law researched by the Court staff) are reflected in the reasons of this opinion. The summations of the learned counsels who have objected to the condonation of delay/exclusion of time are briefly stated below:- (i) That Section 5 of the Act should be strictly construed and applied and that sufficient cause stipulated therein should not be tested on the conditions of Section 14 of the Act as it only applies to suits and not appeals; however some of the counsel have submitted that the limitations of the latter section should be referred to assess the existence of sufficient cause; (ii) An appellant who approaches the wrong forum (one lacking jurisdiction) should not be given the premium of his own negligence; especially in cases where the institution of an appeal before the wrong forum is tainted with mala fide intention; Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 5 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 (iii) When a lis is initiated beyond the prescribed period of limitation a vested right is created in favour of the opposite side which cannot be obliterated by giving a premium to a delinquent litigant; (iv) That the rule actus curiae neminem gravabit is a rule of administration of justice; it should not be used to favour a delinquent litigant to the prejudice of the opposite side in whose favour a vested right has been created; besides, where an appellant is unmistakably found to be negligent or lacking bona fide, to give him the benefit of the rule of actus curiae neminem gravabit would be a serious abuse of the rule which is meant for the administration of justice. 3. On the other hand, the summations of the learned counsels supporting the proposition that the appeal filed by the litigant before a wrong forum on the mistaken/wrong advice of the counsel and the subsequent entertainment of such appeal by the office of the court or the court itself justifies condonation of delay are:- (i) That an appeal is an extension of a suit, and the entire case reopens before the appellate court, therefore, Section 14 of the Act can be resorted to for purposes of excluding the time spent before the forum having no jurisdiction, however, the conditions of the section have to be satisfied. Mr. Malik Muhammad Qayyum, learned ASC when specifically questioned in this regard has candidly conceded that Section 14 would not be attracted, rather, the conditions stipulated therein if satisfied should be construed to be a sufficient cause in terms of Section 5 (this was also the submission of Mr. Gulzarin Kiyani, learned counsel appearing for the opposite side); (ii) That if the reason for approaching the wrong forum is the wrong advice of a legal expert whom a litigating party approaches with due diligence and in good faith, therefore, Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 6 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 no prejudice should be caused to such litigant and delay resulting due to mistaken advice should be condoned on this account simpliciter; (iii) It is the duty of the appellate court (including its staff) to refuse to entertain or admit an appeal when it does not fall within its pecuniary jurisdiction, but in the event of failure to do so the rule of actus curiae neminem gravabit would be duly attracted; (iv) Where a court whilst exercising its discretion has condoned the delay as per Section 5 of the Act, the higher court(s) shall not interfere in such discretionary exercise of power [note: this plea was raised by Mr. Malik Qayyum, learned ASC who has placed reliance on the following cases in this regard:- Muhammad Bashir and another Vs. Province of Punjab through Collector of District Gujrat and others (2003 SCMR 83), P.M. Amer Vs. Qabool Muhammad Shah and others (1999 SCMR 1049), Mrs. Zubaida Begum Vs. Mrs. S.T. Naqvi (1986 SCMR 261), Lahore Development Authority Vs. Mst. Sharifan Bibi and another (PLD 2010 SC 705) and National Bank of Pakistan and others Vs. Shamoon Khan and others (2010 SCMR 1173)]. 4. Before considering the propositions above, it is expedient to mention certain salient features which have been settled over a period of time by the superior Courts for the purposes of interpretation of the law of limitation. These are:- (i) The law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with.1 Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are 1 2016 PLC (CS) 195; 2010 PLC (Labour) 104; 2007 SCMR 1446; 2003 YLR 1837 and PLD 1962 (WP) Dacca 381. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 7 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 fully complied with in letter and spirit.2 There is no scope in limitation law for any equitable or ethical construction to get over them.3 Justice, equity and good conscience do not override the law of limitation.4 Their object is to prevent stale demands and so they ought to be construed strictly;5 (ii) The hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the court.6 Ignorance, negligence, mistake or hardship does not save limitation, nor does poverty of the parties;7 (iii) It is salutary to construe exceptions or exemptions to a provision in a statute of limitation rather liberally while a strict construction is enjoined as regards the main provision. For when such a provision is set up as a defence to an action, it has to be clearly seen if the case comes strictly within the ambit of the provision;8 (iv) There is absolutely no room for the exercise of any imagined judicial discretion vis-à-vis interpretation of a provision, whatever hardship may result from following strictly the statutory provision. There is no scope for any equity. The court cannot claim any special inherent equity jurisdiction;9 (v) A statute of limitation instead of being viewed in an unfavourable light, as an unjust and discreditable defence, should have received such support from courts of justice as would have made it what it was intended emphatically to be, a statute of repose.10 It can be rightly stated that the plea of limitation cannot be deemed as an unjust or discreditable 2 PLD 2004 AJ&K 38. 3 PLD 2005 Lah 129; PLD 1962 (WP) Dacca 381 and PLD 1958 (WP) Lah 936. 4 PLD 2005 Lah 129. 5 2013 CLC 403; 2003 YLR 1837 and PLD 1962 (WP) Dacca 381. 6 AIR 1940 Rang 276 (FB) 7 PLD 2003 SC 628; 2002 PLC (CS) 526; 2002 PLC (CS) 474; PLD 2002 SC 101; 1998 PLC (CS) 1007; 1988 SCMR 1354 and 1987 PLC (CS) 200. 8 25 Cal 496, 503. 9 AIR 1935 All 323. 10 Supra note 1. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 8 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 defence.11 There is nothing morally wrong and there is no disparagement to the party pleading it.12 It is not a mere technical plea as it is based on sound public policy and no one should be deprived of the right he has gained by the law.13 It is indeed often a righteous defence.14 The court has to only see if the defence is good in law and not if it is moral or conscientious;15 (vi) The intention of the Law of Limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right.16 (vii) The Law of Limitation is an artificial mode conceived to terminate justiciable disputes. It has therefore to be construed strictly with a leaning to benefit the suitor;17 (viii) Construing the Preamble and Section 5 of the Act it will be seen that the fundamental principle is to induce the claimants to be prompt in claiming rights. Unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly be encouraged or countenanced.18 5. Coming back to the issues in hand, it is desirable to reproduce the provisions of Sections 5 and 14 of the Act which read as under:- “5. Extension of period in certain cases. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment 11 48 Cal 110 (PC); AIR 1933 PC 230. 12 Ibid. 13 Ibid. 14 AIR 1933 PC 230. 15 54 All 1067 (PC); AIR 1935 All 323; 56 Cal 575. 16 21 Cal 8, 18 (PC). 17 AIR 1966 Pat 1 (FB). 18 AIR 1966 Raj 213. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 9 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. (Emphasis supplied) (note:- shall not be admitted unless a sufficient cause is shown) Explanation. The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section. 14. Exclusion of time of proceeding bona fide in Court without jurisdiction. (1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. Explanation I. In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 10 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Explanation II. For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding. Explanation III. For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.” 6. There are a very large number of judgments which have been cited before us in support of the submissions that the Courts ought not to condone delays on account of mistaken advice of counsel, on account of pendency of a lis before the wrong forum and/or on account of some perceived or actual mistake of the Court. The aforesaid findings are variously stated in the following judgments of this Court: Rahim Bux Vs. Settlement Authorities and others (1968 SCMR 78), Ahmad Din Vs. Mst. Rasul Bibi (1968 SCMR 843), Rehmatullah and others Vs. Ulas Khan and others (1968 SCMR 975), Shah Muhammad Vs. Ghulam and another (PLD 1970 SC 196), Mst. Hajran Vs. Sardar Muhammad (PLD 1970 SC 287), Mohiuddin Vs. Settlement and Rehabilitation Commissioner Hyderabad, Karachi and Khairpur Divisions and another (1970 SCMR 428), Hakeem Abdul Rehman Vs. Noor Muhammad and another (1970 SCMR 582), Province of East Pakistan Vs. Abdul Hamid Darji and others (1970 SCMR 558), Fateh Ali Khan Vs. Subedar Muhammad Khan (1971 SCMR 354), Muhammad Nawaz and 3 others Vs. Mst. Sakina Bibi and 3 others (1974 SCMR 223), Ch. Muhammad Sharif Vs. Muhammad Ali Khan and others (1975 SCMR 259), Abdul Ghani Vs. Ghulam Sarwar (PLD 1977 SC 102), Mst. Walayat Khan Vs. Khalil Khan and another (PLD 1979 SC 821), Khalid Farooq and 3 others Vs. Hakim Nazar Muhammad and another (1979 SCMR 52), Mirza Muhammad Saeed Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 11 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Vs. Shahab-ud-Din and 8 others (PLD 1983 SC 385), Mst. Mahmooda Begum and others Vs. Major Malik Muhammad Ishaq and others (1984 SCMR 890), Raj Muhammad Vs. Mst. Chan Bibi and others (1984 SCMR 1068), Rahim Bakhsh through Legal Heirs and others Vs. Mst. Pathani through Legal Heirs and others (PLD 1985 SC 324), Bashir Ahmad Vs. Government of the Punjab (1985 SCMR 333), Mian Aizad Bakhsh Vs. Sheikh Muhammad Afzal (1985 SCMR 1003), Nek Muhammad Vs. A.C. Jhelum and others (1986 SCMR 1493), Islam Din Vs. Allah Nawaz and others (1988 SCMR 2), Manzoor Hussain and 2 others Vs. Muhammad Ali and another (1989 SCMR 1498), Chief Administrator of Auqaf Vs. Muhammad Ramzan (PLD 1991 SC 102), Ghulam Ali Vs. Akbar @ Akoor and another (PLD 1991 SC 957), Muhammad Tufail Danish Vs. Deputy Director F.I.A. and another (1991 SCMR 1841), Masud Ahmed and 2 others Vs. United Bank Limited (1992 SCMR 424), Syed Haji Abdul Wahid and another Vs. Syed Siraj ud Din (1998 SCMR 2296), Raja Karamatullah and 3 others Vs. Sardar Muhammad Aslam Sukhera (1999 SCMR 1892), Idris Ahmed Rizwani Vs. Federal Public Service Commission through Secretary (2000 SCMR 1889), Bashir Ahmed Vs. Muhammad Sharif and 4 others (PLD 2001 SC 228), Mst. Khauda Begum and two others Vs. Mst. Yasmeen and 4 others (PLD 2001 SC 355), Abdul Majeed and another Vs. Ghulam Haider and others (2001 SCMR 1254), Monazah Parveen Vs. Bashir Ahmad and 6 others (2003 SCMR 1300), Sheikh Muhammad Saleem Vs. Faiz Ahmad (PLD 2003 SC 628), Rehman-ud- Din and another Vs. Sahibzada Jehanzeb (2004 SCMR 418), Shujat Ali Vs. Muhammad Riasat and others (PLD 2006 SC 140), Ghulam Qadir Vs. Ghulam Fareed and others (2006 SCMR 984), Muhammad Yousuaf and others Vs. Saeen Akhtar (2007 SCMR 1485), Atta Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 12 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Muhammad Vs. Maula Bakhsh and others (2007 SCMR 1446), Lahore Development Authority Vs. Mst. Sharifan Bibi and another (PLD 2010 SC 705), Dr. Syed Sibtain Raza Naqvi Vs. Hydrocarbon Development and others (2012 SCMR 377), Mrs. Akram Yaseen and others Vs. Asif Yaseen and others (2013 SCMR 1099), Mst. Gul Jan and others Vs. Naik Muhammad and others (PLD 2012 SC 421), Dr. Pir Muhammad Khan Vs. Khuda Bakhsh and others (2015 SCMR 1243), and Muhammad Wahid and another Vs. Nasrullah and another (2016 SCMR 179). 7. In Shah Muhammad’s case (supra) the Supreme Court refused to condone the delay with reference to Sections 5 and 14 of the Act and observed that:- “……………Under that provision of law time can only be excluded where proceeding has been prosecuted with due diligence in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. It is not disputed that in the present case the appellant was pursuing his remedy before a Court of competent jurisdiction. It was on his failure to get the necessary relief that he had filed an appeal against the ex parte decree passed against him. ……………Merely because by his own choice he did not file an appeal against the original decree, it cannot be said that there is sufficient cause within the meaning of section 5 of the Limitation Act for not filing the appeal within time. The appellant was not diligent. He could file an application under Order IX, rule 13, C.P.C. and at the same time file an appeal against the original ex parte decree. This aspect of the question has been considered in several decisions of the Indian High Court in pre-Partition days and the consensus opinion is that where an application Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 13 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 under Order IX, rule 13, C.P.C. for setting aside on ex parte decree failed on the merits, the time spent in prosecuting the proceedings cannot be deducted under section 5 for the proper time allowed for filling an appeal………………” (Emphasis supplied) 8. In the case of Province of East Pakistan (supra) the Supreme Court refused to condone the delay and on the point of sufficient cause under Section 5 of the Act, observed as under:- “As to the legal aspect of the question, namely; as to what is or is not sufficient cause for the purposes of an application under section 5 of the Limitation Act, it is manifest that no hard and fast rule can be laid down nor it is desirable that this should be done. Each case has to be considered on its own facts. What may be sufficient in one case may well not be sufficient in another case, but this much is certain that where by lapse of time a valuable right has accrued to the other side, it should not be lightly taken away. (Emphasis supplied) This Court has furthermore repeatedly pointed out that in an application under section 5 of the Limitation Act it is the duty of the party seeking condonation to explain each day’ (sic day’s) delay, and unless this is done, the delay should not be condoned particularly, where valuable rights have accrued to the other sides (sic side).” Where delay was committed by the government in filing of appeal, it was the observation of the Supreme Court that:- “This Court has also in several cases had occasion to point out that so far as limitation is concerned the Government Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 14 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 cannot claim to be treated in any manner differently from an ordinary litigant, because, of the fact that the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger. If in spite of these facilities the Government cannot comply with the requirements of the law of limitation, then it is for it to take steps to have that law changed and not to ask the Courts to give a different interpretation to its provisions. In this view of the matter, the High Court’s decision in these two petitions is unexceptionable.” 9. In Muhammad Nawaz’s case (supra) this Court did not accept that counsel’s poor advice would be a ‘sufficient cause’ for condonation of delay, and observed as under:- “3. Even if the above explanation is to be taken at its face value, it would not constitute a sufficient cause for the condonation of long delay that has taken place in the instant case. The initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence. Even if it be assumed that their counsel neglected to inform them that per se would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents Nos. 1 to 3. We are not satisfied that the petitioners were diligent or took due care in the matter. 4. The petition is dismissed as barred by limitation.” 10. In the case of Ch. Muhammad Sharif (supra) when considering an application for condonation of delay the High Court came to the conclusion that delay could only be condoned if the mistake was bona fide. The mistake was not found to be bona fide and wrong advice of Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 15 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 counsel was not accepted as a good ground for condonation of delay. This Court refused to grant leave while observing as under:- “We have heard the learned counsel at length and carefully examined all the decisions referred to by him and have come to the conclusion that this is a clear case in which the learned Advocate showed gross lack of care and his failure in such a case to acquaint himself with the relevant provisions of the law relating to the jurisdiction of the Courts amounted to negligence on his part. The learned counsel has relied on the decision of the Privy Council in Kunwar Rejendra Bahadur Singh V. Rai Rajeshwar Bali (AIR 1937 PC 276) to support his contention that action taken “in good faith on the advice of counsel honestly given” is a sufficient cause for condoning delay. The finding in that case was that the view taken by appellants’ counsel was not unreasonable and he could not be deemed to have been negligent in valuing the appeal. The facts here are altogether different. The correct value was known. In the case of Nazar Muhammad V. Mst. Shahzada Begum (PLD 1974 SC 22), this Court also followed the Privy Council but again that was a case in which the wrong period of limitation had been calculated even after reference to a recognized textbook on the law of limitation. There is no evidence here that the learned Advocate concerned consulted any book or law on the point.” 11. In Abdul Ghani’s case (supra) the petitioner filed an appeal before the District Court which fell within the pecuniary jurisdiction of the High Court. On return of the memorandum of appeal by the District Court, the appeal was presented before the High Court but was dismissed on the ground of limitation. This Court also dismissed the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 16 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 petition without condoning the delay. While applying Section 18 of the Civil Courts Ordinance, 1962 the Court held:- “There is absolutely no ambiguity about this section. Even a layman would be able to understand it without any legal assistance whatsoever. But the petitioner claims to have been advised by an Advocate and the appeal was filed by an Advocate. Therefore, as the petitioner had himself valued his claim in his suit at a sum far exceeding Rs. 25,000, it is not possible to understand how any Advocate could have advised the petitioner to file his appeal in the District Court, and we find it difficult to believe that the petitioner was misguided by legal advice, but if he was, then we have to observe with regret that the petitioner’s Advocate acted with gross negligence in filing the appeal in the District Court.” With regard to the argument that it was the respondent’s fault for not objecting to the maintainability of the appeal the Court held that:- “This extraordinary submission is based on the assumption that defendants are under an obligation to give advice about the manner in which claims against them are to be prosecuted. Apart from the fact that this assumption is against reason, submission is self-defeating because there cannot be different standards for plaintiffs and defendants, and if the petitioner was not at fault for filing his own appeal in the wrong Court, by the same standard, the respondent cannot be blamed for not objecting immediately to what the petitioner did.” It was further held that such act would not constitute a sufficient cause in terms of Section 5 of the Act to hold that the same was beyond the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 17 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 control of the parties concerned. The relevant portion of the judgment reads as follows:- “In any event, the conduct of other parties cannot help the petitioner to make out sufficient cause under section 5 of the Limitation Act. It is true that this section does not define sufficient cause but the meaning of this expression is too well known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. on this question in Ata Ulla v. Custodian Evacuee Property (PLD 1964 SC 236). “Under section 5…there has to be a finding of sufficient cause. In pre-partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected”. We re-affirm these observations and we any (sic may) explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because, as observed by Sir George Rankin in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (AIR 1937 PC 276)…in applying section 5 (of the Limitation Act)…the analogy of section 14 (which applies only to suits) is an argument of considerable weight.” Section 14 permits the exclusion of time only for proceedings “prosecuted in good faith”, therefore in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as: “‘good faith’: nothing shall be deemed to be done in good faith which is not done with due care and attention.” Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 18 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh’s case, Sir George Rankin set aside the finding of the Chief Court that the appellant’s Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court. But, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no complication whatsoever about the facts relevant to the question of the proper forum for filing the appeal, it is clear that the presentation of the appeal in the District Court was an act of gross negligence.” (Emphasis supplied) In relation to the argument that the act of the court shall prejudice none, this Court held:- “In order to overcome these self-induced difficulties the petitioner has tried to throw the blame on the District Court and on the respondent's Advocate. Thus, for example, he has pleaded in his petition that it was the act of the District Court “which contributed towards expiry of limitation for filing appeal in the High Court”. We were astonished by this plea and even more by the fact that it was pressed because it is not Mr. Bilal's case that the petitioner was an infant or a lunatic whose interests the Court might have been under some duty to protect. But, according to Mr. Bilal, the petitioner had been misguided by the District Court because after admission the appeal Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 19 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 had been transferred from the Court of the District Judge, Multan to that of an Additional District Judge, Multan, therefore, the principle actus curiae nemonim (sic neminem) gravalsit (sic gravabit) was attracted. The argument is fallacious because the transfer from the Court of the District Judge to that of an Additional District Judge was by an administrative order and because this transfer was after the petitioner had deliberately filed his appeal in the wrong Court. And, in any case, the attempt to invoke the principle actus curiae nemonim (sic neminem) gravalsit (sic gravabit) assumes that the Court was under an obligation to advise the appellant how to prosecute his remedies against the respondent, we regret to say that this assumption is against reason.” (Emphasis supplied) 12. In the case of Mst. Mahmooda Begum (supra) this Court while considering the question of condonation of delay on account of time consumed before a wrong forum within the purview of Section 5 of the Act and on account of wrong advice of counsel held, as under:- “……………..the appeal fails primarily for the reason that it was not a case of ill-advice but extreme negligence on the part of the counsel, who had filed the appeal before the District Judge. A plain reading of section 18 of West Pakistan Civil Courts Ordinance, 1962, should have made it obvious to the counsel that any appeal whose valuation exceeded Rs. 25,000 should have been filed in the High Court. There was no room for any doubt as subsection (1) (a) of section 18 is so clearly worded that it is not susceptible to any other interpretation. The appeal was valued at Rs. 46,000 and, therefore, there was no room for any doubt as to the forum where it should have been presented. It is a case of gross ignorance of the law on the part of the counsel and as such it cannot be regarded as an ill-advice, and for this reason if the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 20 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 appellants have suffered they can seek redress against their counsel, but this would not provide a reason for condonation of delay.” (Emphasis supplied) 13. In Syed Haji Abdul Wahid’s case, the question of limitation in the context of approaching a wrong forum was in issue. This Court held as under:- “15. From the preceding discussion, it emerges that the ratio decidendi in Abdul Ghani v. Ghulam Sarwar has been followed consistently. No doubt Abdul Ghani's case laid down that an advice given by the counsel against a clear provision of law would amount to gross negligence on the part of counsel and any action taken on such advice would not entitle the party to seek condonation of delay on the ground that he bonafidely acted on that advice, but the above rule laid down in Abdul Ghani's case did not exclude .from its purview condonation of delay by the Court under section 5 of the Limitation Act in a case where the appellant is able to establish that he acted in good faith in pursuing his appeal before the wrong Court, as is evident from the above quoted passage from Abdul Ghani's case. Therefore, notwithstanding, the fact that section 14 of Limitation Act, in terms does not apply to proceedings of an appeal, if the appellant is able to establish that he followed the remedy before a wrong forum in good faith, the Court may condone such delay in filing of the appeal treating it as ‘sufficient cause’ under section 5 of the Limitation Act. What would constitute ‘sufficient cause’ in such cases would depend on the facts and circumstances of each case. At this stage, we may mention here that in a later decision of this Court in the case of Sherin v. Fazal Muhammad (1995 SCMR 584) a Bench of this Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 21 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Court consisting of 3 Hon'ble Judges, without referring to the decision in Abdul Ghani's case expressed the view on the question, whether the delay in pursuing remedy before a wrong forum visualized under section 14, which applies to suit, could be extended for condoning delay in filing the appeal under section 5 of the Limitation Act, as follows............... (Emphasis supplied) (Note: Paras No. 4 to 6 of the Sherin case (supra) have been quoted with approval in this case; however we shall consider/quote the Sherin decision while discussing the situation that wrong advice does justify condonation of delay). 14. In the case reported as Dr. Syed Sibtain Raza Naqvi (supra) this Court while refusing to condone the delay held as under:- “8. On perusal of section 14 of the Act, it appears that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded, for the purposes of filing of an appeal and in case appeal is barred by time the provision of section 5 of the Act can only be invoked, that too, by showing the sufficient cause. 9. The two expressions “due diligence” and “good faith” in section 14 do not occur in section 5 of the Act which enjoins only “sufficient cause”. The expressions “due diligence” and “good faith” used in section 14 of the Act cannot be equated with the expressions “sufficient cause” used in section 5 of the Act. If it were so, the Legislature could have used identical expressions in both sections particularly when “good faith” has been defined in section 2(7) of the Act. The power to condone the delay and grant an extension of time under section 5 of the Act is discretionary, whereas under section 14 of the Act, exclusion of time is mandatory on the satisfaction of the condition prescribed in it. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 22 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 10. The principle that appeal is continuity of original proceeding before the appellate Court, as held in the cases of Sherin v. Fazal Muhammad, (1995 SCMR 584) and Tasneem Ismail v. Wafi Associates, (2007 SCMR 1464), is of no help to the petitioner. The law of limitation takes away the rights of parties, the same must be construed liberally, but without any violation to the intent of legislature. Limitation Act is to be read as a whole and its provisions are to be construed harmoniously. 11. On reading Section 14 of the Act along with section 2(10), it appears that legislature specifically excluded the appeal or an application from the purview of “Suit”. We left no doubt in our mind that benefit of section 14 of the Act cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal before a forum having jurisdiction.” 15. In the case of Mst. Gul Jan (supra) many cases with different facts were before this Court in which the main proposition was whether in a case where an appeal lies before this Court and no such appeal has been filed, this can Court entertain a petition seeking leave to appeal under Article 185(3) of the Constitution. It was held by this Court, as under:- “We may conclude by observing that the practice of filing a petition for leave to appeal before this Court under Article 185(3) of the Constitution where an appeal is competent before this Court under Article 185(2) of the Constitution or under any statute but has become barred by time amounts to hoodwinking or deceiving the spirit as well as the express provisions of Article 185(3) of the Constitution and such practice must be brought to an end. It must be made clear to all that if an appeal competent before this Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 23 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Court has not been filed within the period of limitation prescribed for filing of the same then the only remedy available in that regard is to file a time-barred appeal and seek extension of time or condonation of delay in filing of the same in terms of rule 2 of Order XII or rule 1 of Order XXII of the Supreme Court Rules, 1980. It must also be made clear to all through this judgment that no petition for leave to appeal filed under Article 185(3) of the Constitution can be entertained by the office of this Court in any case where an appeal is competent before this Court under Article 185(2) of the Constitution or under any statute and that no such incompetent petition for leave to appeal, even if erroneously entertained by the office of this Court can be converted into or treated as an appeal except in the case of an incompetent petition for leave to appeal filed within the period of limitation for filing a competent appeal. As regards the present appeals and petitions there is no denying the fact that in all these cases appeals were competent before this Court under Article 185(2) of the Constitution or under some statute but the matters had been brought to this Court in the shape of petitions for leave to appeal filed under Article 185(3) of the Constitution at a time when the remedy of appeal had become barred by time. All these petitions thus filed were, therefore, incompetent and not maintainable at the time of their institution.” (Emphasis supplied) 16. The summary of the above case law is as under:- (i) That condonation of delay can only be allowed within the purview of Section 5 of the Act, when a case for sufficient cause has been made out within the scope thereof; (ii) Wrong advice of the counsel per se does not constitute a sufficient cause for condonation of delay; Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 24 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 (iii) Section 14 of the Act is not attracted to appeals but is confined to suits, etc. only; however the principles of the section, such as due diligence and good faith can be resorted to, in order to satisfy the condition of sufficient cause postulated by Section 5; (iv) The rule of actus curiae neminem gravabit should not be extended to give benefit to the litigant who, on account of wrong advice by counsel, has approached an appellate forum having no jurisdiction. 17. We now consider various judgments cited by the counsel for the parties or researched by our office for the proposition that in the situation where a wrong forum of appeal has been approached time can be condoned; they include Kunwar Rajendra Bahadur Singh Vs. Rai Rajeshwar Bali and others (AIR 1937 PC 276), The Province of East Pakistan Vs. Muhammad Hossain Mia (PLD 1965 SC 1), General Secretary, P.W.R. Union (Workshop), Lahore Vs. The Registrar, Trade Unions and others (PLD 1969 Lhr. 1080), Akbar Vs. Sadiq and others (1972 SCMR 23), Nazar Muhammad and another Vs. Mst. Shahzada Begum and another (PLD 1974 SC 22), Raja Muhammad Ayub and others Vs. Muhammad Ijaz Khan and others (1982 SCMR 1105), Muhammad Hasham Khan Vs. The Chairman, Baluchistan Service Tribunal and others (PLD 1983 SC 262), Mrs. Zubaida Begum Vs. Mrs. S.T. Naqvi (1986 SCMR 261), Sherin and 4 others Vs. Fazal Muhammad and 4 others (1995 SCMR 584), Ali Muhammad Vs. Muhammad Shafi (PLD 1996 SC 292), P.M. Amer Vs. Qabool Muhammad Shah and 4 others (1999 SCMR 1049), Karachi Electric Supply Corporation Ltd Vs. Lawari and 4 others (PLD 2000 SC 94), Abdul Majeed and others Vs. Hameeda Bibi and 4 others (2002 SCMR Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 25 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 416), Muhammad Bashir Vs. Province of Punjab through Collector of District Gujrat and others (2003 SCMR 83), Noora through L.Rs. Vs. Ahmad (2005 SCMR 1933), Mst. Bas Khana and others Vs. Muhammad Raees Khan and others (PLD 2005 Pesh 214), Mst. Farah Naz Vs. Judge Family Court Sahiwal and others (PLD 2006 SC 457), Abdul Majid and others Vs. Mst. Zubeda Begum and others (2007 SCMR 866), House Building Finance Corporation and others Vs. Syed Muhammad Ali Gohar Zaidi (2007 PLC (C.S.) 870), National Bank of Pakistan and others Vs. Shamoon Khan and others (2010 SCMR 1173), and Farman Ali Vs. Muhammad Ishaq and others (PLD 2013 SC 392). 18. The brief facts of the case of Kunwar Rajendra Bahadur Singh (supra) are, that the appellant (of the case) filed an application before the Assistant Commissioner for partition which was dismissed; he brought an appeal before the District Judge valued at Rs.1000/-. The District Judge returned the memorandum of appeal for presentation to the Chief Court. The memorandum of appeal along with an application under Section 5 of the Act for condonation of delay was moved. The application was dismissed and so was the appeal as being barred by time. The Privy Council advised His Majesty that the appeal should be allowed, the order and decree of the Chief Court be set aside, and the appeal be remanded to the Chief Court for admission notwithstanding that the period of limitation was exceeded. The Privy Council in view of Sections 5 and 14 of Act, held as under:- “6. The question of negligence being out of the way, their Lordships are of opinion that the facts of the present case disclose sufficient cause within the meaning of Section 5, Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 26 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Limitation Act. They are of opinion that in applying Section 5 to such a case as the present, the analogy of Section 14 (which applies only to suits) is an argument of considerable weight. Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice. In the circumstances of this case the respondents had very little reason to complain of the delay and the bona fides and diligence of the appellant cannot be impugned.” (Emphasis supplied) 19. In Nazar Muhammad’s case (supra) this Court held that:- “The explanation of the respondent is that she was given mistaken advice by a legal practitioner and, therefore, it was a sufficient ground for condoning the delay. In support of the respondents’ contention, Mr. Raja Muhammad Anwar, learned counsel for the respondents, has relied on a decision of the Privy Council in Kumar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (AIR 1937 PC 276). It was held in that case that a mistaken advice by a counsel may be considered to be a sufficient ground within section 5 of the Limitation Act for condoning the delay. There is no counter-affidavit by the appellants. In these circumstances, we would accept the explanation of the respondents and hold that there was sufficient ground to condone the delay under section 5 of the Limitation Act. Accordingly, the delay is condoned and appeal is held to be within time.” (Emphasis supplied) Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 27 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 20. In the judgment rendered in the case of Muhammad Hasham Khan (supra) a four member bench of this Court condoned the delay in filing an appeal:- “The legal question regarding application of section 5 of Limitation Act where section 14 thereof did not apply in terms is not difficult to understand in cases like the present one. No doubt it was held in Shah Muhammad v. Ghulam and another (1) that section 14 of the Limitation Act nor section 5 thereof, could be attracted in that case ; (sic case;) which involved filing of an appeal under section 96 of the C.P.C. as also an application for setting aside an ex parte decree under Order IX, rule 13 of C.P.C. But it cannot be said that section 5 of the Limitation Act did not apply because section 14 was not in terms applicable to a particular proceedings. The underlying principles would not ordinarily be excluded when considering a case under section 5 of the Limitation Act……………” (Emphasis supplied) 21. The brief facts of Sherin’s case (supra) are that the respondents sued the appellants for declaration and permanent injunction and alternative relief for possession was also prayed for. The suit was decreed on 21.2.1984. The appellants preferred an appeal in the before the District Judge which was returned on 1.12.1985, for presentation before the High Court, as the appeal was found to be beyond the pecuniary jurisdiction of the District Judge. It was re-filed in the High Court and dismissed through the judgment dated 26.6.1989 as barred by time. This Court framed the following proposition at the time of granting leave:- Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 28 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 “What should be the standard of care and diligence required of appellants when preferring their appeals and whether any duty is cast on the Court officials entertaining the appeals to record objections as regards defect of jurisdiction etc., and, if so, within what period of time.” This Court discussed the criteria of “due diligence” under Section 14 of the Act and keeping in view the illiteracy of the appellant and non-return of appeal by the Court within a reasonable time held that:- 4. The appellants' case is that they entrusted the case to their learned counsel, who after completion of the file, instituted the same in the Court of the learned District Judge; that the appellants themselves were not posted with the knowledge of the provisions of law as to the pecuniary jurisdiction of the District Judge to entertain the appeal; and they wholly depended on their counsel. The delay has been thus, sought to be excused on the plea that the appeal was instituted in the District Court on the mistaken advice of the counsel. In order to plead that the latter was not negligent, it has been asserted that the value of the suit for the purposes of the court-fee and jurisdiction was neither incorporated in the decree sheet nor explicitly shown in the judgment of the trial Court. Conversely, the learned counsel for the respondents has dubbed it a case of gross negligence on the part of the appellants and their counsel, and added that the mistaken advice of the counsel cannot furnish a good ground for condonation of delay. 5. Diligence is a state of human conduct. What should be the standard for assessing the behaviour of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 29 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 himself of all relevant factors, taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But, the epithet of “reasonable”, opens wide the measure of application of this yardstick, on the factual plane, for the word “reasonable” is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently, in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism. 6. The criterion of “due diligence” for enlargement of time is prescribed by section 14 of the Limitation Act, which upon its terms applies only to the suits and applications and not to the appeals. On the other hand section 5 is applicable to the appeals but it does not apply to suits. The question of condonation of delay, therefore, has to be examined on the basis of section 5 and not section 14 of the Limitation Act. Not unoften, while examining the question of condonation of delay, in filing the appeal, the Courts have been invoking the principles underlying section 14 of the Act. The High Court has declined to condone the delay entirely on the touchstone of section 14. It is, however, to be remembered that expression “due diligence” and “good faith” appearing in section 14 do not figure in section 5. The condition prescribed in the latter section for its applicability is “sufficient cause” but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case. We may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 30 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 wrong forum may constitute a “sufficient case” (sic cause) within the meaning of section 5 for condonation of the delay.” About the act of the Court while considering the quantum of delay it was held:- “14. The stage is now set down to evaluate the effect of the learned District Judge’s failure in returning the memorandum of appeal to the appellants with reasonable dispatch. It is correct that the appellants themselves were at fault, in filing the appeal in the District Court, which was not possessed of the pecuniary jurisdiction to hear it. But, let the appellants’ mistake be there, a searching question needs to be asked had the learned District Judge, no reason to look into the existence or otherwise of the jurisdictional facts upon which the entertaining of the appeal by him was dependent, though not in depth, but at least prima facie; through a preliminary enquiry confined only to the cursory examination of the record before him. We are unable to show him any indulgence, in this regard. We are sure had he glanced through the record, the agony of the appellants would not have prolonged. In Hari Ram v. Akbar Hussain (ILR 29 All. 749) a Full Bench of the Allahabad High Court had the occasion to adjudicate upon the defendants’ objection in a pre-emption suit that mistake in court-fee by a party is not covered by section 28 of the Court Fees Act, 1870, and it applied only when a document not properly stamped, was received and used by the Court or Office by mistake or inadvertence. The objection was repelled with the observations which are quite instructive:-- “The mistake may in its origin be the mistake of the plaintiff; by the time the plaint has been registered, the mistake has become the mistake of the Court. If the Court or the Munsarim discovered the plaintiff’s Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 31 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 mistake before registration of the plaint, the plaint would at once be rejected under section 54 of the Code of Civil Procedure and never registered at all.” We feel that omission on the part of learned District Judge to take timely action is the major cause of refiling of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes “sufficient cause” under section 5 of the Limitation Act, for condonation of delay. The fact that after receiving the memorandum of appeal from the District Court, some time was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court.” (Emphasis supplied) 22. In the case of Karachi Electric Supply Corporation Ltd (supra) the brief facts are that the suit which was valued at more than Rs.50,000/-, was decreed. An appeal was filed before the District Judge. Ultimately, the memorandum of appeal was returned and was presented before the High Court, which was dismissed on the point of limitation. This Court condoned the delay and while analysing Sections 5 and 14 of the Act held as under:- “4. The view taken by this Court that, despite section 14 of the Limitation Act, if appellant is able to establish that he followed the remedy before a wrong forum in good faith with due care and caution, the Court may condone such delay in filing of the appeal treating it as sufficient cause under section 5 of the Limitation Act is confirmed, but we Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 32 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 may also reiterate that filing of an appeal in a wrong Court on account of mistaken advice tendered by the counsel for condonation of delay by itself would not attract section 5 as held in Sherin v. Fazal Muhammad (supra).” (Emphasis supplied) On the point of mistaken advice of the counsel, it was held by this Court, as under:- “This Court made it clear in the case of Sherin v. Fazal Muhammad (supra) that filing of an appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellant for condonation of delay by itself would not attract section 5 of the Limitation Act, but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute sufficient cause within the meaning of section 5 for condonation of delay.” 23. In Abdul Majid’s case (supra) the question involved was whether the time spent in filing and pursuing a review petition constituted a “sufficient cause” for condonation of delay in filing an appeal. This Court discussed “sufficient cause” and observed that:- “The existence of “sufficient cause” is sine qua non for condonation of delay. Insofar as ‘sufficient cause” is concerned neither it can be defined precisely nor a specific yardstick can be fixed for its determination as it varies from case to case. It can, however, be said with certainty that every cause for condonation of delay cannot be equated with that of “sufficient cause” which in our view amounts to Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 33 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 cogent reasoning, convincing justification and satisfactory explanation.” The Court considered the criterion of “due diligence” as elaborated in Sherin’s case (supra) with reference to Sections 5 and 14 of the Act and held as under:- “The case in hand has been examined on the touchstone of the criterion as mentioned hereinabove and we are of the view that since valuable rights have been accrued in favour of respondents it cannot be snatched on the ground that a review petition was filed in good faith as appeal could have been filed conveniently. In other words the respondents should not be deprived of the valuable rights which they have acquired due to the laches and negligence of the appellants. In this regard we are fortified by the dictum as laid down in Rehmatullah v. Ulas Khan 1968 SCMR 975; Abdul Hamid v. Chief Settlement Commissioner, Lahore 1968 SCMR 120; Rahim Bux v. Settlement Authorities 1968 SCMR 78 and Ahmad Din v. Mst. Rasool Bibi 1968 SCMR 843.” 24. In the case of House Building Finance Corporation with reference to the jurisdiction of a service tribunal to condone delay and the applicability of Sections 5 and 14 of the Act, it was observed by this Court as under:- “10. We have given our anxious thought to the submission of the learned counsel. Technically speaking, he may be correct that the provisions of section 14 (ibid) are restricted to suits, the fact remains that the broad principles of this provision can always be extended to proceedings of civil nature before a Court or Tribunal with a view to secure the ends of justice and to suppress the mischief. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 34 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 ………………In any event, the Tribunal having condoned the delay by exercise of its discretion, this Court is always slow and reluctant to interfere with the exercise of discretion in the absence of extraordinary circumstances. We would, therefore, repel the contention of the learned counsel for the Corporation that appeal preferred before the Tribunal should have been dismissed as barred by time.” 25. The summary of the above case law is: (i) In some of the judgments, the appeal has been treated as continuation of the suit and it has been held that the provisions of Section 14 ibid would be attracted per se; (ii) In another sub-set of these judgments it has been held that though section 14 ibid would not apply per se but the principles prescribed therein would be taken into account by the court for the purposes of determining sufficient cause in terms of Section 5 of the Act; (iii) Another view if that the institution of the appeal before a wrong forum may constitute sufficient cause on the touchstone of Section 5, independent of Section 14; (iv) On account of entertainment of appeal by the court staff or where the court itself entertains the same, issues pre- admission notice(s) or admits it for regular hearing, the rule of actus curiae neminem gravabit shall be attracted and on this score the time spent before the wrong appellate forum shall be condoned. 26. We now move on to consider judgments from the Indian jurisdiction. In the case of Ramlal and anothers Vs. Rewa Coalfields Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 35 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Ltd. (AIR 1962 SC 361) while expressing its view on applications made under Section 14 of the Act held as under:- “In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of S. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to S. 14. (Emphasis supplied) 27. The question involved in the judgment reported as Mata Din Vs. A. Narayanan (AIR 1970 SC 1953) was whether delay can be condoned under Section 5 of the Act on the ground of mistake of counsel. The Supreme Court answered the said question in the following terms:- “The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.” 28. In the judgment reported as State of Kerala Vs. Krishna Kurup Madhava Kurup (AIR 1971 Ker 211) the High Court of Kerala while referring to Mata Din’s case (supra) held:- Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 36 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 “I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisors.” 29. The case of M/s. Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and others (AIR 1979 SC 1666) entailed the facts in that the petitioner filed an appeal before the High Court beyond the period of limitation due to mistake in calculation of the period of limitation by the petitioner’s counsel. The Indian Supreme Court while citing with approval the view expressed in the case of State of Kerala (supra) held that:- “A company relies on its Legal Adviser (sic Advisor) and the Manager’s expertise is in company management and not in law. There is no particular reason why when a company or other person retains a lawyer to advise it or him on legal affairs reliance should not be placed on such counsel. Of course, if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable.” Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 37 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 30. In the judgment reported as Badlu and another Vs. Shiv Charan and others [(1980) 4 SCC 401] the Supreme Court was of the following view:- “There could be no doubt that if the appellants filed an appeal before the Additional District Judge due to a mistake of law or fact resulting from a bona fide but mistaken advice given to them by their lawyer, this would be a good ground for condoning the delay. Moreover, it is well settled that if a litigant is pursuing a bona fide civil proceeding with due diligence and in good faith in any appeal or revision he is entitled to the exclusion of the time taken in such proceeding. The combined effect of Sections 5 and 14 of the Limitation Act would, therefore, undoubtedly entitle the appellants to exclude the time taken by them while the appeal was pending before the Additional District Judge.” 31. In the case of Ghasi Ram and others Vs. Chait Ram Saini and others [(1998) 6 SCC 200] the Supreme Court held that:- “No doubt, when a party proceeds contrary to a clearly expressed provision of law, it cannot be regarded as prosecuting the other civil proceeding in good faith. It is based on sound principle of law. But the said rule cannot be enforced in rigidity in every case. Each case has to be judged on its own merits……………If, on examining the facts, it is found that there was no lack of due care, there is no reason why the plaintiff-appellant should not be accorded the benefits of Section 14 of the Act. Does the interest of justice demand that the plaintiff should be refused the benefit of Section 14 of the Act on account of the negligence on the part of his counsel, ill-advising him to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made to suffer when he is ill-advised by his counsel.” Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 38 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 32. In Consolidated Engineering Enterprises Vs. Principle Secretary, Irrigation Department and others [(2008) 7 SCC 167] the Supreme Court held:- “While considering the provision of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity……………The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.” 33. In the case of J. Kumaradasan Nair & Anr. Vs. IRIC Sohan & Ors. (AIR 2009 SC 1333) the Supreme Court while referring to the cases of Ghasi Ram (supra) and Consolidated Engineering Enterprises (supra) held as follows:- “12. The question which arises for consideration is as to whether only because a mistake has been committed by or Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 39 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 on behalf of the appellants in approaching the appropriate forum for ventilating their grievances, the same would mean that the provision of sub-section (2) of Section 14 of the Limitation Act, which is otherwise available, should not be taken into consideration at all. The answer to the said question must be rendered in the negative. The provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief where a person has committed some mistake. The provisions of Sections 5 and 14 of the Limitation Act alike should, thus, be applied in a broad- based manner. When sub-section (2) of Section 14 of the Limitation Act per se is not applicable, the same would not mean that the principles akin thereto would not be applied. Otherwise, the provisions of Section 5 of the Limitation Act would apply. There cannot be any doubt whatsoever that the same would be applicable to a case of this nature. 13. There cannot furthermore be any doubt whatsoever that having regard to the definition of ‘suit’ as contained in Section 2(l) of the Limitation Act, a revision application will not answer the said description. But, although the provisions of Section 14 of the Limitation Act per se are not applicable, in our opinion, the principles thereof would be applicable for the purpose of condonation of delay in filing an appeal or a revision application in terms of Section 5 thereof.” (Emphasis supplied) 34. Having discussed in detail the case law pertaining to the propositions at hand from the sub-continent, we proceed to a resolution of the said propositions. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 40 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Question No.1:- Whether Section 14 of the Act applies to appeals and if not, whether the principles enshrined therein (Section 14) can be made applicable while considering if a sufficient cause has been made out under Section 5 of the Act. 35. In the preponderance of the cases cited above it has been categorically held that the application of Section 14 ibid is restricted to suits and the provision shall not be attracted to appeals. However the ratio of some cases is that because an appeal is the continuation of a suit therefore on the basis thereof the section can be extended to appeals. But there are catena of judgments (which are cited by both the sides and also researched by our office) propounding the view that although Section 14 has no direct application to appeals the principles enshrined therein can be taken into consideration by the courts while deciding whether a sufficient cause for condonation of delay has been established in terms of Section 5. As per the salutary rule of interpretation of statutes, for construing a provision/section the ordinary dictionary meaning should be assigned to a word/expression appearing therein; however if such word/expression has been defined in the statute itself it should be given the same restrictive meaning. From the word the “suit” which appears in Section 14, it is abundantly clear that the said section applies to suits and there is no mention of appeal or revision etc. “Suit” has been defined in Section 2(10) of the Act (definition clause) as:- “2(10) “suit” does not include an appeal or an application:” Thus from a plain reading there is no ambiguity that Section 14 is exclusively and solely restricted to suits and suits alone. If it is taken to apply to appeals also, this would be tantamount to reading into the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 41 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 section the word “appeal” which does not appear in the said section and such a reading would be contrary to the definition of the word “suit” in the statute. It is not permissible in law to defeat the express provisions of law by resorting to any rule of interpretation which would have the convoluted effect of rendering an appeal a continuation of the suit for the purposes of attracting the application of Section 14. Besides as per the rule of casus omissus, the courts are not entitled to read words into an Act of Parliament unless clear reasons for it are found within the four corners of the Act itself.19 In the instant case we do not find any such reasons. It may pertinent to state here that while referring to Section 2(10) ibid it was held in the judgment of this Court reported as Dr. Syed Sibtain Raza Naqvi (supra), that:- “11. On reading Section 14 of the Act along with section 2(1), it appears that legislature specifically excluded the appeal or an application from the purview of “Suit”. We left no doubt in our mind that benefit of section 14 of the Act cannot be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal before a forum having jurisdiction.” This is an apt expression of law and the judgments of this Court which provide to the contrary (that the provisions of Section 14 are applicable to appeals) are per incuriam because in none of those cases was Section 2(10) ibid noticed or its effect considered. Thus our candid and firm opinion is that the application of Section 14 is restricted to suits only and has no direct and independent application to cases where an appeal has been filed before a wrong forum. 19 (1910) 79 LJKB 955 and AIR 1980 SC 485. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 42 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 36. Coming to the second part of this question; whether the principles of Section 14 ibid can be resorted to for the purposes of determining sufficient cause. We have given due and thoughtful consideration to all three views and are of the opinion that for the purposes of determining whether sufficient cause for condonation of delay is made out, no hard and fast rule can be laid down; there cannot and should not be a simple test for determining the same. The establishing of sufficient cause is not amenable to mathematical formulae. Courts are called upon in individual cases to apply their judicial faculties to the facts placed before them and weigh the same in order to decide whether that ephemeral threshold has been crossed which means that the petitioner has convincingly established sufficient cause for condonation of delay. This is the reason that in the precedent case law, the superior courts have held that it would be unwise and unadvisable to state for all times to come that what may or may not constitute a sufficient cause; each case ought to be decided on its own merits vis-à-vis the plea of sufficient cause. For the purposes of determining whether in a given case sufficient cause has been made out when an appeal has been filed before a wrong forum, there does not seem to be any bar in law that the conditions or the limitation prescribed by Section 14 ibid cannot be looked into. However as stated later, while attending to question No.2, the conditions laid down in the section must be satisfied and established on the record. Mr. Gulzarin Kiyani also adopted this position and he has relied upon the case of Ramlal, Motilal and Chhotelal (supra) in this regard. Mr. Malik Muhammad Qayyum appearing for the other side which pleaded in favour of the proposition that time should not be condoned, has refrained from adopting the position that the principles of Section 14 cannot be resorted to at all. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 43 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Only Mr. Munir Piracha has adopted such a stance but we are not persuaded to agree with him for the reason that the term sufficient cause has to be given the widest possible amplitude and in so doing the conditions/principles of Section 14 ibid cannot be left out. Question No.2:- Whether the institution and the pendency of the appeal on the wrong advice of the counsel before a wrong forum i.e. one lacking jurisdiction constitutes a sufficient cause for condonation of delay in terms of Section 5 supra. 37. The purpose of the laws of limitation is to establish certainty in the affairs of men, to bring repose and to bring an end to litigation after a certain time period has expired from accrual of an actionable right. Both Sections 5 and 14 of the Act are exceptions to the laws of limitation. A person claiming under the aforesaid exceptions must establish that he or she is not disentitled to the discretionary relief which may be awarded by the Court. Therefore a claimant seeking condonation of delay must explain the delay of each and every day to the satisfaction of the Court, establish that the delay was caused by reasons beyond the person’s (or counsel’s) control and that he was not indolent, negligent or careless in initiating and pursuing the actionable right which had accrued in his favour. The “borrowed” applicability of the provisions of Section 14, where its principles are taken into account to set the standard for sufficient cause, proceeds on the conditions precedent of due diligence and good faith which must be present before the court grants condonation of delay on the basis of time spent before wrong fora; even if such principles are not taken into consideration the court is not supposed to exercise its discretion in any arbitrary, whimsical and fanciful manner but has to see if a case was made out by the appellant which prevented and precluded him from approaching the right forum of Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 44 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 appeal. The overwhelming case law cited in the earlier part of this opinion concludes that the institution and the pendency of an appeal before a wrong forum on counsel’s wrong advice i.e. one having no jurisdiction does not constitute a sufficient cause for condonation of delay in terms of Section 5 of the Act, but there is considerable case law that supports the contrary view. In my opinion, the gulf betwixt the divergent views must be bridged by employing proportionality and balancing. It can neither be held that condonation is absolutely ruled out in such a situation nor that the appellant shall be entitled to condonation as a matter of course and right, rather the Court must look into the facts and circumstances of each case as to whether sufficient cause has been made out. Because any exercise of discretionary jurisdiction in favour of a person seeking relaxation of the application of the laws of limitation as of right etc. would be prejudicial to the interests of the respondent. A valuable vested right accrues in favour of the respondent the moment a relevant period of limitation expires in that the respondent is then free from the hanging sword of an actionable claim. In order to wrest away this valuable right from a respondent the person seeking condonation of delay must establish sufficient cause. However, sufficient cause is a term wide enough to encompass within it the principles enshrined in Section 14 of the Act or indeed independent thereto. Time spent pursuing an appeal before a wrong forum, in good faith and with due diligence ought in our view to constitute sufficient cause for condonation of delay. But the act of approaching a wrong forum must be accounted for: it should be established that due to some honest, bona fide and genuine ambiguity in the law or in fact, a party or his counsel was led astray in terms of approaching a wrong forum. Mere incompetence of the counsel, inadvertence, negligence or ignorance of Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 45 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 law attributable to him and/or overlooking of the record by the counsel cannot constitute sufficient cause ipso facto, but the factor(s) which misled the legal counsel, including any ambiguity in the law, causing him to file the appeal before the wrong forum must be indicated. Mere wrong advice of counsel is not an adequate ground per se to constitute sufficient cause because if this rule is accepted, the centuries tested rule that ignorance of law is no excuse would stand violated. Besides, the above factors which caused ambiguity and misled the appellant (or his counsel as the case may be) have to be stated with clarity and precision in the application for condonation of delay and proved on the record. 38. We are cognizant of the fact that a client is at a disadvantage with reference to a counsel on account of asymmetric information. There may be instances where there is a different period of limitation applicable to different fora of appeal, and an appellant whose appeal is time barred before an appropriate forum may instead deliberately approach another forum (knowing it to be the wrong forum) in order to lay claim that time spent before a wrong forum ought to be condoned on account of the fact that appellant had approached it (forum) on the advice of counsel. All Courts must keep these considerations in mind when deciding whether or not delay caused by virtue of alleged wrong advice by counsel should be condoned. Though legal counsel are professionals of some learning who are required to be au fait with the basics of law in terms of where to file an action, we are deeply conscious of the fact that at times certain counsel may unwittingly mislead litigants. Poor advice by a counsel may well cause hardship to a litigant and compromise his ability to seek redress in law. But hardship caused to a person on account of poor advice of counsel does not constitute a sufficient cause for condonation of delay per se. Courts must insist that applications for condonation of Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 46 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 delay must specify with particularity as to what factors misled the counsel and gave him cause to form his unfortunate opinion with respect to the (wrong) forum adopted and thereafter the said factors must be proved on record. It is then for the court to decide if, on the basis of such factors, sufficient cause has been made out or not. A case in point which could possibly constitute sufficient cause is where whilst drawing the decree, the trial court on account of some clerical inadvertence/omission gives a valuation different from the actual valuation for the purposes of appeal, due to which a counsel is misled into believing that the appeal should be filed in the court as per the valuation in the decree sheet, which is in fact incorrect. Therefore we are fortified in our view that mistaken advice of counsel does not constitute a sufficient cause for condonation of delay as a matter of course and routine and/or is automatic and per se, rather as mentioned above, the appellant has to specify the reasons with clarity and precision which prevailed with the counsel and led him to commit the mistake and such application must also be supported by an affidavit. Question No.3:- Where an appeal which has been entertained by the staff of the court or the court itself which has no pecuniary jurisdiction and is ultimately returned to the appellant or is dismissed, whether this protects the appellant from the bar of limitation and/or constitutes a sufficient cause for the condonation of delay on the principle of actus curiae neminem gravabit. 39. The noted maxim which connotes “an act of the court shall prejudice no man” is founded upon justice and good sense; and affords a safe and certain guide for the administration of law and justice. It is meant to promote and ensure that the ends of justice are met; it Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 47 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 prescribes that no harm and injury to the rights and the interest of the litigants before the court shall be caused by the act or omission of the court. This rule of administration of justice is meant for the benefit of both sides of litigants before the court and it would be illogical to conceive that the rule would or should be applied for the advantage of one litigant to the prejudice and disadvantage of the other. It is the duty of the court to act as a neutral arbiter between the parties and to provide justice to them through strict adherence to law and keeping in mind the facts of each case. The rule is neither meant to provide a premium to the negligent litigant who finds himself on the wrong side of limitation for unfounded reasons and nor to impair the rights of the other side. The principles of proportionality and balancing have to be kept at the forefront by the court whilst applying this rule. The Court must see what fault, if any, has been committed by the court on account of which a litigant has been made to suffer; then the court must consider whether the benefit of the rule can or should be extended to a negligent litigant who has failed to make out a sufficient cause in terms of Section 5 of the Act as explained above. In our candid opinion the principle actus curiae neminem gravabit has no application where a litigant approaches a wrong forum and such appeal is entertained by the staff of the court or by the court or even admitted to regular hearing. Thus no condonation of delay can be availed by the appellant on the basis of this principle. Question No.4:- Whether the discretion exercised by the courts below in condoning the delay cannot be interfered with by the higher court unless the discretion is shown to have been exercised arbitrarily. 40. Discretion exercised by a court below is not open to interference by a higher court unless it has been exercised arbitrarily. In Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 48 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 the case of Muhammad Bashir (supra) this Court upheld the condonation of delay by the High Court in terms of Section 5 of the Act in the following terms:- “On a careful consideration of the pros and cons of the controversy between the parties and in-depth consideration of the submissions advanced at the Bar, we are firmly of the view that exercise of discretion in the case in hand does not suffer from any inherent defect of law, arbitrariness, lack of jurisdiction or acting on surmises and conjectures. Suffice it to point out that the High Court was fully satisfied with the sufficiency of cause shown by the respondents for condonation of delay for vital and sound reasons. We are, therefore, not inclined to interfere with the exercise of discretion by the High Court, which is neither illegal nor unreasonable or against the settled norms of jurisprudence. For these reasons, this appeal fails and is hereby dismissed.” Similarly in the case of Province of East Pakistan (supra) this Court held:- “…………..It lies, in the discretion of the High Court to condone or not to condone the delay under section 5 of the Limitation Act. With such a discretionary order this Court does not ordinarily interfere unless it is satisfied that the discretion has been exercised arbitrarily, whimsically or perversely or in such a manner as to divert the law into wrong channels……………” [Emphasis added] 41. We find ourselves in complete agreement with such statements of law. In the exercise of its discretionary power the court is Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 49 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 not empowered to act upon whim and caprice: rather the discretion of the court is circumscribed by the law, recognized norms of justice, fairplay, equity, logic, rationality and reasonableness. Where the Court has passed an order in exercise of its discretion by condoning the delay, on the basis of sufficient cause which has been made out, it does not behove a superior court to interfere in the matter, however the unbridled, arbitrary and perverse exercise of discretion does not render it immune to the scrutiny and correction by the superior court; thus where no sufficient cause on record has been made out yet the discretion for the condonation of delay is exercised subjectively and whimsically it is the duty of the superior court to rectify the defect in the exercise of discretion. Such duty is duly mandated by the provisions of Section 3 of the Act. 42. Having answered the legal propositions involved in the matter, we now examine each case on the touchstone of our answers to the propositions. Civil Appeal No.2564/2001 43. The relevant facts of this case are that the predecessors-in- interest of the appellants, namely Khushi Muhammad and Muhammad Ashiq (defendants in the suit) purchased the suit property through a registered sale deed dated 10.5.1976 from Mst. Haleema Begum (vendor) for consideration of Rs.100,000/-. The predecessor-in-interest of the respondents, Allah Din (plaintiff in the suit) filed a suit against Khushi Muhammad etc. for possession through pre-emption on 11.5.1977 in the Civil Court, being an owner in the estate. The plaintiff contended that the sale actually took place against a consideration of Rs.90,000/- but it was shown as Rs.100,000/- in the sale deed to frustrate his right of pre- Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 50 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 emption. Moreover, the suit for the purposes of pecuniary jurisdiction was valued at Rs.90,000/-. The defendants filed a written statement wherein they claimed to have a superior right of pre-emption, being tenants of the suit land. After framing of issues and recording of evidence, the suit was dismissed by the learned Trial Court on 18.2.1985 on the ground that the plaintiff had failed to establish a superior right of pre-emption. The appeal filed by the plaintiff before the District Court on (or about) 25.3.1985 was accepted by the Appellate Court vide judgment and decree dated 7.9.1985 and the suit of the respondent was decreed. The defendants filed a regular second appeal (RSA) on 14.9.1985 before the learned High Court which was accepted vide judgment dated 23.12.1992 with the observation that the Additional District Judge was not vested with the pecuniary jurisdiction to decide the matter and it was directed that the memorandum of appeal which was originally filed on 25.3.1985 be returned to the plaintiff by the learned Additional District Judge to be presented before the proper forum. Pursuant to the judgment dated 23.12.1992, the memorandum of appeal was returned to the respondent on 2.2.1993 by the Court of the Additional District Judge. The plaintiff resubmitted the same before the District Judge on the same day i.e. 2.2.1993, because during the pendency of the appeal, on 14.6.1986 Section 18(1)(a) of the Civil Courts Ordinance, 1962 (Ordinance) was amended and the pecuniary jurisdiction of the District Court was enhanced from Rs.50,000/- to Rs.200,000/- and it was in this background that the appeal was again entertained by the District Court. This fresh filing of the appeal was supported by an application under Sections 5 and 14 of the Act for condonation of delay. Meanwhile, the respondents (legal heirs of Allah Din, the plaintiff) also filed a petition challenging the order of the learned High Court dated 23.12.1992 before this Court Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 51 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 which (petition) was converted into Civil Appeal No.734 of 1993 and ultimately dismissed on 21.4.1998 with the observation that the judgment of the learned High Court was in accordance with law. Thereafter, the District Court accepted the application for condonation of delay on 6.11.1999 in the following terms:- “5. The technicalities and omission on the part of the Court and the parties themselves laboring under wrong impression about jurisdiction until award of first appellate decree by the Court of District Judge, are to justify the sufficient cause as enunciated by Section 5 of the Limitation Act. For this reliance can be placed upon PLD 1998 Lahore page 503 and 1995 SCMR page 584. The application is granted and the appeal is considered within time.” Aggrieved of the above order, the appellants filed a civil revision before the learned High Court which (revision) was dismissed vide judgment dated 25.6.2001 inter alia on the ground that the respondents were prosecuting their case with due diligence, in good faith and were entitled to condonation of delay; besides, the appeal was filed on the same day that it was returned i.e. 2.2.1993. The appellants challenged this order in C.P. No.2127/2001 (now C.A.2564/2001) in which leave was granted on 23.11.2001 to consider whether the respondents were entitled to seek condonation on account of the time spent before the wrong forum under Section 14 of the Act and if not, whether a case for condonation of delay in terms of Section 5 of the Act had been made out. 44. Mr. Muhammad Ibrahim Satti, learned counsel for the appellants has made reference to the judgment of this Court dated 21.4.1998 passed in Civil Appeal No.734/1994 and stated that the respondents’ plea that sufficient cause has been made out was Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 52 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 conclusively discarded by this Court and that such decision operates as res judicata between the parties. He submitted that the plaintiff (predecessor-in-interest of the respondents) had himself valued the suit for the purposes of jurisdiction at Rs.90,000/- and this jurisdictional value also appeared in the decree sheet. Consequently, the appeal initiated before the learned District Judge was before a wrong forum, lacking pecuniary jurisdiction. No factors could be said to have misled the respondents’ counsel to file the appeal before a wrong forum. 45. On the contrary, Mr. Malik Muhammad Qayyum, counsel for the respondents has made reference to the contents of the application filed by the respondents under Sections 5 and 14 of the Act before the learned District Judge as also the affidavits of the counsel of the respondents before the Trial and Appellate Court. Ch. Ahmed Farooq, Advocate, who was the counsel for the plaintiff before the Trial Court deposed that through a bona fide mistake he inadvertently mentioned in the plaint the jurisdictional value of the suit as Rs.90,000/-. Muhammad Yaqoob Ch. Advocate, counsel for the respondents before the Appellate Court (in the first round of afore-mentioned litigation) deposed that in ground No.10 of the memorandum of appeal he had specified the correct valuation as per the law, and that the filing of the appeal before the learned District Judge at the relevant time was on account of the bona fide belief with respect to the correct jurisdictional value according to him. It is thus argued by the learned counsel for the respondents that the aforesaid error of approaching the wrong forum was a result of bona fide mistake of the learned counsels for the respondents (at the Trial and Appellate stage) and the respondents were misled on account of such mistaken advice. 46. We have heard the learned counsel for the parties and have considered the submissions made by them. It may be reiterated that the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 53 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 judgment of the learned High Court returning the memorandum of appeal had been challenged by the respondents before this Court in Civil Appeal No.734/1994 which was dismissed by this Court on 21.4.1998. There was a lengthy discussion about the merits of the case, considerable law was cited and finally the Court came to the following conclusion:- “From the entire record it is quite apparent that till filing of appeal on 25.3.1985, there was hardly any doubt about jurisdictional value of the suit fixed by the appellants. From all these facts and circumstances it can be gathered that normally at the relevant time appeal filed by the appellants before Additional District Judge was not competent”. In our considered view the above decision settles the issue in that the stance of the respondents in approaching the District Court as having the pecuniary jurisdiction was rejected; the notion that the counsel for the respondents had inadvertently fixed a wrong valuation in the plaint and therefore their counsel in appeal could of his own volition change the valuation to “the correct valuation” was also rejected. Even otherwise, as far as the question of filing of appeal by the respondents’ counsel before the wrong forum and a case for sufficient cause in that context being made out, it may be pertinent to mention here that there was no reason for the counsel of the respondent, whilst filing the appeal, to be misled by any fact or the law because the jurisdictional value was clearly mentioned in the plaint as Rs.90,000/- by the respondents. Such value was also clearly reflected in the decree passed by the learned Trial Court, whereby the suit of the respondents was dismissed. Thus the appeal should have been filed before the learned High Court as, at the relevant Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 54 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 point of time, it was such Court which had the pecuniary jurisdiction to hear the appeal on account of the jurisdictional value fixed in the plaint and decree sheet. At best, it is the case of the respondents that incorrect valuation had been made in the plaint due to inadvertence; but it transpires from the record that an objection was raised by the appellants/defendants about the incorrect valuation and that was the most opportune moment for the respondents having been put to notice about the so-called inadvertent incorrect valuation to ratify the said mistake but instead the respondents joined the issue. No attempt was ever made by the respondents during the course of trial to correct the valuation by seeking an amendment in the plaint. The trial court gave a finding on issue No.1 and retained the value of the suit filed by the respondents, which valuation squarely and duly appeared in the decree sheet; it was thus on the basis of the valuation of the suit fixed by the respondents in the plaint themselves and reflected in the decree which had to determine the forum of appeal. Thus at the time of passing the decree there was no ambiguity which could mislead the respondents’ counsel into filing the appeal before the District Court. Whilst answering Proposition No.2 we have already held that inadvertence, negligence, mistake simpliciter etc. of the counsel does not constitute a sufficient cause. And the respondents have not been able to make out a case beyond mere inadvertence. As regards the plea of exercise of discretion raised by the respondents’ counsel, we are of the considered view that in the instant matter the condonation of delay has been granted to the respondents by both the courts below for on the basis of arbitrary and whimsical reasons, that the exercise of discretion being against settled principles can always be interfered with. In view of the above this appeal is allowed; by setting aside the orders/judgments impugned the appeal of Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 55 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 the respondents before the District Court is dismissed as being barred by time. Civil Appeal No.2658/2006 47. Respondents No.1 to 9 are the plaintiffs of the suit for declaration and possession filed inter alia against the appellant. The value of the suit for the purposes of court fee and jurisdiction was categorically mentioned in the plaint at Rs.8,000,000/- (eighty lacs). The suit after being contested was decreed by the trial court on 22.2.1994. The appellant applied for certified copies of the judgment and decree on 8.3.1994, which (copies) were prepared and delivered on 26.4.1994. The appellant filed a regular first appeal (RFA) on 8.5.1994 before the District Court in which an order was passed on 23.6.1994 that the value of the suit for the purpose of jurisdiction was Rs.8,000,000/- and the memorandum of appeal was accordingly ordered to be returned to the appellant for presentation before the learned High Court. The appellant received the memorandum of appeal on 2.1.1996 from the District Court and filed the RFA before the learned High Court on 8.1.1996 along with an application under Section 5 of the Act for condonation of delay of the time consumed before the wrong forum. The learned High Court vide impugned judgment dated 27.8.2002 dismissed the appeal of the appellant on the ground of limitation holding that no sufficient cause for delay had been made out. 48. Learned counsel for the appellant has argued that it was through the inadvertent mistake of the counsel that the appeal had been filed before the wrong forum, suffice it to say that as declared earlier, such mistaken advice, even if unintentional, simpliciter does not constitute a sufficient cause in terms of Section 5 of the Act, instead Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 56 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 there have to be cogent reasons, clearly spelt out and proved on the record, for that purpose. We have perused the application for condonation of delay and as rightly observed by the learned High Court in the impugned judgment, the said application contains a mere narration of the facts leading up to the filing of the appeal before the learned District Judge, and there are no plausible reasons or justifications given for the filing of such appeal before the wrong forum, apart from a feeble assertion that “the delay for filing the Regular First Appeal was not intentional on the part of the petitioner”. As regards the averment in the said application that the time period from the date of filing of the appeal before the wrong forum till the return of the memorandum of appeal for filing before the correct forum should be condoned “because the petitioners’ appeal remained pending before Additional District Judge”, we may observe (as held in the earlier part of this opinion) that mere pendency of an appeal before the wrong forum especially when no sufficient cause has been made out shall not be a ground per se or simpliciter for condonation of delay. Besides as mentioned above the memorandum of appeal was ordered to be returned on 23.6.1994 and the appellant never approached the Court for receiving the same within reasonable time rather, after considerable lapse of time of about 18 months, it was received on 2.1.1996. There is/was no explanation for such delay, i.e. 18 months and 10 days. It is not the case of the appellant that after the order of return of the memorandum of appeal it approached the Court promptly and it was the Court which took delayed in returning the memorandum of appeal. In light of the above, interference with the impugned judgment of the learned High Court is not warranted, thus the appeal merits dismissal. Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 57 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Civil Appeal No.1670/2008 49. The respondent is the plaintiff who pre-empted the sale of the suit house in favour of the appellants by clearly valuing his suit for the purposes of court fee and jurisdiction at Rs.1,200,000/- (twelve lacs). The suit after being contested was decreed on 2.10.2004 in the plaintiff’s favour. The appellants applied for certified copies of judgment on 7.10.2004, which were delivered on 10.12.2004, after which they filed an appeal before the learned District Judge on 5.1.2005, which was admitted to regular hearing on 26.9.2005 and returned on 26.9.2005 for lack of pecuniary jurisdiction. Subsequently, the appellants filed an appeal before the learned High Court on 18.10.2005 which was dismissed by the Court through the impugned judgment dated 2.6.2008 with the observation that the value of the suit property for the purpose of jurisdiction was specifically mentioned in the plaint as Rs.1,200,000/-, hence, there was no confusion about the appellate forum and negligence of counsel was no ground for condonation of delay (note:- even on merits, it was found that the appellant had failed to establish his case). Aggrieved, the appellants approached this Court, hence the instant appeal with the leave of the Court. 50. Heard. As is clear from the impugned judgment of the learned High Court no reasons were assigned by the appellants in their application seeking condonation of delay which could constitute a sufficient cause within the meaning of Section 5 of the Limitation Act, 1908 as enunciated in the earlier part of this judgment. A perusal of the plaint (paragraph No.6) indicates that the value of the suit for the purposes of pecuniary jurisdiction was clearly stated as Rs.1,200,000/-. The judgment of the learned Trial Court reflects the amount of Rs.1,200,000/- as the sale consideration paid by the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 58 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 appellants which is resultantly the market value of the suit house, and the decree sheet prepared by the learned Trial Court also mentions the value of Rs.1,200,000/-. Furthermore, the memorandum of appeal filed before the learned District Judge also categorically states the appeal to be valued at Rs.1,200,000/- for the purposes of pecuniary jurisdiction. There was no ambiguity regarding the law because at the relevant point in time, the pecuniary jurisdiction of the District Judge was capped at Rs1,000,000/- by virtue of the Civil Courts Ordinance, 1962 (as it is a KPK matter). In light of the foregoing aspects of the matter, there can be no justifiable reason for filing the appeal before the District Judge. With respect to the justification given by the learned counsel for the appellants before the learned High Court that such mistake was inadvertent; suffice it to say that sheer inadvertence, negligence and/or mistake (albeit bona fide) is not recognised as a sufficient cause for condonation of delay, and neither does it reflect exercise of due diligence on behalf of the appellants or their counsel. As regards the plea that it was the duty of the learned District Court to have examined the pecuniary jurisdiction and the Court was at fault for not returning the memorandum of appeal on time, we find the idea risible; we have already held in the earlier part of this opinion that the same is not a valid reason for the condonation of delay of time spent before a wrong forum. In light of the above, we are of the forthright view that the learned High Court was correct in refusing to condone the delay; therefore, this appeal is hereby dismissed. Civil Appeals No.60-L/2013 and 280-L/2013 51. These two appeals have been filed against a common judgment of the Lahore High Court hence will be dealt with together. The appellants of Civil Appeal No.60-L/2013 are the plaintiff/pre-emptors Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 59 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 (respondents in Civil Appeal No.280-L/2013) while the appellants of Civil Appeal No.280-L/2013 are the defendants/vendees (respondents in Civil Appeal No.60- L/2013). For the sake of convenience, Civil Appeal No.280-L will be used as our reference point. The respondents filed a suit for possession through pre-emption regarding the suit land against the appellants (vendees) and the mortgagees, whereas the subsequent purchasers, appellants No.20 to 30, were impleaded afterwards. The respondents’ claim was that the consideration amount of the sale was Rs.100,000/- but in order to frustrate and prejudice their right of pre-emption, an exaggerated price of Rs. 353,000/- was entered in the record, out of which Rs.118,000/- was shown to be payable to mortgagees of the suit land. The value of the suit for the purposes of court fee and jurisdiction was fixed as Rs.6,559.20/- (six thousand five hundred and fifty nine rupees and twenty paisas). After the trial of the case the suit was decreed in favour of the appellants (plaintiffs) on 23.2.1976 subject to payment of Rs.353,000/- less the amount already deposited by them as Zar-e-Panjam on or before 24.04.1976, failing which the suit would stand dismissed with costs. The learned trial court also held that out of this consideration Rs.118,000/- would be received by the mortgagees. Aggrieved, the respondents filed an appeal on 15.6.1976 before the learned High Court challenging the decree to the extent of decretal amount only. The appeal was admitted for regular hearing on 1.7.1976 but the learned Division Bench on 28.1.1990 remitted the appeal to the District Court due to lack of pecuniary jurisdiction. Such decision however was reviewed by the learned High Court on an application (CM No.1-C of 1990) filed by the appellants and instead of remitting the appeal, vide order dated 6.2.1990 it was directed that the memorandum of appeal be returned to the respondents for Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 60 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 presenting the same before the competent court by 13.2.1990. The respondents received the memorandum of appeal on 13.02.1990 and filed the same before the learned District Judge that very day. The appeal was heard by the learned District Judge on 20.9.1995 when the respondents counsel made a statement to the effect that as the value of the property has increased thus the respondents were ready to deposit the decretal amount of Rs.353,000/- and would withdraw the appeal; however in the same breath it was requested that time for the deposit of the balance pre-emption amount, as directed by the trial court (note:- the time given by the trial court in this behalf was till 24.4.1976, failing which the suit would stand dismissed) may be extended. The learned District Judge vide judgment dated 20.9.1995 dismissed the appeal as having been withdrawn. The request for extension of time for payment of the decretal amount was declined. The court also declined the verbal request for condonation of delay in filing the appeal. Aggrieved of the above judgment of the learned District Judge, the respondents filed a regular second appeal before the learned High Court on 20.12.1995 which was allowed on 17.12.2012 through the impugned judgment. Delay has been condoned on the ground that at the time of filing the appeal before the High Court (admittedly the wrong forum) the respondents were minors; their guardian acted on the wrong advice of learned counsel; the High Court (in the earlier round of litigation) while returning the appeal allowed the respondents time up to 13.2.1990, which was filed by them before the District Judge the same day. All these factors according to the High Court constitute a sufficient cause for condonation of delay. It may be relevant to mention that as regards the merits, the learned High Court restored the judgment and decree of the learned Trial Court with the modification that the appellants may/will deposit the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 61 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 market price of the suit land as fixed by the District Price Committee prevailing on 13.11.2012 within two months from the date of announcement of the judgment. Both parties being aggrieved of the impugned judgment have filed separate appeals which are now before us for determination. 52. Heard. The respondents being minors at the relevant point of time had duly filed the suit through a next friend; the same is the position of their appeal(s) before the High Court and learned District Judge; they were duly represented on both the occasions by a person (next friend) who was pursuing their best interests thus any alleged mistake of the next friend cannot be considered to be a sufficient cause for the condonation of delay. It is an admitted position on the record that the respondents themselves valued their suit for the purposes of court fee and jurisdiction at Rs.6,559.20. This value was not varied by the trial court. No reasons are established on the record which misled the counsel to give wrong advice in filing the appeal before the learned High Court; in fact no application in this context to establish sufficient cause for the condonation of delay was moved. Above all the decree in this case was passed by the trial court on 23.2.1976, the respondents applied for the copy on 8.3.1976, the copy was delivered on 5.4.1976, the appeal before the High Court was filed on 15.6.1976 and admittedly by that time the appeal before the District Court was barred by time. It seems obvious, or at any rate more than likely, that to cross the bar of limitation an abortive attempt was made to file the appeal before the High Court which lacked pecuniary jurisdiction. Simply because the appeal was filed before the District Judge the same day that the memorandum of appeal was returned does not by itself satisfy the test of Section 5 ibid; besides the direction of the learned High Court to file the appeal before the District Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 62 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Court by 13.2.1990 cannot be construed in any manner to mean that the delay has been impliedly condoned. In the light of the above, we allow this appeal, set aside the impugned judgment of the High Court condoning the delay in filing of the appeal by the respondents before the District Court, with the consequence that the order of the Additional District Judge dated 28.9.1995 is restored, in that the appeal of the respondents filed before the District Court stands dismissed as being barred by time. As Civil Appeal No.280-L/2013 has been allowed, Civil Appeal No.60-L/2013 being against the decision of the High Court for enhancement of the sale price of the suit land in the circumstances is rendered infructuous and is disposed of accordingly. Civil Appeal No.60/2014 53. The appellant/plaintiff is a pre-emptor of the suit land whose suit against the respondents after being contested was dismissed by the trial court on 14.12.2010. The value of the suit for purposes of court fee and jurisdiction fixed in the plaint is Rs.1,700,000/- (seventeen lacs). The appellant applied for certified copies of the judgment on 22.12.2010 which (copies) were delivered to him on 24.12.2010 and the appeal was filed on 4.1.2011 before the District Court which was admitted to regular hearing on 10.1.2011. However, the appeal was returned on 1.7.2011 for want of pecuniary jurisdiction. Thereafter the appellant filed the appeal before the learned High Court on 6.7.2011 along with an application for condonation of delay under Sections 5 and 14 of the Act. The learned High Court vide the impugned judgment dated 23.10.2013 refused to condone the delay and dismissed the application for condonation of delay and the appeal as being barred by time on the ground that the suit was Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 63 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 clearly valued at Rs.1,700,000/- for the purpose of jurisdiction and that negligence of counsel does not constitute a sufficient cause and neither does an act of the Court (as it is a KPK matter). Aggrieved the appellant preferred the instant appeal with the leave of this Court. 54. Heard. The application for condonation of delay filed by the appellant (note:- which seemingly is unsupported by an affidavit), does not propound any plausible reason for filing the appeal before the learned District Judge. The application is essentially a bald factual narration leading to the filing of appeal before the wrong forum, save for the plea that it was the fault of the District Court that the appellant’s appeal was entertained despite lack of pecuniary jurisdiction which has resulted in the appellant’s suffering. In light of the view expressed in the earlier portion of this opinion regarding the principle of actus curiae neminem gravabit; the same is not attracted to the instant case and the plea raised by the appellant in his application for condonation of delay on that account in no way constitutes a sufficient cause to exclude the time spent before the wrong forum. There is no justification whatsoever provided in the said application indicating as to why the appellant or his counsel were led into believing that the appeal was to be filed before the District Court, when the plaint itself describes the value of the suit as Rs.1,700,000/-. The view of the learned High Court is unexceptionable, calling for no interference, therefore, the appeal is hereby dismissed. Civil Appeal No.965/2014 55. This case entails the following facts:- the respondent Hussain filed a suit for recovery of Rs.5,000,000/- as damages against the appellant. The appellant contested the suit, issues were framed and evidence was recorded, after which the learned Trial Court decreed the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 64 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 suit to the extent of Rs.800,000/- vide judgment and decree dated 18.11.2011. The appellant preferred an appeal before the District Judge on 23.12.2011 which was admitted to regular hearing. Upon an application filed by the respondent for dismissal of the appeal for want of pecuniary jurisdiction, the learned District Court returned the memorandum of appeal to the appellant through order dated 30.10.2013 for presentation before the correct forum as the suit was valued at Rs.5,000,000/-. The appellant applied for certified copies of the documents on 2.11.2013 which were prepared on 11.11.2013 and were delivered on 27.11.2013. On receipt of the certified copies, the appellant moved an application for receipt of original file on 29.11.2013 which (application) was disposed of through order dated 2.12.2013 for the return of documents after the receipt of certified copies. The appellant again applied for the certified copies of the file which were delivered to him on 30.12.2013 and on the same day, he received the original file. The appellant presented the appeal before the learned High Court on 9.1.2014 along with an application under Section 5 of the Act for condonation of delay. The appeal was dismissed by the learned High Court through the impugned judgment dated 7.4.2014 on the ground that even after return, the appeal was filed beyond the period of limitation and no explanation was given in the affidavit. Aggrieved, the appellant filed the instant appeal with the leave of this Court. 56. Heard. We find that the explanation set out in the appellant’s application for condonation of delay (paragraph No.4 thereof) that the mistake in filing the appeal before the learned District Court was neither intentional nor deliberate is not persuasive. It is worthy to note that the value of Rs.5,000,000/- is clearly reproduced in the title itself, paragraph No.14 and the prayer of the plaint. Paragraph No.18 particularly provides Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 65 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 “That the value of the suit for the purpose of Court fee and jurisdiction is fixed for Rs.50,00,000/-…” The figure of Rs.5,000,000/- also finds mention in the decree sheet of the learned Trial Court. The above leaves no room for doubt or confusion that the value of the suit for the purposes of pecuniary jurisdiction was indeed Rs.5,000,000/- and accordingly the appeal should have been filed before the learned High Court. The ‘reason’ that the mistake was unintentional simpliciter is not a sufficient cause within the purview of Section 5 of the Act as has been held in the earlier portion of this opinion. No case for interference has been made out; the appeal is hereby dismissed. Civil Appeal No.218/2015 57. The appellant/plaintiff filed a pre-emption suit against the respondent/defendant in respect of the suit property which was purchased by the respondent through registered sale deed dated 7.5.2008 against a price of Rs.2,500,000/- but as per the contention of the appellant, the actual consideration fixed and paid was Rs.500,000/- and the suit was accordingly valued for the purpose of jurisdiction at Rs.500,000/-. The respondent contested such valuation and issue No.5 was framed on the basis thereof. The learned Trial Court decreed the suit vide judgment and decree dated 29.6.2011 by fixing the sale price as Rs.2,500,000/-. Aggrieved, the respondent preferred an appeal (RFA No.53/2011) before the learned High Court on 19.7.2011 while the appellant filed an appeal (RCA No.138/XIII/2011) before the learned District Court on 25.7.2011. The learned District Court vide order dated 26.7.2011 returned the appeal of the appellant for presentation before the correct forum on the ground that the value of the property for the purpose of Court fee and jurisdiction was Rs.2,500,000/-. The appellant accepted Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 66 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 this position and filed an appeal (RFA No.63/2011) before the learned High Court on 17.8.2011. Both of the appeals (of the appellant and respondent) were returned by the learned High Court vide judgment dated 8.10.2013 to the parties for presentation before the proper forum on the ground that the valuation of the suit for the purpose of Court fee and jurisdiction was given as Rs.500,000/- in the plaint, hence, as per Section 18 of the Ordinance the appeal(s) was maintainable before the District Court, in spite of the fact that the learned Trial Court fixed the market value of the property as Rs.2,500,000/-, because the forum of appeal was to be determined on the basis of the valuation given in the original plaint. The respondent presented the appeal along with an application for condonation of delay under Section 5 of the Act before the learned District Court on 22.10.2013 which (appeal) was dismissed on 3.7.2014 as being time-barred. It is pertinent to note that the appellant pursuant to the order dated 8.10.2013 neither received memorandum of appeal nor filed the same before the learned District Court, therefore, to his extent, matter ended. Aggrieved of the judgment dated 22.10.2013, the respondent filed a civil revision before the learned High Court which (revision) was allowed vide the impugned judgment dated 3.10.2014 with the observation that the respondent was a victim of the act of the Court which was sufficient cause for condonation of delay. The appellant challenged the above order before this Court, hence the instant appeal with the leave of this Court. 58. Learned counsel for the appellant argued that there was no confusion regarding the value of the suit for the purpose of filing the appeal as such value was clearly stated in the plaint; there was no finding by the learned Trial Court amending the value of the suit which could be said to have taken precedence over the value set out in the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 67 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 plaint. On the other hand, learned counsel for the respondent submitted that the reason for the respondent filing the appeal before the learned High Court as opposed to the learned District Court was that the learned Trial Court in respect of issue No.5 regarding the market value of the suit property had held it to be Rs.2,500,000/- and it was this factor that misled the respondent into believing that the appeal should have been filed before the learned High Court. 59. We have heard the learned counsel for the parties. Upon a perusal of the plaint, it is manifest from the title and paragraph No.1 thereof that the appellant had valued the suit property at Rs.500,000/-. Paragraph No.6 specifically mentions Rs.500,000/- as the value of the suit for the purposes of pecuniary jurisdiction. Such valuation was categorically denied by the respondent through her written statement (paragraphs No.1 and 6 thereof) asserting it to be Rs.2,500,000/-. It is in light of this divergent pleas that the learned Trial Court framed issue No.5 in that “What is the market value of the suit property?” and held as follows:- “The burdon (sic burden) of proof this issue is on the plaintiff. The plaintiff in the plaint assert that the value of the suit property is no more than Rs. 5,00000/-, but in order to deprive the plaintiff rights of the plaintiff an incorrect amount of Rs. 25,00000/- were mentioned as sale consideration in Vasiqa # 1431, dated 07.05.2008. The plaintiff has failed to produce in the Court any witness in this regard. Moreover, none of the official witness is called for in this respect to produce the average price table regarding this issue, meaning thereby the plaintiff himself admitted the fact that the value of the suit property is Rs. 25,00,000/-. So, Rs. 25,00,000/- is fixed as market value of the suit property. So, the issue is decided in negative.” Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 68 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 Keeping in view the above finding of the trial court, which determination was duly reflected in the decree sheet as well, the respondent was justified in considering that the value of the suit for the purposes of jurisdiction had been changed/modified by the trial court, thus leading him to prefer an appeal before the High Court whereas the appellant [whose appeal had already been returned by the District Court and who in compliance with the said order himself filed an appeal before the High Court] raised an objection that the High Court lacked the pecuniary jurisdiction and sought the return of respondent’s appeal and succeeded in this behalf. But the learned High Court while passing the order of return remained oblivious that in a suit for pre-emption of a house (urban property) the value of the suit for the purposes of jurisdiction is the sale consideration of the suit property; thus as per the finding of the trial court on issue No.5, when it was held that the sale consideration was Rs.2,500,000/- this modified the jurisdictional value automatically. We have considered the decree sheet prepared by the trial court which is absolutely in consonance with the finding of the trial court on the said issue. The market value of the suit property at Rs.2,500,000/- has been clearly indicated therein, thus for all intents and purposes the above became the changed value for the purposes of jurisdiction of the forum of appeal. In fact the respondent had rightly filed the appeal before the High Court in the first instance and the earlier order of the High Court dated 8.10.2013 returning the appeal was/is bad in law. In this manner the respondent has been compelled to file his appeal before the District Court which had no jurisdiction on account of the increase in the sale price of the property by the trial court. Therefore for the purposes of doing complete justice we set aside the judgment of the High Court dated 8.10.2013 and hold that the original RFA No.53/2011 of the respondent Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 69 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 be deemed to be pending before the High Court and be decided on merits. We must express our dismay that the respondent for no mistake on his part has been made to run from pillar to post for pursuing his statutory right of appeal. In light of the above, this appeal is dismissed. 60. To recapitulate, Civil Appeals No.2564/2011, 2658/2006, 1670/2008, 60/2014, 965/2014 and 218/2015 are dismissed, Civil Appeal No.280-L/2013 is allowed and Civil Appeal No.60-L/2013 is disposed of as having been rendered infructuous. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Announced in open Court on __________________ at ___________________ Not Approved For Reporting Waqas Naseer/* Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 70 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 EJAZ AFZAL KHAN, J.- I have gone through the scholarly written judgment of my learned brother Mr. Justice Mian Saqib Nisar and respectfully agree with the answers to questions Nos. 1, 2 and 4. I, however, don’t agree with the answer to question No. 3. The question reads as under:- “Question No. 3:- Where an appeal which has been entertained by the staff of the court or the court itself which has no pecuniary jurisdiction and is ultimately returned to the appellant or is dismissed, whether this protects the appellant from the bar of limitation and/or constitutes a sufficient cause for the condonation of delay on the principle of actus curiae neminem gravabit.” 2. The answer reads as under :- “39. The noted maxim which connotes “an act of the court shall prejudice no man” is founded upon justice and good sense; and affords a safe and certain guide for the administration of law and justice. It is meant to promote and ensure that the ends of justice are met; it prescribes that no harm and injury to the rights and the interest of the litigants before the court shall be caused by the act or omission of the court. This rule of administration of justice is meant for the benefit of both sides of litigants before the Court and it would be illogical to conceive that the rule would or should be applied for the advantage of one litigant to the prejudice and disadvantage of the other. It is the duty of the Court to act as a neutral arbiter between the parties and to provide justice to them through strict adherence to law and keeping in mind the fact of each case. The rule is neither meant to provide a premium to the negligent litigant who finds himself on the wrong side of limitation for unfounded reasons and nor to impair the rights of the other side. The principles of proportionality and balancing have to be kept at the forefront by the court whilst applying this rule. The Court must see what fault, if any, has been committed by the court on account of which a litigant has been made to suffer; then the court must consider whether the benefit of the rule can or should be extended to a negligent litigant who has failed to make out a sufficient cause in terms of Section 5 of the Act as explained above. In our candid opinion the principle actus curiae neminem gravabit has no application where a litigant approaches a wrong forum and such appeal is entertained by the staff of the court or by the court or even admitted to regular hearing. Thus no condonation of delay can be availed by the appellant on the basis of this principle.” 3. Before I deal with the answer it is worthwhile to know what does the maxim actus curiae neminem gravabit stand for, what is its origin, how has it been applied in the past and even today and what is the rationale behind it? This maxim so to speak, has been founded upon the principles of justice and good conscience. This maxim appears to be as old as the Court itself. The rationale behind this maxim is to undo the wrong or prejudice caused to a party Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 71 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 by the act of the Court. Its application assumed different forms and manifestations at different stages of the history. Even today this maxim is applied to undo an injury or injustice caused to a party by an act of the Court or by the laches or mistakes of its officers. It is also applied to restore what has been delayed or denied to a party by the act of the Court or negligence of the persons manning and managing it. In early eighties of 19th Century, Mr. Justice Harlan in the case of Robert Mitchell. v. A. M. Overman (103 U.S. 64-65) while delivering the opinion of the Supreme Court of the United States commented on the maxim in the words reading as under :- “The adjudged cases are very numerous in which have been considered the circumstances under which Courts may properly enter a judgment or decree as of a date anterior to that on which it is, in fact, rendered. We deem it unnecessary to present an analysis of the authorities, some of which are cited in a note to this opinion, but content ourselves with saying that the rule established by the general concurrence of the American and English courts, is, that where the delay in rendering judgment or decree arises from the act of the court, that is, where the delay has been for its convenience, or has been caused by the multiplicity or press of business or the intricacy of the questions involved, or for any other cause not attributable to the laches of the parties, but within the control of the court, the judgment or decree may be entered retrospectively, as of a time when it should or might have been entered up. In such cases, upon the maxim, actus curiae neminem gravabit, which has been well said to be founded upon justice and good sense and to afford a safe and certain guide for the administration of justice, it is the duty of the court to see that the parties did not suffer by the delay. Whether a nunc pro tunc order should be made, depends upon the circumstances of the particular case. It should be granted or refused, as the justice of the cause may require. These principles control the present cause, Stutzman was alive when the cause was argued and submitted for decree. He was entitled at that time, or at the Term of submission, to claim its final disposition. A decree was not then entered because the case, after argument, was taken under advisement. The delay was altogether the act of the court, and its duty was to order a decree nunc pro tunc, so as to avoid entering an erroneous decree.” 4. Act of the Court if considered in isolation may appear to have no nexus with the cause justifying extension of time for not preferring an appeal well within the time prescribed therefore or exclusion of time spent in prosecuting the suit in a wrong forum. But when it is considered with reference to the other facts and circumstances attending such cases, it is not only inextricably intertwined but has deep nexus with the cause justifying extension or exclusion of time as the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 72 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 case may be. Wrong or mistaken advice of a counsel has been recognized as a sufficient cause for extension or exclusion of time eversince the enactment of the Limitation Act, 1877 and the Limitation Act, 1908 in India as is evident from the judgments rendered in the cases of Brij Indar Singh. Vs. Lala Kanshi Ram and others (AIR 1917 P.C. (From Lahore), Sunderbai and another. Vs. Collector of Belgaum and others (AIR 1918 P.C.) (From Bombay), Kanwar Rajendra Bahadur Singh. Vs. Rai Rajeshwar Bali and others (AIR 1937 P.C. 276), Mata Din. Vs. A. Narayanan (AIR 1970 SC 1953), State of Kerala. Vs. Krishna Kurup Madhava Kurup (AIR 1971 Ker 211), Badlu and another. Vs. Shiv Charan and others [(1980) 4 SCC 401] and Ghasi Ram and others. Vs. Chait Ram Saini and others [(1998) 6 SCC 200]. But what is wrong advice of a counsel in essence and substance? It, as far as I am capable to understand, is nothing but a wrong signal at a junction of a road to a desired destination, which misleads a wayfarer. What is entertainment of an appeal or a suit by a wrong forum in effect and consequence? It is also nothing but another wrong signal at another junction of such road. If a wrong advice like a wrong signal at one junction of the road could mislead a wayfarer, entertainment of an appeal or a suit by a wrong forum like another wrong signal at another junction of the road to the destination, could also mislead him. What to do in a situation thus emerging? Sections 5 and 14 of the Limitation Act answer the question by providing for extension of time for not preferring the appeal well within time prescribed therefor and exclusion of time spent in prosecuting the suit in a wrong forum. Whether it is the appeal or the suit the cause for preferring or prosecuting it in the wrong forum is mistaken view of its jurisdiction, which in the first instance finds expression in the advice of the counsel and then in the act of the Court entertaining such appeal or suit. If allowance could be given for mistaken view of the counsel I don’t understand why could it not be given for mistaken view of the Court entertaining the appeal or the suit. It would thus be unjust, unfair and unreasonable to treat the two differently simply because one finds expression in the act of the counsel and the other finds expression in the act Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 73 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 of the Court. The latter deserves all the more allowance firstly because the Court entertaining the appeal or the suit did not care to know that it lay outside its jurisdiction; secondly because it sat over it for months and months together instead of returning it for being presented in the Court of competent jurisdiction and thirdly because the appellant or the plaintiff went out of limitation on account of the aforesaid act of the Court. 5. It is true that Sections 5 and 14 of the Act being distinct in their scope and application deal with distinct states and situations, but it is equally true that the distinction between the two disappears when both of them intend to undo any injury or injustice caused to the appellant or the plaintiff by the act of the counsel or by that of the Court and protect the lis having merit from being thrown out at the threshold without being considered. It was in view of this equation between the two that the principle justifying exclusion of the time spent in prosecuting the suit in a wrong forum was also applied to appeal if prosecuted in good faith and with due diligence. Judgments rendered in the cases of Consolidated Engineering Enterprises. Vs. Principle Secretary, Irrigation Department and others [(2008) 7 SCC 167] and J. Kumaradasan Nair & Anr. Vs. IRIC Sohan & Ors. (AIR 2009 SC 1333) are lucid and luminous examples in this behalf. It is correct that such act of the Court or its officials as highlighted in the main judgment authored by my learned brother Mr. Justice Mian Saqib Nisar, invariably prejudices one and places the other party in advantage, but it has to be undone in line with the letter and spirit of sections 5 and 14 of the Act to ensure equilibrium in the administration of justice and avert injustice and its perpetuation. If impair of a right accruing to the other party could be a reason for denying premium to the appellant or the plaintiff on account of the act of the Court, it could also be a reason for denying premium to the appellant or the plaintiff on account of the act of the counsel. It would thus be against the principles of parity, propriety and proportionality to give premium to the act of Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 74 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 the counsel and deny it to the act of the Court. For being evenhanded is better than being lopsided while sitting in judgment on the matters of this nature. 6. In the case of Rodger. v. The Comptoir d’ Escompte de Paris (1871) 3 P.C. 465) the principle enshrined in the maxim actus curiae neminem gravabit was also recognized as having much wider implications in the words reproduced below :- “One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression ‘the act of the Court is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.” 7. In the case of Jai Berham and others. Vs. Kedar Nath Marwari and others (AIR 1922 P.C. 269) the same principle was upheld by the Privy Council by holding as under :- “It is the duty of the Court under S. 144 of the Civil Procedure Code to “place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed”. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.” 8. In East Suffolk Rivers Catchment Board. Vs. Kent and another (1941 AC 74) Lord Atkin, after referring to some decisions of House of Lords, observed as under :- “I treat it therefore as established that a public authority whether doing an act which it is its duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or as it is put in some of the cases must not do it carelessly or improperly. Now quite apart from a duty owed to a particular individual which is the question in this case I suggest that it would be difficult to lay down that a duty upon a public authority to act without negligence or not carelessly or improperly does not include a duty to act with reasonable diligence by which I mean reasonable dispatch.” 9. Lord Eldon in Pulteney. Vs. Warren (1801) 6 Ves. 73, 92 observed as under :- “If there be a principle, upon which Courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 75 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 party, against whom the relief is sought. That proposition is broadly laid down in some of the cases”. This view was approved of by the House of Lords in The East India Company v. Campion (1837) 11 Bli. (N.S.) 158.” 10. In the case of Parker. Vs. Ellis (362 U.S. 574) the Supreme Court of the United States reaffirmed the dictum rendered in the case of Robert Mitchell. v. A. M. Overman (supra) by holding as under :- “It is the fault of the Courts, not Parker’s fault, that final adjudication in this case was delayed until after he had served his sentence. Justice demands that he be given the relief he deserves. Since the custody requirement, if any, was satisfied when we took jurisdiction of the case, I would grant the relief as of that date”. 11. In the case of Sough Eastern Coalfields Ltd., Vs. State of M. P. and others (AIR 2003 SC 4482) while dilating upon the act of the Court and suffering of the parties therefrom held as under :- “26. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been, had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 76 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.” 12. In the case of Amarjeet Singh and others. Vs. Devi Ratan and others (AIR 2010 SC 3676) the Supreme Court of India commented on the maxim actus curiae neminem gravabit in the words as under :- “15. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim “Actus Curiae neminem gravabit”, which means that the act of the Court shall prejudice no one, becomes applicable in such a case. In such a fact situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any underserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court. (Vide Shive Shankar & Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Suppl. (2) SCC 726; M/s. GTC Industries Ltd. v. Union of India & Ors., AIR 1998 SC 1566: (1998 AIR SCW 1089); and Jaipur Municipal Corporation. v. C. L. Mishra, (2005) 8 SCC 423)”. 13. In the case of Hidayatullah. Vs. Murad A. Khan (PLD 1972 SC 69) this Court on its own helped the appellants out of the wrong caused to them by the act of the Court by holding as under :- “There was, as we have already pointed out, a very good and substantial reason for the extension of time, because, even assuming that no application was made by the appellants for such extension of time, the Court, in the interest of justice, was fully competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January, 1968.” 14. In Hari Ram. Vs. Akbar Hussain (ILR 29 All. 749) a full Bench of the Allahabad High Court held as under :- “The mistake may in its origin be the mistake of the plaintiff; by the time the plaint has been registered, the mistake has become the mistake of the Court. If the Court or the Munsarim discovered the plaintiff’s mistake before registration of the plaint, the plaint Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 77 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 would at once be rejected under section 54 of the Code of Civil Procedure and never registered at all”. 15. In the case of Rashad Ehsan and others. Vs. Bashir Ahmad and another (PLD 1989 SC 146) this Court after considering a good number of judgments held as under :- “I, therefore, agree with the view of the Division Bench that the notice issued by the Collector and published in the newspaper which explicitly mentioned that the balance of the price shall be payable on confirmation of the sale had contributed to the delay. This public notice was undoubtedly in violation of the provisions of Order XXI, Rule 85 of the Civil Procedure Code. But the error was committed by the officer authorized to conduct the sale and to penalize the auction-purchaser for complying with the directions, even though erroneous, of the functionary conducting the sale is neither fair nor equitable. Accordingly the maxim “Actus Curiae Neminem Gravabit” comes into play, with a view to obviate hardships and which may otherwise be the result of the errors of the Court itself. Thus, where a non- compliance with the mandatory provisions of a law occurs by complying with the direction of the Court, which is not in conformity with the law, the party complying therewith is not to be penalized. Indeed, the law becomes flexible to absorb such abnormalities and treat the infractions as harmless. Where the directions issued while administering the law have been followed but it is found that the authority itself had acted in deviation of the law in some particulars, the party acting in accordance with such directions is not held to be blameworthy.” 16. In the case of Sherin and 4 others. Vs. Fazal Muhammad and 4 others (1995 SCMR 584) this Court after examining a great deal of case law held as under :- “It is to be noticed that all public authorities including the judicial functionaries while doing an act enjoined by law or merely empowered to do it must not do it improperly. An action may lie against a public authority for misfeasance or nonfeasance but for the sake of safe administration of justice and good sense no action lies for the breach of duty when the duty to perform is judicial or quasi-judicial. There may be a variety of reasons for omission or failure in performing such duty or exercising power with reasonable dispatch such as delaying tactics of the parties to the action multiplicity of pending cases in the Court or intricacies of questions of law and facts raised before it. As stated at page 75 in Broom’s Legal Maxims: “Cases, however, have occurred, in which injury was caused by the act of legal tribunal, as by the laches or mistake of its officer; and where, notwithstanding the maxim as to actus curiae, the injured party was without redress.” Presumably the need to mitigate the rigor of the hardship inflicted on a party in the course of administration of justice, by an act of the Court, led to the emergence of the norm that “the act of the Court shall prejudice no man”. And thus condoned the delay by holding as under :- “We feel that omission on the part of learned District Judge to take timely action is the major cause of refilling of the appeal by Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 78 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes “sufficient cause” under section 5 of the Limitation Act, for condonation of delay. The fact that after receiving the memorandum of appeal from the District Court, some time was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court”. 17. In the case of Syed Haji Abdul Wahid and another. Vs. Syed Sirjuddin (1998 SCMR 2296), this Court by approving the judgment rendered in the case of Sherin and 4 others. Vs. Fazal Mehmood and 4 others held as under :- “From the preceding discussion, it emerges that the ratio decidendi in Abdul Ghani v. Ghulam Sarwar has been followed consistently. No doubt Abdul Ghani’s case laid down that an advice given by the counsel against a clear provision of law would amount to gross negligence on the part of counsel and any action taken on such advice would not entitle the party to seek condonation of delay on the ground that he bonafidely acted on that advice, but the above rule laid down in Abdul Ghani’s case did not exclude from its purview condonation of delay by the Court under section 5 of the Limitation Act in a case where the appellant is able to establish that he acted in good faith in the above quoted passage from Abdul Ghani’s case. Therefore notwithstanding, the fact that section 14 of the Limitation Act, in terms does not apply to proceedings of an appeal, if the appellant is able to establish that he followed the remedy before a wrong forum in good faith, the Court may condone such delay in filing of the appeal treating it as “sufficient cause” in such cases would depend on the facts and circumstances of each case”. 18. In the case of Karachi Electric Supply Corporation Ltd. Vs. Lawari and 4 others (PLD 2000 Supreme Court 94) this Court after dealing with the expression sufficient cause, due diligence, good faith and act of the Court held as under :- “In the aforesaid admitted facts and circumstances, we are of the view that it is not a case where the appeal had been filed by the appellant before the District Judge only on account of mistaken advice of the counsel. Here the act and conduct of the District Judge and its office in entertaining the appeals on both occasions i.e. in the earlier round when the appeal was filed by the respondents and then when the appeal was filed by the appellant and District Judge deciding the appeals on both occasions on merits and not noting or raising the question of maintainability, and respondents on both occasions, are also factors which led the appellant in filing the appeal before the District Judge and pursuing the same there. In our view taking all the above, facts and circumstances together, a case of sufficient cause as required in section 5 of the Limitation Act had been made out and the appeal filed by the appellant before the High Court was not liable to be rejected on the ground of limitation.” Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 79 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 19. In the case of Mst. Bas Khana and others Vs. Muhammad Raees Khan and others (PLD 2005 Peshawar 214) a Division Bench of the Peshawar High Court in an identical situation held as under:- “Assuming for a while that the appellants did not act with due diligence by prosecuting their remedy in a wrong forum, could be put on the right track by the learned District Judge, the day the memorandum of appeal was presented before him. This is what preliminary hearing stands for. In any case when it was entertained and even admitted by the learned Judge without adverting to its competency on account of his pecuniary jurisdiction, all the time so consumed from its entertainment to its return in his Court, cannot be debited in the account of the appellants, and thus they cannot be allowed to suffer for the act of the Court. Had it been returned on the first date of hearing the appellants could have presented it in this Court well within time. Since the time was consumed due to the act of the Court, it will certainly constitute a sufficient cause for condonation of delay as according to the principle enshrined in the maxim actus curiae neminem gravabit, ‘an act of the Court shall prejudice none’.” The Bench while parting with the judgment observed as under:- “While parting with this judgment we will direct the Registrar of this Court to circulate a copy of this judgment to all the Courts of the learned District and Additional District Judges and the Clerks of the Court with the remarks that they should before entertaining any appeal ensure that it is within their pecuniary jurisdiction.” 20. It thus follows that the maxim actus curiae neminem gravabit is the most vital part of our jurisprudence. Excluding it from the purview of sections 5 and 14 of the Act would amount to excluding the most vital part of the jurisprudence which has grown over the centuries and earned recognition of the Courts ever since then. I, therefore, hold that the appellants going out of Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 80 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 limitation on account of the act of the Court are entitled to extension of time. Their appeals thus stand decided accordingly. However, it is directed that henceforth the Clerk of the Court while receiving appeal in the office and the learned District Judge hearing appeal in motion shall ensure that it is presented in a competent forum and in case it is otherwise he shall immediately return it for being presented in the Court of competent jurisdiction. Order of this Court be circulated to all the District Judges and the Clerks of Court for doing the needful. Judge Civil Appeals No. 2564/2001, 2658/2006, 1670/2008, -: 81 :- 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015 ORDER OF THE BENCH With the majority decision of four to one the result of the appeals is recorded in paragraph No.60 (supra) of the majority judgment. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Announced in open Court on 16.8.2016 at Islamabad Approved For Reporting Waqas Naseer/*

{'id': 'C.A.2564_2001.pdf', 'url': ''}

{'id': 'C.A.2564_2001.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 2619 OF 2016 (On appeal against the judgment dated 08.09.2016 passed by the Peshawar High Court, D.I. Khan Bench in RFA No. 103- D/2013) WAPDA through Chairman and others … Appellants Versus Alam Sher and others …Respondent(s) For the Appellants: Syed Abid Hussain Shah, ASC Syed Rifaqat Hussain Shah, AOR For the Respondents: Mr. Anwar Awan, ASC Date of Hearing: 28.03.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal under Section 54 of the Land Acquisition Act, 1894, the appellants have assailed the judgment dated 08.09.2016 passed by the learned Single Judge of the Peshawar High Court, D.I. Khan Bench whereby the Regular First Appeal filed by the appellants was dismissed and the order of the learned Judge Land Acquisition, D.I. Khan dated 29.06.2013 was upheld. 2. Briefly stated the facts of the case are that the appellants acquired the land of the respondents for construction of F.C. Sherana Drain CRBIP Stage-III, Wapda, D.I. Khan. The District Collector/Deputy Commissioner, D.I. Khan issued notification on 18.11.1996 under Section 4 of the Land Acquisition Act, 1894, which was published in the official gazettee on 18.02.1997. Subsequently, the Award No. 80 was issued on 11.08.2003 and the compensation was announced as Rs.3328.20/- per kanal. The respondents filed Objection Petition under Section 18 of the Civil Appeal No. 2619/2016 -: 2 :- Land Acquisition Act, 1894 seeking enhancement of the compensation amount. The matter was ultimately taken up by the Senior Civil Judge, D.I. Khan as Referee Judge and vide judgment and decree dated 08.04.2010, the learned Referee Court enhanced the compensation amount from Rs.3328.20/- per kanal to Rs.10,282.40/- per kanal along with 15% compulsory acquisition charges and 6% simple interest. The respondents challenged the said judgment and decree before the learned Peshawar High Court, D.I. Khan. The learned High Court vide its order dated 13.05.2013 accepted the appeal filed by the respondents and remanded the matter back to the learned Referee Court with a direction to appoint local commission to ascertain the fair and actual market value of the land and thereafter decide the case afresh. In post-remand proceedings, the learned Judge Land Acquisition/Referee Court enhanced the compensation amount from Rs.10,282.40/- per kanal to Rs.25000/- per kanal along with 15% compulsory acquisition charges and 6% simple interest on the difference from date of possession till final recovery of the amount, minus the amount, if any, already paid to the respondents. Being aggrieved, the appellants filed RFA No. 103-D/2013 before the learned Peshawar High Court but the same has been dismissed vide impugned judgment. Hence, this appeal under the provisions of Land Acquisition Act, 1894. 3. At the very outset, learned counsel for the appellants contended that the compensation of the acquired land was rightly fixed in the Award dated 11.08.2003 keeping in view the nature of the land, which is adequate and needs no interference. Contends that the Local Commission did not place on record any documentary evidence and solely based its findings on the oral evidence, which is not warranted under the law. Contends that pursuant to an amendment in Section 23 of the Land Acquisition Act, 1894, which was made in the year 2001, the compensation has to be determined according to the market value of the land on the date of taking possession of the land. Contends that the possession of the land was taken on 28.02.2002, therefore, the compensation ought to have been awarded according to that date. Lastly Civil Appeal No. 2619/2016 -: 3 :- contends that the impugned judgment is against the law, facts and record of the case, therefore, the same may be set at naught. 4. On the other hand, learned counsel for the respondents defended the impugned judgment by stating that the learned High Court has passed a well reasoned judgment, which is based on correct appreciation of the evidence available on the record, therefore, the same needs no interference. 5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 6. There is no denial to this fact that the order of the learned Peshawar High Court dated 13.05.2013 by which the matter was remanded back to the learned Referee Court with a direction to appoint local commission to ascertain the fair and actual market value of the land was neither challenged by the appellants nor by the respondents before this Court. Therefore, the same had attained finality. We have perused the report of the Local Commission dated 24.06.2013. The report shows that during the spot inspection, the concerned Patwari Halqa, Patwari CRBC and Moharrir of the Court were also accompanying the Local Commissioner. The report depicts that different mutations of the same mouza pertaining to years 2001 to 2003 were produced before the Local Commission. Those mutations were of the same time when the acquisition process was finalized and the land of the respondents was taken into possession i.e. 28.02.2002. The same were also made part of the record. During spot inspection, the statements of different landlords and property dealers of the same vicinity were also recorded, which were also made part of the record. It was also noticed that the land of the respondents was bifurcated in two blocks and in one block the land was irrigated through outlet privately built by the respondents over drain, without which, even after acquisition, irrigation of the acquired land was almost impossible. Two years average for the period 01.01.2002 to 01.01.2003 were also taken on record while determining the fair market value of the land of the respondents. After taking into consideration the documentary Civil Appeal No. 2619/2016 -: 4 :- evidence in the shape of mutations, two years average, bifurcation of the acquired land in two different blocks and oral statements of the landlords & property dealers, which were also reduced into writing, and disturbance of irrigation sources of the acquired land, the Local Commissioner came to the conclusion that the fair market value of the land was Rs.25000/- per kanal. Mr. Muhammad Ghazanfar Ali, Advocate, who was appointed Local Commissioner also appeared before the learned Trial Court and recorded his statement as CW-1. He was put to lengthy cross-examination by the appellants but no deficiency in his report could be brought on record. Mode of determining the compensation of acquired land is provided in Section 23 of the Land Acquisition Act, 1894, which depicts that the landowner is entitled to compensation and not just market value, as such, any loss or injury occasioned by its severing from other property of the landowner, by change of residence or place of business and loss of profits are also relevant factors. While conducting said exercise, oral evidence, if found credible and reliable can also be taken into consideration. The requirement of Article 71 of the Qanun-e-Shahadat Order, 1984, squarely requires that it should be produced directly if the same is in oral form. We have noticed that in the present case, the oral evidence came from a source, which no doubt can be termed as direct, because the other landowners and property dealers were of the same vicinity and were fully aware of the market/potential value of the land. Even otherwise, the oral statements of the other landowners and property dealers of the same vicinity had been corroborated with other evidence produced on record, such as, (i) certain mutations in respect of the same mouza, (ii) two years average for the period 01.01.2002 to 01.01.2003 (Ex.PW-3/25), (iii) aks shajra kishtwar, & (iv) khasra girdawri (Ex.PW-3/2), which revealed that there was cultivation in the suit property up to the year 2004. Learned counsel for the appellants had argued that pursuant to an amendment in Section 23 of the Land Acquisition Act, 1894 by the province of KPK, the compensation has to be determined according to the market value of the land on the date of taking possession of the land. Before proceeding Civil Appeal No. 2619/2016 -: 5 :- further, it would be in order to reproduce the relevant provision of Land Acquisition Act, 1894, which reads as under:- “23. Matters to be considered in determining compensation.— (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration— first, the market-value of the land at the date of the publication of the notification under section 4, sub-section (1). 7. This provision stands amended by the NWFP Amendment Ordinance XVII of 2001 in the following terms:- “first, the market value of the land on the date of taking possession of the land..” 8. Admittedly, this question was not raised before the lower forums. This is settled law that this Court in its appellate jurisdiction would generally not determine any ground or question of fact that had not been pleaded or raised by the parties at any stage before the Referee Court or the High Court and has been for the first time raised in appeal before this Court. Reliance is placed on Sarhad Development Authority NWFP Vs. Nawab Ali Khan (2020 SCMR 265), Ali Khan Vs. Soomar (1968 SCMR 565) & Malik Ghulam Hussain Vs. Haji Muhammad Hayat (PLD 1971 SC 573). In Sarhad Development Authority NWFP Vs. Nawab Ali Khan (2020 SCMR 265), this Court considered the effect of amendment in Section 23(1) of the Land Acquisition Act, 1894, made by the Province of Khyber Pakhtunkhwa and held as under:- “11. What is interesting to note is that, unlike Khyber Pakhtunkhwa, in the other three provinces, section 23(1) of the Act has not been amended, and the "market value" of the land, as originally enacted, is determinable on basis of the value prevailing on the date of gazette publication of the notification under section 4(1) ibid. Thus, it is crucial to note that since 2001, when the Amendment was introduced in the Act, it is only in Khyber Pakhtunkhwa that, the determining criteria for deciding the "market value" of the property proposed to be acquired within the contemplation of section 23(1) has been the prevalent value of land on the date of taking possession of the said property, and not the date when the notification under section 4(i) ibid was published in the official gazette. ………………………….. 17. Thus, in view of the above, it would be safe to state that not only in Khyber Pahktunkhwa, but even in other three provinces, where Civil Appeal No. 2619/2016 -: 6 :- section 23(1) of the Act has not been amended, it is noted that: firstly, the value of similar land in the adjoining khasras and mauzas to the acquired land was taken into consideration for determining the amount of compensation to be awarded to owners of the acquired property; and secondly, the escalation of price of land during the acquisition period till its culmination in issuance of the award could be taken into consideration; and thirdly, for assessing the "potential value" of the acquired land, the most critical factor, which is to be kept in mind is the future utility of the proposed acquired land, keeping in view the availability of facilities for its said utilization; and finally, there can be no mathematical formula set for the determination of the compensation due to the landowners for the compulsory acquisition of their property. And thus, various factors depending on the circumstances of each case would cumulatively form the basis for determining the "market value" of the acquired land within the contemplation of section 23(1) of the Act.” (Emphasis is supplied) 9. For what has been discussed above, we are of the view that the learned courts below while passing the judgments have taken into consideration all the relevant factors, as mentioned in Sarhad Development Authority supra case, which being well reasoned do not warrant interference. The compensation enhanced by the learned Referee Court, which was upheld by the learned High Court, was in consonance with the law laid down by this Court as well as with Section 23 of the Land Acquisition Act, 1894. Consequently, this appeal having no merit is dismissed. JUDGE JUDGE Islamabad, the 28th of March, 2023 Approved For Reporting Khurram

{'id': 'C.A.2619_2016.pdf', 'url': ''}

{'id': 'C.A.2619_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE SARMAD JALAL OSMANY CIVIL APPEAL NOs. 269 TO 275, 1047 & 1048 OF 2011 AND CIVIL PETITION NO. 657 OF 2012 (On appeal from the consolidated judgment of the Peshawar High Court dated 28.10.2010 passed in WP Nos. 327, 328 & 525 of 2008 & 2745/2010 and consolidated judgment dated 29.6.2011 passed in WP No. 569 of 2011 and WP No. 3975 of 2010 and order dated 28.2.2012 passed in WP No. 184/2010). Zarai Taraqiati Bank Limited etc (In all cases) … Appellants/Petitioner VERSUS Said Rehman & others (In CA 269/2011) Ali Haider etc (In CA 270/2011) Fazli Subhan and others (In CA 271/2011) Ali Muhammad and others (In CA 272/2011) Muhammad Afsar Khan and others (In CA 273/2011) Muhammad Tariq Hussain etc (In CA 274/2011) Hidayat ur Rehman etc (In CA 275/2011) Hanifullah Khan etc (In CA 1047/2011) Muhammad Saleem Khan etc (In CA 1048/2011) Syed Muhammad Zahir Shah and others (In CP 657/2012) … Respondents For the Appellants: Mian Gul Hassan Aurangzeb, ASC Mian Muhammad Hanif, ASC Mr. Muhammad Munir Peracha, ASc Mr. M. S. Khattak, AOR Mr. Hamid Ahmed, Advocate Mr. Rashid Sultan, Advocate (In all cases) For the Respondents Mr. Abdur Rahim Bhatti, ASC (In CAs 269 to 275/2011) For the Respondents: Mr. Shakeel Ahmed, ASC (In CP 657/2012) Dates of Hearing: 5/6/7/13/19/21/22.11.2012 Date of Announcement: 15.2.2013 Civil Appeals No. 269 to 275 of 2011 etc 2 JUDGMENT TASSADUQ HUSSAIN JILLANI, J.- Facts giving rise to these appeals briefly stated are that respondents were at the relevant time serving as Vice Presidents (C.A. No. 275 of 2011) and Assistant Vice Presidents in the appellant Bank (in all the remaining appeals and Civil Petition No. 657 of 2012). They were aggrieved of the recommendations made by the Departmental Promotion Committee in its meeting held in October 2007 vide which they were not recommended for promotion to the next grade. Those orders were challenged in Constitution petitions on the ground that the respondents had secured the requisite qualifying marks for their promotion from Vice President to Senior Vice President/Directors; that they had illustrious careers; that no cogent reason had been given by the said Departmental Promotion Committee for ignoring them; that the procedure adopted by the Departmental Promotion Committee had no sanction in law or the rules inasmuch as there was no provision of interview and for allocation of 25% marks for the interview. The Constitutional petitions have been allowed by the learned Division Bench of the Peshawar High Court vide the impugned judgment on the ground that the procedure provided in the Zarai Taraqiati Bank Limited Staff Regulations, 2005 (hereinafter referred to as the Staff Regulations, 2005) could not have been adopted to consider the respondents’ promotion; that in view of Section 6 of the Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002 (hereinafter referred to as the Ordinance, 2002), the respondents are to be governed by the same Civil Appeals No. 269 to 275 of 2011 etc 3 Rules and Regulations which were applicable to them prior to the promulgation of the afore-referred Ordinance. The appellant Bank was directed to send their cases of next step promotion back to the Departmental Promotion Committee for consideration afresh in the light of the observations made in the impugned judgment. 2. Leave was granted by this Court in terms of order dated 30.3.2011 which reads as follows:- “In the petitions the points which have been raised for consideration of this Court are, (i) that the petitioner bank is a limited company and against which the writ cannot be issued, and (ii) that after the reorganization of Zarai Taraqiati Bank Limited it is not certain that the respondents would be governed by the old rules and regulations on the strength of Section 6 of Agricultural Development Bank of Pakistan (Re- organization and Conversion) Ordinance, 2002, or by the rules and policy so framed by the petitioner/bank. Learned counsel for the respondents has controverted the aforesaid points. However, in order to consider, inter alia, the aforesaid points, leave to appeal is granted. CMAs are allowed and the operation of the impugned judgment is suspended.” 3. Learned counsel for the appellants submitted that the learned High Court has fell in error in not appreciating that in terms of Ordinance 2002, the appellant-bank had become a public limited company; that the employees of this company are governed by non-statutory regulations so far as the issues of promotion are concerned; that the relationship of the appellant with the respondents is governed by the principle of master and servant and in view of the law laid down by this Court in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) Civil Appeals No. 269 to 275 of 2011 etc 4 and Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681), the learned High Court had no jurisdiction to entertain the petitions. He added that after the promulgation of the afore-referred Ordinance, the respondents are to be governed by Staff Regulations 2005 which is in accord with Section 9 of the Ordinance 2002 and sections 6 and 10 of the said Ordinance could not override the former provision; that they were disentitled to any discretionary relief on account of their conduct as having availed the benefits of Staff Regulations 2005 and having appeared in the interview they could not have taken a somersault claim to be reconsidered under the old Staff Regulations of 1961. 4. Tracing the history of the development of law relating to Agricultural Development Bank (which now is Zarai Tarqiati Bank) from the Agricultural Development Bank Ordinance 1961 to the current law i.e. the Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002, learned counsel submitted that prior to the former Ordinance, two institutions existed to provide financial and credit facilities to the agriculturalists: (i) Agricultural Development Finance Corporation (established through the Agricultural Development Finance Corporation Act 1952 Act XVII of 1952) and (ii) Agricultural Bank of Pakistan (established under Act XXIII of 1956). Section 43 of Act XV of 1952 provided that the Board of the Corporation, with previous sanction of the Central Government, may make regulations not inconsistent with the Act to provide for all matters necessary or expedient for the purpose of giving effect to the provisions of the Act. Section 39 of Act XXIII carried a similar Civil Appeals No. 269 to 275 of 2011 etc 5 provision of the power of the Board to make regulations not inconsistent with the Act with prior approval of the Central Government. Both these Acts were repealed with the promulgation of Agricultural Development Bank Ordinance 1961 (Ordinance IV of 1961) in terms of its Section 41. Section 39 of this Ordinance pertained to the power of the Board to make regulations not inconsistent with the Ordinance for the purpose of giving effect to the provisions of this Ordinance and spelt out matters inter alia on which the regulations could be framed. The provision of prior approval of the Central/Federal Government contained in Act XVII of 1952 and Act XXIII of 1956 was done away with. The said provision reads as under:- “39. Regulations. ----(1) The Board may make regulations not inconsistent with this Ordinance or the rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance and the efficient conduct of the affairs of the Bank. (2) ….. (a) …… (b) …… (c) …… (d) …… (e) the recruitment of the employees of the Bank, the terms and conditions of their service, the constitution and management of Provident Funds for the employees of the Bank and all other matters connected with any of these things; (f) the duties and conduct of employees and agents; (g) …… Civil Appeals No. 269 to 275 of 2011 etc 6 (h) ……” 5. Agricultural Development Bank Ordinance, 1961 was gazetted on 11.2.1961 and the Regulations were drafted immediately thereafter when the Board had yet to be constituted. Those Regulations in absence of the Board were sent to the Government for approval and after Government's approval those were brought into force. It was on 3/4 May, 1961 that those were placed before the Board of Directors and approved. The approval by the Government did not make it statutory as requirement of approval by the Government stood dispensed with in terms of Section 39 of the Ordinance, 1961; that the Agricultural Development Bank Ordinance 1961 (IV of 1961) was, however, amended through Act XII of 1973 and thereby eight Sections of the said Ordinance including Section 39 were amended (relatable to regulations). A proviso was added to Section 39(2) and the requirement of prior approval of the Federal Government for making regulations was reinserted. The said proviso reads as follows:- “Provided that no regulation made with respect to the matters mentioned in clauses (e) and (f) shall take effect until it has been approved by the Federal Government”. 6. The effect of the afore-mentioned amendment, according to learned counsel, would be prospective and all regulations framed after 1973 would be statutory as requirement of approval by the Federal Government was made a condition precedent. In support of this submission, he relied on a judgment Civil Appeals No. 269 to 275 of 2011 etc 7 of this Court in Anwar Hussain v. Agricultural Development Bank of Pakistan (1992 SCMR 1112). 7. Elaborating his submission, learned counsel added that the Agricultural Development Bank of Pakistan Officers Service (Efficiency & Discipline) Regulation, 1975 were statutory as those were duly approved by the Federal Government. But in the appeals in hand, he maintained, the issues raised are relatable to promotions whereas the Officers Service (Efficiency & Discipline) Staff Regulations 1975 which are statutory, cater to disciplinary matters. The regulations governing issues of promotion or the Agricultural Development Bank Staff Regulations, 1961 were neither approved by the Federal Government nor it was so required prior to the amendment by Act XII of 1973. 8. The Agricultural Development Bank Ordinance, 1961 was however repealed with the promulgation of the Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002. The Bank was converted into a corporation, all the employees were transferred and became the employees of the company and it was provided under the Ordinance that these employees shall be governed and subject to same rules and regulations as were applicable to them before the effective date. 9. A close reading of Section 6 of the Ordinance, 2002, according to learned counsel, would indicate that the legislative intent was that the employees of the Bank who stood transferred to the newly created / converted company were to be governed by the Civil Appeals No. 269 to 275 of 2011 etc 8 same rules as existed prior to promulgation of new Ordinance and that would mean that so far as the matters pertaining to efficiency and discipline are concerned, the employees would be governed by the Agricultural Development Bank Staff Regulations of 1975 which are statutory. However, the subject of promotions (contained in paragraph 17 of the Staff Regulations, 1961) has not been approved by the Federal Government after the Regulations, 1961 were made by the Board. Therefore, the subject of promotions continues to be non-statutory in nature. He added that after promulgation of the Agriculture Development Bank of Pakistan (Amendment) Act, 1973, no Regulations on the subject of promotions have been made except the Promotion Policy, 1999, which has never been approved by the Federal Government and, therefore, non-statutory. 10. He contended that though Promotion Policy is admittedly non-statutory but assuming without admitting or conceding that regulations pertaining to promotions were statutory in nature, the writ petitions would nonetheless be not maintainable on account of the fact that the writ petitioners had voluntarily and consciously applied for and adopted the ZTBL Staff Regulations, 2005, which have been framed by the Board and not approved by the Federal Government. Paragraph 14(h) of the ZTBL Staff Regulations, as notified vide circular dated 27-06-2007 provided as follows:- “Promotion for VP and above shall be based on merit and open competition, interviews and selection by a promotion committee to be constituted by the President. Vacancies for VP and above as such shall be advertised internally and externally.” Civil Appeals No. 269 to 275 of 2011 etc 9 11. According to learned counsel the writ petitioners (1) after voluntarily and consciously adopting the Regulations 2005; (2) after taking all the monetary benefits on account of adopting the Regulations 2005 i.e. 100% commutation of pension, which otherwise was not permissible under the ADBP Employees (Pension and Gratuity) Regulations 1981; (3) after sitting or participating in the competitive process for promotion as contemplated by Paragraph 14(h) of the Regulations 2005; and (4) after not scoring the above threshold required for promotion, cannot turn around and claim promotion on the basis of seniority – cum fitness under the Promotion Policy of 1999. Therefore, the writ petitioners were estopped by their own conduct from claiming protection under the Promotion Policy of 1999 or the non-statutory Regulations of 1961 on the subject of promotion. 12. Learned counsel for the respondents-writ petitioners defended the impugned judgment by making following submissions: 1. that after the conversion of Agricultural Development Bank into a corporation by virtue of the Ordinance 2002, the employees became employees of the company. By virtue of Section 6 of the said Ordinance, service terms and conditions which were in field prior to its promulgation were made applicable to the respondent employees. The question of their promotion which was subject matter of the constitutional petitions had to be governed under the Civil Appeals No. 269 to 275 of 2011 etc 10 Staff Regulations 1961 and the Promotion Policy 1999; 2. that the Staff Regulations 1961 and the Promotion Policy, 1999 are statutory as those have been adopted by legislative reference. Section 6 of the Ordinance 2002 specifically provides that employees of the company “shall be subject to the same rules and regulations as were applicable to them before the effective date”. In support of this contention, learned counsel relied on a judgment of this Court in Masood Ahmad Bhatti Vs. Federation of Pakistan (2012 SCMR 152); 3. that the ADBP Staff Service Regulations, 1961, prior to promulgation of ADBP (Amendment) Act, 1973 were approved by the Federal Government and the same were subsequently approved by the Board of Directors. The legal status of the said Service Regulations came under scrutiny before this Court in the case reported as 1992 SCMR 1112 and the Court authoritatively decided it. A reasonable interpretation of the provisions of this Act, particularly the proviso appended to subsection (2) of Section 39, would therefore, be that the said provision would be applicable prospectively to any regulations made which fall under clauses (e) and (f) in future. In other words, if any regulation on these subjects is framed Civil Appeals No. 269 to 275 of 2011 etc 11 after the date of the coming into force of the Amendment Act, prior approval of the Federal Government would be essential for bringing such regulations in effect. But, it will be difficult to construe that it would destroy the regulations which had already come into force prior to the amendment, as obviously that would amount to giving retrospective operation to the provisions of the Amendment Act. It therefore, follows that the remaining Regulations of 1961, other than the substituted Regulations 1995, having come into force prior to the 1973 amendment, when no prior approval of the Federal Government was necessary, shall continue to remain in force and operative notwithstanding the amendment of subsection (2) of section 39; 4. that the 1961 Staff Regulations were framed under Section 39 of 1961 Ordinance (un-amended) by the Board so those were statutory and this Court has already held so in an unreported judgment of this Court (in C.P. 495 of 2010) wherein it has been candidly held as follows:- “We have no doubt in our minds that the National University of Sciences and Technology (Enforcement of Academic, Service, and Financial Matters) Statutes, 2005, are statutory in nature as they were framed in accordance with the procedure prescribed in the statute. Since this was the only ground on which leave was granted, the appeal is dismissed.” Civil Appeals No. 269 to 275 of 2011 etc 12 5. that the treatment meted out to respondents in matters of promotion is discriminatory and violative of Article 25 of the Constitution inasmuch as while the regulations pertaining to efficiency and discipline are statutory and they can invoke the remedy of filing a petition under Article 199 of the Constitution, but with regard to promotion they have no remedy and they are hit by the principle of master and servant; 6. that if this Court comes to the conclusion that the 1961 Staff Regulations or Promotion Policy of the year 1999 are non-statutory, it would not be in accord with the canons of equity and justice as the said conclusion may render them without any remedy or forum to agitate their grievance. In this context, learned counsel relied on a judgment of this Court in Muhammad Amin Vs. President Zara Taraqiati Bank Ltd (2010 PLC (CS) 710) wherein the Court itself provided a remedy in terms of para 7 of the Esta Code to grant the relief which was prayed by the aggrieved; 7. that in C.P. 427 of 2010, counsel appearing for Zarai Taraqiati Bank had contended that the Service Tribunal had no jurisdiction to entertain the appeal and the Court had repelled the contention holding as follows:- “From the above narration, we have no doubt left in our mind that the respondent’s services are to be governed by the Rules and Regulations Civil Appeals No. 269 to 275 of 2011 etc 13 framed under the 1961 Ordinance as in force at the repeal of Ordinance.” 13. In his rebuttal, learned counsel for the appellant submitted as follows: 1) that it is incorrect to state that any counsel appearing on behalf of the Zarai Taraqiati Bank had conceded to the proposition that the 1961 Staff Regulations were statutory except in one case (C.P. Nos. 434 and 435 of 2009). In those cases, the matter was remanded and a case decided on concession is not the law declared. He gave a list of other cases wherein concession was made by counsel for the appellant and in all those cases the Regulations/Rules were statutory. The list of those cases is as under:- (i) C.A. 1394 of 1999 etc and C.P. 1208 of 2000 (ii) Crl. Org No. 44 of 2010 in CA Nos. 749 to 761 of 2009. (iii) C.P. No. 2726 of 2004 (iv) C.P. No. 1135 of 2010 (v) C.P. No. 427 of 2010 (vi) C.P. No. 1410 of 2009 & CMA No. 2513 of 2009. 2) Suggesting a way out he submitted that since there is no provision of regulations in the 2002 Ordinance and Section 9 of the same provides for making rules, a direction can be issued to the Federal Government to amend the said Ordinance and thereafter the Federal Civil Appeals No. 269 to 275 of 2011 etc 14 Government may accord the requisite approval in terms of section 39(2) of the 1961 Ordinance. 14. Having heard learned counsel for the parties, the issues which crop up for consideration are as follows:- 1) whether the old Staff Regulations of 1961 framed by the Board are non-statutory and if so were the Constitution petitions filed by the respondent employees maintainable? 2) whether the respondent employees were disentitled to any discretionary relief under Article 199 of the Constitution on account of their own conduct? 15. Historically statutory rules and orders were the means by which delegated legislation used to be made in United Kingdom. "The Rules Publication Act 1893 in England defines "rule making authority" to include every authority authorized to make any statutory rules. Statutory rules are defined as rules, regulations or by-laws under any Act of Parliament, in England. Orders are excluded from the statutory definition of statutory rules as being administrative. In England regulation is the term most popularly understood and the one favoured by the Committee on Ministers' Powers, who suggested that regulations should be used for substantive law and rules for procedural law, while orders should be reserved to describe the exercise of executive power or the taking of a judicial or quasi judicial decision (See Craies on Statute Law, 7th Ed. At p. 303). The validity of statutory instruments is generally a Civil Appeals No. 269 to 275 of 2011 etc 15 question of vires, i.e., whether or not the enabling power has been exceeded or otherwise wrongfully exercised1." 16. The "rules" and "regulations" framed under any Act are meant to regulate and limit the statutory authority. All statutory authorities or bodies derive their powers from statutes which create them and from the rules or regulations framed thereunder. Any order passed or action taken which is in derogation or in excess of their powers can be assailed as ultra vires. Rules and regulations being forms of subordinate legislation do not have substantial difference as power to frame them is rooted in the statute. Statutory bodies are invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fall within their lawful domain to carry out the purposes of the Act. This rule making power of such bodies, called 'delegated legislation' has assumed importance in the contemporary age. "The justification for delegated legislation is threefold. First, there is pressure on parliamentary time. Second, the technicality of subject matter necessitates prior consultation and expert advice on interests concerned. Third, the need for flexibility is established because it is not possible to foresee every administrative difficulty that may arise to make adjustment that may be called for after the statute has begun to operate. Delegated legislation fills those needs2." 17. Broadly the salient characteristics of statutory rules are threefold: 1 Sukhdev Singh etc Vs. Bhagat Ram etc (AIR 1975 SC 1331) 2 AIR 1975 SC 1331 Civil Appeals No. 269 to 275 of 2011 etc 16 i) Rules or Regulations are framed by statutory or public body; ii) Those are framed under the authority or powers conferred in the statute; iii) Those have statutory Governmental approval or statutory sanction. 18. The question as to which rules or regulations are statutory and how they affect the rights of the employees has been a subject of comment in several judgments. In Principal, Cadet College, Kohat Vs. Muhammad Shoab (PLD 1984 SC 170), this Court considered this issue with reference to Sections 17 & 18 of the West Pakistan Government Educational & Training Institutions Ordinance, 1960. Section 17(1) of the said Ordinance provided that the Government may make rules for carrying out the purposes of the said Ordinance and Section 18 provided that the Board of Governors may subject to the approval of the Government, frame regulations “not inconsistent with the provisions of this Ordinance and the rules made thereunder, to carry out the purposes of this Ordinance.” Since the “rules” framed by the Board of Governors, governing the appointment, promotion, retirement, termination of service and dismissal of staff employed by the Board had not been made by the Government, those ‘rules’, the Court held “could not be regarded as “rules” under section 17, nor having been approved by the Government, be treated as Regulations under section 18 thereof. These “rules” therefore could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Civil Appeals No. 269 to 275 of 2011 etc 17 Governors and the Principal of the Cadet College, Kohat.” This view was reiterated in Zia Ghafoor Piracha Vs. Chairman, Board of Intermediate and Secondary Education (2004 SCMR 35) wherein in para 7, it was held as follows:- “7. The Service Regulations of the Employees of the Board were framed by the Board. However, as has been determined by the learned Single Judge of the Lahore High Court, the Government, as required by the Act, has not given its formal approval to these Regulations. In these circumstances, these Regulations may be termed as internal instructions or domestic rules having no status of statutory rules. Reference in this regard is made to the case of “The Principal Cadet College, Kohat and another V. Muhammad Shoab Qureshi (PLD 1984 SC 170). In that case, the Government under the West Pakistan Government Educational and Training Institution Ordinance, 1960 was empowered to make Rules for carrying out the purposes of the Ordinance under section 17 thereof. Similarly, under section 18, the Board was also empowered to make Regulations subject to approval of the Government. There was identical situation in the aforesaid case as is now prevailing in the present case because the Regulations though made by the Board but the approval of the Government had not been secured. Similarly, the Government too had not made any Rules as mandated by section 17 ibid.” 19. An identical issue was considered by this Court in Asad Bashir Vs. Chairman Board of Intermediate and Secondary Education, Lahore and others (2006 PLC (CS) 110) and relying on the afore-referred precedent case law, the Court upheld the judgment of the learned Lahore High Court and held that since the rules / regulations governing the service of the appellants were non-statutory, the Constitution petitions were not maintainable. Civil Appeals No. 269 to 275 of 2011 etc 18 20. In Muhammad Mubeen-us-Salam Vs. Federation of Pakistan (PLD 2006 SC 602), the question inter alia of the remedies available to employees who are governed by statutory rules was a moot point and this Court observed in para 50 as under:- "Prima facie, this provision of law, i.e. Section 2-A of the STA, 1973 has not advanced the cause of employees of Corporations, etc. by providing them remedy before the Service Tribunal because initially in the case of a Corporation/body, etc. if it has statutory backing, and rules are framed thereunder, its employees other than the workers, used to invoke the jurisdiction of the High Court under Article 199 of the Constitution i.e. a remedy which is always considered to be speedy, expeditious and inexpensive; whereas the employees governed by the relationship of master and servant rule used to approach the Civil Court for the redressal of their grievance while workers and the workmen were eligible to seek remedy before the local Labour Courts, functioning under the new dispensation of Industrial Relation Ordinance, 2002, at the Divisional level with a right of appeal before the respective High Courts and appeal under Article 185(2) or a petition for leave to appeal under Article 185(3) of the Constitution before this Court, under which this Court enjoys vast jurisdiction, as compared to limited jurisdiction under Article 212(3) of the Constitution." 21. Similarly in Executive Council Allama Iqbal Open University Vs. Muhammad Tufail Hashmi (2010 SCMR 1484), this Court held as follows:- "9. The principle perceived from the above judgments is that the employees of those organizations, which are discharging functions in connection with the affairs of Federation, can approach the learned High Court under Article 199 of the Constitution but subject to the condition if their services are protected under the statutory rules." Civil Appeals No. 269 to 275 of 2011 etc 19 22. Statutory rules create certain rights for employees and impose obligations on the statutory authorities. The statutory authorities and functionaries cannot deviate or act in derogation to those rules or regulations. Any order passed or action taken by a public authority which is in conflict with those statutory rules can be challenged under Article 199 of the Constitution. 23. As explained in para 4 above, the appellant Bank was successor to two institutions (Agricultural Development Finance Corporation and Agricultural Bank of Pakistan) wherein prior approval of the Central Government was required to make the regulations. This requirement was done away with in the Agricultural Development Bank Ordinance, 1961. Under Section 39 of the said Ordinance, the Board of the Bank was empowered to make regulations and there was no requirement of prior approval of the Government. Section 38 provided for making of the rules by the Government and not by the Board. The appellant Bank was established in February, 1961 vide the 1961 Ordinance by amalgamating two institutions (Agricultural Development Finance Corporation and Agricultural Bank of Pakistan). Immediately after the promulgation of the Ordinance, 1961 as the Board had yet to be constituted, the draft regulations were sent to the Government for approval. After the Government’s approval they had been brought into force with effect from the date of establishment of Agricultural Development Bank of Pakistan and remained in field till 3rd / 4th May, 1961, when these were placed before the Board of Directors, ADBP in its first meeting as draft regulations and approved with certain amendments. The regulations thus made by Civil Appeals No. 269 to 275 of 2011 etc 20 the Board were known as “Agricultural Development Bank (Staff Service) Regulations, 1961 (Regulations, 1961). The approval of the regulations by the Government prior to the first meeting of the Board may be inconsequential at that stage as there was no statutory requirement for that but it indicated that notwithstanding the deletion of requirement of Governmental approval, the Government continued to exercise central power over the Bank. This was so because there were many enabling provisions in the Ordinance for the Government to do so including the rule making power in terms of Section 38, which reads as follows:- "38. Rules.--- (1) The Central Government may make rule for carrying out the purposes of this Ordinance and where the regulations framed under the succeeding section are inconsistent with the rules framed under this section, the rules shall prevail." 24. Section 39 of the Ordinance, 1961 was however, amended by the Agricultural Development Bank (Amendment) Act, 1973 and following proviso was added, which made prior approval of regulations by the Government mandatory:- “Provided that no regulation made with respect to the matters mentioned in clauses (e) and (f) shall take effect until it has been approved by the Federal Government.” 25. The afore-mentioned amendment did not invalidate the regulations made prior to it when there was no requirement of approval by the Federal Government. The legal effect of the addition of the proviso to Section 39 (2) of Ordinance, 1961 was considered by this Court in the case Anwar Hussain Vs. Civil Appeals No. 269 to 275 of 2011 etc 21 Agricultural Development Bank of Pakistan (1992 SCMR 1112) and it was held as follows:- “A reference to subsection (2) of section 1 of the Agricultural Development Bank (Amendment) Act (XII of 1973), plainly shows that this Act came into force on the date of its promulgation and not retrospectively. A reasonable interpretation of the 6 provisions of this Act, particularly the proviso appended to subsection (2) of section 39, would therefore, be that the proviso would be applicable prospectively to any Regulations made which fall under clauses (e) and (f) in the future. In other words, if any Regulations on these subjects are framed after the date of the coming into force of the Amendment Act, prior approval of the Federal Government would be essential for brining such Regulations in effect. But, it will be difficult to construe the provisions of the proviso to destroy the Regulations which had already come into force prior to the amendment, as obviously that would amount to giving retrospective operation to the provisions of the Amendment Act. It therefore, follows that the remaining Regulations of 1961, other than the substituted Regulation 95, having come into force prior to the 1973 amendment, when no prior approval of the Federal Government was necessary, shall continue to remain in force and operative notwithstanding the amendment of subsection (2) of section 39.” 26. Thus as the amendment in Section 39(2) of the Ordinance, 1961 requiring Federal Government’s approval for making regulations was held to have prospective effect, the Staff Regulations, 1961 remained intact. Appellant Bank in 2002 was converted into a company with the promulgation of the Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002 and Agricultural Development Bank Ordinance 1961 was repealed. Section 6 of the Ordinance, 2002 provided continuation in service to the employees and stipulated Civil Appeals No. 269 to 275 of 2011 etc 22 that they shall be subject to the same rules and regulations. It reads as follows: “6. Continuation in service of the company.—(1) The employees of ADBP who were in the service of ADBP before the effective date shall stand transferred to and become the employees of the Company as of the effective date on the same terms and conditions and shall be subject to the same rules and regulations as were applicable to them before the effective date. (2) Notwithstanding anything contained in law, contracts, agreement or the conditions of service no person transferred to the Company in pursuant to subsection (1) shall be entitled to any compensation by reason of such transfer.” 27. The afore-referred statutory provision provided two fold security to the employees i.e. (i) the employees of the Bank stood transferred and became employees of the Company, and (ii) they shall be subject to the same rules and regulations as were applicable to them before the effective date. On account of the afore-referred statutory intervention, the regulations which were non-statutory, acquired a statutory status under the new dispensation and the employees acquired a legal right for their enforcement. The Constitutional petitions were, therefore, maintainable on that score. In none of the precedent cases i.e. Principal Cadet College Kohat supra, Zia Ghafoor Piracah supra and Asad Bashir supra referred to in paras 18 & 19 above, the effect of a statutory intervention on the rules which may have been non-statutory was a moot point. Those cases, therefore, are distinguishable from the case in hand. In Masood Ahmed Bhatti Vs. Federation of Pakistan (2012 SCMR 152), the effect of such an intervention (though under a different law) was considered. In the Civil Appeals No. 269 to 275 of 2011 etc 23 said case the Telephone and Telegraph Departments were converted into a Corporation through the Pakistan Telecommunication Corporation Act, 1991 (hereinafter to be called as PTC Act). Section 9 of the PTC Act stipulated that “notwithstanding anything contained in any law, contract or agreement, or in the conditions of service, all departmental employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee.” The Court held that the afore-referred provision would have following effect: “9. It is clear from this legal provision, that the rules relating to the terms and conditions of employment of the appellants were given statutory status. This status was on a higher plane than the status of regulations framed by way of subordinate legislation under section 20 of the PTC Act. Consequently, whatever rules were in place governing the employment of the appellants in the T&T Department, were adopted by reference in the statute itself and were made applicable to and binding on the Corporation. There can be little doubt that by virtue of section 9 ibid such rules acquired statutory status having been sanctified by the PTC Act itself. We can, therefore, conclude without difficulty that the rules of employment which were applicable to the appellants during their service with the Corporation were statutory rules.” 28. In Civil Appeal Nos. 1416 & 1417 of 2009 & Civil Petition No. 176-Q/2009 (Muhammad Tariq Badr etc Vs. National Bank of Pakistan), this Court considered the effect of a similar Civil Appeals No. 269 to 275 of 2011 etc 24 provision in the Bank Nationalization Act, 1974. Section 13 of the said Act inter alia stipulated that "all officers and other employees of a bank shall continue in their respective offices and employment on the same terms and conditions". This Court found that on account of this provision the employees shall continue to be governed under the rules in vogue prior to the amendment in law. The Court observed "it is an admitted and undisputed factual reality that before the commencing day of 1974 Act, 1973 Rules were validly in force and for all intents and purposes were serving as the conclusive terms and conditions of service of the employment for the N.B.P. officers etc. Thus, by virtue of the Section 13(1), such rules were specifically saved, guarded and shielded instead of having been displaced/replaced/rescinded or overridden. The language of the Section 13(1) without any shadow of doubt, spells out the clear intendment of the legislature to preserve the earlier terms and conditions of the nationalized bank, which in the present case undoubtedly were 1973 Rules, rather than being obliterated." 29. The effect of Section 6 of the Ordinance, 2002 on the Staff Regulations, 1961 and the Promotion Policy, 1999 is similar to the effect of Section 9 of the PTC Act on the Telephone and Telegraph Department Rules or of Section 13 of the Bank Nationalization Act, 1974 i.e. on account of the statutory intervention those rules acquired a statutory status. In Civil Petition No. 2726/2004 (Muhammad Amin Vs. President Zarai Taraqiati Bank Ltd (2010 PLC (CS) 710), the moot point inter alia before this Court was whether the employee of the appellant Bank (Deputy Director of Agricultural Development Bank) was governed Civil Appeals No. 269 to 275 of 2011 etc 25 by statutory rules and a three Members Bench of this Court held that those were statutory. In Civil Petition No. 427/2010, Zarai Taraqiati Bank Limited was the petitioner and the questions before this Court inter alia were the effect of Section 6 of the Ordinance and whether the Rules and Regulations were statutory? The Court while dismissing the petition held as under:- "5. The plain reading of section 6 of the Ordinance, 2002, reproduced above, admits of no other interpretation but that the employees of the erstwhile A.D.B.P., who were transferred by operation of law to Z.T.B.L and had not opted to be governed by the Service Rules of the latter were to be governed by the terms of service embodied in 1961 Ordinance and Rules framed thereunder. The learned counsel for the petitioner also made no attempt to give a different construction to the said statutory provision. 6. Thus the respondent, whose services were transferred from A.D.B.P to Z.T.B.L was to be governed by the Rules and Regulations framed under the 1961 Ordinance. Upon the repeal of the 1961 Ordinance, the Rules and Regulations framed thereunder are no longer subject to any amendment or change. This is also clarified by section 66 of the Ordinance, 2002, which says "…….. and shall be subject to the same rules and regulations as were applicable to them before the effective date." "The effective date" is the date specified by the Federal Government under sub-section 1 of section 4 of the Ordinance 2002 for the transfer of assets, contracts and liabilities etc from the A.D.B.P to Z.T.B.L. The terms and conditions of service of the officers of Z.T.B.L, falling in the same category as the respondent, are to be regulated by the Rules and Regulations that were in force on the 'effective date' mentioned in Ordinance 2002. . . . . . Civil Appeals No. 269 to 275 of 2011 etc 26 . 8. From the above narration, we have no doubt left in our mind that the respondent's services are to be governed by the Rules and Regulations framed under the 1961 Ordinance as in force at the repeal of the Ordinance." (Emphasis is supplied) 30. Section 6 of the Ordinance, 2002, Section 13 of the Bank Nationalization Act, 1974 and Section 9 of the PTC Act discussed in the preceding paras are all instances of legislation by reference. Unlike legislation by incorporation, provisions of some other law are not specifically incorporated in the new Act but those would be read into the said Act. Corpus Juris Secundum explains this principle in terms as follow:- "…. Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof … the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes from time to time, at least as per on the changes are consistent with the purpose of the adopting statute." 31. In Wood's Estate case [1886] 31 Ch D 607, the Court while commenting upon this mode of legislation observed that "if a subsequent Act brings into itself by reference some or the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all." In Rajya Vs. Gopikabai (AIR 1979 SC 79), the Indian Supreme Court, highlighted the broad categories of legislation by reference and opined as under: Civil Appeals No. 269 to 275 of 2011 etc 27 "Broadly speaking, legislation by referential incorporation falls into two categories: First where a statute by specific reference incorporates the provisions of another statue as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject as a genus. In the case of the former, the subsequent amendment made in the referred statute cannot automatically be read into the adoption statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the general law on the subject adopted by general reference. This principle of construction of a reference statute has been aptly summed up by Sutherland thus: A statute which refers to law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference / statute was enacted. 32. Appellants' learned counsel could not dispute the fact that the expression used in Section 6 of the Ordinance, 2002 that the employees "shall be subject to the same rules and regulations as were applicable to them before the effective date" is legislation by reference but he maintained that it refers only to those rules which had been duly approved by the Central Government i.e. the Zarai Taraqiati Bank Limited Staff Regulations, 2005 and not the Agricultural Development Bank Staff Regulations, 1961 or the Promotion Policy of 1999 as those were non-statutory having not been approved by the Federal Government. This argument would not be tenable. First, because there is nothing in the language of Section 6 of the Ordinance, 2002 to warrant such an inference and second, in the precedent case law to which reference has been made in para 29 above, this Court has held otherwise and there is Civil Appeals No. 269 to 275 of 2011 etc 28 nothing on record to indicate that the said judgment (Civil Petition No. 427/2010) was ever challenged in review. 33. In the light of what has been discussed in the preceding paras, the Staff Regulations, 1961 and the Promotion Policy, 1999 stand incorporated by way of legislative reference and thereby have acquired a statutory status for the respondent employees who stood transferred and became employees of the company in terms of Section 6 of the Ordinance, 2002. The writ petitions which sought enforcement of those regulations were maintainable. 34. This brings us to the issue No. 2 i.e. whether the respondent employees were disentitled to any discretionary relief under Article 199 of the Constitution on account of their own conduct? 35. To appreciate this issue, it would be pertinent to keep in mind the Regulations / Policy which was in vogue prior to the promulgation of Ordinance 2002 i.e. Regulation No. 17 of the Agricultural Development Bank Staff Service Regulations, 1961 & Promotion Policy, 1999 under which respondent employees wanted their cases of promotion to be considered. Regulation 14(h) of the Zarai Taraqiati Bank Limited Staff Regulations, 2005 (notified on 27.6.2007) may also be kept in juxta position under which their promotion matters have been processed. This is necessary so as to appreciate whether the procedure laid therein in substance is the same as in Promotion Policy, 1999 and whether employees were likely to be prejudiced. Civil Appeals No. 269 to 275 of 2011 etc 29 Agricultural Development Bank Staff Service Regulations, 1961 Zarai Taraqiati Bank Limited Staff Regulations, 2005 “17. Promotion:- (a) Promotions to Class I and Class II shall be made on merit and no employee shall have a claim to be promoted to these posts by virtue of seniority alone. Promotions to class III and class IV posts shall be made on the basis of seniority-cum-fitness except in cases where a post is declared as a selection post by the Chairman in which case promotion shall be made on merit. Should an employee officiating in a higher post shows signs of deterioration while he is so officiating, he shall be liable to immediate and summary reversion to the lower post previously held by him. (b) For promotion to the posts for which special qualifying examinations or other conditions have been specifically laid down, only the employees who passes such examination and fulfills such other conditions shall be eligible and no relaxation shall be made in this behalf except, in special cases, by the competent authority. 14(h) Promotion for VP and above shall be based on merit and open competition, interviews and selection by a promotion committee to be constituted by the President. Vacancies for VP and above as such shall be advertised internally and externally.” Promotion Policy "1. Promotions of the bank employees to the next higher grade will be made with immediate effect instead of retrospective effect. Civil Appeals No. 269 to 275 of 2011 etc 30 2. Promotions against 95% of vacancies shall be made on seniority-cum-fitness basis. 3. Promotions against 5% vacancies may be made on accelerated basis with the approval of Board of Directors. "25% of the quota for accelerated promotion shall be for HO employees and 75% be reserved for field personnels. The criteria for accelerated promotion as laid down hereunder be strictly adhered to. Persons posted in the field offices should have atleast 95% recovery rate for at least 03 years out of last 05 years and must have scored 85 marks in aggregate in the cadre and have earned very good (A-I) ACRs during the last 03 years. As regards the officers and staff posted in the field but not directly related with the recovery operations, the criteria would be the same as applicable for the employees posted in Head Office. For employees posted in HO: they should have scored at least 85 marks in aggregate in the cadre and have earned very good (A-I) ACRs during the last 03 years." 4. The employees on deputation to Government Departments or other organizations, will be considered for promotion, but their promotion shall take effect from the date they return to the Bank. However, the employees who have gone out of Bank and have kept their lien with the Bank, will only be considered for promotion after they join back and have earned atleast one Good ACR in the Bank. 5. In case of an employee who has been superseded on account of minor penalty imposed in the present grade or for adverse ACR etc will be considered for promotion next year strictly on the basis of promotion criteria. 6. While determining the total length of service of an employee in a particular cadre, the period of extra Civil Appeals No. 269 to 275 of 2011 etc 31 ordinary leave will be excluded from the total service of such employee in the cadre. 7. Recovery Division, in the month of July every year, shall fix recovery targets for each region for consideration at the time of promotion keeping in view the total recoverables and pattern of growth so that the area recovery parameters are available for guidance of the DPC for each financial years. The officer who fails to achieve these targets shall not be promoted. 8. Those who have joined on reinstatement after termination of service or on punishment of down gradation will be considered for promotion if they have atleast served three years after reinstatement or down- gradation provided they fulfill the promotion criteria. 9. The employees getting promotion as Officers will be posted in the Province / Place of their domicile provided clear vacancies are available. Professional Qualification 10. In order to promote professionalism and encourage employees and officers to pass DAIBP Part-I & Part-II, a weightage of 5 marks for Part-I and 10 marks for both the parts has been kept in evaluation qualification effective for promotion upto the level of Directors due in year 2001. 10(A) The officers of the following categories would be required to serve compulsorily in the field on promotion and promotion will only be effective subject to joining at the new place of posting:- For promotion from Minimum field service required i) EAD to AD 2 years in the Cadre ii) AD to DD 1 year in the Cadre iii) DD to JD 1 year in the Cadre" 36. Regulation No. 17 of the Agricultural Development Bank Staff Service Regulations, 1961 was superseded by Promotion Policy of the year 1999. A bare perusal of the said Policy Civil Appeals No. 269 to 275 of 2011 etc 32 would indicate that the promotion was to be based on seniority, qualification and competence. The objective being to ensure "advancement of employees in career on the basis of achievement and experience" and eligibility criterion was laid. Promotions to 95% of vacancies were to be made on seniority-cum-fitness basis, against 5% vacancies accelerated promotion was envisaged on the basis of approval by the Board of Directors, the past performance of employees reflected in the recovery of loan, Annual Confidential Reports of the preceding three years and detailed guidelines were provided for various categories in terms of paras 4 to 10(A). Para 14(h) of the Zarai Taraqiati Bank Limited Staff Regulations, 2005 stipulate the following: i) promotion for VP and above shall be based on merit and open competition, interviews and selection by a promotion committee to be constituted by the President; ii) vacancies for VP and above as such shall be advertised internally and externally. 37. Although the common element in both the above provisions is the same i.e. promotion on merit based on competition, the mode envisaged to gauge the merit is distinct. The distinguishing features of the mode of determining merit in terms of the afore-mentioned provision of the Zarai Taraqiati Bank Limited Staff Regulations, 2005 are open competition, interview and selection by a promotion committee to be constituted by the President and advertisement (both internal and external) for the Civil Appeals No. 269 to 275 of 2011 etc 33 post of Vice President. Neither under Regulation 17 of the Staff Regulations, 1961 nor under the Promotion Policy, 1999, there was any provision for a Selection Committee or 25 marks for the interview or for internal or external advertisements as given in the Regulation 14(h) of the Staff Regulations, 2005. The procedure laid down reflects evaluation of the employees for purposes of promotion on the basis of their performance in interviews and their performance during service seems not to have been given much weightage. The argument of appellant's learned counsel that the criterion laid down in Regulation 14(h) and Promotion Policy are substantially the same is not tenable. 38. Section 6 of the Ordinance, 2002 inter alia mandated that the employees of the newly created Company "shall be subject to the same rules and regulations as were applicable to them before the effective date", the respondent employees acquired a statutory right to be considered for promotion in accord with the mode of promotion laid down in the Regulations which were in vogue prior to the promulgation of the Ordinance. Admittedly, their promotion cases were not considered in terms of the Promotion Policy, 1999, which had the approval of the Board of Directors of the Agricultural Development Bank. In Sajid Hussain Vs. Muhammad Latif (1992 SCMR 468), a Full Bench of the Supreme Court of Azad Jammu & Kashmir upheld the judgment of the Service Tribunal which had allowed the appeal of the aggrieved employee as his case of promotion had not been dealt with in accordance with the prescribed rules and held as follows:- Civil Appeals No. 269 to 275 of 2011 etc 34 "It is provided in section 4 of the Civil Servants Act that appointment to a civil service or a civil post shall be made in the prescribed manner by the Government, or by a person authorised by it in this behalf. The word `prescribed' is defined in section 2 of the Act to mean `prescribed by rules'. The scheme of Civil Servants Act shows that if a person is promoted to a post this is termed as an appointment by promotion. In the AJ&K Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be. referred to as the Rules of 1977) rule 3(1) provides in specific terms that an appointment to a post shall be made by promotion, transfer or initial recruitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . These Rules eliminate to a great extent arbitrary exercise of powers by the concerned authority in the matter of appointment and promotion of civil servants. The wording in which the Rules referred to above have been couched show, in unmistakable words that these Rules are mandatory. Therefore, the conclusion is that the post of Secretary cannot be legally filled up whether by promotion or otherwise unless there exist rules conforming to the requirement of rule 10 mentioned above. We, therefore, uphold the view of the Service Tribunal in this aspect." 39. So far as the argument that respondents having derived all monetary benefits of Regulations 2005 and therefore, they could not have invoked discretionary jurisdiction is concerned, the same would not be tenable in the facts and circumstances of this case. First because there is no estoppel against law. Second, no document has been placed on record to indicate that the option exercised was voluntary. If it was a fait accompli, this would not prevent them to seek enforcement of the procedure laid down in Regulations for promotions which were in vogue prior to the promulgation of Ordinance, 2002. Third, they challenged the entire impugned process at the earliest before formal orders could take effect and fourth the monetary benefits Civil Appeals No. 269 to 275 of 2011 etc 35 received by the respondents could be adjusted by the Bank if so advised. 40. For what has been discussed above, we do not find any merit in these appeals and in petition, which are dismissed.

{'id': 'C.A.269_2011.pdf', 'url': ''}

{'id': 'C.A.269_2011.pdf', 'url': ''}

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 APPEALS NO.26 OF 2009 AND 228 OF 2010 (on appeal against the judgment dated 16.10.2008 and 27.04.2009 of the High Court of Sindh, Karachi passed in I.T.C.293/1992 and I.T.A.594/2000 respectively) Commissioner of Income Tax Karachi (in both cases) …Appellant(s) VERSUS M/s. Hassan Associates (Pvt) Ltd. (in CA 26/09) M/s. National Refinery Ltd. Karachi (in CA 228/10) …Respondent(s) For the Appellant(s): (in both cases) Muhammad Siddiq Mirza For the Respondent(s): (in CA 26/09) (in CA 228/10) Ms. Lubna Pervez, ASC. Mr. Iqbal Salman Pasha, ASC. Date of Hearing: 16.05.2017 … ORDER MIAN SAQIB NISAR, CJ.- The key question involved in these appeals with the leave of the Court is whether the amounts claimed to be expenditures by the respondents (in both cases) in their income tax returns are permissible deductions falling within the purview of Section 23(1)(xviii) of the Income Tax Ordinance, 1979 (the Ordinance) or they fall within the ambit of fine or penalty for infraction of law to be disallowed in terms of the law laid down in the case of Commissioner of Income Tax Vs. Premier Bank of Pakistan [1999 PTD 3005 = (1999) 79 Tax (SC) 589]. 2. Heard. The arguments of the learned counsel in both the cases shall be reflected in the course of this opinion. Since the facts of CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -2- both the appeals are distinct, we shall first examine the relevant law and then discuss the individual cases. Section 15 of the Ordinance provides for various heads of income for the purposes of charge of income tax and computation of total income, one of which is ‘income from business or profession’ [sub-part (d)]. Section 22 of the Ordinance stipulates the different incomes chargeable under the head ‘income from business or profession’. Section 23(1) of the Ordinance goes onto list the allowances and deductions to be made when computing the income under the head ‘income from business or profession’, part (xviii) whereof reads as under:- 23. Deductions.- (1) In computing the income under the head "Income from business or profession", the following allowances and deductions shall be made, namely:- (xviii) any expenditure (not being in the nature of capital expenditure of personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business or profession; In the judgment of Premier Bank (supra) this Court was faced with the question as to whether the liabilities incurred by Premier Bank Limited (the respondent assessee therein) on account of payment of penal interest under Section 36(4) of the State Bank of Pakistan Act, 1956 (the Act, 1956) for having failed to maintain the credit balance levels as required by Section 25 of the Banking Companies Ordinance, 1962 and Section 36(1) of the Act, 1956, can be claimed as deductions in terms of Section 10(2)(xvi) of the repealed Income Tax Act, 1922 (the Act, 1922). It was held as under:- 9. …revenue expenses incurred by the assessee wholly and exclusively for the purpose of his business-can legitimately be claimed by him as an allowable deduction CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -3- under section 10(2)(xvi) [of the repealed Income tax Act, 1922], but expenditure incurred as penalty or fine paid on account of infraction of law cannot be permitted as expenditure laid out wholly or exclusively for the purpose of the business of the assessee. However, in case of expenditure which, although, has been incurred by the assessee on account of infringement of a provision of a statute, but is not in the nature of penalty, the question whether such expenditure is admissible under section 10(2)(xvi), or not, would depend upon the circumstances of each case… [Emphasis supplied] It is pertinent to note that Section 10(2)(xvi) of the Act, 1922 is almost identically worded as Section 23(1)(xviii) of the Ordinance, the former of which read as under:- 10. Business.- (2) Subject to the provisions of this Act such profits or gains shall be computed after making the following allowances,, namely;- (xvi) any expenditure not being in the nature of capital expenditure of personal expenses of the assessee laid out or expended wholly and exclusively for the purposes of such business, profession or vocation; Thus, the reasoning in the Premier Bank case (supra) would very well apply to the corresponding provision of Section 23(1)(xviii) of the Ordinance. Therefore, according to Section 23(1)(xviii) of the Ordinance, any expenditure, which is not in the nature of capital expenditure of personal expenses of the assessee, is laid out or expended wholly and exclusively for the purpose of such business or profession, shall be deducted while computing the income under the head ‘income from business or profession’. However, as per the law laid down by this Court CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -4- in the case of Premier Bank (supra) in which the pari materia provision of Section 10(2)(xvi) of the Act, 1922 was being examined, any expenditure incurred as a penalty or fine paid on account of an infraction, breach or violation of law would not be allowed to be an expenditure laid out wholly or exclusively for the purpose of the business of the assessee. As per the said judgment, as regards expenditure which an assessee has incurred on account of a violation of law but is not in the nature of a penalty or fine, the question whether such expenditure would be admissible under Section 23(1)(xviii) of the Ordinance or not would depend upon the facts and circumstances of each case. It must also be noted that it was after the Premier Bank case (supra) that the legislature inserted vide Finance Ordinance, 2000, Section 24(j) in the Ordinance which made “any expenditure incurred on account of payment of a fine or penalty for the violation of any law, rule or regulation for the time being in force” inadmissible as a deduction. A very similar provision was retained in Section 21(1)(g) of the Income Tax Ordinance, 2001. Since these two provisions were referred to by the learned counsel for the appellant (in both appeals), we would like to observe that they (the provisions) have in effect introduced in statutory form, the law that this Court had laid down in Premier Bank’s case (supra). However since they were not in force during the assessment years in question, we shall not delve into them any further. 3. We shall now advert to the facts of each case and apply the law thereto. Civil Appeal No.26/2009 4. A private limited company indulged in the business of construction, the respondent in this appeal was awarded a contract by CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -5- the Government of Punjab (GoP) for the construction of a hockey stadium subject to furnishing of a performance bond (bank guarantee) to the tune of Rs.2,065,000/-. The GoP encashed the bank guarantee during the assessment year 1985-86 for alleged breach of contract by the respondent. The respondent claimed the said amount as expenditure in the income tax return filed for the relevant assessment year and also filed a civil suit against such encashment. The Income Tax Officer disallowed the said amount as expenditure and added it to the respondent’s income on the ground that it (the amount) was recoverable from the GoP. The Commissioner of Income Tax (Appeals) [CIT(A)] and the Income Tax Appellate Tribunal (ITAT) dismissed the respondent’s appeals and upheld the addition. The ITAT refused the respondent’s application for approval to refer the question to the learned High Court under Section 136 of the Ordinance, against which the respondent filed a reference before the learned High Court to consider 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 the claim of enchasment (sic) of performance bond by the Government of Punjab”. The learned High Court answered the question in the negative vide impugned judgment and the expenditure was allowed for the reason that the said amount was expended wholly and exclusively for the purpose of business and therefore, was allowable under section 23(1)(xviii) of the Ordinance, hence this appeal with the leave of the Court dated 2.1.2009 to consider whether “…the view taken by the High Court is contradictory to the view taken by this Court in the case of Commissioner of Income Tax Vs. Premier Bank Ltd, Karachi [ (1999) Tax 589 (SC Pak)] as the judgment of this Court was not properly appreciated.” 5. It is the appellant’s case that the encashment of the bank guarantee was due to the respondent’s failure to fulfill its contractual CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -6- obligation, therefore, it was a penalty and cannot be allowed as an expense. He also argued that such payment was a violation of the Contract Act, 1872 (the Act, 1872) and thus was a breach of the law, therefore was not permissible as an expenditure according to Premier Bank’s case (supra). On the other hand, it is the respondent’s case that the encashment of the bank guarantee was pursuant to a business transaction between the respondent and the GoP which could not be regarded as a fine or penalty and was not an infraction of law as per Premier Bank’s case (supra) which is not attracted in the instant case. 6. At this juncture, we find it appropriate to consider the instances as to what constitutes an expenditure laid out or expended wholly and exclusively for the purpose of a business or profession. As regards the cases from the Pakistani jurisdiction, in Commissioner of Income Tax, Karachi Vs. Eastern Automobiles Ltd., Karachi [(1967) 15 TAX 233] it was held that the damages paid for breach of contract were an allowable expenditure. In Karachi Steam Navigation Co. Ltd. Vs. Commissioner of Income Tax [(1967) 15 TAX 73] the learned High Court of Sindh held that damages paid in settlement of litigation for breach of contract was an expenditure wholly and exclusively made for the purposes of the business and was thus an admissible expenditure. 7. We now advert to the cases from the Indian jurisdiction. In Hind Mercantile Corporation Ltd. Vs. Commissioner of Income-Tax, Madras [(1963) 49 ITR 23] the Madras High Court held that the amounts paid by way of damages and legal expenses were allowable as an expenditure in computing the profits and gains of the assessee’s business as such loss incurred in the course of the business was incidental to and intimately connected with the conduct of the business and for the purpose of earning profits for the business. In Commissioner CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -7- Of Income-Tax (Central) Vs. Inden Biselers [(1973) 91 ITR 427] again the Madras High Court held that the discharge of promissory notes was a legal obligation of the assessee incurred in the course of and incidental to the business, therefore the damages paid by the assessee was a revenue loss incurred in the course of carrying on of the business and, therefore, liable to be deducted as an expenditure. In Addl. Commissioner Income Tax Vs. Rustam Jehangir Vakil Mills Ltd. [(1976) 103 ITR 298] it was held by the High Court of Gujarat that the payment made to the Textile Commissioner by the assessee for contravention of the directions given by the Textile Commissioner was not in the nature of penalty and was incidental to the carrying on of the assessee’s business and was thus was an allowable business expenditure. In Commissioner Income Tax Vs. Tarun Commercial Mills Co. Ltd. [(1977) 107 ITR 172] it was held by the Gujarat High Court that the amount paid to the Textile Commissioner for non-fulfilment of the assessee’s obligation contained in the bond it executed with the Government of India was business expenditure incurred wholly and exclusively for the purposes of the assessee's business. In the case of Commissioner Income Tax Vs. Surya Prabha Mills (P.) Ltd. [(1980) 123 ITR 654] the High Court of Madras held that where the assessee could not import the quantity of foreign cotton allotted by the Indian Cotton Mills Federation of which the assessee was a member and had to make payment of the guarantee amount for the bales that it did not import, such payment was paid only to avoid further loss, and could only be treated as an expenditure laid out wholly and exclusively for the purpose of the business; there was no element of any penalty, no infraction of law or offence against public policy. In the case of Commissioner Income Tax Vs. Bharat Vijay Mills Ltd. [(1981) 128 ITR 633] the High Court of Gujarat held that where the CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -8- assessee had to pay certain amounts for failure to carry out the directions of the Textile Commissioner for production or packing of the minimum of the particular types of cloth, the compensation paid to the Textile Commissioner for the non-production of the controlled variety of cloth was an allowable business expenditure. 8. According to the above case law, an amount paid as damages or compensation is an expenditure laid out wholly or exclusively for the purpose of the business of the assessee. It is a revenue loss incurred in the course of carrying on of the business and therefore an admissible deduction under Section 23(2)(xviii) of the Ordinance. In the instant appeal, the contract was executed between the respondent and the GoP in connection with the business of respondent, who failed to perform its part of agreement, as such the GoP encashed the performance bond. It was purely a business transaction between the parties and there was no infraction or violation of any law whatsoever. When we asked the learned counsel for the appellant to show us whether there was any infraction of law by the respondent for which the penalty, if any, has been imposed on the respondent, he candidly conceded that the penalty was imposed for violation of the contract. A weak attempt was made to argue that the ‘law’ in this case was the Act, 1872 which to our mind is completely unfounded. There was a breach of the contract and not the law. To put it differently, the GoP would not be able to recover any money from the respondent if not for the existence of the performance bond. Thus, the encashment of bank guarantee can at best be considered to be damages or compensation paid to the GoP for unsatisfactory performance of a contract by the respondent which is a revenue loss incurred by the latter in the course of carrying on its business. The forfeiture of an amount under a contract cannot be CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -9- equated with a fine or penalty incurred due to infraction or violation of any law. Further, the civil suit filed by the respondent against the GoP having been dismissed, such amount is no more adjustable. Thus, we are of the view that Premier Bank’s case (supra) is not applicable in the instant appeal. 9. For the forgoing reasons, we find no illegality in the impugned judgment of the learned High Court calling for interference. This appeal is accordingly dismissed. Civil Appeal No.228/2010 10. The respondent in this appeal is a public limited company and is in the business of refining of crude oil into various petroleum products. During the assessment year 1999-2000 it (the respondent) imported crude oil from Aramco, Saudi Arabia under a loan from the Islamic Development Bank, Jeddah (IDB) on the guarantee of the State Bank of Pakistan (SBP). As per the SBP’s procedure, the respondent was required to deposit the counterpart rupee fund within ten days of disbursement of funds by IDB, which it failed to do, as such in terms of Para 44 of Chapter 13 of the Foreign Exchange Manual (the Manual), SBP charged an amount of Rs.4/- per day per Rs.10,000/- or part thereof for the period of delay amounting to Rs.30,500,000/-. The respondent claimed the said amount as an expenditure in its income tax returns, however, the Assessing Officer refused to allow the same on the ground that such amount was a penalty incurred on account of infraction of law in terms of the judgment of this Court in Premier Bank’s case (supra) and was thus an impermissible deduction. The CIT(A) dismissed the respondent’s appeal, however, the ITAT accepted its appeal holding that the amount paid by the respondent was not in the nature of fine or CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -10- penalty in respect of any infringement of law or the SBP Regulations rather was a payment made on account of the delay in payment of the principle amount of the loan and was an expenditure laid down exclusively for the business of the respondent and was therefore an allowable deduction. On further appeal, the learned High Court upheld the order of the Tribunal vide impugned judgment, hence this appeal with the leave of the Court dated 1.4.2010 granted on the basis of the leave granting order dated 2.1.2009 in Civil Appeal No.26/2009. 11. It is the appellant’s case that the amount paid by the respondent to SBP was a penalty for infraction of law, namely, the Manual, therefore, the case is fully covered under Premier Bank’s case (supra). It is the respondent’s case that SBP charged an ‘interest’ and not a fine or penalty under any law. We find that the amount was charged by SBP under Para 44 of Chapter 13 of the Manual. For convenience, the relevant paragraphs thereof are reproduced hereunder:- 43. Fine on delay in deposit of Counterpart Funds. In the event of delay in depositing counterpart funds with the State Bank within the prescribed period, the concerned Authorised Dealer will pay to the State Bank fine at the rate of Rs 4 per day per Rs 10,000 or part thereof for the period of delay. 44. Documents received on Collection Basis due to Discrepancy/Documents drawn on usance basis. (i) In cases where the overseas negotiating bank does not make payment to the supplier but sends the documents to the bank in Pakistan on collection basis due to discrepancy in the documents, the Authorised Dealers will deposit counterpart funds with the State Bank on retirement of the documents by the importers concerned. The prescribed period for deposit of counterpart funds will be reckoned as CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -11- from the date of retirement of bill by the importer. If the funds are held back by the Authorised Dealers beyond the prescribed period, fine would be charged as per paragraph 43 ibid. [Emphasis supplied] From the above provisions it is clear that it was not a mere interest or additional amount demanded by SBP, rather the word used is fine which to our mind in this case is akin to a penalty for a violation of Para 44 of Chapter 13 of the Manual. The learned counsel for the respondent in order to take his case out of the purview of Premier Bank’s case (supra) argued that there was an agreement between the respondent and SBP, and the additional amount was paid for violation of that contract, as such, it was not a fine or penalty. However, he failed to show any contract from record. It is not the case of the respondent even before the lower forums that there was a contract between the respondent and SBP and the additional amount was paid as damages for violation of such contract. Essentially, crude oil was to be supplied by Aramco to the respondent through a loan from IDB, whereas SBP was only a guarantor. 12. The learned counsel for the respondent also submitted that Premier Bank’s case (supra) is distinguishable as in the said case it was mandatory for the respondent-bank to maintain minimum reserves as per Section 10(1) of the Act, 1956, however, in the instant case the respondent was not required under any provision of law to deposit the counterpart rupee fund with SBP. We find that as per para 44 of Chapter 13 of the Manual, the authorised dealers are bound to deposit counterpart funds with SBP on retirement of the documents by the importers concerned. In case the funds are held back by the authorized dealers beyond the prescribed period, a fine would be charged. The rate CIVIL APPEALS NO.26 OF 2009 AND 228 OF 2010 -12- of fine has been mentioned in Para 43 thereof which provides that in the event of delay in depositing counterpart funds with SBP within the prescribed period, the concerned authorized dealer will pay to SBP a fine at the rate of Rs.4/- per day per Rs.10,000/- or part thereof for the period of delay. It is to be noted that the Manual contains the basic regulations issued by the Government of Pakistan and SBP under the provisions of the Foreign Exchange Regulations Act, 1947, therefore, it has the force of law and any violation thereof would entail the penal consequences provided therein. As the respondent failed to comply with the provisions of the Manual, a fine was charged at the prescribed rate. It is essentially a fine for infraction of the law, i.e. the above referred provisions of the Manual, and are not damages or compensation for breach of a contract. Thus, the law laid down in Premier Bank’s case (supra) is fully applicable to the instant appeal. 13. In the light of the above, this appeal is allowed, the impugned judgment of the learned High Court is set aside and the order of the ITAT is upheld. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 16th May, 2017. Approved for reporting Mudassar/*

{'id': 'C.A.26_2009.pdf', 'url': ''}

{'id': 'C.A.26_2009.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 NO.2755 OF 2006 (Against the judgment dated 4.5.2006 of the High Court of Sindh at Karachi passed in Const.P.D-304/2006) Agro Tractors (Private) Limited …Appellant(s) VERSUS Fecto Belarus Tractors Limited, Karachi etc. …Respondent(s) For the appellant(s): Mr. Mehmood A. Sheikh, Sr. ASC For respondent No.1: Nemo For respondents 2 to 4: Mr. Tariq Mehmood Khokhar, Addl.A.G.P. Mr. M. S. Khattak, AOR For respondents 5 to 8: Ex-parte For respondent No.9: Mr. M. Habib Qureshi, ASC Raja Abdul Ghafoor, AOR Mr. Fazal Samad, Secy. Legal, FBR Date of hearing: 25.9.2018 ORDER MIAN SAQIB NISAR, CJ.- The controversy involved in the instant case is that the Economic Coordination Committee (ECC) vide decision dated 1.7.2005, set up a committee “to work out the modalities and review the plan of import of 10,000 tractors at zero tariff…import of tractors shall be allowed only to those companies who have their tractor manufacturing units in Pakistan or are in the process of installing these.” This decision was communicated to various ministries/divisions vide letter dated 4.7.2005. However, on the same date, i.e. 4.7.2005, ECC modified its decision dated 1.7.2005 to the effect, inter alia, that “import of tractors shall be allowed only to those companies who want to install their tractor manufacturing facility in Pakistan.” Pursuant thereto a corrigendum dated 12.7.2005 was issued by the Cabinet Secretariat. The Ministry of C.A. NO.2755 OF 2006 -: 2 :- Industries, Production and Special Initiatives invited proposals, to be reached within 10 days, for the import of tractors, which date was then extended up to 18.8.2005. Subsequently, three companies, including the appellant, were shortlisted and a summary was submitted to the then Prime Minister (PM) for approval, which was ultimately approved. In the meantime, respondent No.1 (the respondent) made a representation to the PM which was rejected by the committee for the reason that the said scheme was for new entrants only, while the respondent was an existing unit. Finally, a quota of 2500 tractors was allocated to the appellant as well as other companies. The respondent challenged the said allocation through a writ petition on the ground that it (the respondent) was denied the quota being an existing unit but at the same time quota was awarded to other existing units. It was further alleged that implementation of the scheme was non- transparent and arbitrary. It was further alleged that CBR allowed the appellant to import 2500 tractors without any customs duty in Completely Knocked Down (CKD) condition, which is illegal being contrary to the decision of ECC. The learned High Court, after hearing the parties and considering the material available on the record in detail, vide the impugned judgment quashed all the proceedings initiated with the advertisement as they suffered from arbitrariness, excessive jurisdiction, favoritism, lack of transparency, smacked of subjectivity and are not in accordance with the decision of ECC. Hence, this appeal with the leave of the Court vide order dated 20.12.2006. 2. In the above backdrop, it is to be noted that the Federation also challenged the impugned judgment through a separate petition (Civil Petition No.469/2006), which was disposed of (vide same order dated 20.12.2006 whereby leave was granted in the instant appeal) in view of the statement made before the Court, mentioned in the said order, to the effect that “the petitioner on instructions from Joint Secretary, Ministry of Industries would like to withdraw the above mentioned petitions C.A. NO.2755 OF 2006 -: 3 :- without prejudice to petitioners status/policy and in view of the change in the tariff policy of the Government and withdrawal of petitioners by the beneficiary importers.” Nonetheless, in the instant case, the appellant submitted a written statement asserting therein that “in view of the dismissal of the petitions filed by the Federation of Pakistan as not pressed, scheme in question having already expired by afflux of time i.e. 30th September, 2006, interaction of new “Zero Rated Import of Tractors Scheme” for the year 2006-2007, the petitioner does not press this petition to the extent of challenge to the validity of the scheme having been set aside as being non-transparent, and claims release of 156 tractors on the principle of promissory estoppel without payment of Custom duty and other charges” and also prayed for the release of the bank guarantee as it did not want to avail the scheme in question which otherwise had been declared illegal and without lawful authority. In view of the written statement and the submissions made by the learned counsel for the appellant, leave to appeal was granted to consider whether on the basis of promissory estoppel, the appellant is entitled to exemption from duty. Thus, the controversy in the instant appeal, as is apparent from the leave granting order, has narrowed down only to the entitlement or otherwise of the appellant for the release of the tractors already imported by it on the principle of promissory estoppel. 3. Heard. It was submitted by the learned counsel for the appellant that the appellant is entitled to get the tractors, already imported, released without any duty on the principle of promissory estoppel, because 156 tractors were imported by it (the appellant) under the validly issued scheme dated 1.7.2005 as amended, especially when afterwards, by means of notification dated 5.6.2006, the Government had allowed import of tractors at zero rated duty and that permission was for every citizen. Besides, the appellant is also entitled to the release of tractors on zero duty for the reason that the Federal Government has already withdrawn the petition filed against the impugned judgment. C.A. NO.2755 OF 2006 -: 4 :- 4. In this regard it is to be noted that the learned High Court vide impugned judgment quashed the whole proceedings for the grant of permission, etc., for the import of tractors at zero rated duty. The Federal Government, though initially challenged the same before this Court through a civil petition but after having realized that there were illegalities/mala fides in the process of grant of permission to import the tractors, withdrew the petition filed by it, meaning thereby that the Federal Government accepted the impugned judgment to the that extent. Thus, the fact of withdrawal of the petition by the Federal Government does not provide any support to the case of the appellants. 5. Adverting to the main contention of the learned counsel for the appellant that the appellant is entitled to release of the tractors, which have already been imported at zero rated duty on the principle of promissory estoppel, it is to be noted that there is no cavil to the proposition that when in exercise of administrative power conferred under a statute, a concession is granted as regards customs duty and other Government dues for a fixed period and afterwards it was sought to be withdrawn in exercise of a similar power, the said concession or benefit could not be withdrawn by virtue of Section 21 of the General Clauses Act, 1897, unless the statute itself had conferred such a power on the executive authority, otherwise, the same shall be protected under the principle of promissory estoppel. Reliance may be placed on the judgments of this Court reported as Collector of Central Excise and Land Customs and 3 others Vs. Azizuddin Industries Ltd., Chittagong (PLD 1970 SC 439), Al-Samrez Enterprise Vs. The Federation of Pakistan (1986 SCMR 1917) and M/s Friendship Textile Mills and others Vs. Government of Balochistan and others (2004 SCMR 346). However, in order to bring the case within the four corners of the principle of promissory estoppel, it is mandatory upon the person claiming the benefit under it, to show that the offer was validly made by the C.A. NO.2755 OF 2006 -: 5 :- competent authority and thereafter permission/approval was granted/made in a rightful, judicious and transparent manner, without there being any hint of mala fide, arbitrariness, excessive jurisdiction, favoritism or non-transparency therein. In the instant case, after thorough examination of the record the learned High Court held that the procedure of the grant of permission to import tractors at zero rated duty suffered from arbitrariness, excessive jurisdiction, favoritism, lack of transparency, subjectivity and was also not in accordance with the decision of ECC; therefore, the principles of promissory estoppel were not attracted in the facts and circumstances of the instant case. 7. As regards the submission of the learned counsel for the appellant that when afterwards, through notification dated 5.6.2006, the Government had allowed everyone to import tractors at zero rated duty, the tractors already imported by the appellant should have also been released on zero rated duty, suffice it to say that admittedly the said notification was applicable prospectively and therefore, the appellant could not benefit from the same by extending the operation thereof (notification) to past transactions, i.e. the tractors which were imported under the scheme issued on 1.7.2005. Thus, the said argument is repelled as being misconceived. 8. The foregoing are the reasons of our short order of even date whereby the instant appeal was dismissed. CHIEF JUSTICE Islamabad, the 25th of September, 2018 Not Approved For Reporting JUDGE JUDGE Waqas Naseer/*

{'id': 'C.A.2755_2006.pdf', 'url': ''}

{'id': 'C.A.2755_2006.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 27 OF 2009 (On appeal against the judgment dated 09.10.2008 passed by the High Court of Sindh, Karachi in ITRA No. 186/2007) Commissioner of Income Tax, Large Taxpayers Unit, Karachi … Appellant VERSUS International Power Global Developments Limited, Karachi … Respondent For the Appellant: Dr. Farhat Zafar, ASC Raja Abdul Ghafoor, AOR For the Respondent: Mr. Muhammad Idris, ASC Date of Hearing: 21.02.2018 JUDGMENT FAISAL ARAB, J.- The appellant has called in question the decision of the High Court of Sindh rendered in an Income Tax Reference Appeal (ITRA No.186 of 2007). The subject matter of this appeal is the question of law that was decided against the department and in favour of the respondent, same is reproduced as follows:- “Whether on the facts and circumstance of the case the Hon’ble Tribunal was not justified in disallowing deduction on the applicant’s business expenditure the expenses incurred by the applicant on events of sports and social activities organized for the benefit of the applicant personnel and members of their family.” CIVIL APPEAL NO. 27 OF 2009 2 2. The facts of the case are that respondent derives its income by rendering operational and maintenance service to the Hub-Power Company Limited. In the assessment year 2001-2002 the respondent incurred an expenditure of Rs.1,200,000/- for setting up a sports and recreational facility for its employees who reside within its residential colony. The respondent deducted this expense while computing its income. The Tax department while passing the assessment order disallowed such deduction, which was challenged without success upto the stage of Income Tax Appellate Tribunal. The respondent then challenged the decision of the tribunal in the High Court of Sindh, which answered the question of law in the affirmative in favour of the respondent and against the tax department vide judgment dated 09.10.2008, hence this appeal with the leave of this Court. 3. Section 15 of the Income Tax Ordinance, 1979 classifies various heads of income, which includes ‘income from business and profession’. Section 22 of the said Ordinance describes various sources of income that are chargeable to tax under the head ‘income from business and profession’ and respondent’s business falls under Section 22. Section 23 describes various allowances and other deductibles that can be deducted while computing the income derived from business or profession falling within the ambit of Section 22. Such deductibles include, any rent paid for the premises in which such business or profession is carried on; any amount paid for repairs on the premises or any other machinery, plant, furniture or fittings used CIVIL APPEAL NO. 27 OF 2009 3 for the purpose of business; any premium paid in respect of insurance against risk of damage or destruction to any building, machinery, plant, furniture or fittings, or stocks and stores used for the purposes of business or profession; depreciation expense; any expenditure (not being in the nature of capital expenditure or personal expenses of the assesse) laid out or expended wholly and exclusively for the purpose of such business or profession. Section 23(xviii) of the 1979 Ordinance is more significant to examine the controversy in hand. It states “any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business or profession” shall be made in computing income. 4. A plain reading of Section 23 of the 1979 Ordinance shows that it specifically spells out in minute detail the types of allowances or deductions that can be made in computing the income under the head “Income from business or profession”, which means that any allowance or expenditure that falls outside the pale of Section 23 has to be treated as not deductible from the income. In other words, only such allowances and deductions are permissible which in some manner have nexus with the income that is derived from a business or profession. 5. Learned counsel for the respondent in support of the reasoning given in the impugned judgment has heavily relied upon the provision of Section 23(xviii) of the 1979 Ordinance. The only question that needs to be answered in the present case, therefore, is whether the expense of Rs.1,200,000/- incurred by the CIVIL APPEAL NO. 27 OF 2009 4 respondent in providing a facility for sports and social activities for its employees can be deducted while computing income on the strength of the provisions of Section 23(xviii). Undeniably the expense in question is not a part of the salary or perk or privilege which the respondent pays to its employees under the contractual obligations for rendering service. It was simply incurred to setup a complimentary facility for the employees which has no direct nexus with the generation of the respondent’s income derived from rendering operational and maintenance services to the Hub-Power Company Limited. Hence, on the face of it, the expense in dispute neither falls under Section 23(xviii) of the 1979 Ordinance nor any other category of allowances or deductibles listed in rest of the provisions of Section 23, so as to justify its deduction while computing respondent’s income. The High Court of Sindh allowed its adjustment simply on the ground that sports and social activities boost mental and physical health of a person by answering the question of law in the affirmative. This may be so but that ipso facto cannot be regarded as a type of allowance that can be directly co-related to any category of allowances and deductibles listed in Section 23 of the 1979 Ordinance with the business activity of the respondent, which is rendering of operational and maintenance services to a power generating company. The conclusion of the High Court being totally misconceived and not based on any provision of Section 23 is not sustainable in law. The expenditure in question, therefore, cannot be taken into consideration while computing business income of the respondent. CIVIL APPEAL NO. 27 OF 2009 5 6. For what has been discussed above, this appeal is allowed, the impugned judgment is set aside and the decision of the Tribunal is restored. JUDGE JUDGE JUDGE Islamabad, the 21st of February, 2018 Approved For Reporting Khurram CIVIL APPEAL NO. 27 OF 2009 6 “22. Income from business or profession.- The following incomes shall be chargeable under the head "Income from business or profession", namely:- (a) profits and gains of any business or profession carried on, or deemed to be carried on, by the assessee at any time during the income year; (b) income derived by any trade, professional and similar association from specific services performed for its members; and (c) value of any benefit or perquisite, whether convertible in to money or not, arising from business or the exercise of a profession. Explanation.- Where speculative transactions carried on by an assessee are of such a nature as to constitute a 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. “23. Deductions.- (1) In computing the income under the head "Income from business or profession", the following allowances and deductions shall be made, namely:- (i) any rent paid for the premises in which such business or profession is carried on; (ii) any local rate, tax, charge or cess in respect of such premises paid to any local authority or Government, not being any tax payable under this Ordinance; (iii) any amount paid on account of current repairs to any such premises or any machinery, plant, furniture or fittings used for purposes of business or profession; (iv) any premium paid in respect of insurance against risk of damage or destruction to any building, machinery, plant, furniture or fittings, or stocks and stores used for the purposes of business or profession; (v) in respect of depreciation [including First Year Allowance or Reinvestment Allowance or Industrial Building Allowance,] of any such building, machinery, plant, furniture or fittings, being the property of the assessee, the allowance admissible under the Third Schedule, [except depreciation on assets given on lease shall be allowed against income from lease rentals only]; (vi) in respect of animals which have been used for the purposes of the business or profession (otherwise than as stock-in-trade) and have died or become permanently useless for such purposes, the difference between the original cost to the assessee of the animals and the amount, if any, realised in respect of the carcasses or animals; [(via) any sum paid on or after the first day of July, 1985, to a schedule bank, a financial institution, or such modaraba or leasing company as is approved by the Central Board of Revenue for the purposes of the Third Schedule, by way of lease money in respect of an asset taken on lease by the CIVIL APPEAL NO. 27 OF 2009 7 assessee and used for the purposes of any business or profession carried on by him;] (vii) any interest paid in respect of capital borrowed for the purposes of the business or profession; [(viia) any sum paid to a modaraba or to a Participation Term Certificate holder for any funds borrowed for the purposes of the business or profession;] [(viib) any sum paid or credited to any person maintaining a profit and loss sharing account or deposit with a scheduled bank by way of distribution of profits by the said bank in respect of the said account or deposit;] [(viic) any sum paid by the House Building Finance Corporation constituted under the House Building Finance Corporation Act, 1952 (XVIII of 1952), to the State Bank of Pakistan (hereinafter referred to as the ‘Bank’) as the share of the Bank in the profits earned by the said Corporation on its investment in the property made under a Scheme of investment in property on partnership in profit and loss, where such investment is provided by the Bank under the House Building Finance Corporation (Issue and Redemption of Certificates) Regulations, 1982;] [(viicc) any sum paid by the National Development Leasing Corporation Limited to the State Bank of Pakistan (hereinafter referred to as the ‘Bank’) as the share of the Bank in the profits earned by the said Corporation on its leasing operations financed out of a credit line provided by the Bank on a profit and loss sharing basis;] [(viid) any sum paid to a bank under a scheme of musharika representing its share in the profits of that Musharika;] [(viie) any sum paid to a certificate holder under a Musharika scheme approved by the Corporate Law Authority and Religious Board formed under the Modaraba Companies and Modarabas (Floatation and Control) Ordinance, 1980 (XXXI of 1980) representing his in the profits of that Musharika,: (viii) any sum paid to an employee as bonus or commission for services rendered, where such sum would not have been payable to him as profits or dividend if it had not been paid as bonus or commission: Provided that the amount of the bonus or commission is of a reasonable amount with reference to- (a) the pay of the employee and the conditions of his service; (b) the profits of the business or profession for the year in question; and (c) the general practice in similar businesses or professions; CIVIL APPEAL NO. 27 OF 2009 8 (ix) in respect of any special reserve created by such financial institutions and for such purposes as may be approved by the Central Board of Revenue for the purposes of this clause, the amount, not exceeding ten percent of the total income including such amount, carried to such reserve. Provided that no allowance under this clause shall be made where the aggregate amount standing in such reserve exceeds the paid-up capital of the institution. (x) in respect of bad debts, such amount (not exceeding the amount actually written off by the assessee) as may be determined by the [Deputy Commissioner] to be irrecoverable; (xi) any sum paid to a scientific research institute, polytechnic, college or other institution in Pakistan affiliated to any University or Board of Education established or incorporated by, or under, any Federal or Provincial law, or recognised, aided or run by Government or run by any local authority, to be used for scientific research or technical training in Pakistan; [ ] (xii) any expenditure laid out or expended on scientific research in Pakistan related to the business carried on by the assessee; (xiii) any expenditure laid out or expended on any educational institution or hospital in Pakistan established for the benefit of the employees, their families and dependants; (xiv) any expenditure laid out or expended on any institute in Pakistan established for the training of industrial workers recognised, aided or run by Government or run by any local authority; (xv) any expenditure laid out or expended on the training of any person, being a citizen of Pakistan, in connection with a scheme approved by the Central Board of Revenue for the purposes of this clause; (xvi) any sums paid on account of annual membership subscription to a registered trade organisation within the meaning of the Trade Organisations Ordinance, 1961 (XLV of 1961); (xvii) any expenditure incurred by an assessee wholly and exclusively in connection with his visit abroad as a member of a trade delegation sponsored by the Federal Government; (xviii) any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business or profession; [Provided that, where a domestic company has, in any income year, incurred any expenditure on advertisement or publicity outside Pakistan in respect of such goods as may be specified by the Federal Government by notification in the official Gazette and as are exported in the said income year, or on furnishing of samples of such CIVIL APPEAL NO. 27 OF 2009 9 goods to a person outside Pakistan, deduction in respect of the said expenditure allowable under this clause shall be of a sum equal to one and one-third times the amount of actual expenditure so incurred.] [(xix) any transfer to a participatory reserve created by a company under section 120 of the Companies Ordinance, 1984 (XLVII of 1984), in accordance with an agreement relating to participatory redeemable capital entered into between the company and a banking company as defined in the Banking Tribunals Ordinance, 1984: Provided that, out of the amount so transferred in any income year, not more than five percent of the value of participatory redeemable capital shall qualify for deduction under this sub-section: Provided further that no deduction shall be allowed if the amount of the tax-exempted accumulation in the participatory reserve exceeds 10 percent of the amount of participatory redeemable capital; [(xx) any expenditure incurred by an assessee in the purchase of one machine, with permanent sealed memory system, used for recording and printing cash sales made by him during the regular course of his business: Explanation.- (a) the expression "any expenditure", as used in clauses (xii), (xiii) and (xiv), includes expenditure in the nature of capital expenditure; and (b) the expression "paid", as used in this section and sections 18, 24 and 31, means actually paid or incurred according to the method of accounting upon the basis of which the income is computed. (2) Where any such premises, building, machinery, plant, furniture or fittings is or are not wholly used for the purposes of the business or profession, any allowance or deduction admissible under this section shall be restricted to the fair proportional part of the amount which would be allowable if such premises, building, machinery, plant, furniture or fittings were wholly so used. CIVIL APPEAL NO. 27 OF 2009 10 For the convenience sake, Section 23 is referred as follows:- “23. Deductions.- (1) In computing the income under the head "Income from business or profession", the following allowances and deductions shall be made, namely:- (i) any rent paid for the premises in which such business or profession is carried on; (ii) any local rate, tax, charge or cess in respect of such premises paid to any local authority or Government, not being any tax payable under this Ordinance; (iii) any amount paid on account of current repairs to any such premises or any machinery, plant, furniture or fittings used for purposes of business or profession; (iv) any premium paid in respect of insurance against risk of damage or destruction to any building, machinery, plant, furniture or fittings, or stocks and stores used for the purposes of business or profession; (v) in respect of depreciation [including First Year Allowance or Reinvestment Allowance or Industrial Building Allowance,] of any such building, machinery, plant, furniture or fittings, being the property of the assessee, the allowance admissible under the Third Schedule, [except depreciation on assets given on lease shall be allowed against income from lease rentals only]; (vi) in respect of animals which have been used for the purposes of the business or profession (otherwise than as stock-in- trade) and have died or become permanently useless for such purposes, the difference between the original cost to the assessee of the animals and the amount, if any, realised in respect of the carcasses or animals; (via) any sum paid on or after the first day of July, 1985, to a schedule bank, a financial institution, or such modaraba or leasing company as is approved by the Central Board of Revenue for the purposes of the Third Schedule, by way of lease money in respect of an asset taken on lease by the assessee and used for the purposes of any business or profession carried on by him;] (vii) any interest paid in respect of capital borrowed for the purposes of the business or profession; (viia) any sum paid to a modaraba or to a Participation Term Certificate holder for any funds borrowed for the purposes of the business or profession;] (viib) any sum paid or credited to any person maintaining a profit and loss sharing account or deposit with a scheduled bank by way of distribution of profits by the said bank in respect of the said account or deposit;] (viic) any sum paid by the House Building Finance Corporation constituted under the House Building Finance Corporation Act, 1952 (XVIII of 1952), to the State Bank of Pakistan (hereinafter referred to as the ‘Bank’) as the share of the CIVIL APPEAL NO. 27 OF 2009 11 Bank in the profits earned by the said Corporation on its investment in the property made under a Scheme of investment in property on partnership in profit and loss, where such investment is provided by the Bank under the House Building Finance Corporation (Issue and Redemption of Certificates) Regulations, 1982;] (viicc) any sum paid by the National Development Leasing Corporation Limited to the State Bank of Pakistan (hereinafter referred to as the ‘Bank’) as the share of the Bank in the profits earned by the said Corporation on its leasing operations financed out of a credit line provided by the Bank on a profit and loss sharing basis;] (viid) any sum paid to a bank under a scheme of musharika representing its share in the profits of that Musharika;] (viie) any sum paid to a certificate holder under a Musharika scheme approved by the Corporate Law Authority and Religious Board formed under the Modaraba Companies and Modarabas (Floatation and Control) Ordinance, 1980 (XXXI of 1980) representing his in the profits of that Musharika,: (viii) any sum paid to an employee as bonus or commission for services rendered, where such sum would not have been payable to him as profits or dividend if it had not been paid as bonus or commission: Provided that the amount of the bonus or commission is of a reasonable amount with reference to- (a) the pay of the employee and the conditions of his service; (b) the profits of the business or profession for the year in question; and (c) the general practice in similar businesses or professions; (ix) in respect of any special reserve created by such financial institutions and for such purposes as may be approved by the Central Board of Revenue for the purposes of this clause, the amount, not exceeding ten percent of the total income including such amount, carried to such reserve. Provided that no allowance under this clause shall be made where the aggregate amount standing in such reserve exceeds the paid-up capital of the institution. (x) in respect of bad debts, such amount (not exceeding the amount actually written off by the assessee) as may be determined by the Deputy Commissioner to be irrecoverable; (xi) any sum paid to a scientific research institute, polytechnic, college or other institution in Pakistan affiliated to any University or Board of Education established or incorporated by, or under, any Federal or Provincial law, or recognised, aided or run by Government or run by any local authority, to be used for scientific research or technical training in Pakistan; CIVIL APPEAL NO. 27 OF 2009 12 (xii) any expenditure laid out or expended on scientific research in Pakistan related to the business carried on by the assessee; (xiii) any expenditure laid out or expended on any educational institution or hospital in Pakistan established for the benefit of the employees, their families and dependants; (xiv) any expenditure laid out or expended on any institute in Pakistan established for the training of industrial workers recognised, aided or run by Government or run by any local authority; (xv) any expenditure laid out or expended on the training of any person, being a citizen of Pakistan, in connection with a scheme approved by the Central Board of Revenue for the purposes of this clause; (xvi) any sums paid on account of annual membership subscription to a registered trade organisation within the meaning of the Trade Organisations Ordinance, 1961 (XLV of 1961); (xvii) any expenditure incurred by an assessee wholly and exclusively in connection with his visit abroad as a member of a trade delegation sponsored by the Federal Government; (xviii) any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business or profession; [Provided that, where a domestic company has, in any income year, incurred any expenditure on advertisement or publicity outside Pakistan in respect of such goods as may be specified by the Federal Government by notification in the official Gazette and as are exported in the said income year, or on furnishing of samples of such goods to a person outside Pakistan, deduction in respect of the said expenditure allowable under this clause shall be of a sum equal to one and one-third times the amount of actual expenditure so incurred.] (xix) any transfer to a participatory reserve created by a company under section 120 of the Companies Ordinance, 1984 (XLVII of 1984), in accordance with an agreement relating to participatory redeemable capital entered into between the company and a banking company as defined in the Banking Tribunals Ordinance, 1984: Provided that, out of the amount so transferred in any income year, not more than five percent of the value of participatory redeemable capital shall qualify for deduction under this sub-section: Provided further that no deduction shall be allowed if the amount of the tax-exempted accumulation in the participatory reserve exceeds 10 percent of the amount of participatory redeemable capital; CIVIL APPEAL NO. 27 OF 2009 13 (xx) any expenditure incurred by an assessee in the purchase of one machine, with permanent sealed memory system, used for recording and printing cash sales made by him during the regular course of his business: Explanation.- (a) the expression "any expenditure", as used in clauses (xii), (xiii) and (xiv), includes expenditure in the nature of capital expenditure; and (b) the expression "paid", as used in this section and sections 18, 24 and 31, means actually paid or incurred according to the method of accounting upon the basis of which the income is computed. (2) Where any such premises, building, machinery, plant, furniture or fittings is or are not wholly used for the purposes of the business or profession, any allowance or deduction admissible under this section shall be restricted to the fair proportional part of the amount which would be allowable if such premises, building, machinery, plant, furniture or fittings were wholly so used.”

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{'id': 'C.A.27_2009.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.280-L/2009 (Against the judgment dated 16.4.2009 of the Lahore High Court, Lahore passed in EFA No.489/1999) Shahida Bibi etc. Appellant(s) Versus Habib Bank Limited etc. Respondent(s) For the Appellant(s): Mian Muhammad Nawaz, ASC Raja Muhammad Sabir, ASC For Respondent No.1: Mr. Muhammad Shuja Baba, ASC For Respondents No.2 - 3: Mr. Shahid Ikram Siddiqui, ASC Date of Hearing: 15.03.2016 & 17.03.2016 … JUDGMENT MIAN SAQIB NISAR, J.- Vide order dated 10.6.2014 a bench of this Court requested the Hon’ble Chief Justice of Pakistan for the constitution of a larger bench in order to reconcile two apparently conflicting judgments of this Court reported as Muhammad Attique Vs. Jami Limited and others (PLD 2010 SC 993) and Mst. Asma Zafarul Hassan Vs. M/s United Bank Ltd. and another (PLJ 1981 SC 242) (1981 SCMR 108). 2. In order to decide this appeal, a comprehensive narration of the facts is required:- respondent No.1/bank (decree holder) filed a suit on 30.5.1994 for recovery of finances granted to respondent No.2/customer, for whom Rana Muhammad Aslam, the predecessor-in- Civil Appeal No.280-L/2009 - 2 - interest of respondents No.3(i) to (vi) (judgment debtor), stood surety having mortgaged his property bearing No.S-57-R-32-E, 5-Temple Road, Lahore measuring approximately 12 marlas 86 square feet (lower portion of a double storied residential house; hereinafter referred to as the ‘property’). A decree for the recovery of Rs.600,871.10/- was passed (alongwith Rs.15,167/- as costs) under Section 6 of the Banking Tribunals Ordinance, 1984 (1984 Ordinance) in favour of the decree holder and against the judgment debtor on 20.3.1995 which (decree) has attained finality. Subsequently, the decree holder filed an execution petition under Section 11 of the 1984 Ordinance and a court auctioneer was appointed on 24.10.1995 to conduct the sale of the mortgaged property. In this order it is unequivocally mentioned that though Section 11(3) of the 1984 Ordinance enables a decree holder to sell mortgaged property itself without intervention of the Banking Tribunal, but in the instant case the decree holder sought execution of the mortgaged property through the Tribunal. The first auction was held, in which the predecessor-in- interest of the appellants, Liaqat Ali Mujahid (auction purchaser), was the highest bidder, with a bid of Rs.226,000/- (which was deposited by him with the Executing Court). The judgment debtor filed an objection petition challenging the auction to the auction purchaser on the ground that the value of the property had been assessed by the surveyor of the decree holder as Rs.950,000/- at the time of provision of finance to respondent No.2. The objection petition was accepted by the Tribunal vide order dated 27.11.1996. A fresh proclamation of sale was issued, a reserve price of Rs.600,000/- was fixed and the second auction was held on 12.1.1997 which failed. Subsequently, the auction purchaser offered to raise his bid from Rs.226,000/- to Rs.400,000/-. Meanwhile, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 (1997 Ordinance) was promulgated on 4.2.1997 Civil Appeal No.280-L/2009 - 3 - and the Banking Tribunals constituted under the 1984 Ordinance were abolished vide notification dated 11.2.1997 after which the execution petition stood transferred to the Banking Court constituted under the 1997 Ordinance as is manifest from the order dated 27.2.1997 of the newly constituted Banking Court (note:- the Ordinance of 1997 was replaced by the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (1997 Act) which came into force on 31.5.1997). On 8.5.1997 the Banking Court rejected the auction purchaser’s offer to raise his bid for the reason that his revised offer was still below the assessed value of the property and the reserve price, which (offer) was neither acceptable to the judgment debtor nor the decree holder. Through the same order, upon the request of the decree holder, the Banking Court allowed the former to sell the mortgaged property by public auction or private treaty, subject to confirmation by the court. The relevant part of the order reads as under:- “In reply to the application, the decree holder has sought permission to sell the mortgaged property itself and the law permits the same. The decree holder is, therefore, permitted to sell the mortgaged property either by way of public auction or through private treaty but the proceedings would be subject to confirmation by this court. For report of sale and filing of the sale proceedings by the decree holder now to come up on 10.6.97.” (Emphasis supplied) There are numerous dates on which the Court awaited the report of the court auctioneer for the sale of the property through auction and one of the orders even suggests that the Banking Court approved the draft Civil Appeal No.280-L/2009 - 4 - proclamation of sale in terms of Order 21 Rule 66 of the Code of Civil Procedure, 1908 (CPC) subsequent to which the third auction took place on 7.9.1998. During the proceedings the counsel for the decree holder had been appearing but no one appeared on behalf of the judgment debtor of the case. The order dated 23.9.1998 reveals that the auction purchaser, whose previous offer of Rs.400,000/- was not accepted by the Banking Court, when present in the Court improved his offer to the tune of Rs.6,16,038/- which (offer) was accepted by the decree holder. However the Court ordered:- “Now it is to be seen whether auction is to be confirmed for the above referred amount or the property is to be re-auctioned.” The Court adjourned the matter to 2.10.1998 and upon an application filed by the court auctioneer claiming fee, issued notice to the decree holder. No notice was issued to the judgment debtor. Such sale was confirmed by the Banking Court vide order dated 2.10.1998 and the file was consigned to the record room. The relevant part of the above order reads as follows:- “Whereas the auction purchaser has purchased the property mentioned in ‘Fard Taliq’ for a sum of Rs.6,16,038/- as a result of private negotiation with the decree holder, therefore, the same is confirmed in favour of the auction purchaser Mr. Liaqat Ali Mujahid. He be issued sale certificate on his application subject to payment of remaining price deducting 1/4th amount already deposited till 15.11.98.” (Emphasis supplied) Civil Appeal No.280-L/2009 - 5 - On 7.12.1998 seemingly on an application by the auction purchaser, the file was resurrected and the following order was passed:- “Pursuant to my order dated 18.11.98 on the application referred to above, the file has been put up before me today. The auction purchaser Mr. Liaqat Ali Mujahid has sought the Sale Certificate being the highest bidder of property No.S-57-R-32 E situated at 5-Temple Road, Lahore. The report of the Nazir shows that the purchase price of Rs.622,038/- has been deposited by the auction purchaser in out of which Rs.616,038/- has been given to the decree holder bank and now remaining Rs.6000/- are lying in this court which are to be disbursed to the judgment debtor being the excess amount from the decretal amount. Sale Certificate be issued to Mr. Liaqat Ali Mujahid the auction purchaser in accordance with law. File be consigned to the record room as before.” The sale certificate was issued on 8.12.1998. Thereafter the auction purchaser moved an application seeking possession of the purchased property and for that purpose, a Commission was appointed by the Banking Court vide order dated 19.4.1999 and eventually the possession was delivered to the auction purchaser. The judgment debtor filed an application under Order 21 Rule 90 of the CPC on 15.4.1999 challenging the sale of the property in favour of the auction purchaser and he was directed to deposit of 20% of the sale price i.e. Rs.123,200/- with the Banking Court before 16.7.1999 which was so done on 8.7.1999. Vide order dated 20.9.1999 the application under Order 21 Rule 90 of the CPC filed by the judgment debtor was Civil Appeal No.280-L/2009 - 6 - dismissed on the grounds that (i) he had been participating in the proceedings throughout, (ii) the judgment debtor previously filed objections which were disallowed by the Banking Court, (iii) some earlier attempts were made to sell the property but none came forward except the auction purchaser, (iv) the decree holder and the auction purchaser mutually negotiated the sale of the property and as a result the decree holder agreed to the disposal of the property at Rs.616,038/- as is evident from the order dated 23.9.1998. The Banking Court finally adjudged that the property has been rightly sold through private negotiation. The plea taken up by the respondent that he was unaware of the execution proceedings was discarded as he was held to be participating in the proceedings; besides the property was sold on 29.3.1998, whereas the objection petition was moved on 15.4.1999 which was barred by time and no application for condonation of delay was filed. Thus the application under Order 21 Rule 90 of the CPC was dismissed both on merits as also on the ground of limitation. Aggrieved of the above, the judgment debtor assailed this order in appeal and the learned Appellate Court whilst accepting the same (appeal) came to the conclusion that once having resorted to selling the property through public auction as per the provisions of Order 21 of the CPC, the same could not be sold through private negotiation and thus the Banking Court had committed an illegality. Thereafter, the auction purchaser filed an appeal before this Court which has culminated into the instant opinion. 3. Learned counsel for the appellants by relying upon the judgments reported as Muhammad Attique (supra) and Asma Zafarul Hassan (supra) argued that there is no bar upon the Executing Court against selling the property through private treaty/negotiation. He submitted that initially the auction procedure for the purposes of sale of Civil Appeal No.280-L/2009 - 7 - the property as envisaged by Order 21, CPC was adopted, but due to numerous failed attempts, the Banking Court was authorized to permit sale to take place through private treaty between the decree holder and the auction purchaser and to subsequently confirm such sale. He submitted that the view set out by the learned High Court that the sale could not be made otherwise than in accordance with Order 21, CPC is violative of the judgments cited above, and since the decree was passed prior to enactment of the 1997 Act therefore its execution would be governed by the 1984 Act, Section 11(3) whereof allowed for sale by private treaty; and if it is the 1997 Act which is to govern the execution process, even then sale by private treaty is permissible under the law as the same is amply covered by the phrase “in such other manner as the Banking Court may deem fit” as set out in Section 18(1) of the said Act. Learned counsel submitted that there was conscious application of mind by the learned Tribunal, as no bidders came forth as a result of which the numerous attempts at auction failed, it was well within the jurisdiction of the Tribunal and in the interests of justice to allow for sale by private treaty. He further argued that the judgment debtor had participated in the execution proceedings throughout and was well aware that the property could not be sold through auction. When the auction purchaser moved an application to the Court seeking permission for sale of the property through private negotiation, the judgment debtor was not required to be issued any notice, rather it was a matter between the decree holder and the auction purchaser on the one hand and the learned Executing Court on the other. He also contended that the objection petition was filed beyond the period of thirty days and was thus rightly discarded by the learned Court as being barred by time. Civil Appeal No.280-L/2009 - 8 - 4. Conversely, learned counsel for the respondents has led us to various orders of the Banking Tribunal/Court and argued that no notice had been issued to the judgment debtor whose property was to be sold through private treaty, rather a notice was issued to the decree holder when the auction purchaser applied for sale of the property through private treaty. In this manner the judgment debtor had been condemned unheard and therefore the entire process of the private sale in favour of the auction purchaser stands vitiated. He also submitted that once the process and procedure of auction under the CPC was resorted to for the disposal of a mortgaged property thereafter the Court did not have the jurisdiction to deviate therefrom and take a different course. Reliance in this regard has been placed on the cases reported as Muhammad Rafiq Vs. United Bank Limited and another (2005 CLD 1162), National Bank of Pakistan and 117 others Vs. SAF Textile Mills Ltd. and another (PLD 2014 SC 283) and Muhammad Attique (supra). 5. Heard. The propositions which have emerged for the purposes of the present appeal are:- (i) What was the law applicable on 8.5.1997, 23.9.1998 and 2.10.1998, when the Banking Court allowed the property to be sold by the bank through private treaty, the offer of the appellant was accepted by the bank and the confirmation of the private sale in favour of the appellant respectively, and what is the effect of such law on the facts and circumstances of the present case; (ii) Whether the order dated 8.5.1997 passed by the Banking Tribunal was superseded by the Banking Court vide its order dated 10.6.1997 and if so, to what effect; (iii) Whether under the 1984 Ordinance or the 1997 Ordinance/Act both being special laws, the Banking Civil Appeal No.280-L/2009 - 9 - Tribunal/Court in execution proceedings, could adopt any procedure it deemed fit for the sale of the mortgaged property other than the one (the procedure) prescribed by the two laws mentioned above; (iv) Having once adopted a mode of execution as set out in the CPC, can a court deviate therefrom; (v) With respect to the merits of the case, does the sale achieve validity on the touchstone of either of the special laws; (vi) To reconcile the two apparently conflicting judgments of this Court identified in paragraph No.1 of this opinion, i.e. Muhammad Attique (supra) and Asma Zafarul Hassan (supra). In order to resolve the propositions at hand, it is instructive to reproduce the relevant provisions from the 1984 Ordinance, 1997 Ordinance and 1997 Act:- 1984 Ordinance “11. Execution of decree.– The Banking Tribunal shall, on the written application of the decree-holder, forthwith order execution of the decree or order and where the decree or order pertains to money recover the amount covered, by the decree or order, as the case may be, as arrears of land revenue or in such other manner as may be applied for by the decree-holder, in accordance with the provisions of the Code of Civil Procedure, 1908 (Act V of 1908), or any other law for the time being in force: (Emphasis supplied) Provided …………………………………… (2) ………………………………………………… Civil Appeal No.280-L/2009 - 10 - (3) Notwithstanding anything contained in this Ordinance, where a banking company holds any property belonging to the judgment-debtor as security, it may sell the same without intervention of Court either by public auction or private treaty to any person, and appropriate the proceeds thereof according to law towards total or partial satisfaction of the decree: Provided that proper account of the proceeds shall be filed with the Banking Tribunal not later than thirty days from the date of such satisfaction: Provided further that, where the Banking company wishes to sell the property by private treaty, it shall, before concluding the sale, give to the judgment-debtor, by a notice, the option to purchase or redeem it, as the case may be, at the same price within such time as the banking company may specify in such notice. (4) ………………………………………………… (5) ………………………………………………… 1997 Ordinance 7. Powers of Banking Courts.– (1) ……………… (6) All proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Banking Court, pending in any Special Court constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX 1979), any Banking Tribunal constituted under the Banking Tribunals Ordinance, 1984 (LVIII of 1984) or any other Court including a High Court shall stand transferred to the Banking Civil Appeal No.280-L/2009 - 11 - Court having jurisdiction. On transfer of proceedings under this subsection, a Banking Court shall require the attendance of the parties through notice issued in accordance with the procedure for service of summons or notice laid down in subsection (2) of section 9. (7) In respect of proceedings transferred to a Banking Court under subsection (6) the Banking Court shall proceed from the stage at which the proceedings have been transferred and shall not be bound to recall and rehear any witness who has given evidence before the transfer, and may act on the evidence already recorded or produced before the Court or Tribunal from which the proceedings have been transferred. (Emphasis supplied) 12. Execution of Decree.--(1) The Banking Court shall, on the written or oral application of the decree-holder, forthwith order execution of the decree or order and, where the decree or order pertains to money, may direct, that the amount covered by the decree or order, as the case may be, shall be recovered as arrears of land revenue in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such other manner as the Banking Court may deem fit. (2) Subject to subsection (3), where a banking company is a mortgagee of any property belonging to the judgment-debtor, it may, sell such property without the intervention of the Banking Court either by public auction or by private treaty to any person or purchase such property on its own account and appropriate the Civil Appeal No.280-L/2009 - 12 - proceeds thereof towards total or partial satisfaction of the decree. (3) Where the judgment debtor or any person acting on his behalf does not voluntarily give possession of the mortgaged property sold or sought to be sold or purchased or sought to be purchased or purchased by the banking company under subsection (2), the Banking Court on the application of the Banking Company or the purchaser shall put the banking Company or, as the case may be, the purchaser in possession of the mortgaged property in accordance with the provisions of Order XXI of the Code of Civil Procedure. (4) ………………………………………………… (5) Where the banking company wishes to sell the property by private treaty or to purchase it on its own account it shall, before concluding the sale give to the judgment debtor an option by a notice in writing for purchasing or redeeming such property at the price at which the banking company proposes to sell or purchase within such period as the banking company may specify in such notice which shall not, in any case, be less than seven days. (6) ………………………………………………… (7) ………………………………………………… (8) ………………………………………………… 23. Repeal.– The Banking Companies (Recovery of Loans) Ordinance 1979 (XIX of 1979), and Banking Tribunals Ordinance, 1984 (LVIII of 1984) are hereby repealed. 1997 Act Civil Appeal No.280-L/2009 - 13 - “7. Powers of Banking Courts.– (1)………… (6) All proceedings, including proceedings following the filing of any arbitration award and proceedings for the execution of a decree within the jurisdiction of a Banking Court, pending in any Special Court constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX 1979), or under the Banking Companies (Recovery of Loans, Advance, Credits and Finances) Ordinance, 1997 (XXV of 1997), or any Banking Tribunal under the Banking Tribunals Ordinance, 1984 (LVIII of 1984), or any other Court including a High Court shall stand transferred to, or be deemed to be transferred to the Banking Court having jurisdiction. On transfer of proceedings under this sub-section, a Banking Court shall require the attendance of the parties through notices issued in accordance with the procedure for service of summons or notice laid down in subsection (3) of section 9. (7) In respect of proceedings transferred to a Banking Court under sub-section (6) the Banking Court shall proceed from the stage which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and re-hear any witness and may act on the evidence already recorded or produced before the Court or Tribunal from which the proceedings were transferred. (Emphasis supplied) 18. Execution of Decree.– (1) The Banking Court shall, on the written application of the decree-holder, forthwith order execution of the decree or order at any time seven days after the Civil Appeal No.280-L/2009 - 14 - passing of the decree or order and, where the decree or order pertains to money, may direct that the amount covered by the decree or order, as the case may be, shall be recovered in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such other manner as the Banking Court may deem fit: (Emphasis supplied) Provided that the Banking Court may, at the time of passing a final decree pass an order of the nature contemplated by subsection (1) of section 16 to the extent of the decretal amount. (2) Subject to subsection (3), in cases of pledged or mortgaged property a banking company may sell the same with or without the intervention of the Banking Court either by public auction or by inviting sealed tenders and appropriate the proceeds thereof towards total or partial satisfaction of the decree. (3) ………………………………………………… (4) ………………………………………………… (5) Where the banking company wishes to sell a property by inviting sealed tenders, it shall, invite offers through advertisements 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 before concluding the sale the judgment-debtor shall be given an opportunity to purchase the property at a Civil Appeal No.280-L/2009 - 15 - matching price to be paid in cash within a period of thirty days. (6) ………………………………………………… 28. Repeal.– (1) The Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979), the Banking Tribunals Ordinance, 1984 (LVIII of 1984), and the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 (XXV of 1997), are hereby repealed. (2) ………………………………………………” 6. With respect to the first proposition we may reiterate the following: a decree for the recovery of a certain amount was passed in this case under Section 6 of the 1984 Ordinance and an execution petition was filed under Section 11 of the said Ordinance. During the pendency of the execution proceedings, the 1997 Ordinance was promulgated on 4.2.1997 and the Banking Tribunals constituted under the 1984 Ordinance were abolished vide notification dated 11.2.1997 after which the execution petition stood transferred to the Banking Court constituted under the 1997 Ordinance. The 1997 Ordinance was replaced by the 1997 Act which (Act) came into force on 31.5.1997. The 1997 Ordinance was promulgated on 4.2.1997 and by virtue of Article 89(2)(a)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), it was to stand repealed at the expiration of 120 days of its promulgation, i.e. on 3.6.1997. However before the expiry of 120 days, the 1997 Ordinance was laid before Parliament under Article 89(3)(b) of the Constitution and culminated into the 1997 Act which was promulgated on 31.5.1997, i.e. the day it received the President’s Civil Appeal No.280-L/2009 - 16 - assent. The 1997 Act repealed the 1997 and 1984 Ordinances (the latter of which already stood repealed under the 1997 Ordinance). 7. Accordingly, the 1984 Ordinance stood irrevocably repealed on 4.2.1997 by virtue of the 1997 Ordinance, ergo for all legal intents and purposes, the 1984 Ordinance ceased to have effect on the said date. The fact that there was no saving clause in the 1997 Ordinance (and none in the 1997 Act either) to the effect that all proceedings, rights or liabilities under the 1984 Ordinance would continue to be governed by the latter ordinance lends credence to this interpretation. Instead there was only a transfer provision in the form of Section 7(6) of the 1997 Ordinance (and the 1997 Act), providing that all proceedings, including proceedings for the execution of a decree within the jurisdiction of a Banking Court, pending in any Banking Tribunal constituted under the 1984 Ordinance (and the 1997 Ordinance) shall stand transferred to the Banking Court having jurisdiction under the 1997 Ordinance (and the 1997 Act). 8. In any event, it is indeed settled law, in line with Section 6 of the General Clauses Act, 1897, that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall in so far as it is not inconsistent with the provisions of new Act, be deemed to have been done or taken under the corresponding provisions of the new Act. A litigant is provided protection with respect to any right, privilege, obligation or liability acquired or accrued under any enactment repealed. Substantive laws are only very exceptionally amended with retrospective effect for the eminently sensible reason that one does not change the goal posts mid- game. Unless a Legislature enacts a new law (the 1997 Act) to be specifically retrospective, and that too with great particularity of language, the Courts are not to assume retrospectivity. There is nothing Civil Appeal No.280-L/2009 - 17 - in the repealing section, i.e. Section 28 of the 1997 Act, to indicate that the Legislature meant for such Act to be applied with retrospective effect. Therefore the question of retrospective application of the provisions of the 1997 Ordinance (and the 1997 Act) does not arise, as the execution proceedings in the case at hand, though instituted under the 1984 Ordinance, stood transferred to the Banking Court established under the 1997 Ordinance and then the 1997 Act, and in the absence of any saving clause as mentioned above, the relevant provisions of the 1997 Ordinance (and then the 1997 Act) were to apply on the date of transfer of such proceedings and thereafter. The Banking Court is not required to proceed de novo, rather from the stage which the proceedings had reached immediately prior to the transfer as envisaged by Section 7(7) of the 1997 Act (reproduced hereinabove). 9. Section 12 of the 1997 Ordinance dealt with execution of decrees and provided that where a banking company is a mortgagee of any property belonging to the judgment-debtor, the banking company may sell such property without the intervention of the Banking Court either by public auction or by private treaty to any person or purchase such property on its own account. Further, where the banking company wished to sell the property by private treaty or to purchase it on its own account it was to, before concluding the sale, give to the judgment debtor an option by a notice in writing for purchasing or redeeming such property at the price at which the banking company proposed to sell or purchase within such period as the banking company may specify in such notice which was not, in any case, to be less than seven days. Therefore the 1997 Ordinance clearly permitted for sale by way of private treaty, subject to the written notice of option to purchase being provided to the judgment debtor. However these provisions only came into effect from the date of promulgation of the 1997 Ordinance till its Civil Appeal No.280-L/2009 - 18 - repeal, i.e. from 4.2.1997 to 31.5.1997, after which the relevant provisions of the 1997 Act came into force. The provisions governing execution of decree under the 1997 Act were contained in Section 18, which provided that in cases of mortgaged property a banking company could sell the same with or without the intervention of the Banking Court by inviting sealed tenders in which case the banking company was to invite offers through advertisements in one English and one Urdu newspaper having a wide circulation in the city in which the sale was to take place giving not less than thirty days’ time for submission of offers, provided that before conclusion of the sale the judgment-debtor was to be given an opportunity to purchase the property at a matching price to be paid in cash within a period of thirty days. There was a clear departure in the wording of Section 18 of the 1997 Act from that of Section 12 of the 1997 Ordinance, the former allowing a banking company to sell the mortgaged property by sealed tenders, and the latter by private treaty, thereby implying that sale by private treaty was no longer permissible under the 1997 Act. This was the situation prevailing from 31.5.1997 onwards, and this is indubitably the reason that the Banking Court on 10.6.1997 passed an order to the effect that “…For report of sale by auction or inviting tenders of the mortgaged property by the decree holder…”, and not “sale by auction or private treaty”. This distinction needs to be appreciated and it is the reason why the subsequent order of the Banking Court allowing the sale by private negotiation/treaty (and the issuance of the sale certificate) is violative of the law that existed at the relevant point of time. Notwithstanding the above stated legal position, the sale was even otherwise illegal on the touchstone of the 1984 Ordinance. Section 11(3) of the 1984 Ordinance required the bank (decree holder) in case of sale through private negotiation to give to the judgment debtor, by a notice, Civil Appeal No.280-L/2009 - 19 - the option to purchase or redeem the property, as the case may be, at the same price within such time as the banking company may supply in such notice, but this option, a right conferred upon the judgment- debtor, was never afforded to him. Therefore, the sale was not made as per the law and cannot be sustained even by virtue of the repealed 1984 Ordinance. It is settled that where law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed a mere technicality. 10. In the case of Asma Zafarul Hassan (supra) leave was refused to challenge the order of the Sindh High Court whereby the court dismissed an application for setting aside a sale of property in execution proceedings. The relevant facts are that after two attempts to sell the property through public auction failed, the court allowed the sale through private offer arranged through the Nazir’s personal efforts. It must be kept in mind that these events occurred during 1977 i.e. before the promulgation of special banking laws and hence the relevant provisions of the CPC would have been applicable. Through the leave refusing order this Court, inter alia, held that the High Court gave its “tacit consent” to the “private offer” mode of sale and by ineluctable inference that it was not necessary to pass a specific order to this effect and further that unless a procedure was specifically barred it may be adopted by the court for serving the ends of justice. This finding is not in consonance with that of Muhammad Attique’s case (supra) wherein this Court upheld the order of the Lahore High Court remanding the challenge/objections to the auction of a property in execution proceedings to the Banking Court for decision afresh. The sale of the property in question had been effected through a purportedly flawed public auction. For our purposes the relevant finding of this Court was that the provisions of the Financial Institution (Recovery of Finances) Civil Appeal No.280-L/2009 - 20 - Ordinance 2001 (FIO 2001) allow the Executing Court to choose the mode of execution in accordance with the CPC or any other law in force but “once it has chosen the mode as provided in the Civil Procedure Code, then it cannot be permitted to divert that mode at subsequent stage without conscious application of mind” (emphasis supplied). The conundrum before us is this; is the Executing Court simply required to give its “tacit consent” to a new/different mode of sale or must it do so through “conscious application of mind”? 11. In execution proceedings the court of law must always proceed to employ the principles of balancing and proportionality in order to accomplish a state of affairs where the rights of both the decree-holder and those of the judgment debtor are secured. In the same manner the court must be conscious of protecting a third party such as the auction purchaser. Proportionality1 analysis involves different steps, each involving a test. First, in the “legitimacy” stage, the Court confirms that the action has been taken by a person authorized to do so. The second phase – “suitability” – is devoted to judicial verification that, with respect to the act in question, the means adopted are rationally related to stated objectives. The third step, called “necessity,” is to ensure that the measure does not curtail the right of a party any more than is necessary for achievement of stated goals. The last stage, “balancing in the strict sense,” requires that the court weighs the benefits of the act against the costs incurred by infringement of the right, in order to determine which right shall prevail, in light of the respective importance of the values in tension, given the facts. The principles of proportionality outlined above are increasingly defining jurisprudence across the globe. For our purposes the court is to achieve the purpose of the execution 1 Essay, March 2008, Proportionality Balancing and Global Constitutionalism by Alec Stone Sweet, Yale Law School and Jud Mathews, Yale Law School. Civil Appeal No.280-L/2009 - 21 - viz. the recovery of money owed to the decree holder through sale of the judgment debtor’s property; to this end the court holds the rights of every litigant equally dear. The ideal manner of sale of the judgment debtor’s property is indeed through public auction and the open manner in which this may be effected has been aptly defined in Lanvin Traders, Karachi Vs. Presiding Officer, Banking Court No.2 (2013 SCMR 1419) per our learned brother, Justice Anwar Zaheer Jamali. But sale(s) of property in execution proceedings are essentially distress sales and the circumstances are far from ideal. Therefore the legislature in its wisdom has allowed alternative means of sale. The court may depart from a preferred mode of sale if the circumstances warrant such departure. But when it does depart therefrom it must be through a conscious application of mind because it must itself be convinced that a less “ideal” mode of sale is necessitated by the circumstances prevailing and these must be set out in order to reassure all the parties that the sale proceedings are open and transparent and the court is conscious of its solemn duty. Tacit consent would not meet the standard of openness required of the executing court. It is its reasons for so doing (adopting an alternative method) which shall inspire confidence. 12. In the case reported at National Bank of Pakistan Vs. Paradise Trading Company (2015 CLD 366) this Court has held that, “Now it is admitted fact that in execution proceeding the Banking Tribunal has adopted the procedure of selling of the mortgage property by public auction. Once such procedure for selling the mortgage property through public auction is adopted by the Banking Tribunal then no other mode or procedure is permissible for selling of mortgage property except by public auction”. Civil Appeal No.280-L/2009 - 22 - With the greatest of respect we are constrained to state that the aforesaid judgment is per incuriam and not good law for the reason that the court was not assisted properly and appears not to have considered Muhammad Attique’s case (supra) which lays down the correct law i.e. the executing court may indeed adopt a different method of sale if required, the only proviso being that such change in course must be after due application of mind by assigning justifiable reasons. To hold otherwise is to shackle the court in an undesirable manner and hold it hostage to its own earlier orders. 13. Our attention has been drawn to a recent judgment of this Court cited at Zakaria Ghani Vs. M. Ikhlaq Memon (PLD 2016 SC 229) in support of the proposition that the executing court may adopt a different method of sale without a specific order to this effect. The said judgment is authored by myself and I have given anxious consideration to the aforesaid proposition and whether the said judgment indeed supports such a rendering of law. The question before this Court in the said case was not whether or not an executing court was to adopt a different method of sale after due application of mind (or otherwise) but the more fundamental question of whether or not the court could change the course or mode adopted at all? It was this latter question that the court answered in the affirmative through the said judgment by holding that, “…………This finding is also sufficient to dispose of the accompanying submission which was to the effect that once an order has been passed stipulating that the sale is to be made under the CPC it is not open to the court to switch over to any alternative procedure. Although the correctness of this assertion is Civil Appeal No.280-L/2009 - 23 - even otherwise doubtful in view of the case law including several judgments by this court, to which reference is made in a subsequent part herein, the contention is ill founded on a factual plane.” (Emphasis supplied) Hence this judgment does not stand in the way of our present finding which is that an executing court may change the mode of sale after due application of mind and giving reasons as mentioned above; the manner in which it was to adopt a new course was a moot point in the said judgment. 14. The answers to the questions devised in the earlier part of this opinion can thus be summarized as follows: (i) The law applicable on 8.5.1997, 23.9.1998 and 2.10.1998, (when the Banking Court allowed the property to be sold by the bank through private treaty, the offer of the appellant was accepted by the bank and the confirmation of the private sale in favour of the appellant respectively) was the 1997 Ordinance on the first of said dates and thereafter the 1997 Act; (ii) The order dated 8.5.1997 passed by the Banking Tribunal was not superseded by the Banking Court vide its order dated 10.6.1997 for the reason that the latter order was illegal for the reasons outlined in the earlier part of this opinion; (iii) Under the 1984 Ordinance or the 1997 Ordinance/Act both being special laws, the Banking Tribunal/Court in execution proceedings could adopt any procedure it deemed fit for the sale of the mortgaged property other than the one (the procedure) prescribed by the said two laws; Civil Appeal No.280-L/2009 - 24 - (iv) Having once adopted a mode of execution as set out in the CPC, an executing court can deviate therefrom with due application of mind and upon assigning justifiable reasons; (v) The sale was even otherwise illegal on the touchstone of either of the special laws; (vi) The correct law has been laid down in the case of Muhammad Attique (supra) and the judgment delivered in Asma Zafarul Hassan (supra) is not the correct law. In light of the above, subject to the reasons assigned in this opinion while upholding the impugned judgment, this appeal is dismissed with the consequence that the private sale made in favour of the auction purchaser (predecessor-in-interest of the appellants) as confirmed by the Banking Court stands set aside. However, keeping in view the peculiar facts and circumstances of the case, particularly that the auction purchaser has paid an amount of Rs.6,16,038/- as sale consideration which amount has been received (wholly or partly) by the decree holder in satisfaction of its decree and has no further claim in this behalf; and as the real contest is between the appellants and the judgment debtor, thus in order to safeguard the interest of both the parties and keeping in view the rule of justice, equity and fairplay we direct that the property in question should be put to open auction and out of the sale proceeds the appellants should be returned the amount paid by them to the decree holder (or any further amount if deposited in the court after satisfying the decree) along with 10 percent yearly profit (note:- not on compound basis) as compensation on such amount; besides the appellants should be refunded the amount of utility bills paid by them (subject to Civil Appeal No.280-L/2009 - 25 - proof) along with the profit at the rate mentioned above and the balance amount should be given to the judgment debtor/respondent No.3. Both the parties may participate in the auction. Chief Justice Judge Judge Judge Judge Announced in open Court on 29.9.2016 at Islamabad Approved For Reporting Ghulam Raza/* Judge

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Mazhar Alam Khan Miankhel Civil Appeal No. 288 of 2013. (On appeal from the judgment dated 28.12.2012 passed by the High Court of Balochistan in CMA No. 01/2011.). Zohra Bibi and another …Appellant (s) Versus Haji Sultan Mahmood and others …Respondent (s) For the Appellant (s): Raja Saif ur Rehman, ASC. Mr. Ahmad Nawaz Ch. AOR (Absent) For the Respondent (s): Mr. Shafqat Jan, ASC (for respondent No.1) Mr. Tariq Aziz, ASC/AOR (for respondents No.2-4) Respondents No.5&6 Ex-parte Date of Hearing: 06.12.2017 Judgment Mazhar Alam Khan Miankhel, J.- This appeal has arisen out of judgment dated 28.12.2012 of Balochistan High Court whereby appeal of Respondent No. 1 against the judgment/order dated 28.02.2011 of the Senior Civil Judge-II, Quetta was allowed and revocation of succession certificate dated 13.11.2006 was set aside by holding that the application for revocation of succession certificate was incompetently filed by present Appellants. C.A.No.288/13 2 2. Brief facts of the case emerging out of the record would reveal that after the demise of propositus of the parties Haji Gul Hassan Sheikh, his son Haji Sultan Mehmood, Respondent No.1, herein, was successful in getting a succession certificate dated 13.11.2006 in his name by claiming himself to be the sole legal heir of the deceased propositus. After culmination of the proceedings in his favour, he alongwith his son Hassan Mehmood as guarantor also submitted an undertaking in the Court for submission of details of accounts and also held themselves jointly and individually liable/ responsible to satisfy the claim of any other legal heir of the deceased if any, in case someone comes forward. On getting knowledge of the said fraudulent act of Respondent No. 1, present Appellants moved an application under Section 383 of the Succession Act, 1925 for revocation of said succession certificate bearing No. 35/2006 dated 13.11.2006, the same was ultimately allowed by the trial Court vide its judgment/ order dated 28.02.2011. The Respondent No. 1 herein, feeling himself aggrieved of the order of revocation, questioned the same by way of an appeal before the High Court which was accepted and order of revocation of succession certificate dated 28.02.2011 of the trial Court was set aside, hence, the present appeal. 3. Learned counsels for the parties were heard and the record of the case was perused. 4. Perusal of the record would reveal that the fact that the deceased propositus of the parties had two wives, has never been disputed by any one. Present Appellants, the two daughters were from Mst. Noor Bibi and Respondents No. 1 to 4 herein, were from his other wife namely C.A.No.288/13 3 Mst. Hussain Bibi (both the widows died during the pendency of application for revocation of succession certificate). Status and relationship of the parties intrse before the Court was never disputed even by the Respondent No. 1 rather he alleged in his reply that according to a family settlement, all the legal heirs had received their share of inheritance and for that reason they were deliberately not joined as party in the application for grant of succession certificate. When status and relationship of the parties with the predecessors in interest is not denied then every legal heir is entitled to get/ receive his/ her Shari share to the extent of his/ her entitlement in the property moveable/ immovable left by the predecessor. So, all the legal heirs of deceased Haji Gul Hassan have the right to get to the extent of their respective shares. Before proceeding further we may observe that Respondent No.1 in his reply alleged that every legal heir was paid his/her due share. So it was for the Respondent No.1 to have proved his stance of payment of respective shares to all the legal heirs but he has miserably failed to do so. Mere allegations in the pleadings would never be sufficient to establish the fact alleged in the pleadings. So, we without any hesitation observe that all the legal heirs are entitled to get the respective share in the legacy of propositus. s We at present are only concerned with the amounts shown in the application for succession certificate (original and amended). Under the law, the Appellants herein are entitled to get their Shari shares as per their entitlement and the trial Court while revoking the original certificate of succession has very rightly held as under: C.A.No.288/13 4 “ I heard arguments advanced by the parties in support and against the application and I also went through the record of succession certificate No. 35/2006 alongwith present application. The objection raised by the contesting respondents were just about time limitation of filing of this application. Other objections were about affidavit of applicant that same are not genuine and further allegation raised that the applicants both female having no knowledge and this application has been filed in connivance of husband of one of the applicants. It is alleged that name of deceased has not been mentioned correctly. The whole objections raised having no weight to discard the legal entitlement of the applicants as legal heirs or protect the wrongful act of respondent No. 1. The respondent badly failed to show that on what account he obtained cash amount of deceased without giving the share of other legal heirs. The question relating whether this application is time barred in this regard it is settled principle of law that no time limit will be counted if the action found to be result of fraud of misrepresentation and in such situation or case it is held by the honorable apex courts that time runs from the date of knowledge. So objection about time limitation is discarded. Previous record fully shows that respondent No. 1 Sultan Mehmood committed fraud by concealment of fact not mentioned in his application and in ex-parte evidence that the deceased has also other legal heirs. As sufficient evidence available on record that all legal heirs of deceased Haji Gul Hassan Sheikh are entitled for their shares according to Muhammadan law and Islamic Sharia so I have no hesitation to accept this application for revocation of succession certificate. From the record it is also revealed that surety namely Hassan Mahmood s/o Sultan Mahmood and Muhammad Ismail s/o Ghulam Dastagir have also taken back (release) their surety after completion of three years still according to their affidavit filed at the time of filing surety they have taken fully responsibility that in case of fraud and misrepresentation they are liable to pay the amount for which they stood surety and on the basis of same undertaking that are under obligation to pay the amount in case the respondent No. 1 failed to pay the amount to the all legal heirs surviving according to Sharia Fithwa. Murasallah be sent to revenue authority/ Tehsildar Quetta for report within four-days alongwith copy of Fard and affidavit of surety available on the record for attachment of property of sureties till recovery of amount or otherwise for recovery of process of sale of attached property according to law. The applicants further directed to file Sharia Fithwa the same must be verified and appear in person while applying for succession certificate. Application disposed off in this manner”. C.A.No.288/13 5 5. Perusal of the impugned judgment would reflect that the same instead of dealing with the substantial question of law, is based on mere technicalities. The facts which prevailed with the High Court were (i) the affidavits of Respondent No. 1 and his witnesses, (ii) no response by the Appellants for more than a period of 3 ½ years inspite of publication in a newspaper of wide circulation (iii) the amount in question was withdrawn by the Respondent No. 1 long before and fourthly the liability of the sureties was also discharged after a lapse of three years and for the above reasons asked the Appellants to approach the civil Court for redressal of their grievances, if any. The cardinal principle of Mohammadan law is that the inheritance of a person opens the moment he dies and all the legal heirs become owners to the extent of their respective shares there and then by the dint of settled law. Sanction of inheritance mutation, issuance of succession certificate etc. are the procedural matters regulated by the procedural laws just to make the records in order and also for fiscal purposes. Similarly law of limitation provides a specific period to avail a remedy provided under the law by way of filing suit, preferring appeal and making any application and if the same is filed/preferred or made beyond the prescribed period of time as provided in the schedule, subject to certain provisions of law, has to be dismissed but said dismissal cannot take away the right of that person as was held by this Court in the case of Pervaiz Akhtar and another versus The Additional District Judge, Rawalpindi and four others (1990 PSC 1109). It is also settled law of the land that technicalities should not hamper the administration and dispensation of justice. Whenever it is possible to grant relief under the law, then C.A.No.288/13 6 technicalities in the way of administration of justice should be avoided to the possible extent by remaining within the domain of law. When we look into the facts and circumstances of the present case before us, it becomes clear that no statutory period of limitation is provided for grant of any succession certificate under Section 372 or its revocation under Section 383 of the Succession Act, 1925. When no further intricate question of law of inheritance was there to be resolved by any competent Court of law, proceedings under the Succession Act, 1925 were very much competent irrespective of efflux of time. It is established on the record that the original certificate was obtained by Respondent No. 1 by practicing fraud with the Court and the Appellants on 13.11.2006 and the Appellants asked for revocation of said certificate after a period of more than 3 ½ years when they got knowledge of the same. As discussed above that no statutory time frame has been provided under Limitation Act, 1908 for asking for issuance of or revocation of succession certificate but even then it has to be availed within a reasonable time. If at all we put any embargo/ clog of limitation then at the most that can be dealt with under Article 181 of Limitation Act, 1908 which provides a period of three years to ask for any such relief. Settled law of the land in such like situations is that the period of limitation would start running from the date of knowledge. While looking in this perspective, in absence of any evidence to the contrary, the presumption would be that the Appellants being poor illiterate ladies had no knowledge of the original succession certificate and after getting knowledge of the same filed application for revocation of succession certificate. C.A.No.288/13 7 6. The application so filed by the Appellants for revocation of the succession certificate was also held to have been incompetently filed as the application was only signed by the counsel and the counsel was also authorized by Appellant No. 1 i.e. Mst. Zohra Bibi only and Mst. Samina Bibi had not signed the power of attorney of the counsel. Again this view of the High Court is based on hyper technicality especially in the facts and circumstances of the case in hand. The established law is that Advocate/ Pleader can sign the pleadings on behalf of the party and he is normally authorized by the party while signing the power of attorney in this behalf and the provisions of Order III of the CPC in this regard are very much clear. The record of the proceedings clarifies the fact that the Appellant No. 1 was properly represented as she had signed the power of attorney of the counsel and let’s presume for a while that Respondent No. 2 was not properly represented, whether this alone would disentitle her to get her share in the legacy left by her father. Answer to this question would be a simple “No”. Under the law it is not necessary that each and every legal heir should be properly represented and appear before the Court to get a succession certificate. The Court on receiving such application has to issue/ grant succession certificate in favor of all the legal heirs by considering and determining their respective shares by complying with the procedural requirements of law in this regard. So, the decision of High Court in this regard is sheer violation of the law and cannot be maintained. 7. Yet another aspect of the case, as was held by the High Court, would also require our attention that after the lapse of such a long time the better course for the Appellants was to approach the Civil Court. Yes; this approach of the High Court would have been a valid one if there C.A.No.288/13 8 had some dispute regarding status and relationship of the parties inter-se. But in this case, there is no such dispute. There are two distinct groups of the legal heirs of the deceased. Appellants being the legal heirs from one wife and the Respondents from the other wife. Their complicity can be adjudged from the fact that Respondents No. 2 to 4 the real sisters of Respondent No. 1 have joined hands with Respondent No. 1 by alleging to have received their share by supporting the appeal of Respondent No. 1 before the High Court and the two poor ladies from the other wife of propositus i.e. the Appellants were left without any relief who also happen to be their step sisters. (By keeping in mind the conduct of Respondent No. 1, we also doubt the satisfaction of claim of Respondent No. 2 to 4). So, we in the peculiar circumstances of the case cannot send the parties especially the two Appellants for yet another round of litigation for a matter which require no further adjudication except the discharge of liability by Respondent No. 1 as he alongwith his son had given an undertaking to satisfy the claims of any other legal heir, if came forward. So, we endorse the procedure adopted by the trial court for the recovery of said amount with the direction that the needful be done within a period of two months positively after the receipt of this judgment and a compliance report be also forwarded to the Additional Registrar (Judicial) of this Court. 8. Since it has been established on the record that Respondent No. 1 had verified a false statement, rather concealed the true facts before the Court regarding actual legal heirs of the deceased propositus and thus apparently has committed fraud with the Court and the parties so we cannot shut our eyes to this very fact and we, therefore, direct the trial C.A.No.288/13 9 Court to proceed against the Respondent No. 1 under Section 198 PPC as required by Section 372 (2) of the Succession Act, 1925. 9. In view of the above discussion this appeal is allowed in above terms with costs to be borne by Respondent No. 1 of the entire litigation for the reasons mentioned above. Judge Judge Bench-III Islamabad 6th December, 2017 Zia* Approved for Reporting.

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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 QAZI FAEZ ISA CIVIL APPEAL NO.294 OF 2015 (On appeal from judgment dated 10.4.2015, passed by the Election Tribunal, Hyderabad, in Election Petition No.341/2013) Muhammad Nawaz Chandio … Appellant Versus Muhammad Ismail Rahu and others … Respondents For the Appellant : Mr. Farooq H. Naek, Sr. ASC Raja Abdul Ghafoor, AOR For Respondent No.1 : Mr. Wasim Sajjad, Sr. ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing : 10.12.2015 JUDGMENT SH. AZMAT SAEED, J.- This Civil Appeal under Section 67(3) of the Representation of the People Act, 1976 (ROPA), is directed against the judgment dated 10.04.2015, passed by the learned Election Tribunal, Hyderabad, whereby Election Petition bearing No.341 of 2013, filed by Respondent No.1 was allowed and re- election in 37 Polling Stations of the Sindh Provincial CA.294/2015. 2 Assembly Seat No.PS-59-Badin (V), was directed to be held. 2. The brief facts necessary for the adjudication of lis at hand are that in the General Elections held on the 11th of May, 2013, the Appellant and Respondents No.1 to 12 contested for the Seat for the Provincial Assembly of the Province of Sindh from Constituency PS-59 Badin (V). After the elections, the Appellant was declared and notified as a Returned Candidate, having secured 38,315 votes, while Respondent No.1 was the runner up, securing 36,960 votes. The Appellant had lead of 1355 votes. Respondent No.1 challenged the said election through Election Petition No.341 of 2013, which was entrusted for adjudication to the learned Election Tribunal, Hyderabad. It was the case of Respondent No.1 that in the General Elections of 2008, there were only 97 Polling Stations, while with mala fide intention the number of Polling Stations were increased to 120 and most of such additional Polling Stations were established in the areas where the Appellant had influence. It was contended that in several identified Polling Stations, despite applications filed by Respondent No.1, neither the Police nor the Rangers were deployed and only Pakistan CA.294/2015. 3 Qomi Razakars were posted and such Pakistan Qomi Razakars in connivance with the polling staff not only permitted but participated in the harassment of voters by the Armed supporters of the Appellant and also facilitated in casting of bogus votes thereat and thereby rigged the elections to the benefit of the Appellant. Pursuant to notice, the present Appellant entered appearance and contested the Election Petition by filing a written statement, denying the allegations made therein. Furthermore, objections were taken regarding the very maintainability of the Election Petition, inter alia, on the ground that the mandatory provisions of Section 55(3) of the ROPA read with Order VI Rule 15 CPC with regard to the verification of the Election Petition had not been complied with. 3. On the divergent pleadings of the parties, issues were framed. Whereafter, the contesting parties i.e. the Appellant and Respondent No.1 produced their respective oral as well as documentary evidence. Both the Appellant and Respondent No.1 entered the witness box and were subjected to cross-examination. During the pendency of the Election Petition, Respondent No.1 filed an application before the learned Election Tribunal CA.294/2015. 4 purportedly under Section 84 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the Order of 1984) seeking verification by National and Database Registration Authority (NADRA) of thumb impression of the voters on the counterfoils of the Ballot Papers of 37 specified Polling Stations. The said application was allowed by the learned Election Tribunal, Hyderabad, vide Order dated 23.10.2014. Pursuant to the said Order, the requisite election material was made available to NADRA. Whereafter, a Report (Exh.E/1) was received through Mr. Maqsood Ali, Manager, NADRA, who appeared as PW-4 and was subjected to cross- examination by the present Appellant. On the conclusion of the trial, after hearing the counsel for the parties, the Election Tribunal vide the judgment impugned dated 10.04.2015 allowed the Election Petition declaring the election at 37 Polling Stations as void due to illegal practices having been committed and it was directed that the Appellant be de-notified and re-election be held in the said 37 Polling Stations. 4. It was contended by the learned counsel for the Appellant that the Election Petition filed by Respondent No.1, on the face of it, was not verified in terms of Order CA.294/2015. 5 VI Rule 15 CPC, thereby the mandatory requirements of Section 55(3) of ROPA were not complied with, hence, the said Election Petition was not maintainable and ought to have been summarily dismissed. It is also contended that the application purportedly under Section 84 of the Order of 1984, filed by Respondent No.1 was illegally allowed by the learned Election Tribunal, as recounting and re- examining of the Ballot Papers and the election material, including counterfoils and Electoral Lists cannot be allowed as a matter of course. Applications, in this behalf, can only be entertained, if sufficient material has been brought on the record through cogent evidence to justify such a course of action. In the instant case, it was contended that the matter was referred to NADRA for verification of the thumb impressions without any legal or factual basis. It is added that the process of verification allegedly carried out by NADRA was conducted behind the back of the Appellant who was neither summoned nor associated with the said process, hence, such Report could not have been relied upon by the learned Election Tribunal. It is further added that the said Report was produced by PW-4 (Maqsood Ali), who admittedly was not the author of such Report nor CA.294/2015. 6 personally conducted the verification of the thumb impressions on the counterfoils of the Ballot Papers. Hence, such Report was not only inadmissible in evidence but could also not be relied upon by the learned Election Tribunal as a basis of passing the impugned judgment, which is therefore, not sustainable in law. It is contended that the allegations made in the Election Petition were not proved through cogent evidence, especially as Respondent No.1 did not file an affidavit-in- evidence in support thereof. The learned Election Tribunal, it is contended, illegally permitted Respondent No.1 to produce his Election Petition as evidence. Pleadings are not a substitute for substantive evidence. The learned counsel for the Appellant in support of his contentions relied upon the judgments in the cases, reported as (1) Mian Ejaz Shafi v. Syed Ashraf Shah, 1st Additional Sessions Judge, Karachi and Returning Officer, Karachi West-I and 12 others (1996 SCMR 605), (2) Lt. Col. (Retd) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585) and (3) Bhabhi v. Sheo Govind and others (AIR 1975 SC 2117). 5. The learned counsel for Respondent No.1 controverted the contentions raised on behalf of the CA.294/2015. 7 Appellant by contending that the Election Petition was duly verified and was compliant with the requirements of Section 55(3) of ROPA, as interpreted by this Court and the issue, in this behalf, has been adjudicated upon by the learned Election Tribunal in accordance with law. It is added that sufficient material was available on record to justify the referral to NADRA for verification of the thumb impressions on the counterfoils of the Ballot Papers. It is further added that according to the Report of NADRA, which is a neutral body, endowed with the statutory duty and requisite expertise to effect such verification, it is clear and obvious that more than five thousand votes were counted in the final tally, which were bogus and invalid and the lead of the Appellant is less than such invalid and bogus votes. Consequently, the learned Election Tribunal by way of the impugned judgment has rightly ordered a re-poll in the said 37 Polling Stations in respect whereof NADRA had submitted its Report. In support of his contentions, the learned counsel for Respondent No.1 relied upon the judgments in the cases, reported as (1) Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), (2) Sardarzada Zafar Abbas and others v. CA.294/2015. 8 Syed Hassan Murtaza and others (PLD 2005 SC 600), (3) Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426) and (4) Muhammad Akram and another v. Mst. Farida Bibi and others (2007 SCMR 1719). 6. Heard and the available record perused. 7. Adverting first to the contention of the learned counsel for the Appellant that the Election Petition was not verified in accordance with law i.e. under Rule 15 CPC, hence, did not comply with the mandatory requirement of Section 55(3) of ROPA and, therefore, merited summary dismissal on this ground. We have examined the Election Petition, a copy whereof is available on the record. It bears verification on solemn affirmation that what has been stated therein is true to the best of knowledge and belief of the Election Petitioner. It bears the stamp and signature of the Oath Commissioner. The place (Hyderabad) whereat the contents of the Election Petition were verified is also stated therein. The date is also mentioned by the Oath Commissioner. The Election Petitioner i.e. the present Respondent No.1 entered the witness box as PW-1 and owned the said Election Petition by identifying his signatures thereupon. In this view of the matter, it CA.294/2015. 9 appears that the requirement of Order VI Rule 15 CPC has in essence been complied with. The additional requirements enjoined upon the Oath Commissioner referred to by the learned counsel for the Appellant by relying upon the judgment of this Court in the case of Lt. Col. (Retd) Ghazanfar Abbas’s case (supra) are not really relevant as such requirements, if applicable, would be mandatory in the future as has been specifically mentioned in the said judgment. In this view of the matter, the learned Election Tribunal has correctly held that the Election Petition could not be dismissed on the ground that it was not duly verified. 8. The learned counsel for the Appellant also stressed the fact that Respondent No.1 did not file a separate affidavit-in-evidence and while entering the witness box as PW-1 had only tendered his Election Petition in evidence as Exh.F/1, which was objected to on the ground that pleadings are not substantial piece of evidence. The status of pleadings needs to be identified. This Court in the case, reported as Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others (2015 SCMR 1698) has observed as follows: CA.294/2015. 10 “3. … The importance of the pleadings and its legal value and significance can be evaluated and gauged from the fact that it is primarily on the basis thereupon that the issues are framed; though the pleadings by themselves are not the evidence of the case, the parties to litigation have to lead the evidence strictly in line and in consonance thereof to prove their respective pleas. …” As a general rule and practice, the statements of the witnesses are recorded via-voce, subject to the limitation, in this behalf, set forth in Qanun-e-Shahadat Order, 1984 including Article 137 pertaining to prohibition regarding leading questions and are also subject to cross- examination. Evidence may also be taken in the form of Affidavits, if so, directed or permitted by any Special Law or if specifically ordered by the Court or with the consent of the parties in terms of Order 19 Rule 1 CPC. The procedure adopted by the learned Election Tribunal, in this behalf, was perhaps not strictly in accordance with law and it would have been appropriate for Respondent No.1 to have at least filed a separate affidavit-in-evidence. Be that as it may, in pith and substance the judgment of the learned Election Tribunal is primarily based on the statements of other PWs, more particularly, his Election Agents (PWs 6 and 7) and the Report of NADRA (Exh.E/1) produced by PW-4. In the circumstances, the contentions CA.294/2015. 11 raised in this behalf by the counsel for the Appellant pale into insignificance and have no real bearing on the adjudication of the Election Petition. 9. The learned counsel for the Appellant has assailed the Report of NADRA (Exh.E/1) on two counts; firstly, that the Election Tribunal erred in law by allowing the application under Section 84 of the Order of 1984, for verification of the thumb impressions on the counterfoils of Ballot Papers in the absence of any material evidence on the record to justify such verification, as such verification or re-count cannot be ordered as a matter of course and secondly, that neither the Appellant nor his nominee were associated with the process of the said verification carried out by NADRA. Furthermore, the Report was not proved by the person who actually prepared the same. 10. A perusal of the record reveals that in the reply/counter affidavit filed by the Appellant to the application under Section 84 of the Order of 1984, no objection was raised by the Appellant that there wasn’t sufficient material on the record to justify verification of the thumb impressions. In fact, it was pleaded that verification of the votes cast should be conducted at the CA.294/2015. 12 the home Polling Stations of Respondent No.1 i.e. PS-56 and PS-57 (however no such plea has been advanced before this Court). The Report of NADRA was received and adduced in evidence as Exh.E/1 without any objection being raised by the Appellant regarding its relevance or admissibility. Thus, there is no question about its admissibility in evidence before this Court. 11. The cross-examination of PW-4 reveals that the verification process was carried out in accordance with the predetermined Standard Operating Procedure (SOP) of NADRA and such Report was in fact generated by the Computers. No suggestion was given to PW-4 that the entries in such Computers were made incorrectly. Nothing has come on record to denude the Report of its veracity or to persuade us not to read it in evidence. The fact of the matter is that such Report is on record and therefore in evidence and cannot be ignored by this Court. 12. In the Constituency in question, there were 120 Polling Stations. There is no dispute between the parties with regard to the conduct of the Elections and the tally of the votes in 83 of such Polling Stations. According to the admitted final result of such undisputed CA.294/2015. 13 83 Polling Stations, the Appellant received 20855 votes, while Respondent No.1 received 26839 votes. Thus, Respondent No.1 had a lead of 5984 votes in the said 83 Polling Stations. 13. With regard to the disputed 37 Polling Stations, according to the final tally, the Appellant had received 16012 votes, while Respondent No.1 received 8827 votes. According to the Report of NADRA (Exh.E/1), a total number of 26947 votes were polled at the disputed 37 Polling Stations and the counterfoils of Ballot Papers and other record thereby was sent to NADRA for verification. In the said Report, 4979 counterfoils of Ballot Papers contained thumb impressions, which did not correspond to the CNIC numbers scribed thereupon or did not have any CNIC number. 132 counterfoils contained thumb impressions of persons who had voted more than once. 85 counterfoils of Ballot Papers did not bear any thumb impression of the voters. Thus, a total of 5196 votes, on the face of it, appear to be bogus having not been polled by genuine voters. The thumb impressions on the remaining counterfoils were either found to be genuine or unverifiable due to defective ink used. It is also a matter CA.294/2015. 14 of record that out of the said 37 Polling Stations the Appellant had won in 34 Polling Stations. 14. The aforesaid Report of NADRA establishes that in the aforesaid 37 Polling Stations illegal practices as defined by Section 83 of the ROPA were indulged in inasmuch as Ballot Papers issued to and polled by persons not authorized or entitled under the law to do so. Double voting was also prevalent. However, it has not been proved that such illegal practices were conducted by the present Appellant. In the event of such illegal practices being proved the course of action to be adopted by the learned Election Tribunal and the Orders to be passed in this behalf are circumscribed by Section 70 of the ROPA, which reads as follows:- “70. Ground for declaring election as a whole void.- The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of – (a) the failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election.” 15. Before any Order can be passed by learned Election Tribunal, it must be established on the record CA.294/2015. 15 that the illegal practices have “materially affected” the result of the election. In the instant case, it is evident that the number of identified bogus votes (5196) is more than the lead (38315 - 36960 = 1355) of the Appellant as per the disputed election results notified by the Election Commission of Pakistan. If the result of the 37 Polling Stations in dispute were to be excluded in their entirety from the final tally i.e. it is Respondent No.1 who would have received more votes and would be entitled to be declared as a Returned Candidate. However, it is impossible to determine whether such bogus votes were in fact polled in favour of the Appellant or the Respondents, therefore, re-poll in the said Polling Stations is the only logical way of determining the will of the people of the Constituency in question, as has been ordered by the learned Election Tribunal. 16. It has been noticed that Section 70 of ROPA, endows the learned Election Tribunal with the jurisdiction, in case of commission of illegal practices, to declare the election as whole void. However, in the instant case by way of the impugned judgment, elections in 37 Polling Stations alone have been declared as void and re-poll thereat ordered. In the circumstances, it CA.294/2015. 16 needs to be examined whether such order/judgment could have been passed by the learned Election Tribunal. 17. An overview of the Constitution of the Islamic Republic of Pakistan, 1973, and ROPA reveals that political sovereignty is to be exercised by the chosen representatives of the people, as is apparent from the Preamble and the Article 2A of the Constitution. Such representatives must be chosen by the people through a free, fair and impartial election, as is mandated by Article 218 of the Constitution. In case of an election dispute, the same must be resolved through an Election Petition by the Election Tribunal, established in terms of Article 225 of the Constitution under ROPA. Such disputes, subject to mandatory procedural requirements, must necessarily be resolved in a manner that the Will of the people is given effect to and respected. Such is the obvious purpose of ROPA and its provisions, like that of any other law, must be construed through a purposive rather than a literal interpretation as is now settled law. Reference in this behalf may be made to the judgments of this Court, reported as (1) Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6), (2) Messrs Gadoon Textile Mills and 814 others CA.294/2015. 17 v. WAPDA and others (1997 SCMR 641) and (3) Federation of Pakistan through Ministry of Finance and others v. M/s. Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710). 18. It is in the above context that the provisions of ROPA must necessarily be construed so that the self- evident purpose of ROPA and its provision is achieved. Upon the culmination of proceedings upon an Election Petition filed before it the Election Tribunal can pass any of the orders or grant any of reliefs as contemplated by Section 67(1) of ROPA, which for ease of reference is reproduced hereunder: “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. 19. On close scrutiny, it would appear that the relief contemplated by Section 67(1)(d) of ROPA “declaring CA.294/2015. 18 the election as a whole to be void” has been used in contradiction to the relief which may be granted under Section 67(1)(c) of ROPA, declaring the election of a returned candidate to be void. It is in the above context that the phrase “as a whole to be void” must necessarily be interpreted. 20. It is a settled law that as a general principle of construction a word or phrase implying the word “whole” ordinarily includes any part thereof. Reference in this behalf may be made to the “Statutory Interpretation” A Code (Fourth Edition) by F A R Bennion MA (Oxon) Barrister, wherein it has been observed, as follows: “Greater includes less The requirement that commonsense shall be used in interpretation brings in such obvious principles as that the greater includes the less: omne majus continent in se minus. This is a principle the law recognizes in many contexts. ………………………………………………….. Example 197.5 Section 3(1) of the Criminal Law Act 1967 states that a person may use such force as is reasonable in the prevention of crime. Milmo J said ‘It is, of course, true that the charge against the defendant was not that he used force but that he threatened to use force. However if force is permissible, something less, for example a threat, must also be permissible …’” CA.294/2015. 19 The aforesaid quoted maxim of interpretation is not unknown to the Courts in Pakistan. Reference in this behalf may be made to the judgment, reported as Reference under S. 12, Sindh Courts’ Act, 1926 [PLD 1956 (W.P.) Karachi 178], wherein Justice S.A. Rehman, as he then was, observed as follows: “Omne majus continet in se minus - the greater contains the less – is a well known maxim of the law.” 21. The aforesaid indicates that the possibility of declaring a part of the election i.e. in some of the Polling Stations to be void appears to have been catered for and flows from Sections 67 and 70 of ROPA when interpreted in accordance with the settled rules of statutory construction especially as both the aforesaid provisions enumerate the reliefs that can possibly be granted by an Election Tribunal upon an Election Petition. It is an equally settled principle of law and a concept firmly embedded in our jurisprudence that a Court or Tribunal endowed with the jurisdiction to grant an entire relief is equally authorized to give partial relief. Reference in this behalf may be made to the judgment, reported as Sind Employees’ Social Security Institution and another v. CA.294/2015. 20 Adamjee Cotton Mills Ltd (PLD 1975 SC 32), wherein it has been held as follows: “It is not disputed that the Social Security Court, on an appeal brought before it under the above section can set aside the order appealed against in its entirety or may grant even partial relief depending upon the facts of a particular case. …” 22. There is yet another aspect of the matter that the Principle of Severability is well recognized and held applicable to election matters. In this behalf, this Court in the judgment, reported as Haji Behram Khan v. Abdul Hameed Khan Achakzai and others (PLD 1990 SC 352), held as follows: “We agree with the High Court that in a case where a serious violation of law or any statutory rule is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable. In this case, respondent No.1 had obtained 5,122 votes and the next highest number of votes obtained were by the petitioner Haji Behram Khan namely 2,625 votes. Admittedly, the three ballot boxes which were not recovered contained only 1,785 votes and even if all of them had been cast in favour of Haji Behram Khan (petitioner herein) he would still have lost. In these circumstances, to declare the election of the whole constituency as void on account of the misdoings or the CA.294/2015. 21 hooliganism perpetrated by the supporters of other candidate would be to encourage candidates who felt that they are losing getting the whole election annulled and frustrating the wishes of the electorate. This Court will not easily countenance such a malversion of the electoral process. It has been repeatedly held by this Court that it shall not act in aid of injustice and where an order of the High Court has been passed to bring about a just, proper and fair result, this Court will not interfere.” 23. In the case of Mrs. Monica Kamran Dost v. Mrs. Lilavati Barchandani and another (PLD 1987 SC 197), equal numbers of valid votes were polled in favour of the two contesting candidates. The Returning Officer misapplied the provisions of sub-rule 5 of rule 66 of the Representation of the Peoples (Conduct of Election) Rules, 1977. On an Election Petition, the Election Tribunal apparently following a literal interpretation of Section 70 of ROPA, declared the election as a whole void. On appeal, this Court modified the result and the contention that the Election Tribunal should have declared the election of the Appellant to be void was repelled. 24. Furthermore, such an interpretation would encourage and enable a losing candidate to precipitate a re-poll in the entire Constituency by disturbing the CA.294/2015. 22 election at one or two Polling Stations and thereby frustrating and subverting the purpose of the law. 25. The ROPA in addition to the powers conferred on the Election Tribunal has also conferred powers on the ECP to pass appropriate orders regarding the conduct of the election, including Section 103-AA, which is reproduced hereunder: “Sec. 103-AA. Power of Commission to declare a poll void.—(1) Notwithstanding anything contained in this Act, it, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108. (2) Notwithstanding the publication of the name of a returned candidate under sub-section (4) of section 42, the Commission may exercise the powers conferred on it by sub-section (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal. (3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a CA.294/2015. 23 Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.” A perusal of the aforesaid provisions makes it clear and obvious that inter alia on account of violation of any of the provisions of ROPA or the Rules framed thereunder or on account of grave illegality, the ECP may declare the poll in any Constituency as void. It may be noticed that no specific power has been conferred to declare an election in a part of the Constituency as void or to direct a re-poll at a few Polling Stations, yet in exercise of the powers conferred by Section 103-AA of ROPA, the ECP on many occasions has ordered re-poll in a few specific Polling Stations. An order in one of such cases was challenged, inter alia, on the ground that in terms of Section 103-AA of ROPA, election as a whole could be declared void and no partial re-poll in a few Polling Stations could be ordered. In the said case, reported as Aftab Shahban Mirani and others v. Muhammad Ibrahim and others (PLD 2008 SC 779) it was held as follows: “The emphasis of the learned counsel for the respondent that the Election Commission, without holding proper inquiry could not exercise powers under section 103-AA of the Act to declare the election of a constituency as CA.294/2015. 24 a whole void and there is also no concept of partial declaration of election void, has no legal foundation. The Election Commission of Pakistan may exercise power under section 103- AA of the Act in the manner provided therein and not beyond that, but the plain reading of section 103-AA of the Act would show that meaning of expression “in the constituency void” 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 stations. It was held in Abdul Hamid Khan Achakzai v. Election Commission of Pakistan 1989 CLC 1833 as under:-- “Election commission’s jurisdiction for declaring election of the whole constituency as void would depend on being satisfied about the existence of grave illegalities or serious violations of the provisions of the Act LXXXV of 1976 or Election Rules in the conduct of polls in any constituency.” It was further held that:- “No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of section 103-AA but such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation.” Holding of a re-poll in a few Polling Stations is not alien to our electoral jurisprudence. 26. The provisions of the Indian Representation of the People Act, 1951, with regard to the Election Petitions CA.294/2015. 25 are not dissimilar to that of ROPA. Though no doubt, the phrase “declaring the election as a whole void” has not been employed yet in the relevant provisions, no specific power to declare the election in a few Polling Stations as void is granted. The Supreme Court of India upon an Election Petition has repeatedly declared the result of a few Polling Stations to be void and a re-poll in such Polling Stations ordered. Reference in this behalf may be made to the judgments, reported as Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others (AIR 1978 SC 851) and A. C. Jose v. Sivan Pillai and others (AIR 1984 SC 921). 27. In view of the above, it appears that to interpret Sections 67 and 70 of ROPA so as to limit the jurisdiction of the Election Tribunal in case of presence of illegal practices to declare the election as a whole void, would be too literal, rigid and ritualistic to be accepted in this day and age of purposive, realistic and beneficial interpretation. Such interpretation would also offend against the well recognized common sense principle of interpretation and is contrary to the erstwhile maxim of “the greater contains the less” which has been applied by the Courts. We cannot also loose sight of the fact that the CA.294/2015. 26 Election Tribunal is for all intents and purposes a Court and it is settled law that Courts and Tribunals can not only grant the entire relief permitted by law but also any part thereof. The principle of severability is also well recognized and the same is duly attracted to elections thereby isolating the result in a few Polling Stations where poll was contaminated and directing a fresh poll thereat. It is also obvious that such principles have been applied by this Court, both with reference to the powers of the ECP under Section 103-AA and by the Election Tribunal, as is evident from the judgments referred to and reproduced hereinabove. Directing a re-poll in some Constituencies as was done in the instant case is also a course of action adopted and followed by the Supreme Court of India in the election matters. Such interpretation besides conforming to the established principle of interpretation advances the object and intent of Articles 218, 219 and 225 of the Constitution and the provisions of ROPA. Furthermore, thereby the mischief of encouraging disruption of the poll is suppressed. 28. The legal position that emerges is that in terms of Section 70 of ROPA in the eventuality of a failure to comply with the mandatory provisions of ROPA and the CA.294/2015. 27 Rules or in the presence of illegal practices, an Election Tribunal in exercise of powers under Section 70 of ROPA, may declare the election as a whole to be void. However, the Election Tribunal is not denuded of the jurisdiction to grant partial relief of declaring the election at a few Polling Stations to be void and directing a re-poll thereat. Which of the two available courses of action to be followed would depend on the facts and circumstances of each case. The real and decisive factor would be the fulfillment of the mandate of the Constitution and ROPA of ensuring the will of the people is given effect to through a free, fair and impartial election. It should be ensured that no prejudice is caused to any of the candidates. In the instant case, it is not even the case of the Appellant that any prejudice has been caused to him nor any such plea has even been taken in grounds of Appeal or otherwise canvassed at the bar. 29. We are aware that a different view regarding the interpretation of Section 70 of ROPA has been taken in the majority decision of the case reported as Dr. Raja Aamer Zaman v. Omar Ayub Khan and others (2015 SCMR 1303). However, for the aforesaid reasons, we are unable to agree therewith. CA.294/2015. 28 30. In the instant case, there is no dispute in 83 Polling Stations, the re-election in 37 Polling Stations will cause no prejudice to the Appellant. No such prejudice or disadvantage has been pleaded. In fact this aspect of the order of directing the re-election in only 37 Polling Stations has not been called into question by the Appellant either in the grounds of appeal or at the bar by his counsel during the course of arguments. 31. In short, no exception can be taken to the judgment of the learned Election Tribunal dated 10.04.2015. No legal or factual grounds exist warranting interference therewith by this Court. Consequently, this Civil Appeal being without merit is dismissed with no order as to cost. Judge Islamabad, the Judge 10th December, 2015 Judge Approved For Reporting Mahtab H. Sheikh/* CA.294/2015. 29 Qazi Faez Isa, J.- I agree with my most distinguished colleague that the appeal merits dismissal. However, I do not want to express any view on whether partial re-poll is permissible under section 70 of the Representation of the People Act, 1976 since the learned counsel for the appellant Mr. Farooq H. Naek did not raise this point and neither counsel made any submission thereon. Therefore, the discussion and findings on the said issue, contained in paragraphs 16 through to 29 of the Judgment, should not be construed as concurrence by me of the same. Judge

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE SH. AZMAT SAEED CIVIL APPEAL NO. 297 OF 2014 (On appeal from the judgments dated 3.2.2014 passed by the Lahore High Court, Lahore in WP No. 31986/2013 etc) Election Commission of Pakistan through its Secretary … Appellant VERSUS Province of Punjab through its Chief Secretary and others … Respondents For the Appellant: Mr. Muhammad Akram Sh, Sr. ASC assisted by Mr. Moazzam Habib, Advocate Mr. Faraz Raza, Advocate and Mr. Mehmood A. Sheikh, AOR Mr. Sher Afghan, D.G, ECP Mr. Abdur Rehman, Law Officer For the Respondents: Mr. Mustafa Ramday, Advocate General Barrister Waseem Qureshi, Addl. A.G. Mr. Muhammad Azhar Siddique, ASC Mr. Muhammad Saleem, Asstt. Director, Local Government Bhakkar Mr. Haq Nawaz, in person Mr. Muhammad Khan, Narowal, in person Mr. Muhammad Fakhar-uz-Zaman, in person Mr. Muhammad Sarwar, in person On Court Call: Mr. Salman Aslam Butt, Attorney General Mr. S.M. Attique Shah, Addl. Attorney General Dates of Hearing: 17 to 21st February. 2014 & 3,4,12,13 & 19th March, 2014 ORDER TASSADUQ HUSSAIN JILLANI, CJ.- We have heard learned counsel for the appellant, for the respondents, learned Advocate General Punjab and learned Attorney General for Pakistan. CIVIL APPEAL NO. 297 OF 2014 2 2. For reasons to be recorded later in the detailed judgment, we hold, declare and direct as under:- i) that the power to hold elections of the Local Government stand vested in the Election Commission of Pakistan in terms of Article 140A of the Constitution of Islamic Republic of Pakistan. The Election Commission of Pakistan has been mandated to “organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against” (Article 218(3) of the Constitution); ii) that Sections 8 to 10 of the Punjab Local Government Act, 2013 and the relevant Rules framed there-under are ultra vires of the Constitution in so far as they empower the Provincial Government to carry out the delimitation of the constituencies for the Local Government; iii) that since the delimitation of constituencies of the Local Government is part of the process of organizing and holding elections honestly, justly and fairly which is the Constitutional mandate of the Election Commission of Pakistan, the power to carry out such delimitation should vest with the Election Commission of Pakistan; iv) that since the holding of election of Local Government has been delayed for more than nine years, which is CIVIL APPEAL NO. 297 OF 2014 3 violative of the Constitutional command, we are persuaded to direct the Governments, Federal and Provincial (of Punjab) to carry out appropriate amendments / legislation to empower the Election Commission of Pakistan to initiate and carry out the process of delimitation of constituencies for the Local Government Elections. This exercise should be completed within a period of five months from today and the Election Commission of Pakistan shall thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/amendments in laws in terms of this order. The Election Commission of Pakistan shall further ensure that the announcement of election schedule and the process of holding it is complete by or before 15th of November, 2014. 3. The appeal stands disposed of in terms noted above. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 19th of March, 2014 Approved For Reporting Khurram

{'id': 'C.A.297_2014.pdf', 'url': ''}

{'id': 'C.A.297_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 30-L OF 2018 (On appeal against the judgment dated 03.11.2017 passed by the Lahore High Court, Lahore in Writ Petition No. 26075/2014) Federation of Pakistan through Secretary Establishment, Islamabad …Appellant(s) VERSUS M.Y. Labib-ur-Rehman and others …Respondent(s) For the Appellant(s): Mr. Sajid Ilyas Bhatti, Addl. Attorney General Syed Rifaqat Hussain Shah, AOR For the Respondent (1): In person Date of Hearing: 09.07.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The instant appeal has been filed by the appellant under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, calling in question the vires of the impugned judgment dated 03.11.2017 passed by the Lahore High Court, Lahore, whereby the Constitutional petition filed by the respondent No. 1 was allowed and a direction was issued to the appellant to grant antedated promotion to the respondent in BS-21 with effect from 09.10.2002 instead of 30.03.2010 and further to grant him proforma promotion in BS-22 with effect from 04.05.2005. The appellant was also burdened with special cost of Rs.200,000/- for entangling the respondent in unnecessary litigation for years and intentionally frustrating the findings of this court in his favour. 2. The facts in brief are that the respondent joined civil service of Pakistan in the year 1974. Eventually, he was promoted to BS-20. He was considered for further promotion to BS-21 in the years 2001 to 2006. However, as he could not meet the minimum threshold required for promotion, the Central Selection Board recommended him for supersession. In the year 2007, the case of the respondent was deferred due to incomplete Personal Evaluation Civil Appeal No. 30-L/2018 -: 2 :- Report. In the year 2008 & 2009, he was again considered for promotion but his case was recommended for supersession. The case of the respondent was once again considered in the year 2009 but the Central Selection Board again deferred the same on the ground that he had not earned PER for one full year. Being aggrieved, the respondent filed Service Appeal before the Federal Service Tribunal, Islamabad, with a prayer that the PERs earned during the service when the respondent was placed in BS-19 commencing from the period November, 1992 to April, 1998 be treated as PERs to have been earned in BS-20 and the same be considered and re-quantified for the purpose of promotion to BS-21. The Service Tribunal after taking into consideration all facts and circumstances dismissed the appeal of the respondent vide judgment dated 24.04.2004. However, a direction was issued to re- examine the case of the respondent in its entirety. In pursuance of the direction issued by the Federal Service Tribunal vide judgment referred above, a summary was en-routed to the President of Pakistan through Prime Minister but the same was turned down vide order dated 27.01.2007. In the second round of litigation, the respondent preferred to challenge the order dated 27.01.2007 before the Federal Service Tribunal but the same was dismissed vide judgment dated 21.07.2009. The order of the Service Tribunal was assailed before this Court by filing Civil Petition No. 1791/2009, which was converted into appeal and allowed vide order dated 26.03.2010 with a direction to the appellant to re-evaluate the grievances of the respondent. Pursuant to the order of this Court, the case of the respondent was thoroughly probed by the Central Selection Board and finally it refused to grant him BS-22. However, his promotion to next grade i.e. BS-21 was notified vide order dated 30.03.2010 and on the very next day i.e. 31.03.2010, he after attaining the age of superannuation retired from service. Thereafter, the respondent while availing another forum under the law filed a Constitutional Petition No. 27499/2012 before the Lahore High Court, Lahore praying therein for the grant of antedated promotion to BS-22. The learned High Court without questioning the maintainability of the said petition transmitted the copy of the Constitutional petition to the quarter concerned to be treated as representation for its consideration. The appellant considered the Civil Appeal No. 30-L/2018 -: 3 :- case of the respondent for the third time in compliance with the order passed by the High Court but again the Central Selection Board maintained its earlier decision of supersession with approval of the competent authority. The respondent once again filed a Constitutional Petition No. 26075/2014 before the Lahore High Court, Lahore with a prayer for antedated promotion in BS-21 and proforma promotion to BS-22, which petition succeeded vide impugned judgment. Hence, this appeal by leave of the Court. 3. At the very outset, the learned Additional Attorney General inter alia contended that the judgment of this Court in the earlier round of litigation has been complied with in letter and spirit while granting the respondent promotion to BS-21 yet he assailed Constitutional jurisdiction of the High Court calling in question the same grievances, which had been earlier decided by altogether a different forum; that the respondent could not have approached two different forums at the same time seeking the same relief, which is squarely hit by Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973; that the learned High Court has wrongly assumed the jurisdiction and acceded to the prayer of the respondent, which was uncalled for specially when it is an admitted fact that the respondent has never touched the minimum threshold, which was essential for the promotion whereas the High Court has assumed the jurisdiction of Central Selection Board while passing the impugned judgment and not only transgressed its jurisdiction rather has passed the judgment, which is against the law on the subject. 4. On the other hand, respondent No. 1 (in person) has defended the impugned judgment. The main stay of the arguments advanced by the respondent is that he has been deprived of his right without any fault at his part rather he has been subjected to victimization without any blemish on his part; that he has agitated his grievance for a period of 18 years and finally the same was redressed by the High Court in the second round of litigation; that he was fully justified/entitled for the antedated promotion, which was denied to him without any justiciable reasoning. 5. We have heard learned Law Officer as also the respondent in person and have perused the available record. Civil Appeal No. 30-L/2018 -: 4 :- We have extensively perused the available record and even the conduct of the respondent, which is spread over a span of 18 years. The career of the respondent as civil servant remained smooth till he was placed in BS-20. We have noticed that the competent authority declined to promote the respondent in next scale on the basis of clear and sound foundation. It is an admitted fact that the respondent was superseded for six consecutive years commencing from 2001 to 2006. Similarly, in 2007 due to incomplete PERs the case of the respondent was not considered whereas on the following two years i.e. 2008 & 2009, the case of the respondent was deferred on the similar grounds i.e. he could not meet the minimum threshold of 75% marks. The respondent twice approached the Federal Service Tribunal for redressal of his grievances. In the second round of litigation the order of Service Tribunal dismissing respondent’s appeal was challenged before this Court, which leaves no room that the respondent was fully conversant with the scheme of the law and the forum to agitate his grievances. After exhausting the appropriate remedies available under the law, the respondent preferred to file Constitutional petition in the year 2012 wherein the question of maintainability was not raised and the same was transmitted to the competent authority by treating it as a representation but the competent authority maintained its earlier decision. The second Constitutional petition in which the respondent succeeded and which is impugned before us was primarily hit by the principle of res judicata and consequently ought to have been not entertained by the High Court in view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan. The High Court without indulging into the question of maintainability passed the order in cyclostyle fashion while assuming the jurisdiction which is not vested in it. This Court in the recent judgment dated 21.05.2021 titled as ‘Khalilullah Kakar Vs. PPO Balochistan’ passed in Civil Appeal No. 909/2020 etc has candidly held that Article 212 of the Constitution specifically places an embargo on all other courts except the Service Tribunal to assume jurisdiction. It is now established that any lis relating to terms and conditions of service is within the domain of administrative courts and tribunals established under Article 212 and even if the element of mala fides, ultra vires or coram non judice is pressed into, the Civil Appeal No. 30-L/2018 -: 5 :- same can be entertained and decided by the said courts in its jurisdiction. There is no denial to this fact that the bare reading of the said Article is of significant importance especially with reference to its exclusive jurisdiction to entertain matters relating to terms and conditions of service. Hence, in all eventualities any petition relating to terms and conditions of service is to be dealt with by administrative courts and tribunals specifically established for its adjudication in pursuance of Article 212 of the Constitution. As a general principle, the framers of the Constitution while inserting the said provision have ousted the jurisdiction of other courts including the High Court under Article 199 of the Constitution. There are certain exceptions depending upon the facts and circumstances on case to case basis because of the reason that the law is not static and the same is growing day by day, therefore, it cannot be said with certainty that in all eventualities the service issues cannot be called in question in Constitutional jurisdiction before the High Court. The Constitutional jurisdiction is always considered as extraordinary, which is to be exercised in extraordinary circumstances if so warranted, hence, the Constitutional jurisdiction cannot be curtailed stricto sensu leaving some room for its application where it is so demanding for safe administration of justice and fair play. The superior courts while exercising Constitutional jurisdiction must satisfy themselves that they may not interfere or infringe the jurisdiction of any other statutory forum in any manner when an equally efficacious / adequate remedy is available under the statute for the redressal of the grievances of the litigants. Hence, the superior courts should be reluctant to frustrate the statutory remedies while exercising their Constitutional jurisdiction, which otherwise has to be exercised sparingly while enabling to advance the legislative intent. 6. Now, we will consider the merits of the case. The learned High Court while passing the impugned judgment put much stress on the point that this Court in the earlier round of litigation had allowed the appeal of the respondent by observing that he has been deprived of his right, which was denied to him for technical reasons. We have perused the earlier judgment of this Court and found that this Court only sent back the matter to the appellant department for considering respondent’s case in view of the Civil Appeal No. 30-L/2018 -: 6 :- seniority list and the rules on the subject and nowhere in the judgment it was directed that the respondent be given antedated promotion. We have been informed that in compliance with the judgment of this Court, case of the respondent was processed by circulation and on the recommendation of the Central Selection Board and after approval of the competent authority, he was promoted to BS-21 vide notification dated 30.03.2010. So far as grant of antedated promotion to the respondent in BS-21 with effect from 09.10.2002 is concerned, we have noted that the respondent was considered for promotion by the Central Selection Board in the years 2001 to 2006 but was recommended for supersession due to the reason that his quantified score was below the minimum threshold prescribed for promotion. In the year 2007, his case was deferred due to incomplete Personal Evaluation Reports. In the year 2008 & 2009, he was again considered for promotion but his case was recommended for supersession due to the same reason i.e. he could not meet the minimum threshold. Again in the year 2009, his case was considered for promotion but was deferred due to reason that he had not earned Personal Evaluation Report for one full year. The respondent did not challenge his supersession for the years 2001 to 2006 and only filed Service Appeal before the Federal Service Tribunal in the year 2008 with the prayer that PERs earned by him in BS-19 during the period from November, 1992 to April, 1998 be treated as PERs to have been earned in BS-20 and be re- quantified for the purpose of promotion to BS-21 but the same stood dismissed and on appeal before this Court, the matter was sent to the department for consideration and ultimately, he was given BS- 21 with effect from 2010. We have been informed that pursuant to the order passed by the learned High Court in Writ Petition No. 27499/2012 on 21.02.2013, the case of the respondent was again placed before the Central Selection Board in February, 2014 to review its earlier recommendation for supersession. The Board had reopened the cases of earlier supersessions after more than 14 years and after thoroughly checking the record maintained its earlier decision. As far as the question that as the employees junior to the respondent have been promoted, the respondent also deserves the antedate promotion is concerned, this Court in the case of Abdul Ghani Chaudhry Vs. Secretary Establishment, Islamabad (1998 Civil Appeal No. 30-L/2018 -: 7 :- SCMR 2544) has held that civil servant who was consciously superseded after considering his service record by the departmental promotion committee cannot regain his original seniority or subsequent promotions so long the order of the promotion committee superseding him stands in the field and supersession of the civil servant in such a case is neither advertent nor same falls in the category of deferment, so as to entitle the civil servant, on subsequent promotion, to regain his original seniority. In this view of the matter, the antedated promotion with effect from 09.10.2002 could not have been granted to the respondent and only his promotion to BS-21 with effect from 30.03.2010 was justified. Rule 4(i) of Civil Servants (Promotion to the Post of Secretary BS-22 and Equivalent) Rules, 2010, clearly mandates that two years’ service in BS-21 is mandatory for consideration for promotion to BS-22. As the respondent did not have the minimum service of two years at the time of his superannuation on 31.03.2010, therefore, he could not have been given proforma promotion to BS-22. Under the aforementioned circumstances, it is established without any hesitation that the impugned judgment passed by the High Court is the result of misreading and non-reading of record and the law on the subject, hence, is not sustainable in the eyes of law. As a consequence, this appeal is allowed and the impugned judgment is set aside. CHIEF JUSTICE JUDGE Islamabad, the 9th of July, 2021 Not Approved For Reporting Khurram

{'id': 'C.A.30-L_2018.pdf', 'url': ''}

{'id': 'C.A.30-L_2018.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.300, 346, 812 AND 851 TO 854 OF 2017 (Against the judgments dated 03.08.2016, 16.01.2017, 14.04.2017, 22.01.2016, 19.04.2017 and 05.05.2017 of the Islamabad High Court, Islamabad passed in Writ Petitions No. 2448, 2612, 4319/2016, 853-854/2015, 636 and 3046/2016) 1. Waqar Zafar Bakhtawari In C.A.300/2017 2. M/s Superior Security Guards Pvt. Ltd. In C.A.346/2017 3. Muhammad Nadeem In C.A.812/2017 4. Muhammad Ashiq In C.A.851/2017 5. Muhammad Mushtaq In C.A.852/2017 6. Muhammad Umer Farooq In C.A.853/2017 7. Asad Hussain In C.A.854/2017 …Appellant(s) VERSUS 1. Haji Mazhar Hussain Shah etc. In C.A.300/2017 2. Sher Muhammad In C.A.346/2017 3. Malik Ejaz Amjad etc. In C.A.812/2017 4. Muhammad Zubair etc. In C.A.851/2017 5. Muhammad Zubair etc. In C.A.852/2017 6. Muhammad Ameen Chughtai etc. In C.A.853/2017 7. Sheikh Abdul Saboor (decd.) thr. Ltd. etc. In C.A.854/2017 …Respondent(s) For the appellant(s): Mr. Muhammad Ilyas Sheikh, ASC Ch. Akhtar Ali, AOR (In C.A.300/2017) Mr. Naveed Malik, ASC (In C.A.346/2017) Mr. Junaid Akhtar, ASC (In C.A.812/2017) Mr. Fiaz Ahmed Jandran, ASC Syed Rifaqat Hussain Shah, AOR (In C.A.851 & 852/2017) Raja M. Aleem Khan Abbasi, ASC (In C.As.853 & 854/2017) For the respondent(s): Mr. Mir Afzal Malik, ASC (In C.As.300 & 853/2017) Mr. Waseem Ahmed Qureshi, ASC (In C.A.346/2017) CAs 300,346,812,851/17 etc. -: 2 :- Mr. Tariq Khushnood Qureshi, ASC (In C.A.812/2017) Syed Masood Hussain, ASC Syed Rifaqat Hussain Shah, AOR (In C.As.851 & 852/2017) Mr. Sajid Ilyas Bhatti, ASC (In C.A.854/2017) Amicus curiae: Syed Najmul Hassan Kazmi, Sr. ASC Sardar Muhammad Aslam, ASC Date of hearing: 20.9.2017 … ORDER MIAN SAQIB NISAR, CJ.- All these appeals with the leave of the Court primarily involve the same proposition of law, therefore, are being disposed of together. 2. In all these cases, the appellants are the tenants of the respondents/landlords and the premises in question are situated in the Islamabad Capital Territory (ICT). Thus, in order to seek eviction of the appellants, the respondents filed applications under the provisions of Section 17 of the Islamabad Rent Restriction Ordinance, 2001 (the Ordinance, 2001) on the ground, inter alia, that the period of tenancy has expired. Resultantly, the forums below passed the eviction orders on the basis of expiry of the term of tenancy. 3. Leave in these cases was granted to consider whether the expiry of the term of tenancy is one of the grounds as envisaged by Section 17 of the Ordinance, 2001 for the eviction of the tenant. 4. Mr. Muhammad Ilyas Sheikh, ASC, learned counsel for the appellant in Civil Appeal No.300 of 2017 has led the arguments on behalf of the appellants’ side against eviction orders and submitted that in view of the unambiguous and clear language of Section 17 of the Ordinance, 2001 “a tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the CAs 300,346,812,851/17 etc. -: 3 :- provisions of this Section” (emphasis supplied); thus, the Rent Controller would only have the jurisdiction to pass an eviction order if the case squarely falls within the purview of the said Section; therefore, as there is no specific ground mentioned in the noted section, which enables the landlord to seek eviction of the tenant on expiry of period of tenancy, the impugned orders are not only against the law but passed without jurisdiction. He has also submitted that despite the expiry of the period of tenancy, a person who was holding the property as a tenant shall continue to be a tenant and reference in this behalf has been made to the definition of term “tenant” given in Section 2(j) of the Ordinance, 2001. He, thus, urged that on account of the expiry of the tenancy period, the status of tenant neither extinguishes nor changes and he (the tenant) continues to be entitled to occupy the property, and shall only be liable to be evicted if the strict grounds set out in Section 17 of the Ordinance, 2001 are met with specifically. With regard to the effect and implication of Section 6 of the Ordinance, it is argued that such provision is subject to the provisions of Section 17 of the Ordinance, 2001; meaning thereby that it is subservient and subordinate to the said section, but in any case Section 6 of the Ordinance, 2001 by itself does not provide any ground for eviction of the tenant on expiry of the tenancy period. The learned counsel has also submitted that the forums below, for justifying the eviction order, have relied upon the provisions of Section 17(2)(ii)(b) of the Ordinance, 2001, which provides that a tenant can be evicted if he “has infringed any condition on which the building or rented land is held”. This provision, according to the learned counsel, relates to the terms and conditions specified in the tenancy agreement under which certain obligations have been imposed upon the tenant, CAs 300,346,812,851/17 etc. -: 4 :- but it has nothing to do with the expiry of the period of tenancy and eviction on that account. It is also argued that Section 17 of the Ordinance, 2001 opens with the negative expression that “a tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this Section” (emphasis supplied), thus, the mandate of the law for the purposes of eviction of the tenant is only restricted to the said section and no other provision of the Ordinance in this context can be resorted to, specifically Section 6 of the Ordinance, 2001, for the reason that (i) it does not provide the ground for eviction and (ii) it is subject to the provisions of Section 17 ibid. It is further submitted that Section 4 of the Ordinance, 2001 is an overriding provision and excludes the application of any other law to the issues covered by the Ordinance, 2001, therefore, the general law i.e. the Transfer of Property Act, 1882 (the Act, 1882) regarding the determination of tenancy, the right of holding over and entitlement of the landlord to get back the possession of the rented premises on the expiry of tenancy term, shall not be attracted. In support of his arguments, he has relied upon the judgments of this Court reported as Chairman, Federal Board of Revenue Islamabad Vs. Messrs Al- Technique Corporation of Pakistan Ltd. and others (PLD 2017 SC 99), Mst. Zarina Khan Vs. Mst. Farzana Shaib (2017 SCMR 330), Lucky Cement Ltd. Vs. Commissioner Income Tax, Zone Companies, Circle-5 Peshawar (2015 SCMR 1494) and Rana Abdul Hameed Talib Vs. Additional District Judge Lahore and others (PLD 2013 SC 775) and the judgment of the learned Lahore High Court reported as Mst. Munawar Sultana Vs. Additional District Judge, Islamabad and 2 others (2005 CLC 1119 at Page 1123). CAs 300,346,812,851/17 etc. -: 5 :- 5. In Civil Appeals No.853 and 854/2017, Raja Muhammad Aleem Abassi, learned ASC for the appellants, has argued that on account of the expression ‘subject to’ used in Section 6 of the Ordinance, 2001, such Section in its application is only restricted to the case covered by Section 17(4)(b) of the Ordinance, 2001 and the proviso there to, which provides that if “the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period.” The learned counsel for the appellants in other cases more or less have made the same submissions. 6. The learned counsel for the respondents, however, argued that Section 6 of the Ordinance, 2001 in law extinguishes and puts an end to a tenancy on expiry of the tenancy period either fixed between the parties or that envisaged by the said Section itself, and thereafter, renders such tenancy invalid. Resultantly, if the tenant continues to occupy the property after the expiry of that period, it shall be an infringement of the terms and conditions of tenancy in terms of Section 17(2)(ii)(b) of the Ordinance, 2001 and such a tenant shall be liable to be evicted. Reliance by the respondents’ side has been placed upon the judgments reported as Qaiser Javed Malik Vs. Pervaiz Hameed (2009 SCMR 846), Ghulam Abbas Vs. Additional Sessions Judge (West) Islamabad and 2 others (2015 MLD 1740), Nadeem Raza Abbasi Vs. Sardar Abu Bakar and 2 others (2016 CLC 1051) , Pakistan State Oil Company (Pvt.) Vs. Zulekha Khanum and 6 others (2016 CLC 1850) and, Sh. Amir Farooq Vs. Sh. Usman and others (2016 MLD 103). 7. Syed Najmul Hassan Kazmi, learned Sr. ASC, and Sardar Muhammad Aslam, learned ASC, were appointed as amici curiae in CAs 300,346,812,851/17 etc. -: 6 :- these matters. Syed Najmul Hassan Kazmi, learned Sr. ASC has submitted that there are three laws on the subject, which are relevant; (i) West Pakistan Urban Rent Restriction Ordinance, 1959 (Ordinance, 1959); (ii) an amendment made therein in the year 1965, i.e. West Pakistan Urban Rent Restriction (Amendment) Ordinance, 1965 (Amendment Ordinance, 1965) and (iii) Punjab Rented Premises Act 2009 (Act, 2009). According to him, the object and purpose of the Ordinance, 1959 was to restrict the undue increase of rent and also to bar the eviction of a tenant which otherwise was done by virtue of the general law of the land, namely the Act, 1882. He also mentioned Section 13(2)(ii)(b) of the Ordinance, 1959 and made reference to the amendment brought in the said Ordinance vide the Amendment Ordinance, 1965 to contend that the Ordinance, 1959 was made applicable to all the tenancies, which were prevalent at the time of the enforcement of the Ordinance, 1965 and to those created thereafter. It is also submitted that even if the special law has an overriding effect on the other laws, including the general law, the terms and conditions settled between a landlord and the tenant, which were inconsistence with the special law could not be given effect to and the special law shall prevail; but where there is no conflict, as mentioned above the general law shall be applicable. In this respect he has placed reliance on the judgment of this Court reported as Mrs. Zarina Khawaja Vs. Agha Mahboob Shah (PLD 1988 SC 190 at 199 to 201) to argue that while considering the analogous provisions of Sindh Rented Premises Ordinance, 1979 (the Ordinance, 1979), this Court has come to the conclusion that where the provisions of aforesaid law or the lease agreement are not violated, the general law of the land shall be attracted. It has also been mentioned that in this context the general CAs 300,346,812,851/17 etc. -: 7 :- law which shall apply is the Act, 1882 . Section 108(q) of the Act of 1882 clearly postulates that after the determination (expiry) of the tenancy period, the tenant is bound to put the landlord back to the possession of the lease property. He has also mentioned the preamble of the Ordinance, 2001 to submit that the said Ordinance has been enforced “to regulate the relations between the landlords and tenants of rented premises in the Islamabad Capital Territory and to provide matters ancillary thereto or connected therewith”. This is unlike the preamble of Ordinance, 1959, which was meant to resist the increase in the rent and the eviction of the tenants. It is therefore argued that Section 6 of the Ordinance, 2001 has been deliberately made part of the Ordinance which provides that “Subject to the provisions of section 17, no tenancy shall be valid beyond such period as the landlord and tenant may, by mutual agreement, fix before or after the commencement of the tenancy”. The pith and substance of his arguments is that Section 6 ibid should be read in conjunction with Section 17 ibid and not in a manner that it shall be held nugatory and redundant, as no provision of a statute should be rendered redundant or made nugatory. Thus, according to the learned counsel, the provisions of Section 17(2)(ii)(b) shall be read with Section 6 of the Ordinance, 2001 so that both the sections could be saved and harmoniously interpreted. In connection with Section 2(j) of the Ordinance, 2001, it is argued that this is only meant for the purposes of enabling the landlord to seek eviction of his tenant under the provisions of the Ordinance, 2001 even after expiry of the term of tenancy, in that a person who holds over the property after the expiry of tenancy, should be evicted under the provisions of the Ordinance, 2001 rather approaching the civil court in its pecuniary jurisdiction; thus, Section CAs 300,346,812,851/17 etc. -: 8 :- 2(j) ibid cannot be given any enlarged meaning so as to hold that a person who is in occupation of a property beyond the tenure of tenancy, shall remain to be a tenant for an unlimited and unrestricted period and that the landlord shall have to seek his eviction only on the ground of default in payment of rent, subletting or personal bona fide need, etc. He elaborated that this provision can only be construed as a reference for bringing an action against such tenant under the provisions of Section 17 of the Ordinance, 2001. 8. In order to appreciate the submissions made by the learned counsel for the parties, we find it expedient to reproduce the relevant provisions of law in a sequence. Section 2(j) of the Ordinance, 2001 defines a tenant and reads: 2(j) “tenant” means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of a building or rented land by him or by any other person on his behalf, and includes,___ (i) any person who continues to be in possession or occupation after the termination of his tenancy; and (ii) in the event of the death of the tenant, the members of his family who continue to be in possession or occupation of the building or rented land. Section 6 of the Ordinance: 6. Tenure of tenancy. Subject to the provisions of section 17, no tenancy shall be valid beyond such period as the landlord and tenant may, by mutual agreement, fix before or after the commencement of the tenancy: Provided that a tenancy in force before the commencement of this Ordinance for which no period is fixed shall cease to be CAs 300,346,812,851/17 etc. -: 9 :- valid on the expiration of a period of two years from such commencement: Provided further that a tenancy which comes into force after the commencement of this Ordinance and for which no period is fixed shall not be valid after expiration of period of six months from the date of the receipt by the tenant of a notice in writing given by the landlord terminating the tenancy. While the relevant part of Section 17 of the Ordinance envisages as follow: 17. Eviction of tenant. (1) A tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with provisions of this section. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that:- (i) ………………………………… (ii) the tenant has without the written consent of the landlord:- (a) ……………………….. (b) used the building or rented land for purpose other than that for which it was leased or has infringed any conditions on which the building or rented land is held; (emphasis supplied) (iii) ……………………………………. (iv) ……………………………………. (v) ……………………………………. Explanation. For the purpose of clause:- (i) ………………………….. (ii) …………………………. (3) ………………………… (4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:- (a) …………………………….. CAs 300,346,812,851/17 etc. -: 10 :- (b) in the case of a commercial building or rented land, if he requires it in good faith for his own use or for the use of any member of his family: Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub- section before the expiry of such period: …………………….” 9. Heard. It may be necessary to mention here that the portions of Section 17 ibid which have been omitted from reproduction are the grounds for eviction of tenant, such as, default in the payment of rent, reconstruction, causing damage to the rented property, nuisance, personal requirement, etc. It is settled that while interpreting the law, a specific provision of any statute, which is independent in nature, cannot and should not ordinarily be held to be redundant, especially on the touchstone of another independent provision of the same statute; rather all possible efforts should be made to apply and adhere to the rules of purposive and harmonious construction, so that the allegedly conflicting provisions should be reconciled and saved. If some precedent law is required in this behalf, reference can be made to the judgments reported as Combind Investment (Pvt.) Ltd. Vs. Wali Bhai (PLD 2016 SC 730), Lucky Cement Ltd. Vs. Commissioner Income Tax, Zone Companies, Circle-5, Peshawar (2015 SCMR 1494), Aftab Shahban Mirani Vs. Muhammad Ibrahim (PLD 2008 SC 779), Collector of Sales Tax and Central Excise (Enforcement) and another Vs. Messrs Mega Tech (Pvt.) Ltd. (2005 SCMR 1166), Mirza Shaukat Baig Vs. Shahid Jamil (PLD 2005 SC 530) and D.G. Khan Cement Company Ltd. Vs. Federation of Pakistan and others (2004 SCMR 456). CAs 300,346,812,851/17 etc. -: 11 :- 10. Now applying the above principle, Section 6 of the Ordinance, 2001 has to be given some meaning to determine its role in the Ordinance. The language of the Section 6 ibid as reproduced above is very clear and it mandates that after the expiry of the tenancy period, or beyond the tenancy period, no tenancy shall be valid. The word ‘valid’ has to be given its ordinary dictionary meaning as it has not been defined in the Ordinance. According to the Oxford dictionary ‘valid’ means “legally binding due to having been executed in compliance with the law; legally or official acceptable”. According to Black’s Law Dictionary Fifth Edition, ‘valid’ means “Having legal strength or force, executed with proper formalities, incapable of being rightfully overthrown or set aside. legally sufficient; binding. Of binding force; legally sufficient or efficacious; authorized by law.” According to Words and Phrases (Permanent Edition) Vol-44 the terms “valid” means “in law having legal strength, force, and effect, or incapable of being rightfully overthrown or set aside; “valid” means efficient, effective; accomplishing what is claimed or intended.”. The word “no” appearing in Section 6 of the Ordinance, 2001 renders a tenancy beyond the expiry or tenure “invalid”. The term “invalid” has been defined in Oxford dictionary as “not valid, not legally recognized because it contravenes a regulation of law”. In Black’s law Dictionary “invalid” means “not legally binding; without basis in fact”. In Words and Phrases Permanent Edition Vol-22A “ invalid” means “of no force; weight; cogency; not valid; weak. Law having no force or effect; void, null; as an invalid contract”. 11. Thus, as per the clear mandate of Section 6 ibid, such a tenancy shall come to an end after the expiry of the term of tenancy and if thereafter the tenant holds such a property without the consent CAs 300,346,812,851/17 etc. -: 12 :- of the landlord, it shall be a clear violation and the infringement of the condition of the tenancy, on which the property was held by him, because the condition of tenancy is for a particular period of time either by the terms stipulated in the tenancy agreement or by the afflux of time, which is specified in Section 6 (ibid.) itself. Thus, the case is squarely covered by Section 17(2)(ii)(b) of the Ordinance, 2001. Much emphasis has been made on the language of Section 17(1) of the Ordinance, 2001 that a tenant shall not be evicted except in accordance with the provisions of the said Section, wherein certain specific grounds have been provided and Section 6 ibid has been made subject to Section 17 ibid which means that it is subordinate and subservient to the said Section. In this regard it is to be noted that in Black’s Law Dictionary, fifth Edition, the term “subject to” has been defined as under:- “Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for.” (emphasis supplied) Thus, the expression “subject to” cannot always be construed as ‘limited to’, but can also be read as “provided that” or “provided”, which means that Section 6 ibid would be applicable provided that there is a ground available in Section 17 ibid. Therefore, applying the above said definition to the expression “subject to” a tenant, who holds the property beyond the term of tenancy, under Section 17(2)(ii)(b) of the Ordinance, 2001 shall be evicted from the premises which is held on the condition for holding it for a specific period of time if he continues to occupy the rented property beyond such period without the “written consent” of the landlord. Eviction of the tenant thus will be CAs 300,346,812,851/17 etc. -: 13 :- on the grounds of violation of the term of tenancy which will be seen as a condition of the tenancy agreement. This purposive and harmonious interpretation of Section 6 ibid, when it interplays with the provisions of Section 17 ibid gives effect to both the allegedly conflicting provisions of the Ordinance, 2001. If some other meaning is given thereto, it shall render Section 6 ibid completely redundant, with the consequence that though the tenancy after the expiry of the agreed or statutory period has come to an end and is extinguished as per section 6 ibid, yet the landlord cannot seek the eviction of the tenant and may have to seek eviction only on any of the grounds mentioned specifically in Section 17 ibid, such as, default in payment of rent, subletting, reconstruction, personal requirement, damage to the property. This would lead to ludicrous legal consequences in that not only shall Section 6 ibid be rendered redundant and nugatory; it shall allow a tenant of the property to continue to occupy the property though he has no right to occupy the same, as his tenancy per the command of law is no more valid. This shall be the most illogical and most ineligible interpretation of Section 6 ibid when read with Section 17(2)(ii)(b) of the Ordinance, 2001. So far as the argument that in the Act, 2009 a separate ground for eviction, on account of expiry of tenancy, is specifically mentioned is concerned; suffice it to say that in some later laws on the same subject, Provinces have become wiser to make the law more clear. However, it does not mean that the law earlier in force in Islamabad should be interpreted on the basis of a later provincial enactment. As far as the argument about the definition of the ‘tenant’ provided in Section 2(j) (supra) is concerned, we are of the considered view that the definition given therein is for the purpose of conferment of jurisdiction upon the Rent Controller, and provides the CAs 300,346,812,851/17 etc. -: 14 :- landlord a right to apply for eviction of the tenant occupying the rented property on an invalid tenancy under the provisions of the Ordinance, 2001. It does not affect either the clear provisions of Section 6 and/or the provisions of Section 17(2)(ii)(b) of the Ordinance, 2001. 12. Thus, we conclude that as after expiration of the tenancy period, a tenant, though can continue to hold over the possession of the rented premises, but his tenancy is rendered invalid, in that, it has come to an end and if there is no express consent of the landlord to extend the tenancy period the tenant shall be guilty of having infringed the conditions of tenancy, rendering him liable to be evicted under Section 17(2)(ii)(b) of the Ordinance, 2001 . In the light of the above, we do not find any merit in these appeals, which are hereby dismissed. No orders as to the costs. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 21.12.2017 at Lahore Approved For Reporting Mudassar/

{'id': 'C.A.300_2017.pdf', 'url': ''}

{'id': 'C.A.300_2017.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE FAISAL ARAB MR. JUSTICE TARIQ PARVEZ CIVIL APPEAL NO.301 OF 2014 (Against the judgment dated 10.1.2014 of the Election Tribunal, Sukkur passed in E.P.No.286/2013) Feroze Ahmed Jamali …Appellant(s) VERSUS Masroor Ahmad Khan Jatoi etc. …Respondent(s) For the appellant(s): Mr. Farooq H. Naek, Sr. ASC Raja Abdul Ghafoor, AOR For respondent No.1: Agha Faisal, ASC Mr. Tariq Aziz, AOR For rest of respondent(s) Ex-parte Date of hearing: 11.01.2016 … JUDGMENT MIAN SAQIB NISAR, J.- This appeal under Section 67(3) of the Representation of People Act, 1976 (Act) assails the judgment dated 10.1.2014 passed by the learned Election Tribunal, Sukkur, whereby the Tribunal had dismissed the election petition of the appellant. 2. The facts in relation to the instant appeal are:- the appellant and respondent No.1 (respondent) contested the general election of PS-23, Naushahro Feroze-V, District Naushahro Feroze, Sindh. The respondent, who was declared a returned candidate by the Election Commission of Pakistan (ECP) vide notification dated 22.5.2013, obtained 30,674 votes whereas the appellant (runner up) secured 29,063 votes, with the differential between the two being 1,611 votes. The appellant challenged this election primarily on the grounds (as transpires from the record and also apprised by the learned counsel for the appellant) that a large number of bogus votes C.A.301 of 2014.doc -: 2 :- were got cast by the respondent, the election was manipulated and procured by him through coercion and in connivance with the election staff; the Returning Officers and the election staff violated the provisions of Sections 33, 38 and 39 of the Act and thus the election has been materially affected which should be declared void. The election petition was contested by the respondent on merits, besides an objection was raised by him that the petition and the annexures are not verified in accordance with law and that the grounds stated therein (petition) are vague and general in nature. Be that as it may, the learned Tribunal framed certain issues which are reproduced as under:- “1. Whether the petition is not maintainable in terms of S. 54 and 55 of the Representation of Peoples Act, 1976? 2. Whether Respondent No.1 Returned Candidate committed illegal and corrupt practices in the election process by way of coercive methods, manipulating bogus votes, stuffing the ballot boxes with bogus ballot papers? 3. Whether the Returning Officer and other election staff had acted in violation of provisions of the Representation of Peoples Act, 1976? 4. Whether the Respondent No.1 stuff the bogus votes using all foul means and the ballot papers bears bogus thumb impressions on the counter-foils and such report is called from NADRA authorities by referring thumb impressions on the counter-foils, Pictorial Electoral list? 5. Whether free, fair and transparent election is not held in the constituency PS-23 Naushero-Feroze-V? 6. What should the order be?” The parties led their evidence and after conclusion of the trial the election petition was dismissed by the learned Tribunal while holding that the same as well as the annexures were not verified in accordance C.A.301 of 2014.doc -: 3 :- with law, that full particulars of corrupt and illegal practices were not mentioned in the petition, and that the appellant failed to establish the commission of corrupt and illegal practices. It may be pertinent to mention here that during the course of the proceedings before the learned Tribunal, the appellant had moved an application for the examination and verification of the counterfoils of 19 polling stations with the object to prove that certain votes cast were not as per the mandate of Section 33 (supra) and, therefore, such votes be excluded from the count. Pursuant to the above the learned Tribunal sought the verification of the counterfoils of the said polling stations from NADRA and as per its report 2,417 used counterfoils were declared as invalid, i.e. which either contained NIC numbers which were not issued by NADRA or which did not bear any NIC number whatsoever. Further, 61 used counterfoils were held to be without fingerprints/thumb impressions. 3. Learned counsel for the appellant, while referring to the verification portion of the election petition, submitted that the petition was verified in accordance with the law. Reliance in this regard is placed on the case reported as Moulvi Abdul Qadir and others vs. Moulvi Abdul Wassay and others (2010 SCMR 1877). He further stated that pursuant to an application filed by the respondent under Section 63(a) read with Section 55(3) of the Act the learned Tribunal had put to rest the point of verification vide order dated 23.8.2013 which operated as res judicata when the learned Tribunal earlier gave its opinion on the same issue. With respect to the allegation of non-verification of annexures, learned counsel for the appellant drew our attention to the annexures and submitted that all 146 documents were attested on oath by an Oath Commissioner and have also been signed by the appellant himself. In this respect he further stated that these annexures were exhibited documents and no such objection vis-à-vis non-verification was raised at C.A.301 of 2014.doc -: 4 :- the time they were received in evidence. Regarding the learned Tribunal’s finding that there were only general allegations of corrupt and illegal practices in the election petition, learned counsel for the appellant while referring to paragraph 6 of the petition argued that the same contained specific and not general allegations. Coming to the evidence led by the appellant regarding proof of corrupt and illegal practices, learned counsel for the appellant stated that the testimony of the appellant himself and two of his polling agents, namely Abdul Latif and Moula Bux contained sufficient proof of the allegations of corrupt and illegal practices. Further, that the complaints made to the Returning Officers and Deputy Returning Officers also constituted sufficient evidence as they went un- rebutted. Learned counsel for the appellant then argued in support of the NADRA report and stated that 2,417 and 61 votes were liable to be excluded from the election result and since the total number of excluded votes (2,478) stands greater than the differential of votes secured by the respondent and appellant, thus the election result would be materially affected, thereby bringing the case within the purview of Section 70 of the Act. He stated that this aspect of the matter has been overlooked by the learned Tribunal and no reasons were given by the learned Tribunal for rejecting such report. Finally it was also argued that five different counts/results had been issued subsequent to which the appellant’s application for recounting was accepted and recounting was ordered which reflected substantial differences between the number of votes in the consolidated result and the number of votes after the recount and this also brings the case within the mischief of Section 70 of the Act. 4. In order to controvert the arguments of the learned counsel for the appellant, learned counsel for the respondent submitted that the NADRA report was only to the extent of verification of thumb impressions of 19 polling stations, and there were no ‘out of constituency’ votes which C.A.301 of 2014.doc -: 5 :- suggests that there was no bogus voting. With respect to 2,147 used counterfoils which had invalid NIC numbers, learned counsel submits that these are those counterfoils where the correct NIC was produced when the voter came to vote and an error was committed while writing the NIC number down on the counterfoils, and since this was due to a lapse by the election staff, the returned candidate should not be prejudiced by such error/lapse. About the verification of the election petition, learned counsel for the respondent when questioned concedes to the extent that there was no flaw in verification of specific paragraph numbers, however, to the extent that the election petition as a whole and the annexures were not verified in accordance with law, he submits that the petition should be dismissed. 5. Heard. The key questions involved in this matter are:- first, whether the petition and the annexures thereto had been verified in accordance with law, if not what is the effect thereto; secondly, whether the appellant had been able to prove illegal and corrupt practices as per the law and such positive evidence was led which has not been taken into account by the learned Tribunal; and thirdly, what is the true import of the NADRA report and what is the effect thereto and whether in the light thereof the present election has been materially affected. Before moving on, we find it expedient to reproduce the relevant provisions (parts) of Sections 33, 55 and 70 of the Act which read as follows:- 33. Voting procedure.—(1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector and shall, for that purpose, require the elector to produce his identity card issued under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000)]. (2) Before a ballot paper is issued to an elector— C.A.301 of 2014.doc -: 6 :- (a) ………………………………………………………… (b) ………………………………………………………… (c) ………………………………………………………… (cc) ……………………………………………………… (d) ………………………………………………………… (e) the Presiding Officer shall record on the counterfoil of the ballot paper the number of the elector on the electoral roll the number of National Identity Card of the elector, stamp it with the official mark, sign it and obtain on it the thumb impression of the elector. (3) A ballot paper shall not be issued to a person who— (a) fails or refuses to produce his identity card issued under the National Database and Registration Authority Ordinance, 2000(VIII of 2000); (b) ………………………………………………………… (c) ………………………………………………………… (d) ………………………………………………………… (4) …………………………………………………………… (5) …………………………………………………………… (a) ………………………………………………………… (b) ………………………………………………………… (c) ………………………………………………………… (6) …………………………………………………………… (7) …………………………………………………………… 55. Contents of petition.—(1) Every election petition shall contain— (a) A precise statement of the material facts on which the petitioner relies; C.A.301 of 2014.doc -: 7 :- (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely:— (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or (c) that the election as a whole is void. (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings. 70. Ground for declaring election as a whole void.—The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of— (a) the failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. 6. For resolving the first question it may be stated that the learned Tribunal has non-suited the appellant on the reasoning that he has not specifically mentioned as to which paragraphs of the election petition are verified upon his own knowledge and which are upon information received and believed to be true, suffice it to say that this Court in the case reported as Sardarzada Zafar Abbas and others vs. Syed Hassan, Murtaza and others (PLD 2005 SC 600) has held such C.A.301 of 2014.doc -: 8 :- objection to not be very material. Although the Court in Zafar Abbas (supra) held that the validity of the verification shall depend on the facts of each case, but in the instant matter we do not find the so-called lapse indicated by the learned Tribunal to be of any material consequence, warranting dismissal of the election petition on this ground simpliciter. The case of Zafar Abbas (supra) has been endorsed in Moulvi Abdul Qadir (supra) and reliance by the learned counsel upon the latter in this regard is rightly placed and his case/plea quite aptly falls within the ratio of the law laid down therein. Besides we have examined the verification part of the election petition and we find that it complies with the provisions of Order VI Rule 15 of the Code of Civil Procedure, 1908 (CPC) in letter and spirit. The reasons of the learned Tribunal and the argument of the respondent that it does not mention the date, day and place of the verification or the proper identification of the appellant, suffice it to say that at the bottom of the petition (in the verification portion), though not in typed form the date has been clearly written by hand. There is another stamp of the Oath Commissioner appearing on the left of the verification portion of the election petition which mentions the date as 26.6.2013 (albeit also written by hand). With respect to attestation, the Oath Commissioner in clear and unequivocal terms has stamped ‘on S.A. before me’ (i.e. on solemn affirmation before me), which clearly indicates that the appellant was duly present before the Oath Commissioner at the time of attestation and was administered oath. It is also spelt out from the Oath Commissioner’s stamp that the election petition was attested at Sukkur. As regards identification of the appellant, he has been duly identified by Mukesh Kumar, Advocate who has mentioned of knowing the appellant personally; thus we are of the candid view that in light of the law laid down by this Court in Lt.-Col. (Rtd.) Ghazanfar Abbas Shah vs. Mehr C.A.301 of 2014.doc -: 9 :- Khalid Mehmood Sargana and others (2015 SCMR 1585) there is no defect in the verification. 7. Now coming to the annexures, we have examined all the documents which were appended by the appellant along with the election petition and they comprise of the notification of the ECP dated 22.5.2013, statements of count, various provisional results, applications for recounting of votes and complaints made by the appellant regarding anomalies in the election process. Suffice it to say that these are not the documents propounding and setting out any independent or additional substantial grounds for challenging the election or furnishing at least better particulars of the allegations in the petition so as to give such documents a status of independent and substantial grounds of the petition itself challenging the election on the basis thereof (emphasis supplied) which can be said to be the annexures requiring verification in terms of the law laid down by this Court in the case reported as S. M. Ayub vs. (1) Syed Yusaf Shah, (2) Major Tilla Khan Sadozai and (3) Election Tribunal, West Pakistan, Lahore (PLD 1967 SC 486) the relevant paragraph of which is reproduced below:- “…By “schedule or annex” mentioned in subsection (3) of section 59 of the Act, is apparently meant such a schedule and annexure as either makes additional allegations of a substantive character against the opposite-party, or at least furnishes better particulars of the allegations made in the petition, so as to give them the status of substantive grounds of the petition itself. The documents under consideration in the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of “schedule or annex”, mentioned in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds. We are, consequently, disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his signatures or the verification, required for schedules and annexures to the petition, was not fatal to the prosecution, of the petition.” C.A.301 of 2014.doc -: 10 :- Thus only those annexures require verification which fall within the category mentioned above, but we find that this is not the situation in the instant matter. An additional aspect of this issue is that the respondent through an application sought summary disposal of the election petition filed by the appellant and vide order dated 23.8.2013 the learned Tribunal dismissed this application holding that the election petition and the annexures were duly verified. In this regard, the relevant part of the said order is reproduced below:- “Perusal of the memo of Petition transpires that specific allegations of illegal and corrupt practices are leveled in the Petition at relevant Polling Stations on the day of election and the Petition is duly signed by the Petitioner Feroze Jamali and same is attested as on S.A. before me by Mumtaz Ali Soomro Oath Commissioner Sukker on 26-06- 2013. Perusal of the annexures filed with the Petitioner also transpire that same are duly signed by Petitioner Feroze Jamali and attested and verified by Mumtaz Ali Soomro Oath Commissioner Sukkur as such the provisions of Sec: 55 (3) of the Representation of People Act, 1976 are duly complied with and I do not filed any merits in the application and dismiss the same.” Having already decided the issue of verification vide the abovementioned order, it was not open for the learned Tribunal to reverse its own order, when that was not being done in the exercise of any power of review (if review was permissible) and such order operated as a res judicata inter se the parties with respect to the said issue having been finally and conclusively settled by the learned Tribunal itself. Further even if the principle of res judicata is considered not stricto sensu applicable, it is not comprehended that when the learned Tribunal earlier took up the firm view that the election petition and the annexures are duly verified but without meeting the reasons assigned in the previous order subsequently changed its opinion and held otherwise, without even adverting to the C.A.301 of 2014.doc -: 11 :- said order. Be that as it may, in light of the above we are of the candid view that the election petition and the annexures both have been duly verified in accordance with law and the finding of the learned Tribunal in this regard is unfounded. 8. The next issue which requires deliberation is whether the averments of corrupt and illegal practices made in the election petition were vague and general in nature warranting dismissal, suffice it to say that we have examined paragraph No.6 of the election petition and are of the opinion that the appellant has set out in clear and detailed terms the grounds on which he had challenged the election of the respondent. In light of grounds a. to l. in paragraph No.6 of the election petition which mention with quite a precision, the irregularities, illegalities and corrupt practices with regard to the conduct of the election, we find that the contents of such grounds cannot be considered or held to be vague in any manner whatsoever. 9. As far as the question as to whether the appellant was able to prove his grounds of challenge to the election through evidence, it may be mentioned that two witnesses namely Abdul Latif (PW-2) and Moula Bux (PW-3), polling agents of the appellant, were examined. The statements of both these witnesses when read in the context of their cross-examination reveal that they both did not have any personal knowledge of the allegations of bogus voting etc. which is not sufficient proof of the commission of corrupt and illegal practices by the respondent. Besides no other oral evidence has been led by the appellant except his own statement and from such statement too, which is hearsay in nature we are not convinced that the allegations of corrupt and illegal practices and illegalities and irregularities in the conduct of election were proved through positive evidence which is the requirement of the law in election matters as laid down by this Court in numerous cases such as C.A.301 of 2014.doc -: 12 :- Muhammad Saeed and 4 others vs. (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan,(3) Ghulam Haider and (4) West Pakistan Government and others (PLD 1957 SC (Pak.) 91; 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); Khan Muhammad Yusuf Khan Khattak vs. S. M. Ayub and 2 others (PLD 1973 SC 160); Syed Saeed Hassan vs. Pyar Ali and 7 others (PLD 1976 SC 6); Raja Muhammad Afzal vs. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736); Muhammad Siddique Baloch vs. Jehangir Khan Tareen & others (C.A. No.307-L of 2015) and Syed Hafeezuddin vs. Abdul Razzaq & others (C.A. No.1086 of 2014). Therefore we opine that the findings of the learned Tribunal in this regard are apt and are upheld by us. 10. As regards the question and the effect of the NADRA report it seems expedient to reproduce the relevant part of the report:- Invalid CNIC on Counterfoils 15. There were 2,147 used counterfoils that had invalid NIC numbers (NIC numbers which NADRA has never issued) written on them. This also includes such counterfoils that do not have CNIC mentioned over it. This was observed mainly in polling station # 24 (340 votes) and at polling station # 40 (279 votes). Counterfoils without fingerprints 19. 61 used conuterfoils were found without having fingerprints on them. These counterfoils were mainly used at polling station #37 (8 votes) and at polling station #27 (7 votes). Summary: 29. Summary report is described below: C.A.301 of 2014.doc -: 13 :- We find it useful to mention at the very outset that it was permissible for the learned Tribunal to seek the examination/verification of the election material from an expert, i.e. NADRA, in order to find out if the provisions of the Act and the rules framed thereunder have not been complied with and then to determine itself whether such non-compliance materially affects the result of the election. In this context, as has been mentioned above, the material of 19 polling stations was sent to NADRA pursuant to the order passed by the learned Tribunal dated 23.8.2013. Before proceeding further with the matter, we would like to highlight that the learned Election Tribunal has given no reason to reject the report of NADRA, but according to the report, the summary of which is reproduced above, it is clear and unmistakable that 2,147 used counterfoils out of these polling stations had invalid NIC numbers (meaning thereby that the said used counterfoils either contained NIC numbers that were never issued by NADRA or had no mention of NIC number thereupon). The mention of such number is the mandatory requirement of the provisions of Section 33 of the Act. As regards 61 used counterfoils the report is that there were no fingerprints/thumb impressions on them, again this is the non- compliance of Section 33 thus the total votes which from the report of S. No Description Count of Votes 1 Votes polled in polling stations whose election material was received by NADRA 12,174 2 Invalid NIC number mentioned on used counterfoils, this also includes such counterfoils that do not have CNIC mentioned over it. 2,147 3 Out of Constituency Votes 0 4 Duplicate Voters on Counterfoils 0 5 Used counterfoils without fingerprints 61 6 Fingerprints successfully authenticated on used counterfoils and ER 3,121 7 Fingerprints on used counterfoils and ER failing authentication 0 8 Fingerprints of bad quality affixed on used counterfoils 6,845 C.A.301 of 2014.doc -: 14 :- NADRA were not issued as per the used counterfoils comes to 2,208 and thus the ballot papers corresponding thereto were liable to be excluded. With regard to the argument of the learned counsel for the respondent that the 2,147 used counterfoils which had invalid NIC numbers were those counterfoils where the correct NIC was produced when the voter came to vote and an error was committed while writing the NIC number down, and since this was due to a lapse by the election staff, the benefit or prejudice of such error in writing of the NIC number on the counterfoil should not go to any candidate or in other words the returned candidate should not suffer for the omission and mistake of the election staff, suffice it to say that we cannot say with utmost certainty whether the eligible voter came and brought his correct NIC but the number was written incorrectly, or that an imposter came with a bogus NIC. The fact of the matter stands that a voter has to be properly identified and his correct NIC has to be noted on the counterfoils, which is required by the law, and the above has not been done, which is the non-compliance of the provisions of the Act. According to the provisions of Section 70 of the Act, the result of the election can be declared to be void for non- compliance of the provisions of the Act and the rules made thereunder if the result has been materially affected. Obviously the object of requiring affixation of thumb impressions and to record NIC numbers on the counterfoils is to ensure that the correct voter to whom a ballot paper has been issued casts his vote and subsequently to provide a reference point to find out if any bogus votes have been cast in the election. Therefore in this scenario since the votes to be excluded, i.e. 2,208 (2,147 plus 61 votes) are greater in number than the differential of 1,611 votes between the number of votes secured by the appellant and respondent, this would materially affect the result of the election, thereby bringing the case within the purview of the provisions of Section 70 of the Act, C.A.301 of 2014.doc -: 15 :- warranting declaration of the election to be void as a whole. This very important and conspicuous aspect of the matter has not been attended to by the learned Tribunal and the impugned judgment is flawed in this respect. 11. In view of the above, by allowing this appeal and setting aside the impugned judgment, we accept the election petition filed by the appellant and declare the elections of PS-23, Naushahro Feroze-V as void. The ECP is required to hold fresh elections in the said constituency in accordance with law. No order as to costs. JUDGE JUDGE JUDGE Announced in open Court on 26.01.2016 at Islamabad Approved For Reporting Ghulam Raza/* (JUDGE)

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal No.303 of 2014 (Against judgment dated 28.10.2013 of the Peshawar High Court D.I. Khan Bench passed in C.R. No.195 of 2010) Ahmad Bakhsh (deceased) through LRs …Appellant(s) Versus Ameer Ali Khan …Respondent(s) For the Appellant(s): Mr. Anwar Khan, ASC For the Respondent(s): Mr. M. Waheed Anjum, ASC Mr. Mehmood A. Sheikh, AOR Date of hearing: 03.03.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.-Ahmed Bukhsh, predecessor-in-interest, pre-empted sale through mutation dated 14.9.1999, asserting his superior right of being a co-sharer in the estate; Ameer Ali, vendee/respondent, contested the suit, decreed by the trial Court vide judgment and decree dated 7.1.2000, a finding maintained by the Appellate Court, however, reversed by the High Court vide judgment dated 28.10.2013, for failure to perform Talabs in accordance with law, vires whereof are being impugned through this right appeal. 2. The High Court recapitulated plaintiff’s evidence regarding performance of Talabs and found it fraught with contradictions, discrepancies and improvements to arrive at a conclusion that Talabs were not performed in accordance with law. 3. With the assistance of learned counsel for the appellants, we have examined the record. Notice (Ex.PW-5/1), purportedly issued by the plaintiff sans reference to Khalid (PW-5), a witness produced to prove Talab-i-Ishhad; he surfaced for the first time on 14.5.2009 to depose that he along with the plaintiff Civil Appeal No.303 of 2014 2 was present in a Baithak when Hameedullah (PW-3) disclosed the factum of sale; Hameedullah when himself examined remained silent, conspicuously omitted any such encounter with Khalid PW. Witnesses are also discrepant on other relevant details regarding time and manner, the Talabs were made; contradictions are such in nature that stance taken by one witness cannot be accepted without first excluding the others’ and vice versa; the High Court has been justified to exclude their statements from consideration and, on our own independent analysis, conclusion being irresistible, we have not been able to persuade ourselves to take a contra view. Appeal fails. Dismissed. Judge Judge Islamabad, the 3rd March, 2020 Not approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE QAZI FAEZ ISA CIVIL APPEAL NO.305 OF 2008 (Against the judgment dated 19.4.2006 of the High Court of Sindh, Karachi passed in HCA No.18/2005) Karachi Dock Labour Board …Appellant(s) VERSUS M/s Quality Builders Ltd. …Respondent(s) For the appellant(s): Mr. Zahid Ibrahim, ASC Mr. M. S. Khattak, AOR For the respondent(s): Dr. Muhammad Farogh Naseem, ASC Mr. Mehr Khan Malik, AOR Date of hearing: 02.10.2015 … JUDGMENT MIAN SAQIB NISAR, J.- This appeal involves the key question, in that, whether the award made, announced and signed by the sole arbitrator appointed by the respondent was with jurisdiction or not and thus should not have been made rule of the Court. The ancillary questions to the above are, whether the appellant had waived etc. its objection about the jurisdiction; whether lack of jurisdiction can be compromised; whether the court, considering the matter qua making the award rule of the Court, should itself consider the jurisdictional aspect and decline to make an award, made without jurisdiction, rule of the Court. In this context, leave was granted vide order dated 27.02.2008 reproduced below to consider certain points highlighted therein:- C.A.305 of 2008 -: 2 :- “After hearing learned counsel for the parties, leave to appeal is granted, inter alia, to consider:- 1. Whether in the instant case sections 8 & 9 of the Arbitration Act, 1953 would apply; and 2. Whether the award given by the Arbitrator was according to the terms of the agreements entered into by the parties. 2. Since a short point is involved, as such office is directed to fix the case during 1st week of May 2008. Meanwhile interim order dated 06.2.2008 shall hold the field.” 2. The relevant facts of the case are:- The appellant (employer) entered into a contract dated 08.10.1989 with the respondent (contractor) for the construction of a hospital at Kemari, Karachi. The contract contained an arbitration clause (clause 131). The parties subsequently entered into multiple supplementary agreements dated 17.06.1991, 12.11.1992, and 31.05.1993 which amended various clauses of the original contract including inter alia the time for completion of the contract. The fourth and final supplementary contract dated 01.03.1995 not only extended the time for completion of the contract but also, according to the appellant, settled finally certain claims of the respondent. Subsequently the respondent, claiming that certain dues/claims remained unpaid, invoked the arbitration clause by referring to the consultants certain disputes vide letter dated 05.06.1996. Due to non-determination by the consultant of the disputes alleged by the respondent, the latter proceeded to approach the appellant vide letter dated 19.01.1997 for the appointment of arbitrator and also suggested some names therein. Since the appellant did not appoint an arbitrator in response thereof, the respondent vide letter dated 02.07.1997 informed the appellant that they had appointed one Mr. S. A. Nizami and requested them to appoint an arbitrator for resolution of their disputes, in the absence of which Mr. Nizami would become the sole C.A.305 of 2008 -: 3 :- arbitrator. In response the appellant stated in its letter dated 12.07.1997 that since the final supplementary agreement satisfied the respondent’s claim fully therefore the arbitration clause cannot be invoked and that the arbitrator cannot be appointed in the terms as suggested by the respondent. The respondent then sent a letter dated 20.08.1997 to the arbitrator stating therein that since the appellant had failed to appoint an arbitrator, Mr. Nizami should act as a sole arbitrator in terms of Section 9 of the Arbitration Act, 1940 (Act), after which the arbitrator issued notices to the parties dated 22.08.1997 and entered upon the reference. However, the appellant took the plea before the arbitrator which is envisaged by the letter dated 19.09.1997 to the effect that because the original contract was in effect superseded by the final supplementary agreement, therefore the arbitration cannot be invoked and, hence the arbitrator had no jurisdiction. Notwithstanding this the arbitrator conducted ex-parte proceedings as the appellant refused to appear and rendered the award dated 20.12.1997 in favour of the respondent which was filed in court on 19.01.1998 for making it the rule of the Court. Notice of the same was sent to the appellant on 27.01.1998 pursuant to which they filed objections under the provisions of Section 30 of the Act on 24.02.1998 on various grounds including inter alia that the arbitrator had no jurisdiction in the matter and therefore the award was a nullity in the eyes of the law. However the learned Single Judge vide judgment and decree dated 24.11.2004 overruled the objections and made the award a rule of the court pursuant to Section 17 of the Act. The appellant filed an appeal against the said judgment which was dismissed vide impugned judgment dated 19.04.2006, against which they have filed the instant appeal before this Court. 3. Learned counsel for the appellant, while relying upon Textile Machinery Corporation Ltd v Nalinbhai B. Munshaw (AIR C.A.305 of 2008 -: 4 :- 1969 Calcutta 146), submits that in order to invoke the provisions of Section 9 of the Act as the respondent necessarily did, certain pre- conditions need to be met, in that, the agreement should provide a reference to two arbitrators, one to be appointed by each party. He then referred to the arbitration clause, i.e. clause 131 of the contract and pointed out that since it did not specifically provide for two arbitrators, one to be appointed by each party, therefore the application of Section 9 was ousted. Reliance in this regard was placed on Port Qasim Authority, Karachi v Messrs Nadeem Brothers and another (1982 CLC 1506). Instead, recourse should have been made to Section 8 read with Section 20 of the Act according to which the Court, and not the respondent, was empowered to appoint an arbitrator. He relied on Muhammad Azam Muhammad Fazil & Co., Karachi v Messrs N. A. Industries, Karachi (PLD 1977 Karachi 21). He further submitted that where the number of arbitrators is not specified in the arbitration agreement, as was so in the instant case, recourse has to be made to Section 3 which when read with clause 1 of the First Schedule of the Act implies a condition that unless otherwise expressly provided, the reference shall be to a sole arbitrator. Reference was also made to the respondent’s letter dated 02.07.1997 requesting the appellant to appoint their arbitrator, and the appellant’s response dated 12.07.1997 wherein it was specifically pointed out to the arbitrator that lacking jurisdiction, he should abstain from entering upon the reference and proceeding with the matter. He stated that whenever the appellant was sent a notice by the arbitrator, they raised an objection regarding the latter’s jurisdiction. The propositions which have been framed by the learned counsel for the appellant’s counsel is as follows:- C.A.305 of 2008 -: 5 :- i. The arbitrator rendered the award having no jurisdiction as his appointment was not in terms of the arbitration agreement, therefore the award is a nullity; ii. The pre-conditions of reference to the consultant to invoke the arbitration clause was not met as the respondent did not apply to the consultant before asking for the appointment of the arbitrator and making a reference thereto; 4. When confronted as to why the appellant did not invoke the provisions of Section 5 of the Act, learned counsel for the appellant responded by stating that in order for the said section to be applicable there has to be a validly appointed arbitrator, which he contends was not in the present case. Further, that Section 5 assumes valid conferment of authority, hence that said section is about revocation of authority and does not deal with challenge to jurisdiction of the arbitrator. While elaborating on his first proposition, in support of the contention that the Court as opposed to the arbitral tribunal will examine the power of the latter, learned counsel for the appellant relied upon Abdul Hamid v H. M. Qureshi (PLD 1957 SC (Pak) 145). He also submitted that the Courts have the power under Section 17 to set aside the award on its own where the award is patently invalid and not enforceable under the law and in this regard placed reliance upon M/s Awan Industries Ltd v The Executive Engineer, Lined Channel Division and another (1992 SCMR 65) and A. Qutubuddin Khan v Chec Millwala Dredging Co. (Pvt.) Limited (2014 SCMR 1268). 5. Learned counsel for the respondent has controverted the arguments of the learned counsel for the appellant by stating that the appellant did not challenge the jurisdiction of the arbitrator on the basis of non-applicability of Section 9 before the arbitrator himself, thus such objection is deemed to have been waived and the same cannot be raised C.A.305 of 2008 -: 6 :- subsequently. Rather the appellant’s objection was based on the fourth supplementary agreement rendering the arbitration agreement non- existent allegedly being a full and final settlement of the respondent’s claims. He also stated that despite repeated notices to the appellant, they stayed quiet. He built his defence on the premise of the arbitration principles prevalent today, which according to him are: (i) The role of the court is supportive; (ii) Doctrine of least intervention; (iii) Sections 8 and 9 are machinery provisions; (iv) The arbitration clause is to be interpreted in a workable manner – liberal construction; (v) Principle of Kompetenz-Kompetenz - arbitral tribunal shall determine its own jurisdiction; and (vi) If a particular objection, even if it pertains to the jurisdiction of the arbitrator, was not raised earlier it cannot be raised subsequently; if the particular ground was not taken earlier it will be deemed to have been waived off. 6. The primary contention of the learned counsel for the respondent was that since the appellant did not raise their objection to jurisdiction specifically vis-à-vis Sections 8 and 9 before the arbitrator nor the learned Single Judge, hence they are estopped from doing so now. He also attempted to draw a parallel of arbitral tribunals with tax tribunals in that with respect to the latter, if a question of law is not raised before the tribunal it cannot be raised subsequently and this concept should apply to the former alike. Further while relying upon Federation of Pakistan, through Secretary, Ministry of Food, Islamabad and others vs Messrs Joint Venture Kocks K.G./Rist (PLD 2011 SC 506) he stated that objections must be taken with sufficient clarity, and that this was not the case with the appellant. He also placed C.A.305 of 2008 -: 7 :- reliance on Messrs Vaseem Construction Co. vs Province of Sindh through Secretary to Government of Sindh, Communication and Works Department, Karachi and 4 others (1991 CLC 1081) in furtherance of his argument that objections to an award cannot be subsequently raised. He also relied upon Muhammad Saghir Bhatti & Sons vs The Federation of Pakistan and another (PLD 1958 SC (Pak.) 221) that a subsequent challenge to appointment of arbitrator is not sustainable when it was not raised before. 7. According to learned counsel for the respondent the concept of inherent defect in jurisdiction applies differently in the world of arbitration, in that it would only arise if the arbitration agreement was in dispute which was not, it is argued, the case at hand, and while relying on several cases of foreign jurisdictions he further contended that there has been a development in arbitration, that even inherent defects are now to be raised before and decided by the arbitral tribunal itself. 8. When confronted as to why the respondent did not file the arbitration agreement in court under the provisions of Section 20, learned counsel for the respondent stated that as per the scheme of the Act, the respondent had three options available to them under Chapters 2, 3 and 4 and they chose Chapter 2, which they could not forgo for Chapter 4 without exhausting it in its entirety. Reliance in this regard was placed upon Messrs Commodities Trading International Corporation vs Trading Corporation of Pakistan Ltd and another (1987 CLC 2063). 9. Heard. The issues in this case mainly revolve around the construction of the arbitration clause and the scope, interpretation and application of the provisions of Sections 3, 5, 8, 9, 11 and 20 and Paragraph 1 of the First Schedule of the Act, hence we find it expedient to reproduce the same in the order so stated: C.A.305 of 2008 -: 8 :- “131. SETTLEMENT OF DIPUTES/ARBITRATION If any dispute or difference of any kind whatsoever shall arise between the Employer and the Contractor or the consultants and the Contractor in connection with, or arising out of the contract, or the execution of the works, whether during the progress of the works or after their completion and whether before or after the termination, abandonment, or breach of the contract, it shall in the first place, be referred to and settled by the Consultants who shall within a period of ninety (90) days after being requested by either party to do so give written notice of his decision to the employer and the Contractor. Such decision in respect of every matter so referred shall be binding upon the Employer and the Contractor who shall proceed with the execution of the works with all due diligence whether he or the Employer requires arbitration. If the Consultant has given written notice of his decision to the Employer and the Contractor and no claim to arbitration has been communicated to him by either the Employer or the Contractor within a period of thirty (30) days from receipt of such notice, the said decision shall remain final and binding upon the Employer and the Contractor. If the Consultant shall fail to give notice of his decision, as aforesaid, within a period of ninety (90) days after being requested as aforesaid or if either the Employer or the Contractor be dissatisfied with any such decision, then in any such case either the Employer or the Contractor within ninety (90) days after receiving notice of such decision, or within ninety (90) days after the expiration of the first named period of thirty (30) days, as the case may be, require that the matter or matters in dispute be referred for pre-consideration then only in that case the matter shall be referred to the Arbitrator(s) and/or Umpire as the case may be within the meaning of Arbitration Act, 1953, whose decision shall be final and binding upon the parties. [Emphasis added] _____________________________ Arbitration Act, 1940 3. Provisions implied in arbitration agreement. An arbitration agreement, unless a different intention is expressed therein, shall C.A.305 of 2008 -: 9 :- be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference. 5. Authority of appointed arbitrator or umpire irrevocable except by leave of Court. The authority of an appointed arbitrator or umpire shall not a revocable except with the leave of the Court, unless a contrary intention is expressed in the arbitration agreement. 8. Power of Court to appoint arbitrator or umpire. (1) In any of the following cases:-- (a) Where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties, and all the parties do not, after difference have arisen, concur, in the appointment or appointments; or (b) If any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied; and the parties or the arbitrators, as the case may be, do not supply the vacancy; or (c) Where the parties or the arbitrators are required to appoint an umpire and do not appoint him, any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy. (2) If the appointment is not made within fifteen clear days after the service of the said notice, the Court may, on the application of the party who gave notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to made an award as if he or they had been appointed by consent of all parties. 9. Power to party to appoint new arbitrator or, in certain cases, a sole arbitrator. Where an arbitrations agreement provides that a reference shall be to two arbitrators, one to be appointed each C.A.305 of 2008 -: 10 :- party, then, unless a different intention is expressed in the agreement. (a) If either of the appointed arbitrator, neglects or refuses to act, or is incapable of acting or dies, the party who appointed him may appoint a new arbitrator in his place. (b) If one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for fifteen clear days, after the service by the other party of a notice in writing to make the appointment, such other party having appointed his arbitrator before giving the notice, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent. Provided that the Court may set aside any appointment as sole arbitrators made under clause (b) and either, on sufficient cause being shown, allow further time to the defaulting party to appoint an arbitrator or pas such other order as it thinks fit. Explanation. The fact that an arbitrator or umpire, after request by either party to enter on and proceed with the reference, does not within one month comply with the request may constitute a neglect or refusal to act within the meaning of Section 8 and this section. 11. Power of Court to remove arbitrators or umpire in certain circumstances. (1) The Court may, on the application of any party to reference, remove an arbitrator or umpire who fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award. (2) The Court may remove an arbitrator or umpire who has misconducted himself or the proceedings. (3) Where an arbitrator or umpire is removed under the section, he shall not be entitled to receive any remuneration in respect of his services. C.A.305 of 2008 -: 11 :- (4) For the purposes of this section the expression "proceeding with the reference" includes, in a case where reference to the umpire become necessary, giving notice of that fact to the parties and to the umpire. 20. Application to file in Court arbitration agreement. (1) Where any person have entered into an arbitration agreement before the institution of any suit with respect to the subject-matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in the Court. (2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or, if otherwise, between the applicant as plaintiff and the other parties as defendants. (3) On such application being made the Court shall direct notice thereof, to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the notice why the agreement should not be filed. (4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. (5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable. First Schedule Implied Conditions of Arbitration Agreement 1. Unless otherwise expressly provided, the reference shall be to a sole arbitrator.” C.A.305 of 2008 -: 12 :- 10. Before proceeding further we find it expedient to mention what is arbitration and also about the empowerment of the arbitrator. In this context it is stated that arbitration is a forum which under the law can be chosen by the parties for the resolution of their present or future disputes. The condition for a valid arbitration agreement is that it should be in writing (see Section 2(a) of the Act) and as it is a contract between the parties it is essential that it must qualify the test of a valid contract in terms of the law of contract. It may also be stated that there are three modes and approaches to arbitration: (i) without the intervention of the court; (ii) with the intervention of the court (see Section 20 of the Act); and (iii) again with the intervention of the court but where a suit/lis is pending between the parties and they agree for the resolution of their disputes through the mechanism of arbitration, keeping the suit pending and that the fate thereof (suit) be decided on the basis of the decision rendered by the arbitrator. It may be relevant to state that subject to the terms of reference an arbitrator(s) is the judge on both the points of fact and law; and this shall also include the question to determine his own jurisdiction. However where the arbitrator goes patently and blatantly wrong on facts, which wrong is inconceivable and incomprehensible in relation to the determination of rights of parties in dispute, such as assumption of non-existing facts or ignoring the facts duly established on the record, which in legal parlance is also called the misreading and non- reading; and especially going wrong on the points of law, the court obviously has the power in its appropriate jurisdiction to correct such a wrong; as under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 it is inalienable right of every person to be treated and dealt with in accordance with law [See cases reported as Utility Stores Corporation of Pakistan Limited v Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447); Muhammad Anwar and others v Mst. C.A.305 of 2008 -: 13 :- Ilyas Begum and others (PLD 2013 SC 255) and Muhammad Ashraf Butt and others v Muhammad Asif Bhatti and others (PLD 2011 SC 905)]. 11. Coming to the present case, having regard to the fact that the agreement in which the arbitration clause is contained is not denied, it is not disputed that there was a valid arbitration agreement between the parties. The first issue is which out of the two Sections 8 or 9 of the Act is attracted to the arbitration clause (reproduced above). In order to resolve this, an exercise of interpretation of the arbitration clause needs to be undertaken. Ordinarily, parties have a right to agree upon the number of arbitrators and the manner in which the arbitrators will be appointed. However, a perusal of the arbitration clause shows that it is silent on both these aspects. The arbitration clause talks of referral of disputes to “arbitrator(s)”. Had the arbitration clause spoken of the appointment of an “arbitrator”, there will be no scope for the application of Para 1 of the First Schedule, because a single arbitrator would be indicated by the agreement itself. Also, had the arbitration clause provided for the appointment of “arbitrators”, then the application of Para 1 of the First Schedule would have been excluded because the word “arbitrators” certainly refers to more than one arbitrator. Thus we find much force in the contentions of the learned counsel for the appellant that the instant case will be governed by Section 3 and the reference shall be presumed to have been intended to be made to a single arbitrator by virtue of Para 1 of the First Schedule, necessarily to be appointed by the consent of both parties. [See cases reported as Mujtaba Hussain Siddiqui v Sultan Ahmed (2005 YLR 2709), In the matter of Arbitration between Ghufran Ahmed and others (PLD 1959 (W.P.) Karachi 43), Muhammad Jamil v Iqbal Ahmed (PLD 1977 Karachi 886), Government of Sindh and others v Tausif Ali Khan (2003 CLC C.A.305 of 2008 -: 14 :- 180), M/s National Small Industries Corpn Ltd v M/s National Metal Craft, Delhi and others (AIR 1981 Delhi 189), India Hosiery Works v Bharat Woollen Mills Ltd (AIR 1953 Cal 488)] 12. The second aspect of this issue is whether in the facts and circumstances it was in the power of the respondent to appoint the arbitrator in terms of Section 9 or whether an application should have been made to the Court under Section 8 for appointment of the arbitrator. This would depend on the construction of Sections 8 and 9 of the Act. As a plain reading of the sections would suggest, the question of whether Section 8 or 9 applies ultimately boils down to whether an arbitration agreement provides for reference to a sole arbitrator to be appointed by the consent of both parties, or to two arbitrators each to be appointed by each party separately, respectively. From the clear wording and the mandate of the Section 9(b) we also find the Respondent could have appointed their arbitrator to act as a sole arbitrator in terms of the said section only if the following essential conditions were met:- (1) The agreement itself provides that a reference shall be to two arbitrators; (2) The agreement further provides that, of the two arbitrators, one has to be appointed by each: one by the appellant and the other by the respondent; (3) One arbitrator has in fact been appointed by one of the parties, and the other party has failed to appoint an arbitrator; (4) The party who has appointed their arbitrator has served a notice in writing (after the appointment of their arbitrator) to the party who has failed to appoint their arbitrator; and C.A.305 of 2008 -: 15 :- (5) 15 days have passed since a notice in writing to make the appointment was served to the party who has failed to appoint their arbitrator. This was also the view of the Calcutta High Court in the Textile Machinery Corporation Ltd case (supra), albeit with respect to Section 9(a) of the Act. In the case before us, as has been established above, the arbitration clause speaks of reference to a sole arbitrator to be appointed by the consensus of both parties. It does not provide for a reference to two arbitrators, and neither does it provide (as it cannot) that one of the two arbitrators is to be appointed by each party. Hence we find that the first two ingredients, which necessarily form the basis of the last three ingredients, and are sine qua non for attracting this section and having resort thereto, are conspicuously missing from the arbitration clause at hand. Therefore Section 9(b) could not have been pressed into service by the respondent and resultantly, the appointment of the arbitrator pursuant thereto was absolutely invalid, being in contravention of the Act. It is a settled principle that where the law requires an act to be done in a particular manner it has to be done in that manner and not otherwise and this rule shall be stringently applicable when it comes to the question of appointment of arbitrators; as the conferment of jurisdiction upon the arbitrator should be strictly in line with the letter and spirit of the agreement between the parties and the express provisions of law. Obviously, any award passed by such an arbitrator who is not appointed in the above manner shall also be invalid, having been passed by an arbitrator without jurisdiction. In fact it was the provisions of Section 8 that were squarely applicable to this case and should have been made recourse to. A bare reading of Section 8 makes it sufficiently clear that it is meant to be applied to a case where the C.A.305 of 2008 -: 16 :- reference provides for a sole arbitrator (as also more than one arbitrator as the case may be) to be appointed by the consent of the parties. As mentioned above, the arbitration clause in this case provides, albeit impliedly, for the appointment of a sole arbitrator with the consent of both the parties. According to Section 8(2) an application has to be made to the Court to appoint an arbitrator after hearing the parties, in the event of non- appointment within 15 clear days of the service of notice to concur in appointment. Therefore the respondent did not have the power to appoint the arbitrator unilaterally after the appellant even failed to concur to appointment of the arbitrator; rather it was the exclusive jurisdiction of the Court to make such appointment if approached by the respondent [See cases reported as Muhammad Azam Muhammad Fazil & Co., Karachi (supra) Hariram Khiaram, a firm v Gobindram Rattan Chand, a firm (PLD 1949 Sind 30), Mujtaba Hussain Siddiqui, S. L. Balmokand v Uttamchand Brijlal (AIR 1927 Sind 177), M/s National Small Industries Corpn Ltd (supra), Anjuman–i-Ahmadiya Ashait-i-Islam, Lahore through Secretary, Jamaat Ahmadiya, Lahore, and another v Hafiz Ghulam Ahmad and others (PLD 1955 Lahore 23)]. It is an admitted position in this case that no such application was ever made to the Court, and consequently, as the mandate of law prescribed by Section 8, was not followed by the respondent, the award passed by the arbitrator cannot be deemed to be valid as the arbitrator, having not been appointed in terms of the arbitration agreement and the law, lacked the requisite jurisdiction, and it is settled law that a determination made and decision given by a Court or other forum performing judicial functions (or even quasi-judicial functions) having no jurisdiction is a nullity in the eyes of law. Apart from applying to the Court for appointment of an arbitrator under Section 8, the respondent also had the option of doing so under the provisions of Section 20 of the Act. As mentioned above C.A.305 of 2008 -: 17 :- Section 20 is an alternative procedure whereby the arbitration proceedings would have been conducted with the intervention of the Court, which the respondent certainly had the choice of opting for instead of further proceeding under Chapter II of the Act. 13. The second issue, as put forward by the learned counsel for the respondent, is that of the failure of the appellant to raise the objection to the jurisdiction of the arbitrator due to defective appointment which is deemed to have been waived by them. The learned counsel for the respondent has primarily relied upon the case of Chief Engineer, Building Department v Pakistan National Construction (1988 SCMR 723) and Saghir Bhatti’s case (supra) to support this contention. However it is pertinent to mention that the principles laid down in the Chief Engineer case is in relation to non-compliance with the machinery aspect for the arbitrator’s appointment contained in the arbitration agreement, and not non-compliance with essential mechanism of appointment prescribed in the Act. It is clearly stipulated in this dictum that “An inherent want of jurisdiction results in vitiating the proceedings taken by the Tribunal and is incurable notwithstanding waiver by conduct or otherwise, whereas irregular assumption of jurisdiction is always subject to waiver”. In the case of Saghir Bhatti the appointment of an arbitrator was cancelled and a new arbitrator was appointed without the leave of the Court and the parties participated in the said proceedings without objection, however subsequent objection to such arbitrator’s jurisdiction was disallowed ostensibly on the principle of waiver, whereas as established from the facts given in the preceding paragraphs, the instant case is such where there has been sheer failure to comply with the express and the mandatory provisions of the Act (referred to above), which in view of the unambiguous wording of the arbitration agreement between the parties was the only remedy available to the respondent, as opposed to C.A.305 of 2008 -: 18 :- unilateral appointment by either of the parties. It is proper to mention here that according to the settled rules of law, parties cannot confer jurisdiction upon a Court or other judicial or quasi-judicial forum through consent which otherwise in law would have no jurisdiction and the same is the position regarding waiver and acquiescence qua the Courts etc. which lack jurisdiction and such being an inherent defect cannot be cured on the rules of consent, waiver, estoppel, acquiesce etc. Though under the arbitration law the parties, as mentioned above, can choose their own forum for the adjudication of their disputes, but that forum has to be constituted strictly in terms of the arbitration agreement and in any case according to the express mandate of law and not in violation thereof. If the constitution is violative of both, the agreement and the law, and the objecting party has also not submitted to the jurisdiction of the arbitrator, the rule of waiver and acquiescence cannot be pressed into service against such party. However in this context there then needs to be express consent to submit to the jurisdiction of an arbitrator having no jurisdiction otherwise, and if there is clear acquiescence and waiver on part of the party aggrieved of the jurisdiction, such as participation in proceedings without any protest or objection, which conduct shall mean that they have accepted by choice the jurisdiction of the arbitrator. However in the instant case we do not find any material on the record to hold that the appellant either waived their objection or acquiesced to the arbitration of Mr. Nizami, rather to the contrary the record clearly suggests that the appellant had persistently objected to the arbitrator’s lack of jurisdiction even before the arbitrator himself. Letters dated 12.07.1997, 28.07.1997 and 27.09.1997 from the appellant to the respondent all contain the former’s objection to the arbitrator’s lack of jurisdiction. With respect to the objection taken before the arbitrator himself, reference may be made to C.A.305 of 2008 -: 19 :- the letters dated 13.09.1997, 27.07.1997 and 13.12.1997. For the sake of clarity and brevity, the relevant extract from the letter to the arbitrator dated 13.12.1997 is reproduced herein below: “It may be specifically stated here that KDLB has never accepted you as a sole arbitrator. In fact all the proceeding before you are without jurisdiction with no legal effect.” We do not see how an objection phrased in these very terms could amount to the appellant’s consent to Mr. Nizami acting as a lawfully appointed sole arbitrator or a waiver of their objection to his lack of jurisdiction. The Kerala High Court in Cochin Refineries Ltd v C. S. Company, Engineering Contractors & Another [(1988) 2 Ker LJ 452] has held that when the sole arbitrator has been appointed irregularly, participation in the proceedings under protest does not amount to consent on part of such a party and it can approach the court to set aside such appointment. We do not feel hesitant in subscribing to such a rule. In fact in the instant case, the record reveals that the appellant never appeared before the arbitrator even under protest. They have been denying the arbitrator’s jurisdiction from the very outset and boycotted the arbitrator’s proceedings throughout as has been established hereinabove. We thus opine that the appellant had not, by its conduct, waived its right to object to the jurisdiction of the arbitrator. 14. Attending to the argument of the learned counsel for the respondent regarding the principle of Kompetenz-Kompetenz (German), Competence de la Competence (French) or Competence Competence (English), that an arbitral tribunal has the competence to determine its competence. This principle has its roots in Germany, which is now employed in the European Union and other international arbitral tribunals as also India. Learned counsel for the respondent has relied C.A.305 of 2008 -: 20 :- upon several judgments of the United Kingdom and India wherein broadly it has been held that where a party has not raised an objection with regard to the competence or jurisdiction (or lack thereof) of the arbitrator before the arbitrator himself, it would be deemed to have been waived. Our courts have acknowledged the principle that an arbitral tribunal is a judge of both fact and law, the latter of which includes the question of its own jurisdiction. However the law in our country has developed somewhat differently. With respect to the English judgments relied upon by the learned counsel for the respondent, they have held that the parties were deemed to have waived their right to object and precluded from raising such objections if not raised before the arbitrator himself. This however was based on a provision in the English Arbitration Act, 1996 unique to it, which specifically provides for loss of right to raise objections when not raised before the arbitrator. We have no such corresponding provision in our Act hence do not feel that the law laid down in the English judgments can hardly be of any help to our jurisdiction. The Indian judgments on the other hand revolve around the Indian Arbitration Act, 1996 which contain a particular provision vis-à- vis waiver with respect to non-compliance with the arbitration agreement. However it is pertinent to mention that the said provision does not pertain to non-compliance with the Act. Thus, although our international counterparts have, as have we, retained the concept that an arbitral tribunal’s decision on its jurisdiction is open to review by the courts, the course that the law has taken in our country with respect to applicability of the concept of waiver is slightly different, particularly due to variance in our respective arbitration statutes. We have not adopted wholesale the concept that if the question of proper constitution of an arbitral tribunal is not raised before the tribunal itself, this would constitute a waiver of the right to object which objection cannot be C.A.305 of 2008 -: 21 :- subsequently raised for setting aside the award. Indeed this principle may hold true where the appointment of the arbitrator has not been made in compliance with the terms of the arbitration agreement, as the parties may by way of waiver amend the terms of their arbitration agreement. However where such appointment was made in contravention of the provisions of the Act, then this principle has no application. In this respect, guidance may be sought from a five member bench judgment of this Court in Abdul Hamid (supra), while considering the question as to whether the appointment of an arbitrator made in terms of Section 9 where it was claimed to be not applicable thus rendering the appointment of arbitrator and the subsequent award invalid, held that: “In the present case, only one arbitrator, who may be described as the arbitrator for H. M. Qureshi, was appointed and his award which was based upon an inquiry in which Abdul Hamid took no part, has been made the basis of a decree for a large sum in favour of H. M. Qureshi. It cannot be denied that the aspect of one-sidedness appears most prominently. It is sought to be justified by reference to clause (b) of section 9 of the Arbitration Act, 1940. The question goes to the competency of the arbitrator nominated by one of the parties, to give an award which shall be binding upon both parties. In order that the award should qualify, within the context of law for being made a rule of Court, it should be the act of a tribunal validly invested with authority to investigate and pronounce upon the rights of the parties to the submission. The Court will, of necessity, examine the power which such person or persons appear to exercise, with the care necessary for the purpose of ensuring that the decree which it proposes to make in relation to the rights of the parties, does not rest upon a conclusion reached by a private tribunal which was itself not competent in law to deal with the matter in the light of the agreement between the parties, and the relevant law. The question of the competency of Mr. G. H. Lodhi's appointment was not raised in the terms indicated above at any earlier stage of this case, but that is not a circumstance which need stand in the way of this Court undertaking the duty of examining the point. [Emphasis added] C.A.305 of 2008 -: 22 :- The case of Abdul Hamid (supra) seems to satisfactorily resolve the issue of objection to the arbitrator’s jurisdiction in favour of the appellant. In relation to the argument of learned counsel for the respondent of the principle of least intervention, we are of the view that it is a valid principle, but we will not apply it where there has been sheer non- compliance with the provisions of the Act, as it is not fathomable as to how the court can abstain from intervening in such a situation. 15. With respect to the reliance placed on Joint Venture Kocks (supra) by the learned counsel for the respondent in that objections must be made with sufficient clarity, it is stated that such reliance is misplaced, as in that case, the objections could not even have been implied, whereas in the instant case, the objection vis-à-vis jurisdiction of the arbitrator was without fail taken up by the appellant at every stage of the proceedings as highlighted above. Furthermore, an objection regarding inherent jurisdiction of an arbitrator is a point of law, which goes without saying, can be raised at any stage and it is an incurable defect per the law laid down in Chief Engineer’s case supra. 16. Another important and related aspect of this matter is that of the Court’s role vis-à-vis making an award the rule of the Court. The appellant raised an objection regarding lack of jurisdiction of the arbitrator before the learned Single Judge in their application under Section 30 of the Act in the following terms: “10. As already stated above, there was/is no provision in the contract for a reference to the Board of Arbitrators or to a sole arbitrator. There is an Arbitration was to be invoked, it had to be done through an intervention of the court. This having not been done, the entering of the Arbitrator in the present case upon the reference as a sole arbitrator amounts to legal misconduct.” C.A.305 of 2008 -: 23 :- Therefore although in the instant case an express objection to jurisdiction of the arbitrator was sought, we are of the view that notwithstanding the absence of objections filed by any party and/or the fact that parties may consent to the making the award a rule of Court, the Court is duty bound to examine the validity and legality of an award and it may sua sponte modify or set aside the award if the facts and dictates of justice so demand. The Court, in our opinion, cannot and certainly should not, remain dormant by merely affixing the judicial stamp on an award. The Court is not a part of an assembly line which has to churn out finished products mechanically without applying its judicial mind to the process involved [See case reported as Rashida Begum v Ch. Muhammad Anwar and others (PLD 2003 Lahore 522)]. Thus Mr Nizami, the supposed arbitrator, who for the reasons mentioned above was incompetent to act as an arbitrator and pronounce the award, could not possibly have passed an award that would be valid in law. This error was floating and apparent on the face of the award, rendering it invalid, thus it could not have been made the rule of the Court. 17. With respect to the contention of the learned counsel for the respondent that the appellant should have made an application under Sections 5 or 11 of the Act, we find force in the learned counsel for the appellant’s argument that Section 5 speaks of the authority of an “appointed arbitrator” hence making valid conferment of authority a pre- requisite for the application of Section 5. Therefore an application under Section 5 would not have been sustainable in law. The same reasoning applies to Section 11, which although does not use the words “appointed arbitrator”, talks about the removal of arbitrators and we are of the opinion that only those arbitrators can be removed, who have been in fact appointed, and a defective appointment made in contravention of the provisions of the Act is no appointment, hence removal can certainly and C.A.305 of 2008 -: 24 :- logically not follow. In any case, non-filing of an application under the said sections would not, in our view amount to waiver on part of a party and it would not preclude a party from challenging the jurisdiction of an arbitrator subsequently. 18. Learned counsel for the appellant has also argued that the pre-condition of reference to the consultant to invoke the arbitration clause was not met as the respondent did not apply to the consultant before asking for the appointment of the arbitrator and making a reference thereto. We are of the opinion that this contention is unfounded, as a perusal of the record reveals that the respondent vide letter dated 05.06.1996 had forwarded their claims to the consultant, who had failed to render a decision within the period stipulated in the contract, after which they proceeded with arbitration. 19. Now we come to the contention of the learned counsel for the appellant that the respondent’s claim was already settled by payment made under the fourth and final supplemental agreement. A perusal of all four supplementary agreements does not suggest that the arbitration clause was amended or removed in any way thus it was valid for all intents and purposes. Furthermore, clause 5 of the fourth supplemental agreement provides: “Claims by both parties if unresolved shall be adjudicated as per terms of Contract after handing-over the entire project to the employer according to this Agreement.” This clause clearly suggests that the parties were not precluded from utilising the method of adjudication provided for in the contract, which was reference of the dispute to the consultant and then the arbitrator. Furthermore, the factum of a final settlement may be subsequently disputed by the parties. Adjudication in this regard would be required to C.A.305 of 2008 -: 25 :- be undertaken by the process stipulated by the parties in the contract. Therefore, we are not convinced by the argument of the learned counsel for the appellant in this respect. In any case this point has been rendered irrelevant due to the jurisdictional point. 20. In view of the foregoing, we find that the appellant has a case for setting aside of the award passed by the arbitrator whose appointment was not in consonance with the arbitration agreement and the law contained in the Act. The learned Single Judge and the learned Division Bench of the High Court had erroneously made and upheld the award as a rule of the court respectively by incorrectly observing that arbitral tribunal was properly constituted and that the award was not invalid in law. 21. The above are the detailed reasons for the short order of even date whereby the appellant’s appeal was accepted, which reads as:- “Upon hearing learned counsel for the parties, for reasons to be recorded later, we allow this appeal and set aside the judgment and decree of the learned Single Judge dated 24.11.2004 making the award rule of the court, and the judgment dated 19.4.2006 regarding dismissal of appellant’s appeal. However, while the short order was being dictated in Court, the learned counsel for the respondent has made a request to the Court for appointment of a new Arbitrator in terms of Section 20 of the Arbitration Act, 1940 for resolution of the dispute between the parties as this has been the argument of the appellant in attacking the award and the two decisions of the learned High Court that the respondent should have resorted to the provisions ibid (Section 20). When confronted, learned counsel for the appellant has no objection if learned retired judge of this Court is appointed as an Arbitrator in the matter to resolve the dispute emanating out of the reference filed by the respondent before former Arbitrator (whose award has been set aside in these proceedings). Thus, with the consent of learned counsel for the parties, Mr. Justice (R) Khilji Arif Hussain is appointed as a sole Arbitrator and the reference which the respondent filed before C.A.305 of 2008 -: 26 :- the former Arbitrator, namely Mr. S. A. Nizami, shall be considered and deemed to be the reference in this case before the learned Arbitrator. The appellant shall file a reply to the said reference which shall be proceeded upon by the Arbitrator in accordance with law. The parties are directed to appear before the Arbitrator on 03.11.2015. The learned Arbitrator shall determine his own fee which shall be paid by the parties in equal share. The award shall be made and signed within the time provided in law, however, in case any reasonable extension of time is required for making the Award, the Arbitrator can extend such further period with the consent of the parties.” JUDGE JUDGE JUDGE Islamabad, the 2nd October, 2015 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 Gulzar Ahmed Mr. Justice Umar Ata Bandial CIVIL APPEAL NO. 307-L OF 2015 (On appeal from the judgment/order dated 26.08.2015 of the Election Tribunal, Multan passed in Election Petition No.355 of 2013 SCP, 30/2013 ETM) Muhammad Siddique Baloch … … Appellant. Versus Jehangir Khan Tareen & others … … Respondents. For the appellant : Mr. M. Shahzad Shaukat, ASC. a/w appellant (in-person). For respondent No.1 : Mr. Makhdoom Ali Khan, Sr. ASC. Mr. Tariq Aziz, AOR. a/w respondent No.1 (in-person). Dates of hearing : 21st, 22nd, 26th, 27th & 28th October, 2015. JUDGMENT Umar Ata Bandial, J. – This election appeal assails the judgment dated 26.08.2015 of the learned Election Tribunal, Multan (“Tribunal”) whereby the appellant, who was returned as Member National Assembly in General Elections held on 11.05.2013 from the constituency NA- 154 Lodhran-I, has been unseated by the judgment of the learned Tribunal declaring his election to be void. The impugned declaration is based on three findings. Firstly, that the appellant made a false declaration in his nomination papers about his B.A. qualification from the University of Balochistan. He has thereby incurred disqualification from being elected as member of Parliament under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan (“Constitution”); secondly, that the appellant is the CA.307-L/2015 2 beneficiary of large scale corrupt and illegal practices committed by the election staff on the election day which the appellant procured, whereby the election is void and also the appellant is disqualified from being elected as Member of Parliament under Section 99(1)(l) of the Representation of the People Act, 1976 (“ROPA”); thirdly, that the result of the election is materially affected by the failure of the election staff to comply the provisions of the ROPA and therefore the election as a whole is void under Section 70(a) of the ROPA. 2. The appellant contested the election from the NA-154, Lodhran-I constituency as an independent candidate and secured 86,629 votes to be elected as Member National Assembly. The respondent No.1 (“election petitioner”) was runner up in the election having bagged 75,738 votes, thereby losing the election by a margin of 10,891 votes. Nineteen other candidates (respondents No.2-20) also contested the election. Altogether they polled roughly 64,252 votes making a total tally of 226,619 votes being polled in the election. Even before the result of the election was consolidated, the election petitioner approached the Returning Officer of NA-154 with an application dated 13.05.2013 requesting for suspension of the consolidation of result proceedings scheduled for that day. It was alleged that corrupt and illegal practices had been committed during the election by the election staff at the behest of the appellant. The request of the election petitioner was not acceded. Thereupon he approached the Chief Election Commissioner with a written application dated 14.05.2013 (Exb.P-16/52) seeking deferral of the consolidation of the election result pending outcome of recounting of votes, verification of count furnished by the Presiding Officers, and in particular the verification and analysis of finger prints of the voters and of the ballot papers by National Database Registration Authority (“NADRA”) in order CA.307-L/2015 3 “to identify the bogus voters.” By order dated 14.05.2013 (Exb.P-16/53) the Election Commission of Pakistan (“ECP”) directed the District Returning Officer, Lodhran (“DRO”) to carry out a recounting of votes after notifying all contesting candidates in constituency NA-154, Lodhran-I to attend such proceedings. 3. After the recount proceedings commenced by the DRO on 17.05.2013, the election petitioner again complained to the Chief Election Commissioner on 18.05.2013 that these were being conducted unfairly. Consequently, the ECP passed another order dated 18.05.2013 clarifying that the DRO/RO shall provide access to the nominee of the election petitioner for inspecting all documents available on record and to decide any objection raised about the recounting proceedings in a summary manner in writing. It was also ordered that the Regional Election Commissioner, Multan (“REC”) shall attend the proceedings of recounting as an “observer” to ensure their smoothness. 4. On conclusion of the recounting, two reports about these proceedings, one by the DRO (Exb.P-16/59) and the other by the REC (Exb.P-13), were submitted to the ECP. The report by the DRO (Exb. P-16/59) dated 21.05.2013 acknowledges the correctness of the objection taken by the election petitioner that the counterfoils of the ballot papers cast in the election did not at their back bear the signature and/or stamp of the Presiding Officer as required under Section 33(1)(e) of the ROPA. The second report (Exb.P-13) dated 23.05.2013 filed by the REC, Mr. Ashfaq Ahmed Sarwar (PW-11), is detailed and gives a polling station-wise account of different violations of the election laws committed by the election staff on election day. These breaches were noted by the REC (PW-11) during the proceedings of inspection of record and recounting of ballot papers attended CA.307-L/2015 4 by him as an ECP observer from 19.05.2013 until 23.05.2013. The election material of 270 polling stations was examined during the said five days and are reported by the REC. However, the inspection and recount proceedings of 34 polling stations conducted on 17.05.2013 and 18.05.2013 prior to the REC’s appointment as an observer by the ECP are therefore not dealt with in his report. From the election record of 270 polling stations examined during the recounting proceedings, the REC’s report (Exb.P-13) notes contravention of election laws to have been committed at 104 polling stations. The most frequent violation committed at these polling stations is the non-signing and/or non-stamping of the counterfoils of ballot papers by the Presiding Officers. This omission constitutes a breach of the duty imposed under Section 33(1)(e) of the ROPA. 5. Another violation of the election law noted in the REC’s report (Exb.P-13) is the absence of the thumb impression of the voter on the voters’ list. The said defect is reported to be less frequent than the one first mentioned above. But for the number of polling stations involved in these breaches of law, the exact number of votes affected by such omissions made by the election staff is not available in the REC’s report. A general picture that nevertheless emerges is that the election record of more than 30% of the polling stations (104 out of 270) is tarnished with the violation of statutory requirements. The widespread and random occurrence of these defaults in the record of the 270 reported polling stations suggests a trend which the record of the 34 polling stations not covered by the REC’s report may also bear out. In order to understand the seriousness of the said default in duty committed by the Presiding Officers, the relevant provisions of, inter alia, sub-Sections (1), (2) and (3) of Section 33 of the ROPA are reproduced below: CA.307-L/2015 5 “33. Voting procedure. — (l) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector and shall, for that purpose, require the elector to produce his National Identity Card issued under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000). (2) Before a ballot paper is issued to an elector— (a) [omitted] (b) the number and name of the elector as entered in the electoral roll shall be called out; (c) the entry relating to the elector on the electoral roll shall be struck off to indicate that a ballot paper has been issued to him; (cc) he shall be required to receive a personal mark, made with indelible ink, on any finger of either hand as indicated by the Commission; (d) the ballot paper shall be stamped on its back with the official mark and signed by the Presiding Officer; (e) the Presiding Officer shall record on the counterfoil of the ballot paper the number of the elector on the electoral roll, the number of National Identity Card of the elector, stamp it with the official mark, sign it and obtain on it the thumb impression of the elector. (3) A ballot paper shall not be issued to a person who— (a) fails or refuses to produce his National Identity Card issued to him under the National Database and Registration Authority Ordinance, 2000 (VIII of 2000); (b) [Omitted]; (c) refuses to put his thumb impression on the counterfoil or whose thumb bears traces of its having already been used for putting an impression; or (d) refuses to receive the personal mark with indelible ink or who already bears such a mark or traces of such a mark.” 6. Armed with the above information, the election petitioner filed an election petition in July, 2013, inter alia, making three principal allegations against the appellant that were upheld in the findings of the impugned judgment. In support of these allegations, fourteen witnesses including the election petitioner were examined before the learned Tribunal. A Misc. Application seeking verification/comparison by NADRA of thumb impression of voters affixed upon counterfoils of ballot papers cast in the elections was also filed along with the election petition. After hearing the learned counsel for the appellant and the election petitioner, the learned Tribunal by order dated 21.05.2014 allowed the said application. NADRA was directed to carry out verification and comparison of thumb impressions of voters on the counterfoils of the ballot papers cast in the election. The CA.307-L/2015 6 DRO/learned District & Sessions Judge, Lodhran was directed to procure the relevant election material comprising counterfoils of ballot papers along with voters’ list from the treasury and to dispatch the same in sealed condition to NADRA, in the presence of the representatives of each party. 7. After hearing the learned counsel for the parties and the officer of NADRA, the learned Tribunal on 25.06.2014 appointed its representative to observe the verification proceedings conducted by NADRA. The said representative was replaced on 09.07.2014 by Mr. Shabbir Hussain Chattha (CW-2), a retired District & Sessions Judge. The proceedings of opening, scanning and verification of the election record by NADRA were conducted in the presence of the Tribunal’s representative. The process was spread over three stages. Firstly, on the receipt of election material, it was opened, counted and tabulated in an electronic record for future reference. Secondly, each item of counterfoils and photo electoral rolls was digitally scanned and transferred to a database; thumb impressions, NIC number recorded on the scanned counterfoils and photo electoral rolls were captured and digitized; thereafter, the original election material was repacked and stored in safe custody of NADRA. Thirdly, the digital record of thumb impression and given CNIC number captured from the election material were put to authentication and verification under the Automated Fingerprint Identification System (“AFIS”) of NADRA by comparison with its record linking the thumb impression of every recorded citizen of the State with his CNIC. On completion of the authentication/verification stage, NADRA filed its analysis report (Exb.CW-10/1-6) before the learned Tribunal on 28.10.2014 identifying three categories of thumb impressions contained in the election record. Firstly, the thumb impression on the counterfoils that matched with the thumb print in NADRA’s citizens’ database for the CNIC given on the CA.307-L/2015 7 counterfoils. This is the category of verified votes. The second category of thumb impression on the counterfoils failed the above said authentication by not matching with NADRA’s citizens’ database in the NIC number recorded on the counterfoils. This category included the cases where someone other than the person holding NIC number recorded on the counterfoils had used the ballot papers. Finally, the third category of thumb impressions comprised finger prints of bad quality that could not be deciphered for comparison or matching through the AFIS of NADRA. 8. Based on the said analysis of the counterfoils, the NADRA report at the end of its narrative gives the following summary of its findings: S.No. Description Count of Votes 1 Election material of 290 x Polling Stations received from Election Tribunal (Ref: Para-2, 3 of this report) 218,056 2 Invalid NIC number mentioned on used counterfoils. This also includes such counterfoils that do not have CNIC mentioned over it. 20,601 3 Out of constituency voters found on used counterfoils. 121 4 Duplicate votes on used counterfoils 728 5 Used counterfoils without fingerprints 587 6 Fingerprints successfully authenticated on used counterfoils and ER 73,707 7 Fingerprints on used counterfoils and ER failing authentication 179 8 Fingerprints of bad quality affixed on used counterfoils resultantly NADRA was unable to decipher them due to non-utilization of proposed ink beside other possibilities. However, CNIC number mentioned on such counterfoils having bad thumb impressions were valid CNICs. 122,133 9. The summary of findings given in the NADRA report (Exb.CW-10/1-6) reproduced above is explained in its narrative. The report states that the election material of 298 polling stations out of a total 304 polling stations in the constituency was received from the ECP. However, relevant election material of eight polling stations was damaged or unavailable and only the record of 290 polling stations was scanned and analyzed. From this election material, a total of 218,056 counterfoils of ballot CA.307-L/2015 8 papers were examined by NADRA. 122,133 counterfoils equaling 56% of the available number, contained bad quality finger prints that were not readable by the NADRA software for the purpose of their comparison with and verification through the NADRA database. As a result, only 95,927 counterfoils contained thumb impressions that were readable by the NADRA software. Out of this total, 20,601 counterfoils bore invalid CNIC numbers that had never been issued by NADRA. This count includes 733 counterfoils which did not contain any CNIC number. The said mismatch with the NADRA record shows either that the election staff failed to verify CNIC identity of electors or made bogus entries on the counterfoils, reflecting their indifference or otherwise an improper purpose. 10. In addition to the 20,601 counterfoils containing invalid CNIC numbers, another 587 counterfoils were defective for absence of thumb impression of the voter. Yet another 728 counterfoils were issued to 362 voters showing duplicate votes being cast by such voters; 121 counterfoils were issued to out of constituency voters and 179 counterfoils bore valid CNIC numbers but un-matching thumb impressions. Accordingly 22,216 counterfoils contain evidence of bogus voting out of a total number of 95,927 counterfoils that were found readable by NADRA software. These figures reveal that 23% of the total counterfoils read and deciphered by NADRA software contain false identities of persons who voted in the election on account of absent or invalid CNIC number or thumb impression. Casting of vote by unidentified strangers is contrary to Section 33 of the ROPA that aims at curbing, inter alia, the practice of bogus voting. 11. The NADRA report is signed on each page by Mr. Ghazali Zahid, Director, NADRA Data Warehouse, NADRA Headquarters, Islamabad. He appeared before the Tribunal as CW-2 and was cross- CA.307-L/2015 9 examined by the learned counsel for both the parties. Notwithstanding intense questioning on CW-2, by the learned counsel for the appellant, no dent could be caused to the credibility, transparency and analytical propriety of the NADRA scanning and verification process. The appellant did not file any written objections before the learned Tribunal to the NADRA report. Nor has the learned counsel for the appellant criticized the said report before us. The findings given in the NADRA report are therefore authentic, independent credit worth possessing high probative value. 12. According to the learned counsel for the election petitioner, NADRA report (Exb.CW-10/1-6) represents compelling affirmative evidence about illegalities committed on a widespread scale on the election day. The appellant is the beneficiary of such acts of commission and omission done by the election staff. Therefore, firstly, his election is liable to be declared void on account of its result being achieved through bogus voting. This is evident from the violations of law committed by the election staff as that have been detected in the NADRA report. Secondly, the learned Tribunal’s conclusion about the appellant’s disqualification arrived in the impugned judgment be affirmed. This conclusion finds the appellant to be the principal beneficiary of violations of law committed by the election staff, therefore, he has procured these acts by resorting to corrupt and illegal practices. Consequently, the appellant is disqualified from being elected for committing the said wrongs. The learned counsel for the appellant has not contested the findings recorded in the NADRA report. He has, however, vehemently opposed the finding of the learned Tribunal that the appellant has procured the violations of law by the election staff and won the election by resorting to the commission of corrupt and illegal practices. CA.307-L/2015 10 13. The NADRA report does not take account of the defects noted in the inspection and recounting of votes conducted by the DRO, Lodhran in May, 2013. These proceedings were observed by the REC (PW-11) and documented in his report (REC report) dated 23.05.2013 (Exb.P-13) addressed to the ECP. The violations noted therein include the absence of the stamp and/or signatures of the Presiding Officer on the counterfoils of ballot papers required under Section 33(1)(e) of the ROPA. The said provision of law aims at ensuring that a ballot paper is issued by the competent authority to a person who is verified to be a voter in the constituency. The REC report noted the afore-noted defect in the record of 72 polling stations during the scrutiny of election record of 270 polling stations, observed by the REC. On this analysis as well the election record of roughly 25% of polling stations contain a violation of a crucial legal requirement aimed at identifying genuine voters before the issuance of ballot papers. The total number of ballot papers affected by this defect is not calculated by the REC report but the fact that at 72 polling stations the bulk of issued ballot papers suffered from the said violation of law highlights another serious failing and defect in the management and conduct of the election process in the constituency on the election day. The combined effect of the distinct violations of law committed in the identification of the voters highlighted in the NADRA report and in the issuance of ballot papers by unauthorized persons indicate serious flaws in the voting process that render no less than 25% and may be much more of the total votes cast in the election to be suspect, dubious and bogus. 14. Turning to the conclusion to be drawn from the above mentioned clear and convincing evidence of widespread violations of the ROPA committed by the election staff. The learned counsel for the appellant CA.307-L/2015 11 has seriously questioned the findings given by the learned Tribunal that the appellant is accountable for non-compliance of sub-section 1(e) and 3(c) of Section 33 of the ROPA. He submits that there is no evidence on record showing that the appellant procured the violations of law committed by the election staff. He has read from the affidavits of the 13 witnesses produced by the election petitioner in aid of his allegation of corrupt or illegal practices being committed by the appellant on the election day. None of these affidavits nor the statements in cross-examination of the said witnesses including the election petitioner disclose any fact nor nominate any person, for connecting the appellant with the said violations of the ROPA committed by the election staff. Equally, neither of the two reports, that is, the REC report (Exb.P-13) and the NADRA report (Exb.CW-10/1-6) insinuates the appellant’s involvement in the breach of requirements under Section 33 of the ROPA. The anxiety of the appellant to obtain the reversal of the finding that he has committed corrupt or illegal practices is to avoid his disqualification for five years from contesting election under Section 99(1)(l) of the ROPA. The fact that the appellant won the election cannot be presumed by the election petitioner as proof that the appellant procured violations of election law to be committed. 15. The law regarding the quality of evidence necessary to prove an allegation of corrupt and illegal practices committed by a candidate during his election is by now well settled. “Corrupt practice” is defined in Section 78 of the ROPA while “Illegal practice” is defined in Section 83 of the said statute. The allegation in the present case would, prima facie, fall within the ambit of Section 83(1)(b) of the ROPA. The delinquent conduct under the said provision pertains to, inter alia, procuring the assistance of any person in the service of Pakistan to further or hinder the election of a candidate. The CA.307-L/2015 12 successful proof of the commission of the said wrong by a returned candidate not only annuls his election under Section 368 (1)(d) as well as Section 70(b) of the ROPA but also disqualifies him from contesting an election for a period of five years under Section 99(1A)(l) of the ROPA and exposes him to criminal prosecution for an offence carrying punishment of six months imprisonment. In view of the severe consequences following the proof of corrupt and illegal practices in particular by a returned candidate, different pronouncements by this Court adopt a cautious stance towards a defending incumbent of elected office. The earliest case on the subject is Muhammad Saeed vs. Election Petitions Tribunal, West Pakistan, etc. (PLD 1957 SC 91) which holds that each ingredient of the misdemeanor of corrupt or illegal practices must be affirmatively proved by direct or circumstantial evidence. Circumstantial evidence is to be believed if all reasonable hypotheses which are consistent with the non-commission of corrupt or illegal practices have been excluded. The said rule has been reiterated with approval in Muhammad Yusuf vs. S.M. Ayub (PLD 1973 SC 160) and in Muhammad Afzal vs. Muhammad Altaf Hussain (1986 SCMR 1736). 16. In the present case, there is no circumstantial, let alone, any direct evidence implicating the appellant in the commission of corrupt or illegal practices during his election. Only an inferential allusion in the submissions by the learned counsel for the election petitioner is suggested to entangle the appellant. The half heartedness of the suggestion itself indicates the weakness of any merit in the learned Tribunal’s finding that the appellant is guilty of committing corrupt or illegal practices during the general election in constituency NA-154 Lodhran-I. Correspondingly, there CA.307-L/2015 13 cannot be any finding that the result of the said election is vitiated by such practices under Section 68(1)(d) or Section 70(b) of the ROPA. 17. Be that as it may, the question that arises is whether the inclusion of 22,216 invalidly issued ballot papers in the count of election result is inconsequential in the eyes of law or has any bearing on the result of the election. It may be reiterated that the objection to the validity of issued ballot papers arises from non-compliance with the requirements of Section 33(1)(e) and 33(3)(c) of the ROPA to different degrees by the election staff at almost all the polling stations. Section 70 of the ROPA is relevant for widespread violations of mandatory law made during the course of election. It reads as under: 70. Ground for declaring election as a whole void. The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of— (a) the failure of any person to comply with the provisions of this Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. 18. Clearly, the provisions, inter alia, of Section 33 of the ROPA relating to the identification of an elector before the issuance of a ballot paper to him are crucial for preventing bogus voting and ensuring a free and fair election. These provisions with the said object would, according to the dicta laid down in Abdul Hafeez Khan vs. Muhammad Tahir Khan Loni (1999 SCMR 284) have mandatory effect, and the widespread non-compliance of the said provision would attract the application of Section 70(a) of the ROPA. However, it is noticed that a declaration under Section 70(a) ibid is predicated upon the satisfaction of the Election Tribunal that “the result of the election has been materially affected by reason of” non-compliance with the provisions of the ROPA or Rules framed there under. Straightaway, those violations of the election law that have significant numerical impact on the CA.307-L/2015 14 count of election result would fall within the ambit of Section 70(a) of the ROPA. At the same time, arithmetical precision in determining the number of votes invalidated by delinquent acts committed during the election is not essential and a Tribunal in principle should consider the imperativeness of the law violated and the scale of the violation committed in order to estimate their impact on the result of the election. 19. In the case of Jam Mashooq Ali vs. Shahnawaz Junejo (PLD 1996 SC 426) this Court treated the non-supply of amended electoral rolls to the election staff at several polling stations, the prohibition of electors to vote on account of having identity cards bearing numbers from specified series and non-issuance of postal ballots to electors who had used photocopy forms issued for the purpose to have vitiated the process of the election as a whole. The Court approved the observation that in the facts and circumstances of a case if it is not possible to even assess as to what should have been the result of the election on account of non-compliance with the election law, then the result of the election ought to be treated as being materially affected. The denial of a right of franchise to the electors on a widespread scale or conversely the grant of opportunity to strangers to usurp or defeat such right of franchise through bogus voting are both acts that go to the roots of the electoral process and contravene the constitutional mandate expressed in Article 218 (3) of the Constitution that “elections are to be held honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against.” 20. In cases where an estimate of the votes tainted with delinquent conduct can be made, one approach taken by the Court has been to deduct the number of tainted votes from the lead secured by a winning candidate. Where the lead significantly exceeds the number of tainted votes, the adjustment reduces such margin but the winning candidate nevertheless CA.307-L/2015 15 succeeds. Therefore, in such cases it cannot be said that the result of the election has been materially affected. In the case of Ehsanullah Reki vs. Abdul Qadir Baloch (2010 SCMR 1271), this Court adjusted the disputed votes cast at the polling stations nominated by the election petitioner against the lead attained by the returned candidate. It was held that even after giving the election petitioner benefit of all the disputed votes, the lead of the winning candidate survived by a margin of 188 votes over the total number of votes attributed to the election petitioner. A similar approach was adopted by this Court in the case of Raja Ameer Zaman vs. Omer Ayub Khan (2015 SCMR 890) wherein it was contended before the Court that a re-poll at specified polling stations could not be ordered because the non-compliance in election process with the provisions of election law had not been attributed to corrupt or illegal practices committed by any candidate. The returned candidate could not be punished for neglect or defaults committed by the election staff. This Court answered that contention as follows:- “26. … The scheme of the law appears to be that the primary and perhaps this most effective defence against bogus voting is to ensure that a ballot paper is only issued to a person whose name appears on the Voters List/ Electoral Roll of the Polling Station in question, that too, after proper identification. To achieve the object of fair election the availability and proper utilization of the Voters List is therefore crucial. The failure of an effective filter for the issuance of ballot paper to a bona fide Elector would tantamount to leaving the barn door open and the Cow will run away. Any subsequent attempt to track down the proverbial Cow (the illegally issued ballot paper) is by no means easy if not impossible. 27. Yet another safeguard against the bogus voting is the counterfoils of the ballot papers. Any discrepancy in the number of votes cast and the counterfoils available would obviously make the result questionable. Similarly, rejected votes can become a bone of contention effecting the outcome of the election. It is no coincidence that Voters Lists, counterfoils of ballot papers and rejected votes are required to preserved along with other election material as mandated by section 38 of ROPA. The resolution of future dispute through verification appears to have been catered for. CA.307-L/2015 16 28. There can be no escape from the fact that in the instant case the requirement of the law has not been fulfilled. Section 70 of ROPA clearly provides that the Tribunal can declare an election to be void on account of failure of any person to comply with the provisions of ROPA or the Rules framed thereunder, if such failure materially affects the result. This Court in the case, reported as Jam Mashooq Ali vs. Shahnawaz Junejo (1996 SCMR 426) set aside an election, inter alia, on the ground that up- to-date amended Voters List/ Electoral Roll had not been made available to the Presiding Officer before the commencement of the voting process on the election day.” With respect to the numerical difference of 1304 votes between the returned candidate and the challenger, it was held that if the votes polled by both the appellants and respondent No.1 [in the seven objected polling stations] are excluded from the total tally, then it is the respondent No.1, whose votes would exceed those cast in favour of the appellant [returned candidate]; thus it is obvious that non-compliance of the law in seven polling station has materially affected the election results of the entire election. On the said test the judgment of the Tribunal for re-poll at the seven polling stations was upheld. Subsequently, in review proceedings, Raja Ameer Zaman vs. Omer Ayub Khan (2015 SCMR 1303), this Court modified the extent of the re-poll to the entire constituency and thereby approved the approach that material affect upon the result election can be established by excluding the objected votes from total count in order to assess whether the winning margin of the returned candidate is upset. 21. In the present case, there are two reports: one is dated 23.05.2013 (Exb.P-13) prepared by the REC (PW-11) and the other is dated 28.10.2014 (Exb.CW-10/1-6) authored by Mr. Ghazali Zahid, Director, NADRA (CW-2). Both these witnesses were cross-examined incisively by the learned counsel for the appellant, however, the integrity and correctness of the findings given in the two reports remain unaffected. The violations of election law noted in the NADRA’s report clearly invalidate 22,216 ballot CA.307-L/2015 17 papers issued to persons contrary to the provision of Section 33 of the ROPA, which are intended to exclude the possibility of bogus voting and are therefore mandatory for advancing the mandate expressed in Article 218(3) of the Constitution. On the other hand, the appellant was returned as Member National Assembly in the election with a lead of 10,891 votes. Consequently, by adopting the straight forward numerical approach of this Court taken in Raja Ameer Zaman’s case (2015 SCMR 890) and also visible in Ehsanullah Reki’s case (2010 SCMR 1271), it is patently clear that after adjusting the 22,216 disputed votes against the lead of the appellant, the result of the election is materially affected and his margin of victory is eliminated to a losing difference from the tally of the election petitioner. Equally, on the alternative test adopted by this Court in Jam Mashooq Ali’s case (PLD 1996 SC 426), the widespread scale of the violations of election law committed by the election staff in NA-154, Lodhran-I, makes the pervasiveness of their default to infect the election process as a whole with doubt and suspicion thereby materially affecting the election result. 22. According to the NADRA’s report (Exb.CW-10/1-6) the election record of 290 polling station was scanned and verified. Out of these, entries of bogus CNIC are contained in the record of 288 polling stations. Nearly fifty of these polling stations had bogus ID Cards entries on a minimum of 100 counterfoils upto a maximum of 414 counterfoils. This result is based on the analysis of 95,927 counterfoils pertaining to almost all the polling stations. However, the NADRA report states that thumb impression on 122,123 counterfoils could not be deciphered and therefore, were excluded from the count. What extent of violation may have taken place in respect of said unreadable counterfoils can only be guessed, since these cannot be totally immune from the otherwise universal malaise of CA.307-L/2015 18 bogus entries. Add to these figures the violation of section 33(1)(e) of the ROPA occurring at 104 polling stations highlighted in the REC’s report. The Presiding Officers at these polling stations did not sign and/or stamp the counterfoils of ballot papers. The issuance of ballot papers against such counterfoils is unauthorized and invalid. Therefore, the combined impact of the violations of the ROPA and the Rules framed thereunder that are noted in the NADRA report and the REC report in the election of NA-154 Lodhran- I is so widespread and extensive that the test laid down in Jam Mashooq Ali’s case (PLD 1996 SC 426) is also squarely satisfied. Consequently, the finding of the learned Election Tribunal, that the result of the election of NA-154 is materially affected on account of violations to comply with the provisions of the ROPA or Rules framed thereunder, is entirely justified and is upheld. The derivative finding by the learned Tribunal that such violations have been committed by the election staff by or at the behest of the appellant is unsupported by any evidence and is therefore set aside. We hold that in consequence of non-compliance of the election laws, the election in NA-154 Lodhran-I is void as a whole. 23. It may be observed at this stage that owing to afore-noted significant and substantial evidence of statutory violations in the conduct of election in NA-154 Lodhran-I, learned counsel for the appellant on instructions gave his consent to the appellant’s election being declared as a whole to be void and for a fresh election to be held in the constituency NA-154 Lodhran-I. That concession was pondered and disregarded by us because private consent cannot prompt a judicial direction for holding a fresh election in the constituency. The present lis involves the enforcement of public law in respect of an elected public office under the Constitution and involves the commitment of huge public funds through the ECP for CA.307-L/2015 19 financing a bye-election. The outcome of such a controversy must be decided in accordance with law and not pursuant to the wishes of affected private parties. 24. Keeping in view the above noted vast extent and degree of neglect, indifference or otherwise malice of the election staff in the conduct of election in NA-154 Lodhran-I, the object and motivation for such wrong doing cannot be overlooked or condoned. The ECP is therefore directed to inquire into the cause and purpose, if any, of such errant conduct by the election staff and to prosecute the responsible persons for breaches of their duties, inter alia, committed under Section 91 of the ROPA. 25. This brings us to the last and highly contested finding given by the learned Tribunal. It has been held that the appellant made a false declaration in his nomination papers about his B.A./Graduation qualification from the University of Balochistan. Such a false declaration deprives the appellant of the qualification contained in Article 62(1)(f) of the Constitution, which provides as follows: “62.(1). A person shall not be qualified to be elected or chosen as a member of the Majlis-e-Shoora (Parliament) unless – … (f) He is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law;” The learned counsel for the appellant has contested the said finding because there is no direct evidence on record showing that the appellant’s claim of his graduate qualification is false. The election petitioner as an accuser cannot establish the allegation without bringing proof that is beyond reasonable doubt. In such matters involving a penal consequence, the benefit of doubt must favour the accused, in this case the appellant. Reliance has been placed on the judgments by this Court in Muhammad Saeed vs. Election Petitions Tribunal, West Pakistan, etc. (PLD 1957 SC 91), Saeed CA.307-L/2015 20 Hassan vs. Pyar Ali (PLD 1976 SC 6) and Muhammad Afzal vs. Muhammad Altaf Hussain (1986 SCMR 1736). 26. The loss of qualification under Article 62(1)(f) of the Constitution has been visited with removal from elected office under the Constitution in a number of cases including Abdul Ghafoor Lehri vs. Returning Officer PB-29 Naseerabad-II (2013 SCMR 1271), Allah Dino Khan Bhayo vs. Election Commission of Pakistan (2013 SCMR 1655), Iqbal Ahmad Langrial vs. Jamshed Alam (PLD 2013 SC 179) and Najeeb- ud-din Owaisi vs. Amir Yar Waran (PLD 2013 SC 482). Weighty reasons have been assigned for adopting and implementing the constitutional mandate as a bar on membership in Parliament. Firstly, the qualifications of a candidate set out in Article 62 of the Constitution are a sine-qua-non for eligibility to be elected as Member of Parliament. No time limit for ineligibility on this score is given in the Constitution. A person who is untruthful or dishonest or profligate has no place in discharging the noble task of law making and administering the affairs of State in government office. Such faults in character or disposition, if duly established, cannot be treated as transient for the purpose of reposing trust and faith of the electorate and the Constitution in the holder of an elected office under the Constitution. The trusteeship attendant upon the discharge of every public office under the Constitution, whether Legislative, Executive or Judicial is a universally recognized norm. However, our Constitution emphasizes upon it expressly for an elected parliamentary office. The Constitutional norm must be respected and therefore implemented. The above noted precedents have applied a lifetime bar on a delinquent elected Member of Parliament. Therefore, the apprehension of the appellant, as expressed by his learned counsel about incurring the sanction under Article 63 of the Constitution is CA.307-L/2015 21 fully justified. Irrespective of the period of disability inflicted for violation of Article 62(1)(f) of the Constitution, the learned Tribunal should have examined the evidence in relation to the allegation of false declaration by the appellant in his nomination papers very carefully and judiciously before depriving him of eligibility to contest for elected office under the Constitution. 27. The state of evidence on record about the falsity of the appellant’s educational qualification is cursory, defused and inferential. No witness of the University of Balochistan was examined by the election petitioner. Likewise, no witness of Board of Intermediate and Secondary Education (“BISE”), Karachi wherefrom the appellant secured his Secondary School Certificate (Matriculation) and Higher Secondary School Certificate (Intermediate) was examined by the election petitioner. There is no report on record either by the University of Balochistan or BISE, Karachi disputing, disowning or rejecting diplomas/certificates conferred by the said institutions upon the appellant. At best, the case of the election petitioner is based on the belated decision of the appellant i.e. at the age of 43 years, to secure his Secondary School Certificate, Higher Secondary School Certificate and Graduation degree in the years 2002, 2004 and 2006 respectively. This initiative coupled with his poor English language skills and total lack of knowledge of the Sindhi language as well as failure to distinguish “General Science” from “Political Science” are highlighted by the learned counsel for the election petitioner as proof of the appellant’s lack of graduate qualification. The order sheets of the learned Tribunal show that on 28.02.2014, the Deputy Controller of Examination, BISE Karachi attended the Court as a summoned witness. The election petitioner did not examine him because of the incomplete record that he had brought. Again on 15.04.2014 the Controller of Examination, University of Balochistan attended the Court CA.307-L/2015 22 as a summoned witness. He also brought incomplete record and the election petitioner decided not to examine him. 28. The case law on the subject of false declaration of educational qualifications by a returned candidate covers in general three categories: firstly, where the degree or diploma is fake and bogus and is disowned by the institution claimed by the holder to have issued the same; secondly, where the degree or diploma has been procured through personation and some finding on this score has been rendered by the concerned educational institution; and thirdly, where unfair means have been adopted by a candidate to pass his examination or secure his degree or diploma fraudulently, deceitfully or with complicity. The election petitioner has made a vague and jumbled allegation against appellant’s educational qualifications that does not specify either in his pleadings and his evidence, the precise reason for the invalidity of the B.A. qualification of the appellant. In the final analysis, when the learned counsel for the election petitioner declined to avail the opportunity to cross-examine the Controller of Examination of the University of Balochistan about his failure to bring the summoned record, the election petitioner gave up the chance to demonstrate complicity, design or impropriety in the issuance of the degree to the appellant. To cover that defect, the learned counsel for the election petitioner made a request that this Court should itself examine the appellant under Order X Rule 2 CPC. Reliance was placed on Iftikhar Ahmad Khan Bar vs. Chief Election Commissioner (PLD 2010 SC 817) and Muhammad Rizwan Gill vs. Nadia Aziz (PLD 2010 SC 828). However, both precedents are distinguishable. In the first case, the qualification claimed by the returned candidate was a Sanad of Alshahadat-ul-Aalimia equivalent of M.A. in Islamic Studies according to the Higher Education Commission Pakistan (“HECP”). CA.307-L/2015 23 However, the body authorized by the HECP for conferring the said Sanad, namely, the Wafaq-ul-Madaris, Pakistan, disowned issuance of the Sanad claimed by the returned candidate. In fact the Jamia Rizvia Sardarul Madaris which had conferred the Sanad was not even registered with the Wafaq-ul- Madaris. In the background of clear proof of bogus qualification of the returned candidate but before giving any adverse finding against an elected Member of Parliament, this Court in order to do justice decided to examine him. The second case is completely different in which the returned candidate himself wished to be heard in-person before this Court and to make a statement. The two cases were accordingly decided on their own facts. However, it cannot be canvassed that in these cases the Court ventured to fill any lacunae in the evidence against the returned candidate, whereby he would be disqualified to contest any election; whereas this is being presently canvassed before us on behalf of the election petitioner. 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 vs. 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 CA.307-L/2015 24 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. 32. The defect with the election petitioner’s case is his failure to bring direct or circumstantial evidence that affirmatively proves that the appellant has made a false statement about his graduate qualification. The CA.307-L/2015 25 learned counsel for the election petitioner has contended that in civil matters, as in the present case, wherein pursuant to the provisions of Section 64 of the ROPA, the Election Tribunal exercises all the powers of the Civil Court under the Code of Civil Procedure, 1908, the initial burden of proof lies upon the appellant because he is the holder and beneficiary of the educational qualification claimed by him. That the appellant has never discharged that burden of proof and consequently, the genuineness of the claimed graduate qualification is not proven. The said submission ignores the verification certificate of the appellant’s B.A. degree issued by the HECP and presented to the Election Tribunal vide Exb.R-27. This exhibit includes the Degree Submission Information Form (“DSIF”) (Exb.R.24/1) signed respectively by the Controller of Examination and the Vice Chancellor of the University of Balochistan. Furthermore, the Director (Attestation) of the HECP deposed as RW-22 before the learned Tribunal to substantiate and defend the verification of the appellant’s graduate qualification carried out by the HECP under orders of this Court dated 14.06.2010 passed in Civil Appeal No. 409 of 2010. Sadly, the cross-examination of the said witness by the learned counsel for the election petitioner failed to extract any concession or information favourable to the election petitioner by discrediting or demolishing the HECP verification of degrees procedure. No substantial defect in that procedure nor the inadequacy of safeguards and checks applied by the HECP for rendering its verification were demonstrated. In the absence of material showing that the appellant had failed to discharge his initial burden of proof to demonstrate his educational qualification clearly the burden of proof shifted to the election petitioner who, as already observed, failed to meet the standard specified in the precedents noted above. Accordingly, the findings given by the learned Tribunal to the effect CA.307-L/2015 26 that the appellant has made a false statement/declaration in his nomination papers regarding his educational qualification is based on presumption, inferences and surmises and is therefore, unsustainable in law. It is accordingly set aside. The appeal is accordingly partly allowed with a direction to the ECP to hold a fresh election in constituency NA-154 Lodhran-I in accordance with law. There is no order as to costs. 33. Herein above are the reasons of our short order dated 28.10.2015, which is reproduced herein below: “For the detailed reasons to be recorded later, this appeal is partly allowed, in that the finding of the learned Election Tribunal regarding disqualification of the appellant is set aside. However, as regards the finding on the question/issue about illegal and corrupt practices committed in the holding of the election in the constituency, the learned counsel for the appellant is prepared to face a fresh election. He does not press this appeal to the extent that the result of the election is void under Section 70(a) of the ROPA, 1976. However, he contests the finding given against the appellant under Section 68 of the ROPA, 1976. 2. In view of the concession given with respect to violations of law under Section 70(a) of the ROPA, 1976, the result of the election is materially affected and is therefore declared void. In light of the above, this appeal is partly allowed; the election of constituency NA-154 Lodhran-I having been declared void, the Election Commission of Pakistan is directed to hold fresh election in the said constituency in accordance with law.” J. J. J. Islamabad, 28.10.2015. Irshad Hussain /* 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 Iqbal Hameedur Rahman CIVIL APPEAL NO. 308 OF 2014 (on appeal from the judgment of the Islamabad High Court, Islamabad dated 17.09.2013 passed in ICA-872 of 2013) Government of Pakistan M/o Railways, through its Secretary, etc …Appellants VERSUS Jamshed Hussain Cheema & others …Respondents For the appellants: Rai Muhammad Nawaz Khan Kharal, ASC Syed Rifaqat Hussain Shah, AOR For the respondents: Ch. Muhammad Anwar Bhindar, Sr. ASC Date of Hearing: 07.12.2015 JUDGMENT Anwar Zaheer Jamali, C.J. – This civil appeal with leave of the Court is directed against the judgment dated 17.9.2013, in Intra Court Appeal No.872/2013, passed by the learned Division Bench of the Islamabad High Court, Islamabad, whereby the said Intra Court Appeal at the instance of present appellants was dismissed, and consequently the judgment dated 20.5.2013, passed by learned single Judge in chambers of the Islamabad High Court, Islamabad in Writ Petition No.975/2011, filed by respondents, thereby granting them requisite relief, was maintained. C.A No.308/2014. 2 2. Briefly stated, relevant facts of the case are that in the month of March 2011, the respondents No.1 to 20 (in short “the respondents”) had instituted the above referred writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the grievance of discrimination in the matter of upgradation of their posts as against other employees of the appellants in different categories and in that context they had prayed for following reliefs:- “In view of the above circumstances, it is, therefore, most respectfully prayed that the instant writ petition may kindly be accepted and the act of the respondents not to upgrade the scales of the petitioners may graciously be declared as illegal, unlawful, ineffective and inoperative upon the rights of the petitioners and direction may graciously be issued to the respondents to upgrade the post of Claim Inspector BS-13 to the BS-16, which is in the interest of justice.” 3. In the parawise comments submitted by the appellants before the Islamabad High Court, the maintainability of the writ petition was challenged on various legal grounds. On facts also, claim of respondents was challenged, inter alia, on the plea that they have been also upgraded one scale from BS-12 to BS-13, duly approved by the competent authority. Thus, there was no occasion of any discrimination in this regard, as those who were given upgradation in scales by more than one step were in different categories than the respondents. 4. The petition was heard by a learned single Judge in the Islamabad High Court and it was allowed vide judgment dated 20.5.2013 with directions to the appellants to initiate process for upgradation of posts of Claim Inspectors/respondents, keeping in view C.A No.308/2014. 3 the earlier recommendations, and such process be completed within two months. 5. Being dissatisfied by the above judgment, Intra Court Appeal under section 3 of the Law Reforms Ordinance, 1972, was filed by the appellants, which was dismissed vide impugned judgment, as the learned Division Bench endorsed the view of the learned single Judge contained in his impugned judgment. 6. Leave to appeal was granted in this case, inter alia, to examine whether the private respondents, being civil servants, could have invoked the writ jurisdiction of the High Court as regards their grievance, which according to learned ASC for the appellants, related to terms and conditions of their service. Today, when the learned ASC for the appellants was confronted with the ratio of judgment in the case of Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456), relating to concept of upgradation of posts, he candidly did not dispute the legal position that upgradation to higher scale is not equivalent to promotion and no concept of upgradation, as one of the terms and conditions of service, was provided under the Civil Servants Act, 1973. Therefore, for any grievance with reference to upgradation, remedy was not available to the respondents before the Service Tribunal. However, he forcefully argued that upgradation of scales was purely a policy decision, which was to be taken by the competent authority with the approval of the Government and in this regard the decision of the competent authority regarding upgradation of different employees of the appellants was C.A No.308/2014. 4 final and it could not be interfered with by the Court, as has been done in the instant case by both the Courts below. 7. Conversely, Ch. Muhammad Anwar Bhindar, learned ASC for the private respondents made reference to the concise statement submitted by him on behalf of respondents, which is accompanied with a chart to show the manner in which some other employees of the appellants in different other categories have been given upgraded scales, in some cases up to five steps, though the present respondents have been given upgradation only by one step. 8. We have considered the above submissions and with the assistance of learned ASCs, perused the material placed on record, which reveals that a policy decision has been taken by the competent authority with the approval of Federal Government for upgradation of pay scales of different categories of its employees in a conscious manner, looking to the nature of their jobs etc, therefore, such decision cannot be challenged in writ jurisdiction on the purported plea of discrimination. More so, when Article 25 of the Constitution itself provides a provision for such discrimination on the principle of reasonable classification. In the present case, respondents have also been granted upgradation by one step from BS-12 to BS-13 alongwith many others, who have been also given only one step upgradation in the scales and in many other cases upgradation is allowed by two steps. Thus, such classification/categorization by the competent authority cannot be struck down on the plea of discrimination, at the whims of respondents, who had approached the Islamabad High Court in this C.A No.308/2014. 5 regard. In addition to it, learned ASC for the respondents has also failed to show that due to the impugned action of the appellants any fundamental rights of the respondents have been violated or they have any vested right for such upgradation as per their choice. If any case law is needed to fortify the above view, reference can be made to the following cases:- Case law. 9. Foregoing are the reasons for our short order, which reads thus:- “We have heard arguments of the learned ASCs for both parties. For reasons to be recorded separately, this appeal is allowed. The impugned judgment dated 17.09.2013, passed by the learned Division Bench of the Islamabad High Court in Intra Court Appeal No.872 of 2013 and judgment dated 20.05.2013, passed by the learned single Judge in Chambers of the Islamabad High Court in Writ Petition No.975 of 2011, are set aside, and the Writ Petition filed by Respondents No.1 to 20 is accordingly dismissed. 2. At this stage, learned ASC for appellant has clarified that Respondents Nos. 1 to 20 have been earlier upgraded to Scale- 13, therefore, he will ensure payment of their salaries along with arrears, if any, from the date of their upgradation in Scale-13. Moreover, if need be, their cases for further upgradation will also be considered. Order accordingly.” Islamabad, 07th December, 2015. Not approved for reporting. تﻗادﺻ Chief Justice Judge Judge

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{'id': 'C.A.308_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL Civil Appeal No.3 15 of 2022 (On appeal against the judgment dated 27.04.2017 passed by the Peshawar High Court Peshawar in RFA No. 328-P of 2016) Shahin Shah Versus Appellant The Government of Khyber Pakhtunkhwa Respondents through Secretary Irrigation Department, Peshawar and others. For the Appellant(s): Qazi Jawad Ehsanullah, ASC. Ch. Akhtar All, AOR. For the Respondent(s): Mian Shafaqat Jan, Addl. AG, KP. Nemo (for respdt.#6) Date of Hearing: 20.06.2022. JUDGMENT IJAZ UL AUSAN, J: - The Appellants through the instant appeal have challenged a judgment of the Peshawar High Court, Peshawar dated 27.04.20 17 passed in Regular First Appeal No. 128-P of 2016 ("Impugned Judgment"). Through their Regular First Appeal ("RFA"), the Respondents had challenged the judgment and decree of the Trial Court dated 19.03.20 16 whereby, the Arbitration Award given in favour of the Appellants was made a Rule of Court. The learned High Court set aside the judgment and decree dated 9,03.2016 and remanded the matter back to the Trial Court. 2. The case at hand has a complicated history, hence, for the sake of clarity, the necessary facts of the case Civil Appeal No.315 of 2022. 2 are divided into two parts i.e., the background of the case containing facts from the award of the tender to the first decision of the Trial Court and the history of litigation comprising of the remand and post remand proceedings and their outcome. Background of the Case: - On 01.03.2001, a tender submitted by the Appellant for a contract for remodelling of the Surface Drainage System in Tanda Dam, Kohat, was approved. Resultantly, an Agreement dated 25.03.2001 between the Appellant and the Respondents ("Agreement") was signed. In the Agreement, Clause 21 provided that all disputes between the parties would be settled by way of arbitration. The Respondents (as alleged by the Appellants) did not hand over the site in time, resulting in a dispute arising between the parties. Consequently, a suit for recovery of damages was filed by the Appellant on 16.01.2004. The suit was accompanied by an application filed by the Appellant under Section 8 of the Arbitration Act, 1940, seeking a direction by the Trial Court to refer the matter to arbitration as provided in clause 21 of the contract between the parties. Subsequently, the Respondents also filed an application on 06.03.2004 for the grant of a stay in the suit to resolve the dispute through arbitration. The Appellant and the Respondents agreed that the matter should be referred to Arbitration under the Rules of Reconciliation and Arbitration of the International r r Civil Appeal No.315 of 2022. 3 Chambers of Commerce. The applications to stay the suit were dismissed and on 24.07.2004. However, the Trial Court passed an order referring the matter to arbitration. The Appellant and the Respondents submitted their nomination of arbitrators on 17.02.2005. The arbitration proceedings were conducted, both parties freely and voluntarily participated in the proceedings. The arbitrators appeared before the Trial Court to seek extension of time to complete the proceedings and render an award. Two-months time was granted to the arbitrators to file the Arbitration Award ("Award"). The matter was then adjourned to 14.02.2005. The arbitrators once again appeared before the Trial Court on 14.02.2005 and sought a further extension of two months, which was granted by the Trial Court and the case was fixed for 15.07.2005. On 15.07.2005, the arbitrators sought another extension to file the Award and were again granted two further months to ifie the Award. Ultimately, the Award was filed in Court on 15.09.2005. The case was adjourned to 15.10.2005. The Appellant filed objections to the Award on 15.10.2005. The Respondents filed their objections to the Award on 05.0 1.2006. The Respondent's objections to the Award were replied to by the Appellants on 24.01.2006 as inter alia, barred by time. The Respondents, on 26.07.2006, submitted an application for condonation of delay in support of the Civil Appeal No.315 of 2022. 4 .4 objections filed by them which were filed four months beyond the period of limitation. Finally, the Award was made Rule of Court on 27.11.2006. History of Litigation: - The Respondents filed RFA No. 94/2007 against the judgment and decree of the Trial Court dated 27.11.2006 whereby the award was made a rule of the Court. The RFA was allowed. The matter was remanded to the Trial Court vide judgment of the High Court dated 24.06.2009. However, in post remand proceedings, the Award was once again made Rule of Court vide judgment and decree dated 12.09.2009. The Respondents filed another RFA No. 225/2009 on 17.11.2009. This RFA was also allowed on 13.10.15. Resultantly, the matter was again remanded to the Trial Court with directions to record statements of the Arbitrators. The order of the trial Court regarding dismissal of objections petition filed by the Respondents as barred by time was not interfered with. Having not been challenged before any higher forum by the Respondents, it attained finality. On 08.12.2015, the Respondents filed an application before the trial Court for filing fresh objections against the award. The said application was dismissed on 07.01.2016. Such dismissal was not challenged before any higher forum. Thereafter, the statements of the two Arbitrators were recorded on 01.02.2016 and they were cross-examined V Civil Appeal No.315 of 2022. 5 by the Respondents. Finally, the Award was once again made Rule of Court vide judgment and decree dated 19.03.2016. Aggrieved, the Respondents filed an RFA against the judgment dated 19.03.2016. Vide the Impugned Judgment, the Award was set aside, and the matter was once again remanded to the Trial Court to commence the proceedings from where the Arbitrators were appointed. Aggrieved by the decision of the learned High Court, the Appellants have approached this Court. 3. Leave to appeal was granted by this Court vide order dated 09.02.2022 in the following terms: - "After hearing the learned Counsel for the Petitioner and the learned Counsel for the Respondents, who has appeared pursuant to our notice to the Respondents, leave to appeal is granted to examine, whether the petitioner was non-suited on the ground that on account of delay in passing the award, the arbitrators committed misconduct and whether the learned High Court misread the evidence and the record to come to the conclusion that the arbitrators had committed misconduct, despite the fact that in the three rounds of litigation, the award had repeatedly been upheld by the Civil Court. Further, whether the High Court has correctly interpreted the law of limitation..." 4. The learned ASC for the Appellant submits that the High Court could not have exercised jurisdiction as a Court of Appeal over a judgment making an Arbitration Award a Rule of Court. Arbitration awards can be interfered with on limited grounds provided in the law. He further submits that when an Award has been rendered by an Arbitrator(s) in accordance with the law, the High Court as per Section 17 of the Arbitration Act, 1940 ("Act, 1940") cannot set aside the judgment and decree making an Award, Rule of Court, except where the Award rendered is against the law. Learned ASC for the Appellants further submits that the Objections to the Civil Appeal No.315 of 2022. 6 Award filed by the Respondents were barred by time which fact was not interfered with by the High Court in the Impugned Judgment. As such, the High Court could not have remanded the case to the trial Court for the third time. The learned ASC has further argued that, after the case was remanded for the second time, the Respondents filed objections which were dismissed vide order dated 07.01.16 and, the said order was never challenged or questioned by the Respondents, therefore, the order dated 07.01.2016 had attained finality and could not be reopened by the High Court. The learned ASC for the Appellants further submits that the filing of the Award beyond the period of limitation of 04 months was not fatal and, was within the confines of Section 28 of the Act, 1940 which provides that an extension of time for the submission of an Arbitration Award may be sought from, the Court. The learned ABC further argued that notice as per Section 14 of the Act, 1940 was served by the arbitrators and, the High Court misread the record in holding that no such notice was served and, even if no such notice was served, substantial compliance of Section 14 of the Act, 1940 was done since the Award was filed in Court in the presence of the parties and their counsel. He has submitted that the statements of the two Arbitrators were recorded and the Award was tendered in evidence on which no objection was raised. Learned ASC has further argued that Section 34 of the Act, 1940 was not attracted in the present case arid, that if objections in this regard were not raised before the trial Civil Appeal No.315 of 2022. 7 Court, such objections could not be raised before the High Court. 5. The learned Additional Advocate General, Khyber Palchtunkhwa ("AAG KP") argued that the entire proceedings before the Trial Court were illegal since the Trial Court failed to observe the procedure provided in Section 34 of the Act, 1940 before sending the reference to arbitrators. Learned AAG KP, while accepting that the objections filed by the Respondents were barred by time, has further argued that the Trial Court was bound to examine the Award notwithstanding the delay in filing the objections. Learned AAG KP further argued that since the Act, 1940 was not followed in letter and spirit, therefore, the High Court correctly remanded the case to the Trial Court to be examined afresh, in the interest of justice. The learned AAG KP has further argued that the Arbitrators misconducted themselves by not filing the Award within the prescribed time limit of 04 months, which itself was sufficient to render the Award invalid. 6. We have heard the learned Counsel for the parties and perused the record. The questions which require adjudication by this Court are as follows: - (I) Was the order of the Trial Court making the Arbitration Award, Rule of Court, appealable? (ii) Did the Arbitrators misconducted themselves by not filing the Arbitration Award within time? Whether notice under Section 14 of the Arbitration Act, 1940 was serued by the Arbitrators Were the Arbitrators required to file the Arbitration Award in Court within 90 days as per Article 178 of the Limitation Act, 1908? Civil Appeal No.315 of 2022. 8 (iv) Was the fact that the Respondents did not file their objections to the Arbitration Award within time, fatal to the Respondent's case? (v) Were the proceedings before the Trial Court illegal due to the absence of a formal order under Section 34 of the Act, 1940? WAS THE ORDER OF THE TRIAL COURT MAKING THE ARBITRATION AWARD, RULE OF COURT, APPEALABLE? 7. Section 39 of the Act, 1940 provides five instances in which an aggrieved party may file an appeal against an order passed under the Act, 1940. Section 39 of the Act, 1940 is reproduced below: - "39 Appealable orders: (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order: - An order- (i)superseding an arbitration; (ii)on an award stated in the form of a special case; (iii)modifying or correcting an award; (iv)filing or refusing to file an arbitration agreement; (u)staying or refusing to stay legal proceedings where there is an arbitration agreement; (vQsetting aside or refusing to set aside an award: Provided that the pro visions of this section shall not apply to any order passed by a Small Cause Court. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect to take away any right to appeal to the Supreme Court." The aforenoted provision of the Act, 1940 restricts and limits the instances in which an appeal may be filed. This is evident from the words "and from no others" provided in Section 39 ibid which essentially means that except for an appeal that falls in the limited parameters provided in the aforenoted provision, no appeal would be competent. The use of specific words by the legislature is an expression of the legislative intent and, Courts cannot interfere with the same unless a literal interpretation of the law would not correct the 7 Givil Appeal No.315 of 2022. 9 mischief sought to be corrected. As evident from the grounds agitated by the Respondents in RFA No. 94/2007, the Respondents inter a/ia, out rightly denied the existence of an Arbitration Agreement; denied the existence of an arbitrable dispute between the parties, and essentially, prayed for the Arbitration Award to be set aside. This Court's discussion, therefore, will be confined in the present question to Section 39 (vi) which covers the situation where an order is passed that either sets aside the Arbitration Award or refuses to set aside an Arbitration Award. 8. The Respondents are aggrieved of a "composite order" dated 19.03.2016, passed by the Trial Court, whereby the objections filed by the Respondents were dismissed and the Arbitration Award was made Rule of Court. The word "composite" means that the order is comprised of two distinct elements or parts. An example of a composite order can be seen in the case titled Rashida Begum v. Ch. Muhammad Anwar and Others (PL.D 2003 Lahore 522) in which, the objections raised by the Appellant (before the High Court then) were dismissed and, the Court made the award rule of Court, followed by a decree dated 05.03.1985. The said order is a "composite order" because it comprises two distinct parts i.e., the dismissal of the objection petition filed by one party and, the making of an arbitration award, Rule of Court. Another example of a composite order can be seen in the case of Muhammad Alam Khan v. Jewan Khan (PLD 1985 Lahore 181) in which, the Court held as follows:- Civil Appeal No.315 of 2022. lii "It would be seen that under clause (b) the relief claimed is undervalued. Therefore, the Court after determination of the real value should direct the plaintiff to correct the valuation in the relevant para of the plaint within the specified time. It means that order under clause (b) is to be followed by order under clause (c) to make up the deficiency in the court-fee. It may be a composite order. Conversely speaking when the plaintiff is directed under clause (b) to correct the valuation of the suit for purposes of court-fee and jurisdiction, then it becomes his duty not only to amend the plaint but also to pay the court-fee accordingly. This means making up of the deficiency in the court-fee in cases covered by clause (b) is automatic. To mu mind, the proper order would be a composite order i.e. the plaintiff should be directed to amend the plaint and also to fix the court-fee accordingl y and the failure shall entail the rejection of the plaint. But in a case under clause (c) the relief claimed is valued properly but plaint had been written upon a paper insufficiently stamped, therefore, the Court would simply direct the plaintiff to supply the requisite stamp paper within the time to be fixed by the Court. This way there is a clear distinction between the two provisions. The same was not kept in mind by the Thai Court while invoking clause (b) of Order VII, Rule 11, C.P.C. in this case. "(Underlining is ours) In the present case, the Trial Court's order has two distinct parts as well. The Trial Court has not only dismissed the objections of the Respondents as being barred by time by four months but has also made the Arbitration Award, Rule of Court. 9. The learned High Court has held that even where an application to set aside an Award is rejected by the Trial Court under Section 17 of the Act, 1940, nonetheless, the right of an aggrieved party under Section 39 of the Act, 1940 cannot be circumscribed since, in a composite order, each part of the order may be taken as an independent and separate order and can be challenged under Sections 39 and 17 separately. The learned High Court has further held that a challenge under Section 17 "shall only be maintainable if conditions laid down in Section 17 of the Act were met". It, therefore, becomes necessary to examine Section 17 of the Act, 1940, which is reproduced as under: - Civil Appeal No.315 of 2022. 11 "17. Judgment in terms of award. Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for tucking an application to set aside the award has expired, or such application having been made) after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with, the award." Section 17 ibid provides that an appeal under the said provision may only be filed against a decree on the grounds that (a) the decree is in excess of the award and (b) it is otherwise not in accordance with the award. 10. The difference between Section 39 and Section 17 is that Section 39 provides more grounds under which an order passed under the Act, 1940 may be challenged, than the grounds of challenge under Section 17. It is evident from the grounds taken by the Respondents in RFA 94/2007 that they did not dispute the decree of the Trial Court as being either in excess of the Arbitration Award or otherwise, against the Arbitration Award. The learned High Court conceded that, for a challenge to be maintainable under Section 17, the conditions prescribed therein must be met. However, it escaped the learned High Court's notice that the Respondent had not challenged the decree of the Trial Court on the grounds mentioned in Section 17 (supra) inasmuch as it was not the stance of the Respondents that the judgment and decree of the Trial Court was either in excess of the Arbitration Award or otherwise against the Arbitration Award. Since the Respondents had not taken the stance that the decree of the Trial Court was in excess of or against the Arbitration Award; they effectively admitted that the decree of Civil Appeal No.315 of 2022. 12 the Trial Court was correct to the extent that the decree was in accordance with the Award. As such, the findings of the learned High Court in this respect are in our opinion erroneous and unsustainable. If the High Court found that the order of the Trial Court had two distinct parts, then, it had to examine whether the Respondents had challenged both parts of the order independently by raising independent grounds in terms of Section 17 and Section 39. The High Court could not have suo motu implied that such grounds had been taken. The High Court was required to proceed on the basis of record which clearly showed that the Respondents had nowhere taken the stance that the decree of the Trial Court was in excess of or against the Arbitration Award. As such, the Nigh Court could not have assumed jurisdiction in the matter, especially when the Respondents did not question the decree on the grounds mentioned in Section 17 of the Act, 1940. Even otherwise, the failure of the Respondents to agitate the grounds mentioned in Section 17 before the Trial Court barred them from raising any such grounds before the High Court since the Respondent was appealing against the judgment of the Trial Court. They were to show that the judgment of the trial Court was hit by any of the grounds available under Section 17 ibid which they failed to do. The High Court, in our opinion, erred in law and exceeded its jurisdiction in proceeding beyond the grounds agitated by the Respondent in its appeal. DID THE ARBITRATORS MISCONDUCTED THEMSELVES BY NOT FILING THE ARBITRATION AWARD WITHIN TIME? Civil Appal No.315 of 2022. 13 11. Section 39(vi) of the Act, 1940 provides that an order shall be appealable which either sets aside or does not set aside an Arbitration Award. The grounds under which an Arbitration Award may be set aside are enumerated in Section 30 of the Act, 1940 which reads as follows: - 1130. Grounds for setting aside award. An award shall not be set aside except on one or more of the following grounds, namely: - (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b)that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35; (c) that an award has been improperly procured or is otherwise invalid' It has been argued by the Respondents that the Arbitrators misconducted themselves within the meaning of Section 30(a) by not filing the Arbitration Award within time. It is further alleged in the grounds of the RFA that the Arbitrators were close friends of the Appellant, they did not provide a proper hearing to the Respondents and they did not properly scrutinize the record before rendering the Award. The learned High Court has, however, only given a finding on the fact that the Arbitrators misconducted themselves only to the extent of not filing the Arbitration Award within time. The heart of the Respondent's argument, therefore, is, that the alleged misconduct of not filing the Arbitration Award within time was so glaring that, if it is overlooked, it would lead to a miscarriage of justice. We, therefore, deem it appropriate to examine the term "misconduct" on part of the Arbitrator. The term misconduct was interpreted in the judgment titled Gernis International (Pvt.) Ltd v. Aeroflot Russian ciiñl Appeal No315 of 2022. 14 International Airlines 12018 SCMR 662 Supreme _Q0U41 wherein, this Court held as follows: "(27) Misconduct is of two types: legal misconduct' and moral misconduct. Legal misconduct means misconduct in the judicial sense of the word, for example, some honest, though erroneous, breach of duty causing miscarriage of justice; failure to perform the essential duties which are cast on an arbitrator; and any irregularity of action which is not consistent with general principles of equity and good conscience. Regarding moral misconduct; it is essential that there must be lack of good faith, and the arbitrator must be shown to he neither disinterested nor impartial, and proved to have acted without scrupulous regard for the ends of justice." The term "misconduct" was further interpreted in the case of Pakistan Steel Mills Corporation. Karachi v. Messrs Mustafa Sons (Put.) Ltd. Karachi (PLD 2003 Supreme Court 301) in which, the Court held as follows: - "The word 'misconduct" with reference to arbitration proceedings, is interpreted in the sense in which it is used in English Law and it is not akin to fraud, but it means neglect of duties and responsibilities of the Arbitrator." (Underlining is ours) This Court in the case of GernIs International (supra) further held that the misconduct alleged by the parties must be prima fade apparent on the surface of the Arbitration Award and, that the Court cannot sit as a Court of Appeal on the award given by the Arbitrator(s) and substitute its view for the one taken by the Arbitrator(s). The aforenoted view of this Court finds support from the case of A. Qutubuddin Khan v. CHEC Mill Wala Dredging Co. Put. Ltd. 12014 SCMR 1268) As such, the Court cannot reappraise the evidence relied upon by the Arbitrator(s) and engage in a roving inquiry to discover infirmities in the Arbitration Award. The illegality or infirmity in the Arbitration Award must be apparent on the lace of the Award. Reliance in this respect is placed on Mian Corporation through IT 0ft4L Appeal No.315 of 2022. 15 Managing Partner v. Messrs Lever Brothers of Pakistan Ltd (PLD 2006 Supreme Court 169) and National Construction Co. a WAPDA (1987 PLD 461 Supreme Court). The Court is required to examine the Arbitration Award filed in Court to see whether there was an infirmity within the Award itself. We have gone through the judgment of the Trial Court dated 19.03.2016. The judgment of the Trial Court, making the Award Rule of Court is comprehensive and touches upon all aspects of the case. The learned Trial Court in paragraph 12 of its judgment has held as follows: - 'It is a hard fact that Arbitrator being final judge on question of law and fact, his decision is entitled to utmost respect and weight unless misconduct was alleged and proved against him to the satisfaction of the court. Although the objection on Award was filed beyond the period of limitation, but the objection so filed if gone through, no allegation of misconduct is either alleged or proved. "(Underlining is Ours) It is clear and obvious to us that the Trial Court not only considered the Award but also examined the objections raised by the Respondents. The Trial Court in paragraph 13 of its judgment has minutely examined the record and concluded that a total of fourteen meetings were held by the Arbitrators in which the controversy was sought to be resolved. The Trial Court, therefore, judicially scrutinized the record by applying its mind to the facts and circumstances of the case. As such, the findings of the High Court that the Trial Court did not act properly, are repelled and held to be factually and legally unsustainable. 12. The learned Counsel for the Appellant has taken us to the orders of the Trial Court, whereby, the Arbitrators CiuiIAppeaI No.315 of 2022. 16 were given extensions in time to file the Arbitration Award vide orders dated 14.03.2005 and 15.07.2005. It is apparent from the orders of the Trial Court that the parties i.e., Appellant and Respondents were present at the time when the Arbitrators sought extensions of time to file the Award. There is nothing on the record to show that the Respondent's Counsel objected to any extension in filing the Award. As such, the plea that the Arbitrators committed misconduct and should have filed the Award within four months is totally misconceived. If the Respondents were aggrieved by the Trial Court's orders dated 14.03.2005 and 15.07.2005, they ought to have challenged the same. In absence of any appeal against the aforenoted orders, the said orders attained finality. 13. The record indicates and it is an admitted position that the Respondents participated in the arbitration proceedings despite extensions without raising an objection whatsoever. It is categorically mentioned in the minutes of the arbitration proceedings that the Respondents "expressed their confidence" in the nominated Arbitrators i.e., Mr Imdad Hussain and Mr Inamullah Khan. As such, the argument that the Arbitrators were "close friends" of the Appellant is baseless and unsubstantiated. As such, when the Respondents were present before the Trial Court and did not raise the objections to extension of time and voluntarily participated in the proceedings without raising any objection at any stage, they could not be allowed to change their stance at the appellate stage having practically waved their right to object to extension of time. If they were aggrieved of the Civil Appeal No.315 of 2022. 17 conduct of the Arbitrators, they could have filed an application under Section 11 of the Act, 1940 which empowers the Court to remove an arbitrator if the conditions in Section 11 are fulfilled. No such application is available on the record. 14. It is pertinent to mention that the time limit of filing an Arbitration Award within four months is not absolute. Section 28 of the Act, 1940 clearly provides that said time limit can be enlarged. As such, the non-filing of an Award within four months does not ipso facto make the Award invalid. For ready reference, Section 28 of the Act, 1940 is reproduced as under: - "28. Power to Court only to enlarge time for making award. (1) The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award. (2) Any provisions in an arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect." We have already found that the time limit mentioned in Section 28 ibid was enlarged by orders of the Trial Court in presence of the parties and even otherwise the Respondents by willingly and voluntarily participating in the proceedings held during extended periods had waved their right to object, the fact that the Award was filed after expired the four-month period was not fatal and the finding of the High Court with all due respect has been found by us to be legally and factually erroneous and unsustainable. Reliance in this respect is placed on the case of WAPDA v. Khanzada Cluil Appeal No 315 of 2022. IS Muhammad Abdul Hague Khan Ehattak & Co (PLD 1990 SC 359) WHETHER NOTICE UNDER SECTION 14 OF THE ARBITRATION ACT, 1940 WAS SERVED BY THE ARBITRATORS & WERE THE ARBITRATORS REQUIRED TO FILE THE ARBITRATION AWARD IN COURT WITHIN 90 DAYS AS PER ARTICLE 178 OF THE LIMITATION ACT, 1908? The record indicates that the Arbitrators had duly served notice of signing and making of the Award to the Respondents in substantial compliance of the provisions of Section 14 of the Arbitration Act, 1940. There is clear misreading/non-reading of the record on the part of the High Court in holding that such notice was not served by the Arbitrators. Notice in question which bears the date of signing by the Arbitrators on 14.09.2005 is available on the record. Such notice was filed in Court with the Award as is apparent from the notice itself which bears the signatures of the Trial Court on the date when the Award was filed in Court on 1509.2005. Even otherwise, if an Award is filed by the Arbitrator in Court in the presence of the parties or their authorized agents then the requirements of Section 14 qua serving of notice of signing and making of the Award are substantially met. This is on the basis of the principle of the issuance of notice of making and signing of the Award under Section 14 is connected with the start of period of limitation as prescribed in Article 158 of the First Schedule of the Limitation Act, 1908 to file objections on the Award. The rationale is that the parties must know that the Award has been filed in Court and if the Award is filed in Court in the presence of parties or their authorized representatives then in Cvil Appeal No315 of 2022. 19 that case strict compliance of serving of notice is not mandatory. Reference in this regard may be made to Tribal Friends Co. Province of Balochistan 12002 SCMR 1903), Pakistan through General Manager Pakistan Railways (PLD 1990 Sc 800), Ashfap Ali Oureshi v. Municipal Corporation Multan (PLD 1985 Sc 597) and Sheikh Mehboob Alam v. Sheikh Mumtaz Ahmed (PLD 1956 (WP) Lahore 276). 15. As far as the question of limitation is concerned, Article 178 of the Limitation Act, 1908 provides a 90-day limitation period from "the date of service of notice of the making of the award" to file an application for the Arbitration Award to be made Rule of Court. This provision applies to situations where a party to arbitration receives notice from the Arbitrator(s) to the effect that an Arbitration Award has been made. The parties then either request the Arbitrator(s) to file the Arbitration Award in Court or, file an application before the Court to direct the Arbitrator(s) to file the Arbitration Award in Court so that it may be made a Rule of Court. As such, Article 178 of the Limitation Act, 1908 applies to parties to an arbitration agreement who have been given notice of making of the award and not to the Arbitrator(s). The Arbitrator(s) must be requested by the parties to file the Arbitration Award or must be given a direction by the Court to do so. The said view is further provided in Section 14 of the Act, 1940 which reads as under:- j4• Award to be signed and filed. (1) When the arbitrators or umpire have made their award, thew shall si gn it and shall give notice in writing to the parties of the making and signing thereof Civil Appeai No.315 of 2022. 20 and of the amount of fees and charges payable in respect of the arbitration and award. (2) The arbitrators or umpire shall, at the request of any partg to the arbitration agreement or any person claiming under such paTti, or if so directed bit Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or signed copy of it, together with any depositions and documents which mall have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award. (3) Where the arbitrators or umpire state a special case under clause (b) of section 13, the Court, after giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of the award? (Underlining is ours) This view finds reliance from the case of Inagat IJllah Khan v. Obaidullah Khan and Others 11999 SCMR 2 702) in which, this Court held as follows: - X6 Moreover, in view of the special Article 178 of the Limitation Act which governs an application for filing in Court of an award to be made rule of the Court under the Arbitration Act the question of applying the residuary Article 181 of the Limitation Act would not arise. In Article 178 the period is 90 days from the date of service of notice of the making of the award as rule of the Court and in the circumstances of this case the said Article would apply. The judgments referred to by the learned counsel in his support are distinguishable as PLD 1972 SC 123 deals with a case under section 20 of the Arbitration Act, whereas present is the case covered by section 14 of the Act and both the sections regulate entirely distinct situations. The judgment reported as AIR 1941 Peshawar 3 appears to have dealt with the original Article 178 which then applied only to the application under the Civil Procedure Code and not to the amended Article 178 which specially covers section 14 of the Arbitration Act. Even otherwise, this point could lose significance and nothing would turn on it because in the latter part of this judgment we are going to hold that the arbitrators bu themselves were not com petent to file the award in Court as such filing of an award was not envisaged under section 14 of the Act because the arbitrators had neither been requested by any party to the arbitration agreement to file the award in Court nor had been so directed bu the Court.' (Underlining is Ours) 17. It has been argued by the learned Counsel for the Respondents that the Arbitrators did not serve a notice on the Respondents under Section 14 of the Act, 1940. The learned High Court has held that there is nothing on the record to the effect that the said notice was served before the Arbitration Award was signed. We are unable to agree with the High Court. It is pertinent to mention that the parties were present before the Trial Court when the Arbitration Award was filed in Cft4I Appeal No.315 of 2022. 21 Court, as such, they had knowledge of the proceedings and had notice of the same. Substantial compliance of Section 14 of the Act, 1940 was made. Since the parties were present in Court when the Arbitration Award was filed, issuance of formal notice under Section 14 of the Act, 1940 was a mere technicality which could not vitiate the proceedings. The purpose of a notice is to inter alia make the parties aware of the proceedings before a Court so that they may participate or, as in the present case, may file objections, if any, within the prescribed time provided by law. 18. It is a settled principle of the law that the law favours the vigilant and not the indolent. If the Respondents were present before the Trial Court, they cannot object on the ground that formal notice to them was not issued. Reliance in this respect is placed on Ash fag All Oureshi v. Municipal Corporation, Multan and another (1984 SCMR 597) in which the Court held as follows: - "9. Apparently, the prevalent view is that as the provision of the law is meant to enable the parties to know that the award has been filed in Court so that they may file their objections, if any, within the time prescribed, a - formal would be a mere technicality. Even otherwise, an objection on this score had neither been taken before the Trial Court nor in the memorandum of appeal before the High Court and was, therefore, only an afterthought not entitled to serious consideration." (Underlining is ours) The Respondents have argued that the Court should have issued a formal notice in terms of Section 14 of the Act, 1940. We are unable to agree with this argument. In Civil Appeal No.315 of 2022. 22 ordinary circumstances, a Court of law is required to issue notice to the parties so that they may be able to participate in the proceedings. However, if the parties were present in Court and were aware that the award had been signed and filed. If at all a formal notice was not issued it was inconsequential and would in any event have been an exercise in futility. In such circumstances, the doctrine of substantial compliance would apply which provides that the procedural fault in complying strictly with a provision of the law is so minor that it does not have a bearing on the essence of the dispute and the object sought to be achieved. The applicability of the doctrine of substantial compliance depends on the facts and circumstances of a dispute. It is for the Court to determine whether the object, purpose, and intent of a statutory prerequisite have been fulfilled and, formal compliance would be unimportant. The question of substantial compliance arose in the case of The State through Regional Director ANt v. Imam Bakhsh (2018 SCM]? 2039) wherein, this Court held as follows: - "To distinguish where the directions of the legislature are imperative and where they are directory, the real question is whether a thing has been ordered by the legislature to be done and what is the consequence, if it is not done. Some rules are vital and go to the root of the matter) they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. The duty of the court is to try to unravel the real intention of the legislature. This exercise entails carefully attending to the scheme of the Act and then highlighting the provisions that actually embody the real purpose and object of the Act. A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceedings. Thus, some parts of a statute may be mandatory whilst others may be directory. It can even be the case that a certain portion of a provision, obligating something to be done, is mandatory in nature whilst another part of the same provision, is directory, owing to the guiding legislative intent behind it. Even parts of CÜ4I Appeal No.315 of 2022 23 a single provision or rule may be mandatory or directory. "In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Crawford opined that "as a general rule, fthose provisions that] relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely of convenience rather than of substance, are directory.' In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man. According to Maxwell, "Where the prescription of statute relates to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or in other words as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them. Our Court has held while determining the status of a mandatory or directory provision that 'perhaps the cleverest indicator is the object and purpose of the statute and the provision in question.' And to see the 'legislative intent as revealed by the examination of the whole Act." 19. The legislative intent of Section 14 of the Act, 1940 can be ascertained from a reading of the provision which is that parties should be aware of the filing of an Award before the Court through their participation in the proceedings. This is because the parties either request the arbitrator to file an Award in Court or, seek a direction from the Court in this respect to be given to an arbitrator. In the present controversy, since the parties were aware of the date when the Award was going to be filed and were present on such date, strict compliance with Section 14 was not required and, the argument of the Counsel for the Respondents in this respect is misconceived. The High Court of Peshawar examined a similar situation in Labab Gut a Badshah Gui (PLD 1952 Peshawar 23) wherein, it was held as follows:- "I do not think the failure by the arbitrators to give a notice under section 14 of the Act i5 such an omission which would invalidate the award. It should be noticed that an award Civil Appeal No.315 of 2022. 24 cannot be set aside except on one or more of the grounds given in section 30 of the Act. They are, (a) that an arbitrator or umpire has mis-conducted himself or the proceedings, (/4 that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35, and (c) that an award has been improperly procured or is otherwise invalid. The omission to give notice cannot be covered by (a) or (/4, and this is even conceded by the learned counsel for the appellant. He, however, wishes to bring it under otherwise invalid" mentioned in (c). By no stretch of imagination can it be said that the omission to give the notice can invalidate the award, and I consequently hold that it is not covered by "otherwise invalid' too. In any case, I do not think that it is the intention of the law that notice in order to be valid should be given by all the arbitrators. If a notice is given by one, arbitrator only, it shall be deemed to have been given by all, unless the contrary is proved, and it will thus be a perfectly good notice." 20. The Arbitrators were summoned before the Trial Court and their statements were recorded, who had tendered the Award in evidence as Ex.CW. 1 / 1 to 1/4. The Respondents neither raised any objection to the filing of the Award nor was the question of limitation raised. In any event there was, in our opinion, no question of operation of law of limitation involved in the facts and circumstances of this case. WAS THE FACT THAT THE RESPONDENTS DID NOT FILE THEIR OBJECTIONS TO THE ARBITRATION AWARD WITHIN TIME, FATAL TO THE RESPONDENT'S CASE? 21. The learned High Court has held that even though the Respondent's objections were filed beyond the prescribed period of limitation of 30 days, nonetheless, the Trial Court was required to examine the Award to do complete justice and, by not doing so, the Trial Court committed illegality. It is manifestly clear from the judgment of the Trial Court that it did not merely dismiss the objections of the Respondents as barred by time without examining the Award. The Trial Court's judgment in paragraph 10 specifically notes that the Respondents were given a chance to cross-examine the Cvil Appeal No.315 of 2022 25 Arbitrators who appeared as CW-01 and CW-02. The Trial Court has further held that the Arbitrators remained firm in their viewpoint. The Trial Court at paragraph 12 categorically stated as follows: although the Award was filed beyond the period of limitation but the objection so filed if gone tbram-gtb no allegation of misconduct is either alleged or proved. "(Underlining is Ours) A bare perusal of the aforenoted excerpt establishes that the objections filed by the Respondents were examined by the Trial Court which also applied its mind to the contents of the award and thereafter an opinion was formed that it was appropriate to make it a rule of Court. We are satisfied that the trial Court fulfilled its duty to examine the Respondent's objections as well as the award before making it a rule of Court. As such, the finding of the High Court to the effect that the Trial Court erred in law in making the award a rule of Court is unsustainable and against the record. 22. Even otherwise, it is to be noted that the first objections filed by the Respondents were barred by 04 months. The prescribed limitation period as provided in the Limitation Act, 1908 is 30 days from date of notice of filing of the award to object to an Award being made a rule of Court. A party must explain each day of delay and, the Court ought to adjudge whether each day of delay has been sufficiently explained to the satisfaction of the Court with evidence. If such discretion has been exercised properly, then, an appellate Court cannot arbitrarily disregard the reasons so Civil Appeal Nc.315 of 2022. 26 given by the Trial Court while discounting the reasons provided by one party in an application for condonation of delay by the Trial Court unless there is misreading or non- reading of the record. It is a matter of record that the Respondents first filed objections on 05.0 1.2006 which were barred by time and, not in the proper form as admitted by the Respondents since they sought permission from the Trial Court during post-remand proceedings on 08.10.20 15 to file their objections afresh in "proper form". The said application was dismissed on 07.01.2016. As such, in the facts and circumstances of the case, the belated objections were fatal to the Respondent's case because (a) they were filed after a delay of 04 months (b) they were not in proper form (c) the application for condonation of delay was rejected (d) the Respondents were well aware of the filing of the Award in Court. WERE THE PROCEEDINGS BEFORE THE TRIAL COURT ILLEGAL DUE TO THE ABSENCE OF A FORMAL ORDER UNDER SECTION 34 OF THE ACT, 1940? 24. The High Court has held that the proceedings carried out by the Trial Court were in violation of Section 34 of the Act, 1940 and, the proceedings in the suit were not stayed. We are unable to agree with this conclusion. The parties had mutually agreed to refer their disputes arising out of their contract to be resolved under the Rules of Reconciliation and Arbitration of International Chamber of Commerce (hereinafter referred to as the "ICC Rules"). The Respondent, however, out rightly argued that the trial Court lacked jurisdiction. This plea was rejected by the Trial Court Clvi? Appeal No.315 of 2022. 27 vide order dated 24.07.2004 while relying on the provisions of the Agreement. The Counsel for the Respondents has been unable to take us to any document to show that the Respondents ever challenged the order dated 24,07.2004. It is essential to point out that the ICC Rules do not divest the Courts in Pakistan of their jurisdiction. This matter was decided by this Court in the case of Hitachi Limited and Another a Ru pall Polyester and others (1998 SCMR 1618) in which, it was held as follows: - "The legal position obtaining in Pakistan is that the L C. C. Rules are recognised but they cannot divest the Courts of the jurisdiction vested in them under the law. In England the English Courts recognise the I.C.C. Rules and they decline to exercise discretionary jurisdiction under the English Arbitration Act in derogation to the I.C.C. Rules not because of lack of jurisdiction but to ensure that the parties should adhere to their contractual commitment. It may be pointed out that it has also been consistently held by the English Courts that they have the power to pass appropriate order in a fit case notwithstanding the application of I. C. C. Rules. In this regard, reference may be made to a recent judgment in the case of Coppee-Lavalin v. Ken-Ron Chemicals Ltd. (1994) 2 All England Law Reports 449), in which the House of Lords directed for the deposit of costs of arbitration for the respondent though the LC. C." Even otherwise, Article 21(1) of the ICC Rules provides the following: - 'The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute. In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate." The record shows that the parties decided that the law of Pakistan would apply to the case at hand. As such, the intent of the parties is clear insofar as the law governing the Arbitration proceedings is concerned. The question is whether the Trial Court performed functions of a faciliatory nature or, was it required adjudicate on the merits of the case. If the trial Court facilitated the Arbitration, then, it did not commit Civil Appecil No.315 of 2022. 28 any illegality. It is clear from the orders of the Trial Court that it acted in a faciliatory manner. The Trial Court facilitated the arbitration and did not adjudicate the merits of the (is. When the Respondents objected to the jurisdiction of the Trial Court; the Trial Court rejected the objections while relying upon the Agreement between the parties and, proceeded to refer the matter to Arbitrators nominated by the parties as per Section 8 of the Act, 1940. Essentially, the Court referred the matter to Arbitration nominated/ appointed by the parties. Nowhere have the Respondents argued that they had filed a written statement which constituted a step in the proceedings within the meaning of Section 34 of the Act, 1940. The minutes of the Arbitration Proceedings are available on the record which show that the Arbitrators adjudged the merits of the case. As such, proceedings in the suit were stayed for intents and purposes with express or implied consent of the parties who consciously, willingly and voluntarily participated in the proceedings throughout. At this stage, the respondents cannot be heard to say that certain technical and procedural formalities were not followed stricto sensu. While they never raised any objections to the same during the arbitration proceedings and even during multiple rounds of litigation in Courts. 25. The Respondent took an objection to the proceedings as an afterthought when the Award was made Rule of Court, which cannot be permitted. It is worth mentioning that when parties opt to settle their disputes out of Court, they must be facilitated and, they ought to live up to IT Civil Appeal No3150f 2022. 29 the terms that they agree upon in Eckhartd & Company v. Muhammad Ilanif 11993 PLD 42 Supreme Court) in which Ajmal Mian, J (as he then was) opined as follows:- "I may observe that while dealing with an application under section 34 of the Arbitration Act in relation to a foreign arbitration clause like the one in issue, the Courts approach should be dynamic and it should bear in mind that unless there are some compelling reasons, such an arbitration clause should be honoured as generally the other party to such an arbitration clause is a foreign party. With the development and growth of International Trade and Commerce and due to modernization of Communication/ Transport systems in the world, the contracts containing such an arbitration clause are very common nowadays. The title that the Court should not lightly release the parties from their bargain ) that follows from the sanctity which the Court attaches to contracts, must be applied with more vigour to a contract containing a foreign arbitration clause. We should not overlook the fact that any breach of a term of such a contract to which a foreign company or person is a party, will- tarnish the image of Pakistan in the comity of nations. A ground which could be in contemplation of party at the time of entering into the contract as a prudent man of business, cannot furnish basis for refusal to stay the suit under section 34 of the Act. So the ground like, that it would be difficult to carry the voluminous evidence or numerous witnesses to a foreign country for arbitration proceedings or that it would be too expensive or that the subject matter of the contract is in Pakistan or that the breach of the contract has taken place in Pakistan, in my view, cannot be a sound ground for refusal to stay a suit filed in Pakistan in breach of aforeign arbitration clause contained in contract of the nature referred to hereinabove. In order to deprive a foreign party to have arbitration in a foreign country in the manner provided for in the contract, the Court should come to the conclusion that the enforcement of such an arbitration clause would be unconscionable or would amount to forcing the plaintiff to honour a different contract, which was not in contemplation of the parties, and which could not have been in their contemplation as a prudent man of business. The crux of the matter is that once a party has agreed to arbitration, it should be the Court's responsibility to either facilitate the said party in the arbitration while staying within the confines of the Act, 1940 or, to compel the party to abide by the terms and conditions of a contract. The purpose of arbitration is defeated if a party refuses to abide by the agreed mode of dispute resolution. This trend must not be encouraged. CirAl AppeoNo.3I5of 2022. 30 I 26. The High Court has proceeded on erroneous grounds and has misapplied the applicable law to the facts and circumstances of the instant controversy, which warrants interference of this Court. We have been unable to agree with the conclusions reached by the High Court in the Impugned Judgment. Accordingly, the Impugned Judgement is found to be unsustainable in law as well as facts and is therefore set aside. \1IS.A IA 27. Consequently, the judgment and decree dated 19.03.20 16 whereby the Award was made Rule of Court is restored and affirmed and the arbitrators is made Rule of Court. ISLAMABAD, THE 20th of June, 2022. Hafs Ishtiaq/* tApproved ForRQ4rttg'

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{'id': 'C.A.315_2022.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.319 OF 2014 (Against the judgment dated 5.12.2013 of the Election Tribunal, Rawalpindi passed in E.P.No.257/2013/RWP/12/2013) Hina Manzoor …Appellant(s) VERSUS Malik Ibrar Ahmed, etc. …Respondent(s) For the appellant(s): Mr. Muhammad Munir Paracha, ASC For respondent No.1: Mr. M. Rafique Rajwana, ASC Date of hearing: 28.04.2015 … ORDER MIAN SAQIB NISAR, J.- Appellant and respondent No.1 contested the elections for NA-54, Rawalpindi. The appellant being the runner up filed an election petition against the said respondent (returned candidate) before the Election Tribunal on the ground that the verification on the election petition has not been attested by the Oath Commissioner. Learned counsel for the appellant has drawn our attention to page 27 of the paper-book that the election petition is not attested by the Oath Commissioner, however, his argument is that this is not the mandate of the provisions of Section 139 of the CPC, rather the requirement of attestation is only confined to the affidavit as per Order 19 of the CPC. In addition to the above, it is submitted that an amended election petition was filed on 8.10.2013 which was duly attested per the law, but the learned Tribunal has discarded this on C.A.319 of 2014 -: 2 :- the ground that the attestation through the amended petition is beyond the period of limitation prescribed for filing of the election petition and this according to the learned counsel is not a valid reason for summary rejection of the election petition. 2. Heard. As far as the first argument is concerned, there are plethora of judgments starting with Engr. Iqbal Zafar Jhagra and others Vs. Khalil-ur-Rehman and 4 others (2000 SCMR 250), Sardarzada Zafar Abbas and others Vs. Syed Hassan Murtaza and others (PLD 2005 SC 600), Malik Umar Aslam Vs. Sumaira Malik and others (PLD 2007 SC 362), Maulvi Abdul Qadir and others Vs. Maulvi Abdul Wassy and others (2010 SCMR 1877) and Zia-ur- Rehman Vs. Syed Ahmed Hussain and others (2014 SCMR 1015) which require that an election petition has to be attested by the Oath Commissioner and this is mandatory, otherwise it should be dismissed as per the provisions of Section 63 of the Representation of People Act, 1976 read with Section 55(3). We are not inclined to agree with the learned counsel that the law laid down in the above-noted judgments are/is incorrect exposition or enunciation and, therefore, such judgments must be revisited, rather to the contrary appropriate valid and apt reasons have been given by this Court in the aforesaid cases to reach to the conclusion that the verification requires attestation by the Oath Commissioner is imperative and mandatory in law. As regards the question that the amended petition was duly attested and, therefore, it is this petition which should have been taken into consideration and account, suffice it to say that per the law laid down in Malik Umar Aslam Vs. Sumaira Malik and others (PLD 2007 SC 362), the amended election petition even if was attested by the Oath Commissioner but by the time, the time for the petition having lapsed C.A.319 of 2014 -: 3 :- could not be considered to be a valid institution for the purposes of condoning the incurable defect of non-attestation of the election petition. Both the arguments have no merit, therefore, this appeal is dismissed. JUDGE JUDGE Islamabad, the JUDGE 28th April, 2015 Not Approved For Reporting Waqas Naseer/*

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{'id': 'C.A.319_2014.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. 321-L OF 2014 (On appeal against the judgment dated 30.9.2014 passed by the Election Tribunal, Multan in Election Petition No. 179/2013 ECP, 13/2013 ETM) Ch. Muhammad Yousaf Kaselia … Appellant VERSUS Peer Ghulam Mohy-ud-Din Chishti, etc …Respondents For the Appellant: Mr. Muhammad Shahzad Shaukat, ASC Barrister Jehanzeb Raheem, ASC For the Respondent (1): Syed Najmul Hassan Kazmi, Sr. ASC Mr. M.S. Khattak, AOR. For Respondents (2-4): Ex-parte Date of Hearing: 16.05.2016 JUDGMENT FAISAL ARAB, J. - In the General Elections that were held on 11.5.2013, the appellant and the respondent No. 1 were the main contesting candidates from the Provincial Assembly constituency No. PP-232 Vehari-I. The appellant secured 50350 votes and was declared returned candidate, whereas the respondent No. 1 was runner-up who secured 43751 votes. The respondent No. 1 filed Election Petition before the Election Tribunal, Multan under Section 52 of the Representation of the People Act, 1976 alleging corrupt and illegal practices on the part of the appellant. It was alleged that the Civil Appeal No. 321-L- of 2014 2 appellant won the elections by influencing the election staff. Additionally, it was also alleged that in his nomination form, the appellant submitted false statements of election campaign expenses as well as of his assets and liabilities. The Election Tribunal vide impugned judgment accepted the election petition after holding that the appellant had filed false statements of election campaign expenses and did not disclose certain liabilities. The election of the appellant was declared void and fresh election in the constituency was ordered. Aggrieved by such decision the present appeal has been filed. 2. In his nomination form, the appellant disclosed that he owns a business, which is being run in the name of ‘Younas Brothers Cotton Ginning and Oil Factory’ and showed his investment therein to the extent of 6.3 million rupees. In the nomination form under the item where liabilities of bank loans were to be stated, no disclosure was made. It was only in the evidence it surfaced that the appellant had mortgaged his property to obtain loan for the running of his business. An officer of the bank from which loan was obtained appeared as the appellant’s witness. He stated that upto 30.6.2013 financial facility to the tune of 70 million rupees was availed from the bank by Younas Brothers Cotton Ginning and Oil Factory. From this, it is clearly evident that a financial liability of 70 million rupees was incurred and secured by creating mortgage on immovable property owned by the appellant. Admittedly, the appellant was one of the signatories to the mortgage deed but he failed to disclose this liability incurred upon himself in his nomination form. Civil Appeal No. 321-L- of 2014 3 3. Learned counsel for the appellant argued that the loan that was obtained from the bank for the joint family business had not become due for payment on 30.06.2012, therefore, the provisions of Section 12 (f) of the Representation of the People Act, 1976, which require a candidate to file statement of his assets and liabilities and those of his spouse and dependents are to be read with the provisions of Section 12(c) of the said Act which requires submission of a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, remains unpaid for more than one year from the due date, or that he has got such loan written off. He submitted that in the present case, firstly, the loan of 70 million was not even due on the requisite date and secondly the appellant holds only 1/8th share in the said business so it was not mainly owned by the appellant, therefore penal consequence for such non-disclosure ought not to have followed. 4. As to the non-disclosure of election campaign expenses, learned counsel explained that certain expenses of election meetings are borne by friends and the people of the area who invite the candidate and it is not within the domain of the candidate to account for it. He submitted that the Election Tribunal non-seated the appellant after finding an expenditure of only Rs.50,000/- in excess of the permissible limited prescribed under the election laws which being a very harsh decision is liable to be set-aside on that score. Civil Appeal No. 321-L- of 2014 4 5. It is of utmost importance that a contesting candidate must disclose the assets that he owns and the liabilities that he owes in his nomination form. The disclosure of liabilities is more important that disclosure of assets. It is important for the reason that while holding public office, in case the liability incurred prior to the election is liquidated, he could be called upon to explain the source from which the liability was liquidated; that is, whether the same was liquidated from his personal sources of income or that he had misused the authority of the public office in any manner that contributed to the liquidation of the liability. Therefore, non- disclosure of any liability is to be met with penal action in the same manner as non-disclosure of any asset. We are not impressed by the argument of the appellant’s counsel that provisions of sub-section (f) of Section 12 of the Representation of the People Act, 1976 are to be read with sub-section (c) of section 12 of the said Act. Sub-section (c) of Section 12 speaks about disclosures, either of any write off or of default that remains unpaid for more than a year, of any financial obligation towards a bank, financial institution, co-operative society or corporate body whereas sub-section (f) speaks about disclosure of assets and liabilities. A financial liability cannot be equated with default committed with regard to any financial obligation. A financial liability is incurred the moment an obligation is created to discharge the same, which by efflux of time either has already become due or is to fall due sometime in future. Therefore, irrespective of any default relating to a financial obligation, liability gets created the moment a person takes upon himself the obligation to settle the same in future. In the present case, a financial obligation of 70 million rupees towards a bank did exist at the time of filing of the nomination form Civil Appeal No. 321-L- of 2014 5 which ought to have been disclosed by the appellant irrespective of the fact that the same had not become due but he failed to do so, thereby incurring the penal consequences of non-disclosure. 6. As to the excessive election campaign expenses, the same being only to the extent of Rs.30,500/- over and above the permissible limit, which being not a significant amount, the same ought not to have been made basis for declaring appellant’s election as void. 7. We are, therefore, of the view that the Election Tribunal rightly non-seated the appellant on account of his failure to disclose in the nomination form his financial obligation of 70 million rupees which he secured by executing a mortgage deed. 8. This appeal was dismissed vide short order dated 16.05.2016 and these are the reasons for the same. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 16th of May, 2016 Approved For Reporting Khurram Civil Appeal No. 321-L- of 2014 6 Reproduction 12. Nomination for election.— (2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany— (a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member; (b) Omitted (c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off; (d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers; (e) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any, alongwith attested copies thereof; and (f) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day of June; 48. Definitions.—For the purpose of this Act, “election expenses” means any expenditure incurred before, during and after an election or payment made, whether by way of gift, loan, advance, deposit or otherwise, for the arrangement, conduct or benefit of, or in connection with or incidental to the election of a candidate, including the expenditure on account of issuing circulars or publications, but does not include the deposit made under section 13. 49. Restriction on election expenses.—(1) No person other than the candidate shall incur any election expenses of such candidate: Provided that where any person incurs any election expenses on behalf of such candidate, whether for stationery, postage, telegrams, advertisement, transport or for any other item whatsoever, such expenses shall be deemed to be the election expenses incurred by the candidate himself. Civil Appeal No. 321-L- of 2014 7 (2) The election expenses of a contesting candidate shall not exceed, in the case of an election to a seat in the National Assembly, one million and five hundred thousand rupees and, in the case of an election to a seat in a Provincial Assembly, one million rupees.

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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. 322 of 2018. (Against the order dated 4.11.2016 passed by the Federal Service Tribunal in Appeal No. 161(K)CS/2015) Chairman, FBR Through Member Administration. …Appellant (s) VERSUS Muhammad Asfandyar Janjua, etc. …Respondent(s) For the Appellant (s) : Hafiz S. A. Rehman, Sr. ASC For the Respondent-1 : In person. Date of hearing : 30.05.2018 JUDGMENT Sajjad Ali Shah, J. Leave was granted by this Court on 6.3.2018 to examine as to whether “in cases where length of service is provided for promotion, the time spent in litigation prior to the first appointment of civil servant could be counted towards such length of service”. 2. Briefly, the respondent No.1 passed civil services examinations conducted by the Federal Public Service Commission in the year, 1996. However, he was treated to be domiciled of Punjab instead of Sindh (Urban) and consequently could not be declared successful on account of high merit list of Punjab. The respondent in the year 1997 challenged such treatment by filing a Constitutional Petition before the High Court of Sindh, which was allowed on 29.5.2003 upon his furnishing an undertaking that he would not claim the seniority. The said order was maintained by this Court by declining leave vide order dated 15.11.2006. The respondent, on 6.1.2008, was finally allowed to proceed for training in Sindh Civil Academy from where he passed the mandatory final passing out examination on 1.9.2009. It also appears to be a matter of record that the respondent from CA 322 of 2018 2 1996 to 2007 had remained abroad and according to his claim has undertaken various exams as well as remained on job with world’s best multinational companies. It also appears to be an admitted position that after requisite training and on completion of five years mandatory service, the respondent on 6.9.2012 was promoted from BS-17 to BS-18. The respondent claimed to have been aggrieved when the Departmental Selection Board in its meeting held on 26.11.2014 did not recommend his name for promotion from BS-18 to BS-19 for want of 12 years mandatory service in BS-17 and above, which length of service according to the department, the respondent would complete on 26.8.2019. The respondent consequently approached the Federal Service Tribunal which through the impugned order directed the appellant “to give benefit of placement of the appellant with 25th Common, however, he would be treated at the bottom of the list of that batch and will also be given the necessary benefits of length of service and his pay will be fixed after allowing the notional increments all along so that keeps up with his batch mates, but the salary and allowance for that period would not be disbursed to him”. 3. Hafiz S. A. Rehman, learned Sr. ASC for the appellant contends that in compliance of the judgment of this Court, the Secretary Establishment approved creation of vacancy in Income Tax Group in CE-1996 and its allocation to the respondent against Sindh (U) quota. He further submits that the respondent was issued offer of appointment on 22.2.2007 and clause-VII of such appointment letter stipulated that the seniority of the respondent in the examination group would be determined by the Government after the final passing out in accordance with Rule VII of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 and the respondent having accepted such offer submitted his joining on 27.8.2007 and proceeded on training with 35 Common Training Program (CTP) on 6.1.2008. The respondent on 1st September, 2009 was notified to have completed his training along with 35 CTP and was, however, declared to have successfully completed his probation as 25th CTP. The respondent being short of period of minimum requirement of five years mandated for promotion from BS-17 to BS-18, was given BS-18 on ‘acting charge basis’. The respondent completed five years of service in BS-17 on 12.3.2012 and was thus regularized in BS-18 on 6.9.2012. Per counsel the respondent’s representation against the seniority list as circulated by the Federal Board of CA 322 of 2018 3 Revenue (FBR) dated 3.8.2012, claiming inter se seniority along with 25th CTP of Inland Officers was accepted on 13.9.2012 but such notional seniority could not be a substitute to the actual length of service of 12 years required for promotion to Grade BS-19 as provided under the rules. It was further contended that the offer of appointment issued to the respondent clearly narrates that his seniority would be determined in the examination group after the final passing out in terms of Rule VII of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 which provides that seniority of the probationers shall be determined by the Government after final passing out of examinations. Additionally, per counsel, sub-sections (2) and (3) of Section 7 of the Civil Servants Act, 1973 provides that seniority on initial appointment to service, cadre or post is to be determined, as may be prescribed, whereas, rule 2 of the Civil Servants Seniority Rules, 1993 provides that if two or more persons are recommended in open merit, their seniority inter se is determined in order of merit as assigned by the selection authority. However, in case there is only one candidate recommended as in the present case the seniority is to be counted in terms of sub rule (3) (b) of Rule 2 ibid from the date of his joining the post after being recommended by the selection authority. It was, therefore, submitted that the seniority of the respondent is to be reckoned from the date when he actually joined the service and, therefore, he cannot be given the benefit of the time which he has spent on litigation prior to his first appointment as a civil servant. In support of his contention that seniority of a person is to be reckoned from the date of his regular appointment or absorption in the transferee group, reliance has been placed on the judgment of this Court in the case of Chairman Federal Board of Revenue versus Iqbal Hussain Shaikh (2016 SCMR 773). Counsel further in support of his contention that seniority cannot be determined without reference to continuous appointment in a particular group, referred the judgment of the Court in the case of Haroon Muhammad Khan and others versus. Rukhsana Yasmeen and others (2014 SCMR 358) as well as Ghulam Rasool and others versus Government of Baluchistan and others (2002 PLC (C.S.) 47) and G.C. Gupta vs. N.K. Pandey (AIR 1988 Supreme Court 654). 4. On the other hand, the respondent despite his counsel being in attendance, opted to argue the matter himself and contended that it was the appellant’s fault that he was CA 322 of 2018 4 treated as Punjab domiciled and was declined his due right and was made to litigate for a period of ten years, therefore, he cannot be denied the benefit of such promotion, merely for want of length of service. As to the undertaking submitted for getting into civil service, it was contended that such undertaking cannot take away the vested right of the petitioner to be treated alongwith his batch-mates. It was next contended that once he was granted seniority with his batch-mates by the appellant vide letter dated 12.10.2012 by accepting his representation, he cannot be denied such seniority for want of actual length of service. It was lastly contended that he is being discriminated as the appellant-Government has granted promotion in various cases without actual length of service and in that pursuit the respondent has referred to the cases of Abdul Qadir, Tariq Pirzada and Faisal Bashir Memon. He, therefore, prays that similar benefit be also extended to him. In support of his contentions, the respondent randomly referred the judgments of this Court in the cases of Miss Zubaida Khatoon versus Mrs. Tehmina Sajid Sheikh and others (2011 SCMR 265), Tariq Aziz ud Din and others in re: Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P & 14306-G to 143309-G of 2009 (2010 SCMR 1301), Abdul Hameed versus Ministry of Housing and Works, Government of Pakistan, Islamabad through Secretary and others (PLD 2008 Supreme Court 395), Abid Hussain Sherazi versus Secretary M/o Industries and Production, Government of Pakistan, Islamabad (2005 SCMR 1742) and Ch. Muhammad Saleem versus Government of Punjab through Chief Secretary, SGA&I Department, Lahore and 5 others (1994 SCMR 517). 5. We have heard the learned counsel for the appellant, the respondent, in person and have perused the record as well as the case law cited at bar. 6. It is not disputed before us that in terms of in OM No.1/9/80-R-II(A), dated 2.6.1983 issued by the Establishment Division, minimum length of 12 years of service in grade BS-17 and above is required for promotion in Grade-19, which the petitioner would acquire on 26.8.2019. Further it is by now settled law that Office Memorandum, issued under section 25 (2) of Civil Servants Act, 1973 have force of law. [see Azra Riffat Rana v. Sec. Minister of Housing & Works and others (2008 Supreme Court 470), Fazali Rehmani versus Chief Minister N.W.F.P. Peshawar and others (PLD 2008 Supreme CA 322 of 2018 5 Court 769)]. The Office Memorandum No.1/9/80-R.2 dated 2.06.1983 prescribing minimum length of service for promotion in Grade-18 and above reads as follows: GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION No.1/9/80-R.2 Rawalpindi, the 2nd June 1983 OFFICE MEMORANDUM Subject: MINIMUM LENGTH OF SERVICE FOR ELIGIBILITY IN PROMOTION OF OFFICERS In pursuance of rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in supersession of the instructions laid down in the Establishment Division’s Office Memorandum No.1/9/80-R. II (A), dated the 12th January, 1981, the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows: - For Grade-18 5 years in grade 17 For Grade-19 12 years in grade 17 and above For Grade-20 17 years in grade 17 and above For Grade-21 22 years in grade 17 and above Proved that: -  Where initial appointment of a person not being a person in government service takes placed in a post in grade 18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the following periods: First appointment in Reduced by Grade-18 5 years Grade-19 12 years Grade-20 17 years  Where initial appointment of a person already in government service takes place, on recommendations of the Federal Public Service Commission in a post in grade 18, 19 or 20 the length of service specified in this office memorandum shall be reduced by the periods specified in proviso (i), iii) Where first appointment of a person other than a person covered by proviso (ii) was made to government service in grade 16 or below, one-half of the service in grade 16 and one fourth in grade 15 and below may be counted as service in grade 17 for computing length of service for the purpose of promotion only. Sd/xxx (Mashkoor Ahmad Khan) Joint Secretary To the Government of All Ministries/Divisions Pakistan 7. It is also a matter of record that the respondent pursuant to the orders of the Court was finally issued the offer of appointment on 22.2.2007, Clause-VII whereof reads as under: “Your seniority in the Examination Group will be determined by the Government after the Final Passing Out in accordance with Rule 7 of the Occupational Groups and Services (Probation, Training & Seniority) Rules, 1990”. CA 322 of 2018 6 The respondent while accepting such offer letter, proceeded on training at Civil Services Academy, Lahore on 6.1.2008. After successful completion of training, his probation was terminated vide notification dated 1.9.2009 and thereafter upon completion of required length of five years of service in Grade-17 he was promoted on 6.9.2012 to Grade-18. The respondent in the meanwhile had challenged the seniority list circulated by the appellant in respect of officers of Inland Revenue Services from 22nd CTP to 30th CTP by filing a representation and claiming inter se seniority with 25th CTP of 1997. The representation of the respondent was allowed on 13.11.2012 and he was granted inter se seniority with 25th CTP of 1997 by placing his name at serial No.13. However, it is yet to be seen whether such seniority could be allowed and if yes then as to whether such notional seniority at the time of promotion could entitle the respondent to actual prescribed length of service or that such notional seniority could be a substitute for actual length of service. 8. The manner in which the seniority of a civil servant is to be determined and the way he becomes eligible to the promotion are detailed in Sections 8 and 9 of the Civil Servants Act, 1973, Rule 2 of the Civil Servants (Seniority) Rules, 1993 and Rule 7 of “The Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990”. The relevant portions of the said Sections and rule are reproduced for better understanding the controversy: “The Civil Servants Act, 1973. 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 in 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: Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post retain their inter se seniority as in the lower post. 9. Promotion. – (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs; CA 322 of 2018 7 …. (2) A post referred to in sub-section (1) may either be a selection post or a non- selection post to which promotions shall be made as may be prescribed. (a) in the case of a selection post, on the basis of selection on merit; and (b) in the case of a non-selection post, on the basis of seniority-cum- fitness.” “The Civil Servants (Seniority) Rules, 1993. 2. Seniority on initial appointment. (1) … (2) … (3) If only one candidate is recommended in open advertisement by the selection authority, he shall count his seniority from – (a) the date of recommendation by the selection authority, if he was already holding the same post on ad hoc basis; and (b) the date of his joining the post after being recommended by the selection authority, if he was not already holding the same post.” “Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990. 7. Seniority. – (1) The seniority of the Probationers shall be determined by the Government after Final Passing Out Examination. (highlighted to supply emphasis) 9. Perusal of sub-section (3) of Section 8 of the Act, 1993 reflects that the seniority of a civil servant on initial appointment to a service, cadre or post is to be determined as may be prescribed. Whereas, rule 2 of the Seniority Rules, 1993 framed under the Act of 1973 prescribes the reckoning of seniority in case of initial appointment from the date of joining the post. The provision of Sub-section (3) of Section 8 of Act, 1973 if read in conjunction with rule 2(3)(b) of the Seniority Rules, 1993 leaves no doubt in our minds that the seniority of a civil servant on initial appointment to a service, cadre or post has to be reckoned from the date of his joining the post after being recommended by the Selection Authority and not from a date prior thereto. Even Rule 7 of the Seniority Rules, 1990 empowers the Government to determine the seniority of the probationers after Final Passing Out Examination. Neither any Section of law or rule framed thereunder was brought to our notice which could empower the Government in cases of initial appointment to fix the seniority of a civil servant from a date prior to his induction in civil service upon successful completion of training. It is to be kept in mind that seniority of a civil servant is always determined keeping in view his regular appointment to a post and, thereafter the continuous service in that particular grade. CA 322 of 2018 8 10. In the instant case the respondent, consequent to the offer of appointment letter dated 22.2.2007 joined the Civil Services Academy Lahore on 6.1.2008 and successfully completed training on 1.9.2009 with 35th CTP. However, he has been given seniority by treating him one of the 25th CTP. It is also important to note that neither seniority nor promotion are the vested rights of a civil servant, therefore, neither any seniority nor any promotion could be claimed or granted without actual length of service on account of vested rights. The purpose of prescribing a particular length of service for becoming entitled to be considered for promotion to a higher grade, of course, is not without logic as the officer who is initially inducted to a particular post needs to actually serve on the said post in order to gain experience to hold the next higher post and to serve the public in a befitting manner. It is also important to note that grant of seniority to a civil servant without actual length of service virtually violates the entire service structure as a civil servant inducted in Grade-17 by claiming such benefit without any experience be directly posted in any higher grade, which is neither the intention of the law nor of the equity. In this context it is pertinent to record that earlier the respondent’s request to waive off the minimum length of service of five years for promotion to BS-18 was declined on 1.3.2010. However, the competent authority on 12.3.2012 while exercising powers conferred under Rule 8-B of the Civil Servant (Appointment, Promotion and Transfer) Rules, 1973 promoted the respondent to BS-18 on “acting charge basis” as he was otherwise eligible for promotion but, was short of minimum required length of service and later, on completion of five years of mandatory service he was regularized in BS-18 on 6.9.2009. 11. We are mindful of the fact that the respondent on account of certain acts or omissions on the part of the appellant could not maintain his seniority with officers of 25th CTP with whom he had cleared CSS examination as neither he could complete his necessary training with officer of 25th CTP nor, he could be inducted in service with them. However, the remedy to such act or omission at the most could be induction in service by rectifying the wrong. In the instant case no mala fide on the part of the appellant has been alleged but, in our opinion, even in cases where such act or omission is found mala fide the remedy could be anything but not seniority without actual length of service. CA 322 of 2018 9 12. It appears to be a case of first impression, as none of the reported judgments referred to by the parties apply or relevant to the controversy involved in matter in hand, though principles of seniority are dealt with in cited cases. The case of Chairman, Federal Board of Revenue (Supra) while dealing with the seniority of deputationist held that the seniority of a person on deputation was to be reckoned from the date of his regular appointment-permanent absorption in the transferee group or department and not from the date of his posting or transfer or any earlier date. Likewise, in the case of Haroon Muhammad Khan (Supra), this Court held as under: “(18) Promotion and seniority are definitely not vested rights. Sections 8 and 9 of the Civil Servants Act, 1973 read together with section 4(1) proviso (b) of the Service Tribunals Act, 1973 are very clear on that. However, to be considered for promotion and seniority is a vested right. A civil servant may not be able to file an appeal to get seniority or promotion but he can definitely file an appeal to get meaningful consideration for his seniority promotion. In the present case the appellants could not claim safeguard of their right to seniority and promotion. However, they could definitely make a prayer that they should have been considered correctly for their seniority/promotion”. 13. In the case of Ghulam Rasool (Supra), the services were discontinued in 1973 and, therefore, petitioners could not complete their training till 1977 as they remained ousted from service until the review board vide order dated 20.10.1978 reinstated them with the clarification that no back benefits would be given. The petitioners demanded their seniority retrospectively from the date of their appointment and this Court held that seniority cannot be determined without reference to continuous appointment in a particular grade. In the case of G.C. Gupta (Supra), principle of seniority of Temporary Assistant Engineer was held is to be determined from the date of order of absorption in service, from which date they become “members of service” and not before. 14. We have also examined the reported case laws cited by the Respondent, in none of the cases so referred, minimum length of service, is shown to have been relaxed to concede promotion to higher grade. Even the precedents cited from jurisdiction of Federal Service Tribunal are of no help to the respondent. Firstly, same are not binding on this Court, and secondly same do not support the case of the respondent. In the Case of Zaheer Ullah Khan (Service Appeal No. 2269(R)CS/201 judgment dated 14.12.1, learned Service Tribunal while discussing the effect of Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which empowers the authority to promote senior CA 322 of 2018 10 most eligible civil servant who does not possess required length of service directed the appointment of Zaheer Ullah Khan on “acting charge basis”. The relevant portion of the said judgment is reproduced as follows: “7. The contention of the respondents that the appellant has not prayed for Acting Charge Appointment from the date when his juniors were promoted, carries no weight as in para (d) of grounds, he stated that the appellant was denied promotion due to a non-sustainable reason even on acting charge basis without taking into consideration … and (d)(v) he further stated that ‘his promotion was deferred on the basis of non-fulfilling of requirement of minimum length of service although it was out of question while making promotion on acting charge basis’, (underlining for emphasis), therefore, the objection is hereby overruled. 8. For the foregoing reasons, we accept the appeal and direct the respondent- department to place the case of the appellant before the DPC for consideration for promotion to BS-19, on acting charge basis, with effect from the date his juniors were so granted”. 15. However, in review, it is noted that the same Member without giving any finding/reasoning on length of service held that “on acting charge basis” was erroneously mentioned in the judgment and directed the department to consider the case of Zaheer Ullah Khan for promotion to BS-19. We do not approve the order in review, which appears to be an intellectual dishonesty as in the judgment the Tribunal after discussing the effect of Rule 8-B of Rules, 1973 came to the conclusion that condition for having a specified length of service could be dispensed with while appointing an officer who otherwise is eligible on “acting charge basis”. There was no reason at all given in the entire judgment that such length of service could be dispensed with while directing regular promotion. It is further important to note that the main judgment whereby the department was directed to consider the case of Zaheer Ullah Khan for promotion of BS-19 “on acting charge basis” had come up in appeal before this Court in CP No.924 of 2017 and this Court has upheld the main judgment, therefore, the review even otherwise, could not have been made once the main judgment was approved by this Court. 16. As regard the case of Abdul Qadir Sheikh, (Appeal No.141(K)CS/2005 Judgment dated 23.4.2013, the facts of the case are totally different as in the said case Abdul Qadir Sheikh after passing the CSS Exams joined Pakistan Railways (C&T) Group as was allocated. However, afterward it was revealed to him that he was entitled to Income Tax or Account Group and, therefore, his length of service in the Pakistan Railways (C&T) CA 322 of 2018 11 was taken into account and he was given the benefit accrued to him including his seniority with his batch-mates. 17. In the case of Muhammad Tariq Pirzada, Writ Petition No.1306 of 1997 judgment dated 2.10.1998 as well as in Faisal Bashir Memon Appeal No.786(R)CS/2011, the dispute emanated from change of occupational groups and, therefore, the length of service was hardly a matter of concern. 18. In the case of reported as Director-General, Intelligence Bureau, Islamabad and others versus Amir Mujahid Khan and others (2011 SCMR 389) this Court quite exhaustively dealt with issue of length of service for promotion to higher grade, which is imperative criteria under Rule 8-B of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, after discussing relevant rules and Office Memorandum No.1/9/80-R.2 as reproduced in para-6 above, it was held at page 399 as follows: “It is an admitted fact that appellant/competent authority had not circulated seniority list till the length of service of the afore-said respondents was completed as required under the law. They were promoted subsequently on permanent basis vide notification dated 11-8-2006 from the date of their assuming charge of the post of Deputy Director on acting charge basis. The sole question for our determination is that in such situation whether these respondents regained original seniority on subsequent promotion so long the order of the DPC dated 18-8-2005 remains in the field. This fact brings the case of the afore-said respondents that they were considered and were not promoted on permanent basis due to lack of requisite length of service, therefore, they could not be granted seniority from the original date of their consideration for promotion. See Abdul Ghani Chaudhry’s case 1998 PLC (C.S.) 1278. It is pertinent to mention here that respondents who were promoted on permanent basis as they had requisite length of service in their grade as mentioned above.” 19. It may be observed that rule 8-B of Rules, 1973 ibid; indeed empowers the competent authority in the public interest to fill a post reserved under the rules for departmental promotion after compromising length of service, and subject to other concomitant conditions as set down in succeeding sub rules of rule 8-B ibid by appointing such civil servant to higher grade on "acting charge basis". However, in instant case the respondent at the relevant time even did not qualify to be considered for appointment to BS-19 on “acting charge basis”. CA 322 of 2018 12 20. In the facts and circumstances, we allow this appeal by setting-aside the impugned judgment of the Federal Service Tribunal leaving the parties to bear their own costs. Judge Judge Judge Islamabad May 30, 2018 A. Rehman/* Not Approved for Reporting

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR Civil Appeals No.3264, & 327w of 2020 Against Judgment dated 05.03.2020 passed by the La/tore High Court, Lahore in Intra Court Appeal No.1.1032 of 2020 and Intra Court Appeal No. 8516 of 2020. Dr. Iqrar Ahmad Khan Appellant (in both cases) VERSUS 'S. Dr. Muhammad Ashraf etc. Province of Punjab etc. Respondents (in CA#326-L/20) Respondents (in CA#327-L/20) For the Appellant For the Respondent (s) Date of Hearing Mr. Bilal Hassan Minto, ASC Ch. Akhtar Ali AOR (in cA327..L/Qo) Mr. Hamid Khan, Sr. ASC assisted by Hafiz M. Tariq Naseem ASC and Mr. Muhammad Ahsan Bhoon, ASC. (No. I in CA 326-L/20 and No. 8 in CA 327-L120) Mr. Akhter Javed, Addl.AG, Pb. (No.2, .% 6 and 7 in CA 326-1,120 and No. 1,2,5 and 6 in CA 327-1,/20) Mr. Muhammad Shahzad Shaukat ASC along with Mr. Shaiqat Nadeem, Law Officer (No.8 in CA 326-1120 and No.7 in CA 32 7-1,/20) 07.12.2020 JUDGMENT IJAZ UI., AHSAN, J.- Through this single judgment, we intend to decide Civil Appeals No. 326-L and 327-L of 2020 as they involve common questions of law. 2 2. Through the instant Appeal, the Appellant has assailed a Judgment of the Lahore High Court, Lahore dated 05.03.2020 passed in Intra Court Appeal No. 11032 of 2020 and the Judgment of the Lahore High Court, Lahore dated 05.03.2020 passed in Intra Court Appeal No. 8516 of 2020 (hereinafter referred to as the "ICAs"). The ICAs were filed against a Judgment of the Lahore High Court, Lahore, dated 04.02.2020 passed in Writ Petition No. 34743 of 2019. The ICA Bench set aside the judgment passed by a learned Single Judge dated 04.02.2020 which had declared the appointment of Dr. Muhammad Ashraf, Respondent No. 1 in CA No. 326-L of 2020 and Respondent No. 8 in CA No. 327-L of 2020 to the post of Vice Chancellor of the Respondent-University being without lawful authority. The learned Division Bench restored the notification dated 16.04.20 19 issued by the Government of Punjab appointing Respondent No. 08 as the Vice Chancellor of the Respondent-University. 3. The necessary facts giving rise to this Us are that applications were invited by the Government of Punjab for the post of Vice Chancellor of the University of Agriculture Faisalabad (hereinafter referred to as the "Post"), through an advertisement dated 23.08.20 16 (hereinafter referred to as the "Advertisement"). The Appellant was the incumbent Vice Chancellor of the Respondent-University. His term ended in January 2017. The Appellant applied for the Post of Vice Chancellor pursuant to the Advertisement and Section 14(8) of the University of Agriculture Faisalabad Act 1973 3 (hereinafter referred to as the "Act"). Section 148 of the Act is reproduced below for ease of reference as:- "The incumbent Vice Chancellor shall not be allowed any extension in his tenure but subject to eligibility he may again compete for the post of the Vice Chancellor in accordance with the procedure prescribed by or under this section." Until the appointment of a regular Vice Chancellor, the Appellant was assigned the duties of the acting Vice Chancellor by the Chancellor i.e. Respondent No. 4 in CA. 326-L of 2020 and Respondent No. 3 in CA. 327-L of 2020 vide notification dated 27.01.2017. The said notification was challenged by way of Writ Petition No. 54628/2017 and the Appellant was restrained from acting as the Vice Chancellor vide order dated 09.08.2017. In order to run the everyday affairs of the Respondent-University, a Pro-Vice- Chancellor was appointed as per Section 15-A of the Act. For almost 2 years, because of pending litigation in the matter of appointment of the Vice Chancellor, a regular appointment could not be made. A Search Committee was finally constituted under Section 14(3) of the Act on 27.03.2018 which recommended three names to the Chancellor for possible appointment of one as Vice Chancellor in the order of merit. The Appellant stood at Number 1 on the merit list. However, the Appellant was not appointed as the Vice Chancellor by the Chief Minister Punjab for the reason that a number of audit paras were left unanswered by the Appellant during his past tenure, and that, the purportedly required four syndicate meetings in a year were not convened by the Appellant. An appointment was finally made through 4 Notification dated 16.04.20 19 (hereinafter referred to as "Impugned Notification") through which Mr. Muhammad Ashraf, Respondent No. 1 in CA 326-L of 2020 and Respondent No. 8 in CA 327-L of 2020 was appointed as the Pro-Vice-Chancellor. The said appointment was challenged by the Appellant and the same was struck down vide judgment dated 04.02.2020 of the Single Bench of the High Court. The Respondents challenged this judgment by way of the ICAs which were allowed. 4. Leave to appeal was granted by this Court vide order dated 07.09.2020 in the following terms: - "Learned Counsel for the Petitioner contends that as per the Judgment in the ease of A ppointments of Permanent Vice Chancellor of Punjab Universitu (Human Rights Case No. 13865-P pf 2018). this Court has laid down the following law with regard to the appointment of Vice-Chancellors of the Universities in Punjab:- '5. The Search Committee shall complete their work within a period of three weeks and submit/ recommend names of three persons in the order of merit to the Government which shall proceed to notify the person of highest merit unless there are cogent reasons for not appointing him which shall be duly recorded in writing and shall bejusticiable.' Learned Counsel contends that although in the summary placed before the Chancellor, there were two objections, one with regards to the existence of 164 unsettled Audit Paras and the other, non-calling of the required meetings of the Syndicate, these reasons are not enough for excluding the Petitioner from being appointed as Vice Chancellor for the reason that the Search Committee has given highest marks to the Petitioner and, the Secretary Agriculture, was familiar with the position of 164 unsettled Audit Paras and non-calling of required syndicate meetings, he was a member of the Search Committee, and, he himself has given highest marks to the Petitioner i.e. 45. Further contends that the Search Committee has considered all aspects of the matter and thereafter, placed the same before the Chancellor and that the reasons put forward in the Summary were also within the knowledge of the Search Committee and despite that, it has given the highest marks to the Petitioner. He contends that the High Court has altogether misled W 5 itself in noting the Judgment of this Court in the Human Rights Case (supra) as totally misplaced and not applicable, is altogether illegal, in that, the said Judgment has jull application to the case in hand and in terms of Article 189 of the Constitution was binding upon the High Court, and the High Court could not have taken a different view than the one taken by this Court in the cited case. 2. The submissions made by the learned Counsel for the Petitioner require consideration. Leave to appeal is granted to consider, inter alia, the same. The Appeal stage paper-books shall be prepared, expeditiously, but not later than one-month. The parties are allowed to file additional documents, if any, and for such, one month is allowed. The appeal shall be heard within a period of two months. C.M.As No. 920-L and 2300/2020 3. The operation of the impugned judgments is suspended." 5. Learned Counsel for the Appellant submits that the Impugned Notification was issued in violation of the directions of this Court in HRC No. 13865-P of 2018 dated 22.04.2018. Further, that, the Appellant was awarded the highest marks by a duly constituted Search Committee consisting of individuals and academicians of high repute and immaculate credentials and integrity. The only reason on the basis of which the Appellant could be denied appointment was if cogent reasons were recorded for the same, which would be open to judicial review. He adds that there were no objections of any "mismanagement" or "poor financial controls" that were raised by the Search Committee when the Appellant was being recommended for appointment to the post of Vice Chancellor. Further, that the Secretary of Agriculture was part of the said Search Committee and, he being the Principal Accounting Officer / Representative of the Government of Punjab, had also awarded the Appellant the highest marks in management and financial controls. He further argued that the audit paras which were made the basis of rejecting the Appellant's appointment against the post of Vice Chancellor were not related to the Appellant, and, the question whether or not these related to the Appellant reflecting on his management and financial control skills was never examined by the Chief Minister. He adds that there is a discrepancy when it comes to the actual number of audit paras against the Appellant in the records of the Government because at first, they were said to be 164 in number and then, they were claimed to be 140. He adds that Section 14 of the University of Agriculture Faisalabad Act 1973 (hereinafter referred to as the "1973 Act") has wrongly been interpreted by the learned Division Bench. He further adds that Sections 24 and 25 of the 1973 Act do not mandatorily require a specific number of syndicate meetings that are to take place. Even otherwise, Rule 3 of the University of Agriculture Faisalabad Conduct Of Business Rules 1976 uses the word 'ordinarily' which means that the said provision is discretionary in nature and not mandatory. He adds that there is no conflict in the case of Professor Dr. Razia Sultana and others v. Professor Dr. Ghazala Yasmeen Nizam and others (2016 SCMR 992) with the HRC Order of this Court. He concludes by submitting that the failure to appoint the Appellant as Vice Chancellor for the reasons provided by the Chief Minister is a mala fide act because many other appointments have been made involving individuals who had many more outstanding audit pans and 7 the said reason has never before been found used to refuse appointment. He has cited specific instances in this regard. 6. The learned counsel for Respondent No. 1 in CA 326-L of 2020 and Respondent No. 8 in CA 327-L of 2020 submits that the Chief Minister has exercised his discretion correctly and the reasons recorded by him in the exercise of his discretion are sound and cogent which are not open to interference. He states that the Impugned Notification was issued after a transparent process of selection and the exercise of discretion in the manner complained of does not amount to any illegality. He adds that a writ of quo warranto and mandamus is generally not maintainable in matters of appointment and that, the same falls squarely within the domain of policy which cannot be interfered with by courts unless it can be shown that non-interference may lead to grave injustice. He further submits that a presumption of validity is attached to executive actions and the same ought to be attached to the actions of the Chief Minister. 7. Learned Assistant Advocate General has mainly relied upon the arguments advanced by the counsel for Respondent No. 1 I Respondent No. 8. The only additional argument advanced by the Learned AAG is that the HRC Order of this Court does not apply to the present controversy. 8. Before we examine the case at hand, we consider it appropriate to list the issues before us for determination. These in our opinion are as follows:- 8 i. Whether the HRC Order of this Court is applicable to this case; and ii. Whether the reasons provided by the Chief Minister were valid. iii. Could the recommendation provided by the Search Committee in order of merit be overridden without assigning valid and cogent reasons which would withstand judicial scrutiny? WHETHER THE HRC ORDER OF THIS COURT IS APPLICABLE TO THIS CASE? 9. Appointments to the post of Vice Chancellor are made according to the 1973 Act. Section 14(3) of the said Act is relevant for this controversy which is reproduced below for ease of convenience:- "3. The Government shall constitute, for a term of two years, a Search Committee consisting of not less than three and not more than five members for making recommendations for appointment of the Vice Chancellor." Further, Section 14(5) of the 1973 Act provides that the Search Committee shall recommend the names of three persons, who are in its opinion suitable for appointment to the post of Vice Chancellor, to the Government. 10. The matter of appointments of Vice Chancellor came up before this Court in Human Rights Case No. 13865- P of 2018 (hereinafter referred to as "HRC Case"). Objections were raised in the HRC Case against the appointments which were being made on recommendations of the Search Committee. It was pointed out that discretion was being exercised arbitrarily, in an unstructured, unregulated and biased manner and the principle of merit was not being followed. In this background, vide order dated 22.04.2018 9 (hereinafter referred to as "NRC Order"), the following order was passed:- a4. We are mindful of the fact that public sector Universities cannot be left to operate without the appointment of a permanent Vice Chancellor. Therefore as an interim measure till such time that the permanent Vice Chancellors are appointed pursuant to recommendations submitted by the authorized Search Committees, acting Vice Chancellors will be appointed in the following manner- i) For King Edward Medical University as well as Nishtar Medical University, the existing Pro-Vice Chancellors will hold the posts of acting Vice Chancellors for running day to day affairs of the Universities till the appointment of permanent Vice Chancellors. This is in line with the respective statutes governing the two Medical Universities. ii) As far as the University of Health Sciences, Rawalpindi Medical University and Faisalabad Medical University are concerned, their acting Vice Chancellors shall be appointed as follows:- a. The names often senior most Professors according to the seniority list maintained by the Department shall be placed before the Search Committees which shall nominate/ recommend one person to be notified as the acting Vice Chancellor. On receipt of such recommendations, the Government of Punjab shall notify the said person as the Acting Vice Chancellor immediately. 5. The Search Committees shall complete their work within a period of three weeks and submit/ recommend names of three persons in order of merit to the Government which s/wit proceed to notifz4, the person of highest merit unless there are cogent reasons for not appointing him which shall be dultj recorded in writing and shall be justiciable. 6. The learned Advocate General, Punjab, shall submit a comprehensive report regarding the appointment of acting Vice Chancellors within one week and shall submit periodical reports regarding the progress being made towards the appointment of permanent Vice Chancellors. Let the matter be relisted for hearing after two weeks." 11. A bare perusal of the aforenoted order reveals that guidance was provided by this Court and the method of appointments to the posts of Vice Chancellors were structured to preclude the arbitrary and capricious exercise of discretion at the cost of appointments on merit. It was held by this Court that the appointments have to be made on the principle of merit unless cogent reasons for not appointing the person who is highest in merit are given, which would be 0 10 subject to judicial review. The said HRC Order was a speaking order giving clear instructions to the Government. We are unable to agree with the learned Division Bench insofar as it has held that the HRC Order was only applicable to universities that were before this Court in the HRC Case in question. The order passed by this Court laid down a rule of universal application which was meant to prevent the unstructured, arbitrary, biased and unregulated exercise of discretion solely dependent upon the sweet will of the Chief Minister, with the object of safeguarding and upholding the principle of merit. As such, being a pronouncement of this Court, it is binding on all executive and judicial functionaries. The record reveals that many subsequent appointments were made by the Chief Minister and the Government of Punjab while following and adhering to the rule settled by this Court in its order dated 22.04.2018. As a matter of fact, the recommendations of the Search Committee in this very case also followed the directions issued through the HRC Order and gave its recommendations in the order of merit. It shows that it was clearly understood by the Government of Punjab that the criteria given in the HRC Order was applicable to all future appointments made through the mode of Search Committees. Therefore, we find no valid basis, lawful reason or reasonable justification for the view taken by the learned ICA bench of the High Court that such Order was only applicable in the HRC Case. - 11 12. It may be noted that directions were issued by this Court that Vice Chancellors be appointed expeditiously. The matter of such appointments got prolonged due to another Writ Petition No. 12857 of 2019 filed in the High Court titled Prof Dr. I/czz Ahmad etc. v. Province of Pun jab etc. This Petition was, however, dismissed vide order dated 13.03.2019 while observing that the post of Vice Chancellor of the University of Agriculture had been lying vacant since 23.01.2017 and the same ought to be filled without delay. It was further directed that according to the HRC Order, the person highest in merit shall be notified unless there were cogent reasons for not appointing him which shall be recorded in writing, within a period of fifteen days from the date of the order of the learned High Court. 13. Resultantly, the Search Committee constituted by the Government of Punjab for the selection of the Vice Chancellor, University of Agriculture, Faisalabad, made recommendations to the Chief Minister of Punjab who then advised the Governor / Chancellor of the University of Agriculture to appoint Respondent No. 8 / Respondent No. 1 as the Vice Chancellor for a period of four years in terms of Section 14(6) read with Section 11(8) of the 1973 Act. This appointment was made in place of the Appellant who was placed highest in merit, on the ground that certain unsettled audit paras had remained unaddressed during the Appellants' tenure as Vice Chancellor and that four syndicate meetings that were required to be called in a year were not CIVIL APPEALS V0.326-1, AND 327-i 0F2020 12 convened, which constituted sufficient reason to deny appointment to the Appellant even though he was on top of the merit list having scored the highest marks. 14. The learned Division Bench has relied upon the case of Professor Dr. Razia Sultana and others a Professor Dr. Ghazala Yasmeen Nizam and others (2016 SCMR 992) to support its conclusions. The cited case on its facts is distinguishable for the reason that in the first place the Higher Education Department, KP, prepared the merit list of shortlisted candidates, who were interviewed by the Search Committee. The Search Committee interviewed the shortlisted candidates and finally, three candidates were recommended by it. The Search Committee did not allocate any merit to the three candidates and its recommendation was not based on any preference. Whereas, in the present case, there was no involvement of the Higher Education Department in making of the merit list and, the Search Committee had in the instant case prepared a merit list and such list was based upon order of merit with the candidate scoring in aggregate the highest marks on top of the list. The name of the Appellant was admittedly placed on top of the list. 15. It may be noted that the order in the HRC was passed subsequent to the case of Dr. Razia Sultana (ibid) and in essence, while recognizing the discretionary powers of the appointing authority as recognized in the said case, by way of the HRC Order went one step further to structure the same in a manner that the discretion was not exercised in an C 13 unbridled, unstructured, biased or arbitrary manner to ensure the same was not abused or misused. The question decided in Dr. Ra.zia Sultana's case and the order in the HRC dealt with two totally different issues namely, discretionary powers of the appointing authority (as recognized in Dr. Razia Sultana's case) and the structured exercise of such discretion by the appointing authority in order to prevent abuse of discretion (through the HRC Order). Moreover, it was after the case of Dr. Ra.zia Sultana (supra) that the unbridled discretion to appoint anyone of the choosing of the appointing authority was structured by the Order of this Court in order to safeguard against abuse of discretion at cost of merit. Further, there existed no concept of preparing a list in the order of merit by assigning marks at the time when the judgment of Dr. Razia Sultana (ibid) was rendered. It was only after this Court passed the HRC Order that the Universities were directed to proceed with appointments of Vice Chancellors on merit as determined by a Search Committee. The HRC Order represents further development of the jurisprudence on the question of appointments on the recommendations of Search Committees. In Professor Dr. Razia Sultana the issue of discretionary powers of the Chief Minister and the mode and manner of exercise of the same was neither the issue nor was it examined or ruled upon by this Court. 16. The relevant paragraph of the judgment of Professor Dr. Razia Sultana is reproduced below:- I 14 "10. In the instant matter, absolute power of appointment was not given to authorities i.e. the Chancellor/ Governor to appoint any person of their choice but the Search Committee consisting of eminent professionals was constituted who after detailed scrutiny of the credentials and length interview of each candidate, recommended three names which, as per para wise comments, was not on the basis of any preference and the Chancellor/ Governor, on the advice of the Chief Minister, appointed one candidate out of the three candidates in exercise of his powers, as mentioned above. Section 12(1) of the Khyber Pakhtunkhwa Universities Act, 2012 gives discretion to the Chancellor/ Governor to appoint anyone out of the candidates recommended by the Search Committee on the advice of C.M. The only allegation against the appellant (Dr. Razia Sultana) is that she belongs to the constituency of the Chief Minister but without any supporting material, this cannot be termed as an act of mala Jide." A bare perusal of the aforenoted paragraph provides that, the names provided to the Search Committee were not in order of preference, but, were at random. In essence, what this means is that no list was prepared in the order of merit. Comparing the said case to the present controversy, it becomes apparent that after the HRC Order the names were required to be shortlisted by the Search Committee in order of merit, with the person highest on merit having a legitimate expectancy of being appointed unless the Chief Minister recorded valid reasons for not appointing him, and such reasons were open to judicial scrutiny and review. Consequently, the underlying principle and ratio of both orders of this Court were totally different and there is no conflict between the two. 17. Even otherwise, appointments to various other Universities such as the Fatima Jinnah Medical University, were made according to the HRC Order of this Court. Vice C 15 Chancellors have been appointed in various universities across the province, following the principle laid down in our order dated 22.04.20 18 which has, for all intents and purposes, been implemented by the provincial governments in respect of all appointments made on the basis of recommendations of the search committees. Therefore, the finding of the learned Division Bench that the order dated 22.04.2018 was applicable only to universities before this Court in the said matter is obviously erroneous, contrary to facts, ignores the ground realities and clearly represents a myopic approach. It may be noted that in the HRC order of this Court, a rule of general application relating to the appointment of Vice Chancellors in public sector universities on the basis of recommendations of search committees has been laid down. The applicability of the rule is not limited only to the universities before this Court but to all universities in the public sector under the control or authority of the government which was fully represented before this Court when the said order was passed. Further, the said order was not only implemented with reference to the institutions before us but to all other public sector universities for all intents and purposes. The order has also attained finality and continues to hold the field. WHETHER THE REASONS FURNISHED BY THE CHIEF MINISTER WERE VALID? 18. From the very outset, it has been admitted that the reasons provided by the Chief Minister are justiciable and I 16 courts can examine them on the touchstone of validity, fairness and compliance with the law, rules and departmental practice. Further, it has been admitted that the discretion of the Chief Minister is not unfettered, unbridled and unregulated. The counsel for the Respondent admits that the reasons cannot be capricious, rnala fide or arbitrary but states that the reasons provided by the Chief Minister were adequate and sufficient. We have therefore examined the reasons furnished by the Chief Minister for not appointing the Appellant who had been placed highest on the merit list and instead, deciding to appoint the Respondent who was admittedly unanimously placed lower in the order of merit by the Search Committee which consisted of eminent citizens, respected representatives from academia, experts and high ranking government officials. The two reasons assigned by the Chief Minister in the Summary dated 13.04.2019 for not appointing the person placed highest in the order of merit were as follows:- "a) Dr. Iqrar Ahmad who has obtained the highest marks has previously served as Vice Chancellor of the University of Agriculture. His period of appointment as Vice Chancellor was marked by poor financial controls and management as evidenced by 164 unsettled audit paras. b) Dr. Iqrar Ahmad was also unable to hold the required number of meetings of the Syndicate." 19. We note that the counsel for the Appellant has placed before us several similar cases of appointment of Vice Chancellors of other universities. In the said cases, the appointees had pending audit paras and despite that, they were appointed to the post of Vice Chancellor. This fact has 17 not been controverted by the learned counsel for the Respondents. We further note that the Chief Minister has made no effort to examine the said audit paras to ascertain whether they were actually related to the financial control and management of the Appellant. The record reflects that he recorded a general finding without ascertaining the facts with any degree of accuracy or due application of mind. Nothing has been shown to us that may connect the outstanding audit paras with poor financial controls of the Appellant. It is also important to note that, this too has not been contested by the learned counsel for the Respondents. The only document examining the audit paras is a letter dated 01.03.2019 and the said letter does not examine the details of the pending audit paras or the question whether they related to the mismanagement or lack of financial or administrative control during the Appellant's tenure as the Vice Chancellor of the Respondent-University. All other letters issued in the matter appear to have been prepared after the Impugned Notification was issued. 20. The record further reveals that the Secretary, Agriculture Department, Government of Punjab, was part of the Search Committee. The said Secretary is the Principal Accounting Officer of the Government of Punjab. He was a member of the Search Committee that placed the Appellant at Serial No. 1 of the merit list. It is worth mentioning that the same Secretary has given the Appellant 10 out of 10 marks in the category of "Administrative and Financial Management". Further, the Appellant was given 45 marks in the Interview. As against this, the Respondent was given only 31 marks in the Interview. The same Secretary was part of the interview as well. Therefore, when the representative of the Government who had first-hand knowledge of all material and relevant facts also gave highest marks to the Appellant and low marks to the Respondent, we do not see why the Appellant was not appointed and that too without cogent and convincing reasons. 21. Keeping in view the fact that other persons have been appointed as Vice Chancellors, and while considering their appointments, the pendency of audit paras has not been considered as a material and determining factor reflecting on their administrative ability or financial controls, we do not see why the same standard was not applied in the case of the Appellant and that too without due application of mind and examination of the documents or material attributable to alleged lax financial controls of the Appellant. Further, he was never confronted with the same and was virtually condemned unheard and behind his back. The reasons provided by the Chief Minster show an exercise of pick and choose with a pre- determined mind and a conscious and deliberate effort appears to have been made to contrive reasons to appoint a person lower on merit and deprive a person better qualified, higher on merit and obviously more suitable for the post in question. This act of the Chief Minister amounts to an illegal, arbitrary, capricious and unbridled exercise of discretion by 19 the Chief Minister and cannot be countenanced especially so when the Search Committee, comprising of credible academicians, independent members and representatives of the Government itself with impeccable credentials, placed the Appellant on top of the merit list. Not only was he at No.1 of the merit list in the written exam, but, he was also given the highest marks in the interview. The same interview in which the Respondent did not perform as well. 22. From the facts and circumstances discernable from the record, it is evident that the Appellant was denied an appointment unlawfully and arbitrarily and, reasons were contrived to furnish a basis for a predetermined decision which fail to stand the test for judicial scrutiny. It was precisely for this reason that in our order dated 28.04.2018, while retaining the discretion of the government to appoint a person lower on merit we had circumscribed and structured the exercise of discretion by making it obligatory on the authority to record cogent reasons with a rider that such reasons will be justiciable. As discussed in the preceding paragraphs, the impugned order not only lacks bonafide and transparency but also assign reasons which are neither cogent nor show any consistency in executive decision making. 23. The second reason provided by the Chief Minister is that the Appellant was unable to hold the required number of syndicate meetings. The stance of the Appellant is that there is no requirement in the Act to hold a certain number of r -- 20 meetings of the syndicate. Statutes of other Universities expressly and specifically provide for the same in their law. The said requirement stems from an amendment made by the syndicate on 28.06.2014 to Rule 3 of the University of Agriculture Faisalabad Conduct of Business Rules of the Syndicate, 1976 (hereinafter referred to as the "Rules") which reads as follows:- "Meetings. 3. (1) Ordinarihi, the Syndicate will meet at the University Campus and Faisalabad at least four times in a Calendar year" 24. It is evident from a perusal of the said provision in its true perspective that it is discretionary and not mandatory in nature as no consequence is provided in the law or the rules for failure to comply with the same. Even otherwise, despite our query, the learned ASC for the Respondent has been unable to show any prejudice having been caused to anybody on account of the alleged failure to call the requisite minimum number of syndicate meetings in a year. Further, where the relevant law requires a specific number of meetings, it provides for the same in the Act for example Section 22 of the Act which requires the "Senate" to hold two meetings in a year. The word used in the provision relating to syndicate meetings is "ordinarily" which is indeed discretionary as opposed to Section 22(3) which uses the word "shall" which in the facts and circumstances of the case points towards a mandatory command. The said Section is reproduced as:- "(3) The Senate shall meet at least twice in every year on dates to be fixed by the Vice Chancellor with the consent of the Chancellor" CIVIL APPEALS N0.326-LAND 327-1, OF 2020 21 25. We are therefore of the view that, the Appellant was not "required" to hold a certain number of syndicate meetings and the Appellant could not have been denied appointment for his failure to do what he was not required by law to do. 26. The learned Division Bench has erroneously and for reasons best known to it held that the Court cannot adjudicate upon the reasons given by the Chief Minister. This finding in our humble view constitutes abdication of jurisdiction and power of judicial review of administrative actions by the High Court which is the foundation and hallmark of the jurisdiction of the High Court under Article 199 of the Constitution. Further, we had clearly and categorically held in our order dated 22.04.20 18 that the reasons recorded by the appointing authority will be justiciable. In the presence of such clear and categorical findings recorded by this Court, we are unable to comprehend how a finding of this nature could be recorded by the learned High Court. We have been unable to find the basis, logic, reason or rationale behind the view taken by the learned Division Bench that the reasons recorded by the appointing authority do not have to undergo judicial scrutiny. The order of this Court was clearly on a question of law, enunciated a principle of law and was binding on the learned Division Bench in terms of Article 189 of the Constitution. This fact has unfortunately escaped the notice of the learned Division Bench of the High Court. Further, it is settled law that, even I 22 the obiter dicta of this Court is binding on the High Court. Reliance in this regard is placed on Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 Supreme Court 48$i the relevant part of which is reproduced as under-.- "Even obiter dictam of the Supreme Court, due to the high place which the Court holds in the hierarchy-of courts in the countru, enjotj a highly respected position as if it contains a definite expression of the Courts view on a legal principle, or the meanin g of a law. (M. Ismail & Sons v. Trans-Oceanic Steamship Co., Ltd PLD 1966 Dacca 296, Nagappa is. Ramchandra AIR 1946 Bombay 365, K. C. Venkata Chalamayya v. Mad. State AIR 1958 Andh-Par. 173, K.P. Doctor v. State of Bombay AIR 1955 Born. 220, Bimla Devi is. Chaturvedi AIR 1953 All. 613)." (Emphasis supplied) 27. The aforenoted principle of law was further highlighted in the case of Muhammad All Abbasi and 2 others v. Pakistan Bar Council (PLD 2009 Karachi 392) the relevant paragraph of which is reproduces as under:- "Indeed, it is too well-settled of a principle of law, requiring no reconsideration1 that even obiter dictpf the Supreme Court are bindin g on the High Courts, irrespective of the latter's strength (see M. Ismail and Sons v. Trans-Oceanic Steamship Co. Ltd. PLD 1966. Dacca 296, Ghaus Muhammad is. The State PLD 1978 La/i, 1235, Afaquz Zubair V. Muhammad Idrees PLD 1978 Kar. 984, Faiz Bakhsh v. Muhammad Munir 1986 CLC 507, Ghulam Mustafa Mughal is. Azad Government of the State of Jammu and Kashmir 1992 MLD 2083, Abdul Razzak is. The Collector of Customs 1995 CLC 1453, Mian Manzoor Ahmed Wattoo is. The State 2002 Y LR 3433, Hafeez-ud-Din is. Badar-ud-Din PLD 2003 Kar. 444, Azad J & K Government v. C/i. Muhammad Saeed, Stenographer 2003 PLC (CS) SC (AJ&K) 789 and Watan Party is. FOP 2005 Y LR 388L (Emphasis supplied) 28. For reasons recorded above we find that the impugned judgment of the learned Division Bench of the Lahore High Court dated 05.03.2020 is unsustainable and liable to be set-aside. 05.03.2020. 23 29. Accordingly, we allow these appeals and set aside the impugned judgment of the Lahore High Court dated ANNOUNCED IN OPEN COURT ON t6.1 .2-1AT ISLAMABAD.

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{'id': 'C.A.326-L_2020.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEAL NOs. 334 TO 344 OF 2004 (On appeal against the Judgment dated 27.03.2003 passed by the High Court of Sindh, Karachi in Constitution Petition Nos. D- 1364 to D-1369/1998, D-1385 to D-1389/1998, D-1421/1998 & D-1266 & D-1267/1999) Army Welfare Sugar Mills (In CAs 334 & 337/04) Shahmurad Sugar Mills Ltd. (In CA 335/04) Faran Sugar Mills Ltd. (In CA 336/04) Pangrio Sugar Mills Ltd. (In CA 338/04) Digri Sugar Mills Ltd. (In CA 339/04) Dewan Sugar Mills Ltd. (In CA 340/04) Seri Sugar Mills Ltd. (In CA 341/04) Larr Sugar Mills Ltd. (In CA 342/04) M/s Al-Abbas Sugar Mills Ltd. (In CA 343/04) Mirpurkhas Sugar Mills Ltd (In CA 344/04) ...Appellants VERSUS 1. Government of Sindh through Secretary Agricultural & others (In CAs 334-338, 343, 344/04) 2. Federation of Pakistan etc (In CAs 339-342/2004) ….Respondents For the Appellants: Mr. Khalid Anwar, Sr. ASC (in CA. Nos.334-338/2004 & 344/2004) Nemo (in CA. Nos.339-342/2004) Mr. Muhammad Shaiq Usmani, Sr. ASC (in CA.No.343/2004) For the Applicant: Mr. N.C. Motiani, AOR (in C.M.A No.1304/2004) For Respondents: Mr. Zamir Hussain Ghumro, A.G., Sindh. Mr. Aslam Butt, DAG Mr. Agha Zaheer-ud-Din, Cane Commissioner, Sindh. Mr. Abdul Aziz Channa, Deputy Secretary Agriculture Department, Sindh. Date of Hearing: 05.12.2017 C.As. 334 TO 344/2004. 2 JUDGMENT FAISAL ARAB, J.- Appellants are engaged in the business of producing sugar and allied products from sugarcane. The sugar industry is regulated by the Sugar Factories Control Act, 1950 (‘the Act’). Sugarcane in Sindh is ordinarily cultivated in the months of September and October and becomes ripe for harvesting in a year’s time i.e. by October the following year. It is for this reason that under Section 2(h) of the Act, the crushing season starts on the 1st of October each year. Clauses (i) & (ii) of Section 16 of the Act empower the Provincial Government to fix minimum price for the procurement of sugarcane from the growers that has been exercised every year. As the quantity of sugar produced from sugarcane depends upon its sucrose content, a base sucrose recovery level in the climatic conditions of the Province of Sindh was determined to be 8.7% which is the main component of the sugarcane price fixation formula. Hence, whenever the procurement price of sugarcane is revised under the price fixation formula, it is worked out by keeping the base recovery level at 8.7%. 2. The level of sucrose content extracted from sugarcane depends on a number of factors such as the variety of sugarcane used as a seed, the soil conditions, the efforts of the growers and the efficiency with which the sugarcane is crushed in the mills. Thus the joint efforts and labour of the sugarcane growers and the sugar mill contribute towards achieving a sucrose recovery level which at times reaches well beyond the base recovery level of 8.7%. In or around 1981, due recognition was given to the contribution of C.As. 334 TO 344/2004. 3 the growers by sharing with them the fruits of higher sucrose content that is achieved by a mill in a crushing season over and above the base recovery level of 8.7%. Thus for the crushing season 1981-82, in addition to the minimum procurement price fixed under Clauses (i) & (ii) of Section 16 of the Act, it was decided that the growers be paid as an additional price described as ‘quality premium’ at the rate of 9 paisa per maund for each 0.1% of excess recovery of sucrose achieved by a sugar mill over and above the base recovery level of 8.7%. This policy was implemented for about two years before it was given statutory cover under Sugarcane Quality Premium Order, 1984 issued for the 1983-84 crushing season. Under this statutory provision, the rate of ‘quality premium’ was enhanced from 9 to 11 paisas per maund. As this statutory cover for the payment of quality premium was only for the crushing season 1983-84, a permanent statutory provision in the form of Clause (v) to Section 16, as applicable in the Province of Sindh, was inserted in the Act the following year under the Sindh Sugar Factories Control (Amendment) Ordinance, 1985. This was done to ensure that the growers at the end of each crushing season get quality premium in case the mills to which they have supplied sugarcane achieve sucrose level that is higher than the base recovery level. Clause (v) of Section 16 of the Act reads as under: ‘(v) The Provincial Government may direct the Factories to pay quality premium at the end of the crushing season at such rate as may be specified by the Provincial Government in proportion to the sucrose recovery of factory in excess of the base level sucrose content determined by the Provincial government, from time to time.’ C.As. 334 TO 344/2004. 4 3. After paying quality premium to the growers for seventeen long years right from the crushing season 1981-82 till 1997-98, the mill owners suddenly felt aggrieved when the rate of quality premium for the 1998-99 crushing season was raised from 32 paisas per maund to 50 paisas. In this regard the appellants filed constitution petitions in the High Court of Sindh, questioning the vires of clause (v) of Section 16 of the Act on the grounds that payment of quality premium is unconstitutional being confiscatory in nature. During pendency of the constitution petitions, the appellant sought a restraint order against the Provincial Government from notifying quality premium which was granted on 25.02.1999. After dismissal of the constitution petitions vide impugned judgment dated 22.03.2003 the appellants preferred the present appeals with the leave of this Court and vide order dated 19.02.2004 the operation of the impugned judgment was suspended. Hence, no quality premium notification under the provisions of Clause (v) of Section 16 of the Act has been issued after the crushing season 1998-99. 4. Learned counsel for the appellants argued that every notification for payment of quality premium issued in terms of clause (v) of Section 16 of the Act takes the base recovery level to be 8.7% which should not remain constant. According to him, the revision of base recovery level from time to time is envisaged under Clause (v) of Section 16 of the Act. In this regard much emphasis was laid by the learned counsel on the words ‘from time to time’ contained at the end of the said clause. C.As. 334 TO 344/2004. 5 5. Quality premium is nothing but an additional price which becomes payable to the growers only when a sugar mill achieves sucrose recovery level that crosses the base recovery level of 8.7%. The reason to fix the base recovery level at 8.7% for the purposes of determining the rate of quality premium is that this 8.7% is also taken as base level for fixing the sugarcane procurement price under the sugarcane price fixation formula. Obviously then the quality premium becomes payable for each 0.1% of excess recovery of sucrose achieved by a sugar mill over and above the base recovery level of 8.7%. In other words it is payable for each decimal point of sucrose content that is recovered beyond the base level of 8.7%. This base level therefore has to remain the same as a constant factor and becomes starting point in the determination of the excess decimal points and this is exactly the mandate of the law itself. The term ‘from time to time’ contained in Clause (v) of Section 16 of the Act therefore has nothing to do in any manner with the base recovery level which is solely intended to empower the Provincial Government to specify the rate of ‘quality premium’ from time to time. Thus it is the periodical revision in the rate of quality premium that is intended by the term ‘from time to time’ nothing else. One can articulate the mandate of Clause (v) of Section 16 of the Act in the following words ‘Factory has to pay quality premium in proportion to the sucrose recovery that is in excess of the base level at a rate specified from time to time.’ This is exactly what was being done by the Provincial Government and simultaneously honoured by the sugar mills for seventeen long years right from 1981-82 crushing season C.As. 334 TO 344/2004. 6 when the concept of quality premium was first introduced and implemented until 1998-99 under statutory provisions. However, the grant of quality premium stood discontinued only because of restraint orders passed in these proceedings. The argument that the words ‘from time to time’ are intended to revise the base recovery level is therefore misconceived. 6. There is another important aspect of this case, which needs to be highlighted here. After the temporary restraint orders against payment of quality premium were passed in these proceedings almost every sugar mill has delayed its crushing until the 2nd week of December. Had the start of crushing season been strictly adhered to, as required under Section 2 (h) of the Act, the harvesting of sugarcane would take place between 1st of October and the first week of December as well. This would leave a very large area of agricultural land available for cultivation on which other valuable and important Rabi crops, mainly wheat and sunflower could be sown. One of the reasons that suit the mills in delaying the start of crushing season is to derive maximum benefit of higher recovery level of sucrose that is achieved when the statutorily defined crushing season is delayed by about two months. This practice has been consistently adopted over the years without impunity as on account of injunctive orders passed in the present proceeding the Provincial Government was restrained from notifying the rate of quality premium. As a consequence of this, the sugar mills no more remained bound to pay quality premium to the growers and hence have been exclusively enjoying the benefits of high sucrose recovery level unconcerned with the loss of C.As. 334 TO 344/2004. 7 valuable Rabbi crops suffered by the growers that could have been cultivated on a very large area of land which becomes available when the crushing season starts on 1st of October as provided in law. 7. It would be worthwhile to also examine the financial implication of the disputed notification in comparison to some of the notifications of the past under which quality premium were being paid by the sugar mills without any reservation. In the crushing season of 1988-89 for each increase of one decimal point in sucrose recovery level beyond the base level of 8.7%, the financial impact was only 1.50% of the then prevalent price of the sugarcane. In 1989-90 it was 1.35% of the price for each decimal point increase. In so far as the disputed crushing season is concerned, the impact of increase in the quality premium as to the price of sugarcane was no more than 1.38% for each decimal point increase. Hence, nothing unusual took place when the rate of quality premium for the disputed crushing season 1998-99 was raised to 50 paisas per maund. From the comparison of rates of quality premium that were declared from time to time, it is evident that the rate revised for the disputed crushing season cannot be said to be phenomenal as it was more or less the same as was determined in the previous crushing seasons. In our view, the only situation when an increase in the rate of ‘quality premium’ can conceivably be called in question is when it can be demonstrated that revision in the rate of quality premium does not commiserate with the revision in the minimum procurement price of sugarcane. Only in such situation a case of erratic increase without any C.As. 334 TO 344/2004. 8 discernible link to the sugarcane procurement price can be made out. In the present case, as the revision of rate of quality premium was only 1.38% of the sugarcane price for each decimal point increase, there appears to be no logical reason in denying the growers their due share in facilitating the mills in achieving higher than the base sucrose recovery level which invariably results in higher sugar production. 8. From the above discussion, it is amply established that payment of quality premium on sucrose recovery level which is over and above the base level of 8.7% is not something which can be said to be some kind of benevolence or is bereft of any consideration. This right to pay quality premium created under Clause (v) of Section 16 of the Act is based upon intelligible criteria and, therefore, cannot be regarded as confiscatory so as to question its vires. In-fact its denial would be unfair and confiscatory in nature as it would amount to disregarding the contribution of the growers in achieving a higher level of sucrose content, which directly results in higher sugar production. The law calling upon the sugar mills to pay quality premium was not only acknowledged by them in their pleadings but duly honoured right from the crushing season of 1981-82 till 1997-98 without any reservation or objection. We find no reason which entitles the sugar mills not to honour the mandate of the law and deny the growers the fruits of their labour to which they on the principle of equity as well as law are duly entitled. C.As. 334 TO 344/2004. 9 9. We therefore conclude that the grant of quality premium being just and fair and based on statutory provision is legally enforceable. The impugned notification was validly issued, hence these appeals are dismissed. We may, however, mention here that in future notification as per past practice for payment of quality premium should be issued along with the notification of fixation of the minimum procurement price of sugarcane and the same shall be paid to the growers not later than two months after the crushing season comes to an end. CHIEF JUSTICE JUDGE JUDGE Announced on 05.03.2018 at Islamabad 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 IJAZ UL AHSAN MR. JUSTICE JAMAL KHAN MANDOKHAIL CIVIL APPEAL NO.339 OFQ (Against judgment dated 09.12.2015 of Lahore High Court, Rawalpindi Bench, Rawaiphidi passed in Regular Second Appeal No.03/2003) Dadu Khan (deed.) thr. LRs and 3 others ..Appellant(s) VERSUS Ghulam Abbas and 23 others ...ReSpOfldeflt(S) -- ( For the Appellaflts For Respondents No. 1-2: Respondents No.3-24 For the Federation: For Province of Punjab: Date of Hearing: Ch. Afrasiab Khan, ASC Mr. Muhammad Shoaib Abbasi, ASC 1x-parte Mr. Sohail Mehmood, Addl.AGP Mr. Qasim All Chohan, Addl AG, Pb Shaukat lqbal, Naib-Tehsildar Jand (Attock) 23 .06 .2022 JUDGMENT IJAZ UL AHSANLIJ-. Through the instant Appeal, the Appellants have challenged the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 09.12.2015 (hereinafter referred to as the "impugned Judgement") wherein the judgement and decree of the Additional District Judge, Attock (hereinafter referred to as the "Appellate Court") was set aside and the judgement and decree of the Senior Civil Judge, Attock (hereinafter referred to as the "Trial Court") was restored. I 2 cn Mpg,'. fib 339 C9WS 4 2. The necessary facts giving rise to this Us are that in 1979, the predecessor-in- 1flte5t of the Appellants, Sher Zaman, filed a suit for declaration to the effect that he may be declared owner in possession of land measuring 135 Kanals and 08 Marlas situated in Mithial, Tehsil Pindigheb, District Attack (hereinafter referred to as the "Suit Land") and that the entries in the revenue record showing the Central Government as mortgagee of the suit land were wrong and liable to be corrected. In the alternative, the predecessor-in- interest of the Appellants prayed that redemption of the mortgage may be decreed. It was averred in the plaint that Sher Zaman was the grandson of one Sooba Khan. Sooba Khan owned and possessed the suit land and subsequently mortgaged the said land to one Amar Chand for a sum of Rs.100/m Subsequently, the mortgage amount was paid to the mortgagee through a receipt in 1892, but appropriate entries could not be made in the revenue record until 1933. After the fourth settlement of land in the area, a fardbadr was prepared, the mutation for redemption of mortgage was entered on 24.01.1933 but was subsequently cancelled on 25.09.1936. In the wake of the sub-Continent's partition, Amar Chand migrated to India and the suit land was treated as an evacuee property to the extent of Amar Chand's interest by the Central Government. By operation of law, Amar Chand's interest was transferred to the Central Government which, in turn, transferred 23-kanals of the suit land to Muhammad Sharif and rest of the suit land to Ghulam Mustafa under the Displaced Persons (Land Settlement) Act of .1 WS&&L f ucU91,I6 3 1958 (hereinafter referred to as the "Land Settlement Act"). The suit of the Appellants was dismissed by the Trial Court vide judgement dated 17.09.1981. On appeal, the suit of the Appellants was partially decreed to the extent of 23 Kanals. On second appeal before the High Court, the suit of the Appellants was decreed as prayed for vide judgement and decree dated 12.10.1998. However, the Supreme Court, vide its judgement dated 19.11.1999, remanded the matter to the Learned High Court for decision afresh. After the matter was remanded to the High Court, the High Court further remanded the matter to the Trial Court and allowed all the parties to raise their respective factual and legal pleas/grounds before the Trial Court. After pro and contra evidence was led, the Trial Court, vide its judgement and decree dated 31.10.2002 dismissed the suit of the Appellants for the second time. On appeal, the Appellate Court set aside the judgement and decree of the Trial Court and decreed the suit of the Appellants vide its judgement and decree dated 27.12.2002. This judgement of the Appellate Court was challenged before the High Court which, vide the impugned judgement, set aside the judgement of the Appellate Court and restored the judgement and decree of the Trial Court, essentially dismissing the suit of the Appellants. It is against the judgement of the High Court that the Appellants have preferred the instant appeal. 3. The Learned Counsel for the Appellant has argued that in light of the receipt dated 18.07.1892, the Appellants' - -- 7 rn. APEM ? CQ' 2015 4 rights to redeem the suit land had been exercised and Amar Chand no longer had any interest in the suit land as a mortgagee. Since the mortgage had been redeemed by the predecessor-in-interest of the Appellants, the Central Government could not been become subsequent mortgagee of the land by operation of law in the absence of Amar Chand's mortgage interest in the land. He has relied, inter a/ia, on a judgement of this Court passed in Muhammad Hanif and another vs. Chulam Rasool etc. (2005 SCMR 1004) to support his arguments. He further contends that the Appellants had been non-suited by the Learned High Court by holding their suit incompetent in light of an order of this Court passed in Member BOR Punjab and another vs. Mst. Siddigan through L.Rs and others (2015 SCMR 1721) whereas in a judgement passed by bhis Court in Malik Raees vs. Abdul Mannan and another (1992 SCMR 1822), the jurisdiction of the Civil Court for redemption of mortgage is not ousted if the Central Government is vested with mortgagee rights by operation of the Land Settlement Act. He prayed that the impugned judgement may be set aside and the judgement and decree of the Appellate Court be restored. 4. The Learned Counsel for Respondents No.1 & 2 on the other hand has defended the impugned judgement. 5. Notice was issued to the Attorney General for Pakistan as well as the Advocate General of Punjab to assist with the matter since after the passing of the Land Settlement Act, the suit land to the extent of Amar Chand's mortgage 1 .. - rights had been vested with the Central Government. The Additional Attorney General as well as the Additional Advocate General Punjab were heard and both of them have defended the impugned judgement. 6. We have heard the learned counsels for the parties at length and gone through the case record with their assistance. The following questions need to be determined by this Court:- 1. Did the Central Government haue mortgagee rights in the suit land? if it did, its effect thereof? If it did not, its effect thereof? ii. Was the Quit Court the competent forum to adjudicate the instant matter? DID THE CENTRAL GOVERNMENT HAVE ANY MORTGAGEE RIGHTS IN THE SUIT LAND? IF IT DID, ITS EFFECT THEREOF? IF IT DID NOT, ITS EFFECT THEREOF? 7. In order to ascertain if there were any mortgagee rights in the suit property, it may be prudent to first determine what a mortgage is and what rights accrue once a mortgage deed is executed between two parties. Under the law, mortgage is defined under the Transfer of Property Act, 1882 (hereinafter referred to as the "TPA 1882") in Section 58 of the said Act. The same is reproduced below for ease of reference: 58. Mortgage mortgagor mortgagee, 'mortgage- money and mortgage defined (a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give I .1 rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being arc called the mortgage-money and the instrument (if any) by which the transfer is effected is called a mortgage-deed. In essence, a mortgage is a contract between two parties (i.e. a borrower/ mortgagor and a lender/ mortgagee) where a capital sum of money is lent in exchange for a proprietary interest in land. It is important to note that unlike other proprietary interests in land, a right accrues to both the mortgagor and a mortgagee once a mortgage deed has been executed between two parties. These interests are: 1) the mortgagor's/ borrower's right to have the land redeemed/ returned once the capital money lent has been repaid; and 2) the mortgagee's/ lender's right to possess and acquire the property if the capital money lent is not repaid as stipulated in the mortgage deed. The proprietary rights of both the mortgagor and mortgagee are independent proprietary interests and there is oftentimes no bar on the parties to transfer and/or sell their respective rights in the mortgage to subsequent parties. Relying on the averments made by the Appellants to the extent that possession had never been handed over to Amar Chand during the life of the mortgage and that they had always been in possession of the suit land, the mortgage in question would be deemed to be a simple mortgageas is defined in sub-section (b) of Section 58, TPA 1882. It is reproduced below for reference: - c-mt Afx4L K) ,g (* I (b) Simple mortgage Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, and agrees expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. The rights of both the mortgagor as well as the mortgagee are also enumerated in the TPA 1882. The relevant portion of section 60 deals with the right of the mortgagor to redeem the property he has mortgaged. It is reproduced below: - 60. Right of mortgagor to redeem At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgagee- money, to require the mortgage (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to mortgagor, and (c) at the cost of the mortgagor either to re- transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by the act of the parties or by [decreel of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment of tender of such money. (Underlining is ours) Mortgages are regulated in the province of Punjab by the Punjab Redemption and Restitution of Mortgaged Lands Act, - I qi..oqJnflzfli S 1962 (hereinafter referred to as the "Mortgage Act"). For the purposes of the present appeal, it may be prudent to reproduce the relevant portions of the Mortgage Act for ease of reference. Section 1 of the Mortgage Act deals with the extent of the Act. It is reproduced below: - 1. Short title, cxLent and commencement (1) This Act may be called the [Punjab] Redemption and Restitution of Mortgaged Lands Act, 1964. (21 It extends to the whole of the province of [the Punjab], exce pt the Tribal Areas. (3) It shall come into force in such areas and from such dates as Government may, by notification in the official Gazette, direct. (Underlining is ours) Section 2 of the Mortgage Act deals with definitions. It is reproduced below: 2. Definitions In this Act, unless the context otherwise requires, the following expressions shall have the meaning hereby respectively assigned to them that is to say- (a) 'Board of Revenue" means the Board of Revenue established under the [Punjabi Board of Revenue Act, 1957; (b)"Collector" means the Collector of the district in which the mortgaged land or any part thereof is situated, and shall include any Revenue Officer specially empowered b y the Board of Revenue to perform the duties of a Collector, for the purposes of this Act; [(c) "Commissioner' means a Commissioner of a Division appointed under the Punjab Land Revenue Act, 1967 (XVII of 1967) and includes an Additional Commissioner;] (d)"Government" means the [Provincial Government of the Punjab]; (e)"land" means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes- (i) the sites of buildings and other structures on such land; - I Ct M?SAL .fl Cr20 6 9 (ii) a share in the profits of an estate or holding; (iii) a right to receive rent; (iv) any right to water enjoyed by the owner or occupier of land as such; and (v) all trees standing on such land; ( "mortgagor" or mortgagee" includes the assiee and the representative in interest of such "mortgagor" or "mortgagee" as the case may be; (g) "prescribed" mcans prescribed by rules made under this Act. (Underlining is ours) Section 3 of the Mortgage Act deals with petitions for redemption of mortgaged land. It is reproduced below: - 3. Petition for redemption After the principal money becomes due and before a suit for redemption is barred, a mortgagor of land not exceeding fifty acres in area or of land the principal money secured by which does not exceed five thousand rupees, ma y apply to the Collector for an order directing that the mortgage be redeemed and that he be put in possession. Explanation I- The area of any share in the common land of the village or of sub-division appertaining thereto and mortgaged with the land, shall not be taken into consideration while determining the area of the land mortgaged. Explanation II- This section shall not apply to usufructuary mortgage effected for a specific number of years and intended to terminate without the repayment of any part of its consideration Section 3 falls within Chapter 11 (i.e. Redemption of Mortgages) of the Mortgage Act. The Mortgage Act has not barred the jurisdiction of Civil Courts to adjudicate on matters pertaining to redemption of mortgages insofar as Chapter If is concerned. 8. It is important to note that at the time the mortgage deed between Sooba Khan and Amar Chand was executed in 1888 (i.e. before the UK's Land Property Act of 1925 was passed), it was normally assumed that once a 10 mortgagor had mortgaged his land, he had divested himself of all interest in the land in lieu of the monies lent to him by the mortgagee. This meant that Sooba Khan no longer had any interest in the land until and unless he had paid the entire Rs. 100/- lent to him by Amar Chand. The rationale behind the entire divestiture of the land was that the mortgagor would do everything in his power to repay the loan lent to him in order to be reinvested with his proprietary interest in the mortgaged land. If the capital sum had been paid by 1933, as was claimed by the Appellants, then there was no need for the revenue officials to cancel the mutation which cancelled the mortgage in 1936. It can therefore be reasonably be presumed that the capital sum had not been paid by 1936 and that payment of the capital sum was still due on the Appellants. However, keeping in view the equities of the parties when entering into a mortgage deed, the mortgagor of a mortgage would still retain the equitable right to redeem the property. Under the law, that equitable remedy has been safeguarded by Section 4 read with Section 3 of the Mortgage Act. Section 4 of the Mortgage Act reads as follows:- 4. Deposit of amount due under mortgage The mortgagor shall in his application declare what sum is to the best of his knowledge due under the mortgage and deposit such sum with the Collector at the time of making the application. (Underlining is ours). Admittedly, the Appellants have consistently taken the stance that they had paid the capital sum back to Amar Chand in 1892 and therefore had been reinvested with their proprietary interest in the land. If that is the case, then the Appellants 11 never filed a suit for redemption prior to the passing of the Mortgage Act on the strength of Section 60 of the TPA 1882 in order to redeem the suit land. Even after the Mortgage Act was passed, the Appellants had failed to approach the concerned Collector and file an application under Section 3 of the Mortgage Act in order to redeem their property. Instead, the Appellants instituted their declaratory suit in 1979 i.e. ninety-one years after the mortgage had been made and forty- three years after the mutation for cancellation of mortgage had been cancelled by the revenue authorities. If the averments of the Appellants are to be accepted, then the mortgage was redeemed and a suit for declaration was the correct course of action. If a suit for declaration was the legal remedy available to the Appellants under the law, then the suit of Appellants was blatantly time-barred in light of Article 120 the Limitation Act of 1908 since the suit had been filed well after the six-year limitation period prescribed for the filing of declaratory suits. On being confronted as to whether the suit of the Appellants was time-barred or not if the mortgage had indeed been redeemed in 1892, the Learned Counsel for the Appellants has contended that limitation would stop running in terms of Section 13 of the Limitation Act, 1908 since Amar Chand had migrated to India after 1947 and therefore had become absent for the purposes of the said Section. Section 13 of the Limitation Act is reproduced below:- 13. Exclusion of time of defendants absence from Pakistan etc. and certain other territories It Ct? 339 CW2OIO 2 In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from [Pakistan] and from the territories beyond [Pakistan] under the administration of [the [Federal] Government] shall be excluded. We are afraid that the benefit of the said provision is not attracted to the instant case since the Appellants have no grievance against Amar Chand and their only grievance is against the present Respondents. Therefore, Amar Chand would not fall within the definition of a "defendant" for the purposes of the Section 13 and as a result, limitation would still run even after 1947. Even otherwise, the alternative suit for redemption of the Appellants would be incompetent if it is accepted that the Appellants had redeemed the property in 1892 since there would be no rights that would be left to redeem. Therefore, it would seem that the Appellants still retained the right to redeem the mortgage even after failing to exercise their right to redemption within the prescribed period of limitation. As a natural corollary, if the Appellants had the right to redeem the land, then the subsequent mortgagee i.e. the Central Government which had stepped into the shoes of Amar Chand had been invested with all the mortgagee rights associated with the suit land after the Land Settlement Act was passed. WAS THE CIVIL COURT THE COMPETENT FORUM TO ADJUDICATE THE INSTANT MATTER? 9. If the Appellants had the right to redeem the suit land, the next question would be whether the Civil Courts were the competent forum for adjudicating the instant matter. 0 'I t 4L P O9fl1k 13 In that respect, it may he prudent to reproduce Section 25 of the Land Settlement Act. It reads as follows: - 25. Bar of jurisdiction Save as otherwise provided in this Act, no civil or revenue Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered by or under this Act to determine, and no injunction or process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act. In order to challenge an order passed under the Land Settlement Act, the relevant provision of the Land Settlement Act is Section 18. It is reproduced for ease of reference: - 18. Appeals (1) Any person aggrieved by an order under this Act may prefer an appeal to- (a) the Deputy Settlement Commissioner where an order has been passed by an Assistant Settlement Commissioner; (b) the Additional Settlement Commissioner where an order, not being an order, passed in appeal under clause (a), has been passed by the Deputy Settlement Commissioner; (c) the Settlement Commissioner where an order, not being an order passed in appeal under clause (b) or in revision under subsection (3) of section 19, has been passed by an Additional Settlement Commissioner; and (d)the Chief Settlement Commissioner, where an order, not being an order passed in appeal under clause (e) or in revision under subsection (2) of section 19, has been passed by a Settlement Commissioner. (2) The appeal shall be presented within sixty days of the date of the order appealed against, in such form and manner as may be prescribed. Settlement Laws were subsequently repealed in 1975 by virtue of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, (hereinafter referred to as the "Repealing CMI .sccAL on?aP2!6 14 Act'). Section 2 of the Repealing Act is of paramount importance for the purposes of the present appeal. It is reproduced below for ease of reference:- 2. Repeal of certain laws (1) The following Acts and Regulations are hereby repealed, namely:- (i) the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956); (ii) the Pakistan Rchabilitation Act, 1956; (iii) the Pakistan (Administration of Evacuee Property) Act, 1957; (iv)the Displaced Persons (Compensation and Rehabilitation) Act, 1958; (v) the Displaced Persons (Land Settlement) Act, 1958; (vi)the Scrutiny of Claims (Evacuee Property) Regulation, 1961; and (vii)the Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971. (2) Upon the rcpeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the joovernment] in the official Gazette and all cases decided by the Supreme Court or [the Lahore High Court] after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid. (3) Any proceedin gs transferred or remanded to an officer in pursuance of sub-section (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereb y repealed to which the proceedings relate. (4) The final orders passed under sub-section (3) shall be executed by the [Board of Revenue] in accordance with the provisions of the Act or the Regulation hereby repealed to which the proceedings related. (Underlining and highlighting is ours) Section 4 of the Repealing Act lays down the manner of how residual work dealing with the repealed acts and laws are to be disposed of. It is reproduced below for reference:- 15 4. Disposal of residual work All the work regarding documentation, both for the urban and rural properties, recovery of outstanding transfer price, rent or mortgage money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Acts and Regulations shall stand transferred to the [Board of Revenuel. Admittedly, the Appellants never challenged the mutation which vested in the Central Government's mortgagee rights in the suit property, until 1979 by approaching the Civil Court. There is also nothing on the record to suggest that the Appellants had ever approached the competent Revenue Officials for resolving their grievance in light of the ouster of jurisdiction in Section 25 of the Settlement Act. It was held by a three-member bench of this Court in Member BOR PunjqM and another vs. Mst. Siddipari through LRs and others (supra) that:- 2. Learned counsel for the petitioner has argued that as Pujara Ram and Roshan Das had failed to pay the balance consideration, therefore, the land was resumed as per the terms and conditions of auction. However, when queried, neither the terms and conditions pertaining to auction of government land in relevant period nor any resumption order of the land in dispute has been placed on the record. Except for the bald allegation by the petitioner there is no material to show if the auction purchaser had defaulted in the payment of any balance consideration or that the revenue authorities took any action to confront or penalize the same. Anyhow, entries in the revenue record show seizing of the land in dispute by the rehabilitation authorities prior to 1957 who treated the property as an evacuee property and in 1966 transferred it in favour of the predecessor-in-interest of the respondents. It Rerence is made to Azizuddin v. Muhammad Ismail (1985 SCMR 666). Reference can be made to the judgment dated 1-10-2014 of this Court passed in Civil Appeal No.514/2008 tided tNasir Fahimuddin and others v. Charles Philips Mills son of Patrick _____ - T 1 I. 16 Mills, resident of 4/2-A, Habib Ullah Road, Lahore and others; besides the law laid down in Muhammad Din and S others v. Province of the Punjab through Collector and others (PLD 2003 Lab. 441)... However, no challenge was thrown by the petitioner or Mst. Hafeezan Khanum either before the Custodian or before the Rehabilitation Department against the issuance of the allotment order of 1966 or issuance of RL-11 to the respondent allottee. In such circumstances the petitioner cannot take up the plea that the allotment made in favour of the respondents is invalid for any reason. Indeed, we are not convinced that the property was resumed because as mentioned above there is neither any order of resumption available on record, nor are the terms and conditions of auction postulating that auctioned land could be resumed for non-payment of one instalment. Admittedly, only a small amount was payable by Pujara Ram etc; and without a clear legal basis, the presumption of cancellation of auction sale and resumption of auctioned land is a harsh measure that we cannot approve. Resultantly, we do not find this case to be fit for interference. Dismissed accordingly. (Underlining and Highlighting is ours) It would have been appropriate for the Appellants to challenge the allotment made by the then Settlement Officers by exercising their right to appeal provided in Section 18 of the Land Settlement Act. However, the Appellants never challenged these allotments and also failed to approach the competent forum (i.e. the competent Revenue Officer after the Repealing Act) for redressal of their grievances qua the suit land. While there may be no ouster of jurisdiction in the Mortgage Act with respect to redemption of property, there is a clear ouster of jurisdiction with respect to mortgaged land that has subsequently been declared an evacuee property under Section 25 of the Land Settlement Act read with Section 2 of the Repealing Act. 9. We have gone over the judgements relied on by the Learned Counsel for the Appellants and found them to be distinguishable on facts. The same are of no help to the I c MflAL AU a,c OF1 17 Appellants seen in the context of the present Appeal. The Learned Counsel for the Appellant has failed to point out any ground which could reasonably persuade us to take a view different from the one taken by the High Court and to hold that the Revenue Department was not the competent forum and that the Civil Court had exclusive jurisdiction to adjudicate on the matter. The Learned Counsel also could not point out any mis-reading or non-reading of evidence by the High Court. We therefore conclude that even if the Appellants may have had the equitable right to redeem their property, their right to redeem the property stood extinguished after non-payment of the mortgage money within sixty years of the mortgage (i.e. till 1976 after taking into consideration the limitation period that stood frozen (from 1947 to 1960)until the suit land was allotted to the predecessor-in-interest of Respondents No.5 to 11 for the first time in 1960).Even otherwise, the entire proceedings before the Civil Court were corarn non judice in light of the ouster of jurisdiction as per Section 25 of the Settlement Act. The Trial Court as well as the Learned High Court had rightly dismissed the suit of the Appellants owing to a lack of jurisdiction to adjudicate the matter. 10. In light of what has been discussed above, the Learned Trial Court, and subsequently, the Learned High Court had correctly come to the conclusion that the Civil Court was not the appropriate forum for adjudicating the present matter. As a result, the Learned High Court had -I cAt A Ft€AL O tOfl9 2016 18 It rightly set aside the judgement of the Appellate Court and restored the judgement and decree of the Trial Court. The Impugned Judgement dated 09.12.2015 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi is accordingly upheld. This appeal is accordingly ISLAMABAD. THE 23 of June, 2022 Kh 1 Sahibzada, LC 261* 7SAPPROVED FcownNG* -1 -.

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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 Appeal No.340 of 2002. (On appeal from judgment of Lahore High Court, Multan Bench dated 08.12.1999, passed in Writ Petition No.5566 of 1999) Muhammad Anwar …Appellant Versus Muhammad Akram & others … Respondents For the appellant: Mr. Arshad Ali Chaudhry, ASC/AOR. For respondent No.1: Mr. Tauseef Ejaz Malik, ASC. along with the respondent. For the State: Mr. Ahmed Raza Gillani, Addl.P.G, Punjab. Date of hearing: 28.10.2015 JUDGMENT Anwar Zaheer Jamali, C.J. – This civil appeal with leave of the Court arises out of the order dated 08.12.1999, passed by a learned Division Bench of the Lahore High Court, Multan Bench, in Writ Petition No.5566/1999, whereby the requisite relief, as prayed for by respondent No.1 was granted to him by placing reliance upon the cases cited as Javed Shaikh v. The State (1985 SCMR 153), Shah Muhammad alias Manna v. State (1994 SCMR 582), and 1987 SCMR 36 (no citation available on this page). C.A No.340/2002 2 2. Briefly stated relevant facts of the case are that in FIR No.240, dated 14.7.1992, registered at P.S Muzaffarabad, under section 302, PPC, respondent No.1 was the sole nominated accused with the allegations that he has committed qatl-i-amd of his wife Mst. Azhra Parveen, three minor daughters Mst. Shagufta, Kiran and Aneeqa and his minor son Waqar, by cutting their throats with chhuri. After conclusion of the trial, respondent No.1 was found guilty for the charged offence and accordingly convicted vide judgment dated 13.6.1993 and sentenced as under:- “18. ….. In the circumstances of the case I convict Muhammad Akram accused under Section 302(a) PPC for causing Qatl-e-amd of his wife Mst. Azra Parveen as qusas and award him death penalty. He has murdered his four children namely Shugufta, Kiran and Aneeqa his daughters and his son Waqar. In accordance with Section 306(b), PPC he has caused the death of his four children and committed qatl- e-amd not liable to qisas. It was argued on behalf of the learned counsel for the complainant that section 302(b) applied to the Qatl- e-amd of all the children but I feel that the accused is guilty under Section 308 PPC and is liable to pay diyat amounting to Rs. One lac seventy thousand on four counts as envisaged under Section 323 PPC. He is also convicted under Section 308(2) PPC for causing the death of his four children namely Shugufta, Kiran and Aneeqa his daughters and his son Waqar, as tazir and is ordered to suffer imprisonment for fourteen years on each count. In case he does not pay diyat, it may be recovered from his properly, if any, which will be given to the legal heirs of the deceased children. In case his death sentence is commuted, the sentences awarded to him under Section 308(2) PPC shall run consecutively as he has taken the lives of his wife and his four children. The provisions of Section 382-B, Cr.P.C are not extended in favour of the accused. …..” C.A No.340/2002 3 3. His appeal before the Supreme Appellate Court Lahore, was also dismissed vide judgment dated 09.4.1994, however with modification in the quantum of sentence, which reads thus:- “We find great force in the submission of the learned defence counsel that conviction and sentence of the appellant under section 302(a) PPC with respect to the murder of Mst. Azra Parveen is not sustainable in the eye of law in view of the provisions of sections 306 and 307 PPC, as the appellant being her husband is her wali, so we alter the conviction of the appellant under section 302(a) PPC to one under section 308 PPC and award him sentence of fourteen years R.I. and also direct him to pay diyat amounting to Rs.1,70,000/-. The sentences of imprisonment awarded to the appellant under section 308 PPC on five counts shall run consecutively.” 4. On 15.6.1999, respondent No.1, who was in custody and serving his sentence, filed a writ petition before the Lahore High Court, Multan Bench with the prayer that different sentences awarded to him may be ordered to run concurrently instead of consecutively, as ordered by the trial Court and the appellate Court. This petition was heard by a learned Division Bench in the Lahore High Court and allowed vide impugned judgment 08.12.1999. 5. We have heard the arguments of learned ASC for the appellant. He strongly contended that respondent No.1 is guilty of committing brutal murder of his wife, three minor daughters and a minor son and it was in this background that the trial Court as well as the appellate Court for valid reasons recorded in their respective judgments had ordered that the sentences awarded to him shall run consecutively, but this aspect of the case was unfairly ignored and done C.A No.340/2002 4 away by the learned Division Bench in the High Court in a cursory manner, by placing reliance upon certain judgments, which too were not only distinguishable to the facts of the case in hand, but also subsequently reviewed by a larger bench of the Apex Court. 6. The learned Additional Prosecutor General, Punjab on behalf of the official respondents strongly supported the case of the appellant and placed reliance upon the following cases to show that the case cited in the impugned judgment have already been reviewed:- a. Bashir v. The State (PLD 1991 SC 1145). b. Muhammad Arshad v. The State (PLD 2011 SC 310). c. Ali Khan Kakar v. Hammad Abbasi (2012 SCMR 334). 7. Besides, he referred some other cases to show that in the facts and circumstances of the case, awarding of different sentences with directions that the same shall run consecutively was in accordance with law. Thus, no interference was called for from the High Court while exercising its jurisdiction under Article 199 of the Constitution, which is discretionary in nature and not at all meant to perpetuate injustice of such nature. 8. The learned ASC for respondent No.1, when confronted with the above stated facts and the law cited at the bar, did not dispute the position either on facts or law, but submitted that since the respondent No.1 was wali of the victims of the incident, therefore, a lenient view in the matter, as taken by the High Court in its impugned judgment, is justified. C.A No.340/2002 5 9. We have carefully considered the arguments of learned ASCs and perused the material placed on record. There is no dispute as regards the relevant facts of the case noted above that respondent No.1 was found guilty for committing qatl-i-amd of his wife, three daughters and a son in a brutal manner and for that account, consciously the trial Court, while awarding sentence to him, had ordered that the same shall run consecutively, and in addition to it, he was also held liable to pay diyat amount at the rate of Rs.1,70,000/- per victim. The appellate Court had also consciously examined this aspect and concurred with such view looking to the nature of the occurrence. 10. The discretionary power vested in the Court to direct that the awarded sentences to run consecutively or concurrently is to be exercised in the light of the facts and circumstances of each case, keeping in view the scope of section 35 of the Code of Criminal Procedure, 1908, the nature and manner of occurrence and the gravity of the offence. Thus, it seems quite strange and unreasonable that through impugned judgment, the learned Division Bench of the High Court had done away with the conditionality of such sentences while exercising writ jurisdiction under Article 199 of the Constitution, which is equitable and discretionary in nature and not meant to give premium to a criminal for commission of such heinous crime. A reference to the above cited judgments makes it abundantly clear that the citations referred and relied upon by the High Court in its impugned judgment were reviewed by a larger bench of the apex Court and in one of these C.A No.340/2002 6 cases Ali Khan Kakar v. Hammad Abbasi (2012 SCMR 334), while considering a similar request in review jurisdiction, the conviction of the accused, who was awarded total sentence of 300 years imprisonment, was upheld. 11. From the material available before us, we have seen that a sum of Rs.8,50,000/- has been deposited by respondent no.1 in Court towards payment of diyat amount. It is, therefore, ordered that this amount may be paid to the legal heirs of the deceased, as mandated by law. 12. Foregoing are the reasons for our short order in this appeal, which is reproduced as under:- “We have heard the arguments of learned ASCs and perused the case record. For the reasons to be recorded separately, this appeal is allowed and the impugned judgment dated 08.12.1999 is set aside. Respondent No.1 Muhammad Akram, who is present in Court, is ordered to be taken into custody to serve the remaining sentence in terms of the judgment of the Supreme Appellate Court dated 09.04.1994 passed against him.” Islamabad, 28th 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 Atta Bandial Mr. Justice Sajjad Ali Shah Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Civil Appeal No. 346 of 2020. (Against the judgment dated 14.1.2020 passed by the Lahore High Court Multan Bench in CR No.903-D of 2009) Sardar Muhammad and others. … Appellant Versus Imam Bakhsh (decd) thr. LRs and others. … Respondents For the Appellant (s) : Mr. Ghulam Nabi, ASC. For the Respondents 3-9: : Malik Javed Akhtar Wains, ASC. For the LRs of Respondents No. 1 and 2: : Ex parte. Date of Hearing : 15.12.2020 Judgment Sajjad Ali Shah, J. This appeal arises from the judgment of the Lahore High Court whereby the said Court while reversing the concurrent findings of the Courts below, dismissed the suit filed by the appellant against the respondents seeking setting aside of orders dated 26.3.2002 and 19.8.2003 passed by the Deputy District Officer (DDO) & Executive District Offer (Revenue) (EDO) respectively. Cancellation of registered sale deed dated 29.3.2002 executed by one Imam Bakhsh predecessor in interest of respondent No.1, in favour of predecessor in interest of respondents No. 2 to 9 was also sought. 2. We are informed that the legal heirs of respondent No.1 and Respondent No. 2, in person, have refused to receive the notices. As a result, they are proceeded against ex parte. CA 346 of 2020 2 3. Briefly, on 8.3.2002 Imam Bakhsh filed an appeal before the Deputy District Officer (Revenue) Lodhran seeking cancellation of sale mutation No. 4855 dated 28.2.2002 effected in favour of appellants on the ground that it was procured through misrepresentation and fraud. The DDO (R) Lodhran, after hearing the parties, vide order dated 26.3.2002 cancelled the mutation by holding that Imam Bakhsh was an old and sick man from whom lying was not expected and, therefore, his contention that the mutation was obtained through misrepresentation and fraud is to be given due weight. The record further reflects that on 29.3.2002, merely three days after the cancellation of sale mutation in favour of appellant, the said Imam Bakhsh, through registered sale deed, conveyed the same property to respondents No. 2 to 9. The appellant on 30.3.2002 challenged the said order of the DDO (R) before the Executive District Officer (Revenue) who vide order dated 19.8.2003 rejected the appeal on the ground that a registered sale deed could only be cancelled by a Court of competent jurisdiction. This gave rise to the present appellant to file a suit against the respondents challenging the order dated 26.3.2002 of DDO (R) and order dated 19.8.2003 of the EDO (R) alongwith seeking cancellation of the registered sale deed. The trial Court on 28.10.2008 decreed the suit as prayed for. Respondents No. 2 to 9 filed appeal which did not find favour with the appellate Court and was dismissed on 4.9.2009. The respondents thereafter filed a revision petition before the Lahore High Court which after hearing the parties, was allowed through the impugned judgment by setting aside the concurrent findings of the Courts below. 4. Learned counsel for the appellants while inviting our attention to mutation No. 4855 (at page 83) contended that the said mutation was carried out in jalsa-e-aam in presence of two witnesses viz. Muhammad Akmal and Muhammad Nawaz which records unequivocal sale of the subject land in favour of the appellant by the respondent Imam Bakhsh CA 346 of 2020 3 against the sale consideration of Rs.1,20,000/- and such mutation could not have been cancelled by the DDO(R) on assumptions and presumptions. Per counsel, since the record did not require any rectification, therefore, the jurisdiction of the DDO (R) was not attracted. It was contended that the plea of fraud requires adjudication through evidence, a process which could not be adopted by the DDO (R) as proceedings before him are summary in nature. It was next contended that the findings of the learned High Court that the mutation was not effected in jalsa-e-aam are contrary to record. It was further contended that Imam Bakhsh never disputed the mutation entry but challenged it on the ground of fraud, therefore, the burden was upon Imam Bakhsh to prove the fraud, consequently, the appellants could not be non-suited by placing burden to prove the sale mutation. It was also contended that it is a settled law that the concurrent findings of fact are not to be interfered with by the High Court while exercising revisional jurisdiction and such principle was totally ignored. 5. On the other hand, learned counsel for the respondents contends that the findings of the DDO (R) declaring the mutation entry No. 4855 as procured through fraud and misrepresentation has attained finality and, therefore, at this juncture could not be interfered with. It was next contended that the respondents have purchased the subject land with clear title through a registered conveyance deed after the earlier sale mutation was cancelled and being bona fide purchasers, their sale deed was rightly restored by the High Court and such findings do not require any interference. It was lastly contended that the appellants have totally failed to prove the oral sale agreement which resulted mutation No. 4855 and has further failed to bring into the witness box one of the attesting witness and the concerned Tehsildar who recorded the mutation entry. 6. We have heard the learned counsel for the respective parties and have minutely perused the record. The primary question which CA 346 of 2020 4 requires our attention is as to whether the DDO (R) had the power to strike off a sale mutation carried out in a jalsa-e-aam in the presence of witnesses on the ground that such sale was procured through misrepresentation and fraud and if the answer is in the negative, whether the subsequent sale deed in the peculiar circumstances of this case would fall to the ground. It has been repeatedly held, and the law itself provides that the proceedings before the Revenue Officer or before the Revenue Courts are summary in nature and, therefore, complicated questions of law and disputed question of fact are not to be adjudicated in the hierarchy. The determination of complicated questions of law and disputed questions of fact fall within the sole domain of the civil Court. The plea of the respondents that the mutation entry No. 4855 was procured through fraud, in our opinion, could not have been decided in proceedings which are summary in nature as such controversy requires adjudication by allowing the parties to adduce evidence in support of their respective claims. There is no doubt in our minds that the DDO (R) transgressed his limits by declaring mutation No. 4855 as having been obtained through fraud and misrepresentation. 7. The provisions of Section 172 of the West Pakistan Land Revenue Act, 1967 allocate certain matters to the sole competence of the Revenue authorities, to the exclusion of civil courts. However, it must be noted that Section 172 only empowers Revenue authorities to exercise administrative powers; the raison d’etre for the same is that the proceedings conducted by a Revenue Officer or a Revenue Court are summary in nature; they possess a limited scope of enquiry and do not possess the characteristics of a civil suit that necessitates framing of the issues or recording evidence of the parties, as such matters fall within the sole domain of the civil courts. Besides, Section 172(2)(xvi) of the Act, 1967 leaves the adjudication of plea of fraud to the competence of the civil courts. Resultantly, once the appellants have successfully proved that the CA 346 of 2020 5 sale mutation in their favour was struck off by DDO (R) illegally without jurisdiction and that the respondents No. 2 to 9 before purchasing the subject property had notice of such fact, then the sale deed in their favour automatically has to give way to the subject mutation no sooner it is revived. Reference can be made to the case of Noor Muhammad vs. Allah Ditta (PLD 2009 Supreme Court 198), Fida Hussain vs. Abdul Aziz (PLD 2005 Supreme Court 343), Abad Muhammad (thr. LRs) vs. Mst. Sakina and another (PLJ 1987 (d) Revenue 22) and Mst. Surraiya Bano vs. Nazia Bano (1996 CLC 1690). 8. Additionally, the High Court against all the settled principles of law, has very lightly brushed aside the concurrent findings of the Courts below where it was specifically taken note of the fact that after three days of the cancellation of such mutation, the respondent Imam Bakhsh has sold out the property to the respondents coupled with the statement of DW-1 who categorically stated that when they purchased the subject land from Imam Bakhsh on 29.3.2002 through sale deed, he was hardly of 65 years, mentally fit, with the addition that his father in whose name the sale deed was executed by Imam Bakhsh had helped Imam Bakhsh in pursuing the appeal before the DDO (R) seeking cancellation of subject mutations in favour of appellants. Thus, the two concurrent findings of fact not only negate the facts on the basis whereof DDO (R) had cancelled the subject mutation but also destroyed the plea of the respondents that they were bona fide purchasers for valuable consideration without notice. Our perusal of the record further clearly demonstrates that the appellant, though it was not required of him, had not only produced one of the witnesses of the sale mutation but also produced Muhammad Ajmal and Wahid Bakhsh Patwaris who had not only supported the sale but also deposed that at the relevant time Imam Bakhsh was perfectly in good physical and mental health. Consequently, once the appellants have successfully proved that CA 346 of 2020 6 the sale mutation in their favour was struck off by DDO (R) illegally without jurisdiction and that the respondents No. 2 to 9 had notice of such fact, then the sale deed in their favour automatically has to give way to the subject mutation. However, it was open for Imam Bakhsh to question such mutation on the stated ground before a Court of original civil jurisdiction which could have competently decided such lis. 9. For what has been discussed above, this appeal is allowed by setting aside the impugned judgment of the High Court and restoring the judgments of the Courts below. No orders as to costs. Judge Judge Islamabad, the 15th December, 2020 A.Rehman Judge Approved for Reporting.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE MAQBOOL BAQAR. MR. JUSTICE IJAZ UL AHSAN. CIVIL APPEAL NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 (On appeal against the judgment dt. 03.06.2014 passed by the Peshawar High Court, Peshawar in W. P. No. 3324 of 2011 and the judgment dt. 16.01.2017 passed by the Lahore High Court, Lahore in Intra Court Appeals No. 120 to 146 and 148 to 156 of 2016 and 460 to 464 and 991 of 2016). Bahadur Khan and others. (in CA.353/15). National Bank of Pakistan thr. its President/ Board of Directors, Lahore. (in CAs.632-673/15). …Appellant(s) Versus Federation of Pakistan thr. Secy., M/o Finance, Islamabad and others. Iftikhar Rasool Anjum and others. Badar-uz-Zaman and another. Ch. Muhammad Mushtaq Cheema and others. Muhammad Arshad Sheikh and another. Abdul Waheed and others. Muhammad Sharif and others. Saif ullah Khan and others. Javed Akhtar Khan and others. Riaz Ahmad Malik and another. Muhammad Nawaz Farooqi and others. Umar Hayat Khawaja and others. Mrs. Bushra Khanum and others. Shaukat Ali Bhatti and others. Sardar Muhammad Ahmad and others. Muhammad Sharif Ch. And others. Muhammad Shamim Akhtar and others. Muhammad Rashid Butt and another. Syed Ijaz Hussain and another. Muhammad Iqbal Qadar and others. Muhammad Rafique Goraya and others. Asad Ullah Khan Leghari and others. Muhammad Afsar Khan and others. Furrukh Sair Ahmad and others. Ghulam Rasool Shai and others. Ihsan Ul Haq and another. Syed Iqbal Hussain Shah and others. Asif Saeed and others. Muhammad Ilyas Ch. And others. Jan Muhammad and another. Shafqat Mehmood and another. Ateeq Qamar and others. CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 2 Kokab Iqbal and others. Mushtaq Ahmed and others. Allah Ditta and others. Afzal Anwar and others. Nisar Ahmed and another. Muhammad Nawaz Cheema and others. Muhammad Saeed and others. Abdul Samee Khan and others. Muhammad Riaz Raza and another. Munir Ahmed and others. Agha Bilal Ahmed Khan and others. …Respondent(s) For appellant No. 1: Mr. Abdul Rahim Bhatti, ASC. Mr. Abdul Rehman Khan, ASC. Syed Rafaqat Hussain Shah, AOR. (in CA.353/15). For appellant No. 2: Mr. Salman Akram Raja, ASC. (in CA.353/15) Mr. Khalid Anwar, Sr. ASC Kh. Muhammad Farooq, Sr. ASC Syed Rafaqat Hussain Shah, AOR. (in CAs.632-673/17). For the respondent(s): Mr. Sohail Mehmood, DAG. Munir Ahmed, J.S. M/o Finance. Abid Channa, S.O. M/o Finance. For respdt. No. 1 : Mr. Salman Akram Raja, ASC. (in CA.632/17) Mr. Hashmat Ali Habib, ASC. Mr. M. S. Khattak, AOR. (in CAs. 633, 634, 636, 638, 639, 643, 646, 649, 650, 652, 653, 654, 656, 658, 659, 660, 662, 666, and 670 of 2017). Mr. Faiz Rasool Jalbani, ASC. (in CAs. 644, 645, 648, 657, 661, 664, 667, 669 and 671 of 2017). In person : Umer Hayat Khawaja. Akbar Ali. Syed Jehangir. In CMAs. 1493 & 2079/15: Mr. Abdul Rahim Bhatti, ASC. Mr. Abdul Rehman Khan, ASC. Syed Rafaqat Hussain Shah, AOR. Date of Hearing: 14.06.2017, 15.06.2017 & 16.06.2017. (Judgment Reserved). …………………… CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 3 J U D G M E N T EJAZ AFZAL KHAN, J.- These appeals with the leave of the Court have arisen out of the judgment dated 16.01.2017 of a Division Bench of the Lahore High Court whereby it dismissed the Intra Court Appeals filed by the appellants and thus upheld the judgment dated 15.01.2016 of the said High Court whereas C. A. No. 353 of 2015 has arisen out of the judgment dated 03.06.2014 of a Division Bench of the Peshawar High Court whereby it dismissed the petition filed by the appellants. 2. Learned Sr. ASC appearing on behalf of the National Bank contended that neither the letter dated 30.11.1977 issued by the Finance Division, Government of Pakistan nor the Circular No. 228(C) dated 26.12.1977 issued by the National Bank of Pakistan implementing the terms and conditions set out in the letter dated 30.11.1977 could be said to have been issued in exercise of the rule making powers under Section 20 of the Banks Nationalization Act, therefore, they have no statutory sanction behind them. He next contended that where the notification and the circular stating terms and conditions of service appear to be purely administrative or executive instructions, they cannot be treated as statutory instruments, the more so when, they have not been published in the official gazette. Whatever attire, the learned ASC maintained, the respondent may put on the notification it could not have a statutory status if seen in the light of the judgment rendered in the case of Mustafa Impex. Vs. Government of Pakistan (PLD 2016 SC 808). He next contended that with the dissolution of Pakistan Banking Council through Banks (Nationalization) (Amendment) Act XVIII of 1997 the Board of the Bank became more autonomous and independent and as such they shaped policies and determined the terms and conditions of service of their officers and executives keeping in view the emerging competitive environment. The Board, the learned Sr. ASC maintained, accordingly issued Circular No. 3799 dated 16.06.1999, revised the pay structure and the pension factor of CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 4 the officers and executives of the Banks; that the circular was accepted and acted upon by the officers and the executives without any qualms for more than a decade; that once it was accepted and acted upon, it could not be questioned by them under any canons of law and propriety and that neither the Single Judge hearing the writ petitions nor the Division Bench of the Lahore High Court hearing the Intra Court Appeals appreciated the content and the context of the Circular while handing down the impugned judgments. Writ petitions of the respondents, the learned Sr. ASC argued are also hit by the principle of approbation and reprobation inasmuch as they damn the decrease in the pension factor without refunding what they received consequent upon the revision of the pay scale. Such petitions, the learned Sr. ASC argued, are hit by the principle of laches when they were instituted ten years after the issuance of the circular dated 16.6.1999. The learned Sr. ASC lastly argued that where the notification dated 30.11.1977 nor the Circular dated 26.12.1977 can be held to be statutory by any attribute, the writ petitions filed by the respondents merited outright dismissal. The learned Sr. ASC to support his contentions placed reliance on the case of Muhammad Zaman and others. Vs. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571). 3. Learned ASC appearing on behalf of the appellant in CA. No. 353 of 2015 and respondents in CA. Nos. 632 to 673 of 2017 contended that the letter dated 30.11.1977 issued by the Finance Division, Government of Pakistan and the Circular No. 228(C), dated 26.12.1977 issued by the National Bank of Pakistan having all the traits and trappings of statutory rules are binding on the National Bank of Pakistan, therefore, any departure from either of them would be amenable to the constitutional jurisdiction of the High Court. The learned ASC to support his contention placed reliance on the case of Khawaja Abdul Hameed Nasir and others. Vs. National Bank of Pakistan and others (2003 SCMR 1030). Learned ASC next contended that appointment of the Pay Commission for Banks and Financial CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 5 Institutions, issuance of notification dated 30.11.1977 of the Finance Division, Government of Pakistan, issuance of orders by the Banking Council to the Bank and finally issuance of Circular No. 228(C), dated 26.12.1977 in compliance with the order of the Banking Council have a statutory backing, therefore, it is beyond the power and competence of the Board of Directors of the National Bank of Pakistan to change any of the terms and conditions governing the pay and pension of its officers and executives to their disadvantage. The learned ASC to support his contention placed reliance on the case of Muhammad Tariq Badar and another. Vs. National Bank of Pakistan and others (2013 SCMR 314). The learned ASC further contended that the notification issued by the Finance Division Government of Pakistan and Circular No. 228(C) issued by the Bank could be treated at par with the statutory rules when they have been acted upon for decades and decades together. The learned ASC to support his contention placed reliance on the cases of Pakistan. Vs. Sheikh Abdul Hamid (PLD 1961 SC 105), Dr. Habibur Rahman. Vs. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144), Khan Faizullah Khan. Vs. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another. (PLD 1974 SC 291). Reduction in pension factor, the learned ASC added, from 70% to 33% cannot be justified under any principle of law and jurisprudence when the recommendations of the Pay Commission, orders of the Banking Council, notification issued by the Finance Division, Government of Pakistan and the Circular issued by the Bank no where limited their efficacy in terms of time. Failure to have the notification published in the official gazette, the learned ASC maintained, cannot shear it of its efficacy or make it non-statutory. To support his contention learned ASC placed reliance on the cases of Saghir Ahmed through legal heirs. Vs. Province of Punjab through Secretary Housing and Physical Planning, Lahore and others (PLD 2004 SC 261), National Bank of Pakistan. Vs. Manzoorul Hassan. (1989 SCMR 832) and Pakistan. Vs. Sheikh Abdul Hamid (PLD 1961 SC 105). Learned ASC in the CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 6 alternative argued that even if the terms and conditions regulating pension have their origin in a contract, the Board of Directors could not unilaterally amend them without the consent of the stakeholders. In support of his contention learned ASC placed reliance on the case of Nighat Yasmin. Vs. Pakistan International Airlines Corporation, Karachi and another (2004 SCMR 1820). The learned ASC lastly argued that where pension is not only a vested but a recurring right, laches or any other inaction for a short span of time cannot extinguish it. The learned ASC to support his contention placed reliance on the cases of Pakistan Telecommunication Employees Trust (PTET) through M. D., Islamabad and others. Vs. Muhammad Arif and others. (2015 SCMR 1472), Secretary, Government of Punjab, Finance Department and 269 others. Vs. M. Ismail Tayer and 269 others (2015 PLC(CS) 296), Constitution Petition No. 127 of 2012, decided on 11.04.2013 regarding Pensionary Benefits of the Judges of Superior Court (PLD 2013 SC 829), Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others. Vs. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642), Pakistan Tobacco Company Ltd. and another. Vs. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others (1999 SCMR 382), Civil Aviation Authority, Islamabad and others. Vs. Union of Civil Aviation Employees and another (PLD 1997 SC 781), Shahid Pervaiz. Vs. Ejaz Ahmad and others, etc. (2017 SCMR 206), Muhammad Mubeen-us-Salam and others. Vs. Federation of Pakistan through Secretary Ministry of Defence and others (PLD 2006 SC 602) and I. A. Sharwani and others. Vs. Government of Pakistan through Secretary Finance Division, Islamabad and others. (SCMR 1991 1041). 4. We have carefully gone through the record and considered the submissions of the learned Sr. ASC/ASCs for the parties as well as the learned DAG. 5. The background culminating in the issuance of the notification dated 30.11.1977 and the circular dated 26.12.1977 is that a CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 7 Pay Commission through a resolution dated 28.05.1977 was constituted by the Government of Pakistan with the following terms of reference: (i) To examine:- (a) the existing salary structure and all other types of allowances, amenities and facilities, including post-retirement benefits, and all such increase therein as may have been sanctioned recently, admissible to all categories of staff and employees in the nationalized banks including State Bank of Pakistan and financial institutions; (b) the principles on which they are based and the basic terms and conditions governing their admissibility; (c) the inter-se relationship of the salaries and allowances and other amenities, facilities and benefits and the underlying principles and justification of the same; and (d) the problems that may arise and the adjustments that may be necessary as a consequence of the scheme of merger of the nationalized banks already approved by the Government. (ii) To make recommendations:- (a) on the need, if any , and the manner in which the existing salary structure and other emoluments and the terms and conditions governing them should be rationalized or otherwise modified taking into account the qualifications and experience required for each grade or scale of pay and the allowances and perquisites attached thereto; the responsibilities which to be discharged at various levels; and the prospects of promotion or vertical mobility in each nationalized bank and financial institution; (b) on the treatment that may be given and the adjustments that should be made in the pay and emoluments of the staff and employees of a nationalized bank which is to be merged with another; (c) on the need if any, and the extent to which the existing emoluments and other conditions of service require modification, taking into account the economic conditions in the country and the terms of conditions of service in general and those incomparable undertakings in particular, the size, financial sources and viability of each nationalized bank or financial institution, the role assigned to each in the national economy, the socio- economic goals and all such other relevant factors; (d) on the ways and means of keeping the terms and conditions of service in the banking sector in line with changes in the national economy, considering the need of all times for an efficient and smooth banking service to the community; and (e) on any other matter which the Commission may consider relevant to its terms of reference.” The commission having considered the socio-economic conditions, the size, financial resources and viability of each nationalized Bank and financial institution made recommendations. The Federal Government following the CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 8 recommendations issued the notification dated 30.11.1977 while the Bank following the notification issued circular No.228(c) dated 26.12.1977. 6. What did the Banking Council stand for, what powers did it exercise and what functions did it perform under the Banks Nationalization Act before its amendment are the questions which have been answered by Section 9 of the Act itself which reads as under:- “9. Pakistan Banking Council. –(1). This section and section 11 shall apply to the banks mentioned in the Schedule and any new bank which may be constituted after the commencing day, whether by merger or reorganization of the said banks or under the Companies Act, 1913 (VII of 1913). (2) The Federal Government shall, by notification in the official Gazette, constitute a Council to be called the Pakistan Banking Council and consisting of – (i) A Chairman; (ii) A Deputy Governor of the State Bank; (iii) An official of the Ministry of Finance, Government of Pakistan; and (iv) Not more than five and not less than three members; Provided that not less than three members shall be full time members one of whom shall be appointed by the Federal Government to be the Secretary of the Council. (3) The Council shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, and shall be the name given to it by subsection (2) sue and be sued. (4) The functions of the Council shall be— (i) making policy recommendations to the Federal Government for directing banking activities towards national socio-economic objective; (ii) formulating policy guidelines for the banks; (iii) laying down performance criteria for banks, and taking steps for ensuring their observance; (iv) evaluating the performance of the banks in the context or national socio-economic objectives and policy guidelines issued to the banks; (v) determining the areas of coordination of the banks; (vi) formulating schemes under Section 15; (vii) making recommendations to the Federal Government for the appointment of the President and members of an Executive Board; CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 9 (viii) analyzing and appraising financial statements, including Balance sheets and Profit and Loss Accounts, of the banks and appointment of auditors of the banks; (ix) conducting such surveys, inquiries and appraisals as may be necessary for the purposes of this Act; and (x) exercising and performing such powers and functions of the Federal Government under this Act, and such other functions, as the Federal Government may assign to it. (5) For the proper exercise of its functions, the Council may require information, returns or periodical and special reports from banks. (6) The Council may appoint such officers, employees, experts and consultants as it may deem fit.” The Council as is evident from the provisions reproduced above had a role in making policy, exercising such powers and performing such functions of the Federal Government and other functions as the Federal Government assigned. Even the President and members of an Executive Board were appointed on the recommendations of the Council. But what bearing its dissolution and other amendments in the Act would have on the fate of this case is a question we propose to discuss in the latter part of the judgment. 7. Now the question arises what is the status of the notification dated 30.11.1977 and what is status of the Circular dated 26.12.1977. Before we answer the question it is worthwhile to refer to the notification and the circular which read as under :- “No.17(9)-IF.XI/77 Government of Pakistan Finance Division (Internal Finance Wing) Islamabad, the 30th Nov, 1977 From: Shafat Ahmad, Section Officer, Phone 21545 To Mr. M. A. K. Yousufi, Chairman, Pakistan Banking Council, 8-Habib Bank Plaza, Karachi. Sub: PENSIONS AND RETIREMENT BENEFITS FOR OFFICERS/EXECUTIVES OF BANKS AND FINANCIAL INSTITUTIONS. Dear Sir, I am directed to say that with a view to provide better social security, it has been decided to introduce pension and retirement benefits for the CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 10 officers/executives of the banks including the State Bank of Pakistan and financial institutions as have been introduced by the Federal Government for Civil Servants. The pension scheme also includes the benefit of family pension to the officers, executive’s wife and or to his children in the case of demise of the pensioner. The existing scheme of pension in the case of the National Bank of Pakistan. Contributory Provident Fund and Gratuity shall be discontinued. 2. The previous continuous service of officer/executive shall count as qualifying service for pension. The contribution made by the bank and financial institution towards the Contributory Provident Fund/shall be withdrawn as the service shall now count for the purpose of pension. The contribution of the officers/executives plus interest thereon standing in their respective Provident Fund Account shall be transferred and credited to the Provident Fund Accounts to be established under the now Provident Fund Scheme. A. DATE OF EFFECT 3. These benefits shall be admissible with effect from May, 1977 and shall be determined in accordance with the following provisions:- B. PATE AND SCALE OF PENSION 4. (a) Pension shall be payable if the total service of an officer/executive at the time of retirement or death is 10 years or more. Gratuity shall be payable if the service of an officer/executive at the time of retirement or death is more than 5 years but less than 10 years. (b) Pension shall be calculated at the rate of 70% of emoluments on completion of 30 years qualifying service. Where qualifying service is less than 30 years but not less than 10 years proportionate reduction in percentage shall be made. Any amount of pension in excess of Rs.1000/- shall be reduced by 50% on Pension Table regulating all the four pensions, namely, Compensation Pension, Superannuation Pension, Invalid Pension and Retiring Pension is enclosed as Annexure-I. (c) If, for a pensioners with qualifying service of 30 years or more, the amount of a pension calculated under sub-para (b) above falls short of the amount to pension inclusive of dearness increases) which would have been admissible to a Government servant under the Federal Government rules prior to 1.2.1977, or exceeds it by less than Rs.45/-, the amount under the formula mentioned herein shall be so increased as to make such difference one of 1.45/-. Where qualifying service is less than 30 years but not less than 10 years proportionate reduction at the rate of Rs.1/50 for each year short of years shall be made while working out the amount of minimum increase mentioned above. (d) All spells of continuous service of one year or more rendered by an officer/executive shall count and qualify for pension or gratuity as the case may be. In calculating the total length of service for the purposes of the admissibility of pension or gratuity the period of interruption of service and leave without pay shall be excluded. Total service thus calculated be refunded off to the nearest full year. A period of less than six months shall be ignored for this purpose and of more than six months counted as full year. (e) The term “emoluments” i.e. pensionable pay, shall also include dearness allowances sanctioned from time to time. (f) Pension shall be calculated on the basis of the average monthly basic pay plus dearness allowances drawn by an officer/executive during the last three years of service including the period of leave but excluding the extraordinary leave without pay. G. Gratuity for Service of less than 10 years but not less than 5 years. 5. In case of an officer/executive who has rendered service of 5 years or more but less than 10 years a gratuity equal to one month’s emoluments for each completed year of service may be granted to him on retirement. If, however, retirement is due to invalidation or if officer/executive dies in service, the rate shall be 1/1…. Months emoluments for each completed years of service. In the case of death of such an officer/executive, it shall be payable to his legal heir(s). CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 11 B- Gratuity and Commutation for Pensioners Retiring After 10 years service. 6. (a) A pensioner shall be allowed to draw full gross-pension for one fourth of the pension under this scheme need not compulsorily be paid in the form of gratuity. If, however, a pensioner so wishes, he may, at any time before expiry of one month from the date of his retirement, ask for gratuity upto 25% of his gross pension together with the remaining net amount of pension; the gratuity shall be paid at the following rates :- If qualifying service is 10 years or more but less than 15 years. Rs.187 for every rupee of pension surrendered. If qualifying service is 15 years or more but less than 20 years. Rs.173 for every rupee of pension surrendered. If qualifying service in 20 years or more. Rs.160 for every rupee of pension surrendered. (b) Commutation of 25% of the gross pension shall be further admissible in accordance with the Civil Pensions (Commutations Rules) as applicable to the Federal Government employees. Commutation shall, however, not be subject to medical certification if it is asked for within one year of retirement. The payment in such cases shall become absolute on the date of application by the pensioner. This concession of commutation without medical certification is not admissible to those officers/executives who retire on invalid pension. E- Family Pension 7. (a) In the case of death of an officer/executive while in service, gratuity in lieu of one fourth of the gross pension will be allowed at the rates shown in para 6(a). In addition, family pension shall be admissible for a period of 10 years at 50% of the gross pension. (b) In the case of death within 10 years of retirement, family pension for unexpired period of 10 years at 50% of the pension (not, or gross, as the case may be) shall be admissible. (c) Subsidiary rules and procedure in connection with the sanction and receipt of pension shall be framed by the institution concerned. F. Pensions/Gratuity for Injury or Death in course or consequence of duty. 8. The classification of disabilities and the criteria for determining their attributability to service shall be as detailed in Annexure III. The rate and scale of disability/death pension and gratuity shall be as under :- DISBILITY PENSION/GRTUITY Class of Injury Pension Gratuity Child without own mother Child with one mother living A 20% of pay subject to a maximum of Rs.600 and a minimum of Rs.100 p.m. (Note: After death it will devolve on the widow). 6 months pay. 5% of pay, subject to a maximum of Rs.100 & minimum of Rs.50/- per child. 2 ½ of pay subject to a maximum of Rs.50/- and a minimum of Rs.25/- per child. B 15% of pay subject to a maximum of Rs.450 and a minimum of Rs.75 p.m. Nil 4% of pay, subject to a maximum of Rs.80/- & Minimum of Rs.40/- per child. 2% of pay subject to a maximum of Rs.40/- and a minimum of Rs.20/- per child. C -do- Nil Nil Nil DEATH (SPECIAL FAMILY) PENSION/ GRATUITY CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 12 1. 20% of pay subject to a maximum of Rs.600 and a minimum of Rs.100 p.m. 6 months pay. 5% of pay, subject to a maximum of Rs.50 per child. 2 ½ of pay subject to a maximum of Rs.50/- and a minimum of Rs.25/- per child. Note :- The pensions/gratuities mentioned in this para will be in addition to the pensions and/or gratuities mentioned in paras 3 to 6 above. 9. An Officer who was in non-pensionable service on 1st May, 77 and who was entitled to the benefits of contributory Provident Fund, shall, unless the amount of the Contributory Provident Fund has been paid be allowed to opt) for the new scheme of Pension, Gratuity and Provident Fund, in lieu of the existing retirement benefits admissible to him. This option shall be exercised in writing and communicated to the competent authority within 6 months from the date of the issue of these orders. Those offices who do not exercise and communicate the options for the pensionary benefits sanctioned in this letter within the prescribed time limit, shall not be entitled to the benefits thereof and shall continue on their existing terms. Since the rates of pension and gratuity given above have been fixed by the Pay Commission for banks and financial institute the same lines as obtaining on the side of the Federal Government and existing provisions and any changes or revision in the scales of pension or gratuity that may hereafter be made by the Federal Government shall also apply to the officers/executive including the State Bank of Pakistan and financial institution. Yours faithfully Sd/- Shafat Ahmed Section Officer Encl: 3 Annexure.” 8. While the Circular dated 26.12.1977 reads as under :- “National Bank of Pakistan Head Office Karachi Instruction Circular No. 228 (C). December 26, 1977 Establishment Pensions and Retirement Benefits for Officers/Executives of Banks. 1. Further to our Circular No. 228 (B), it is advised that the Finance Division, Government of Pakistan, Islamabad has decided to introduce Pensions and retirement benefits for the officers/executives of the Banks as have been introduced by the Federal Government for Civil Servants. The pension scheme also includes the benefit of family pension to the officers/executive’s wife and or to his children in the case of demise of the pensioner. 2. The previous continuous service of officer/executive shall count as qualifying service for pension. The contribution made by the bank towards the Contributory Provident Fund shall be withdrawn as that service shall now count for the purpose of pension. The contribution of the officers/executives plus interest thereon standing in their respective Provident Fund Account shall be transferred and credited to the Provident Fund Accounts to be established under the new Provident Fund Scheme. A- Date of Effect 3. These benefits shall be admissible with effect from 1st May, 1977 and shall be determined in accordance with the following provisions :- B- Rate and Scale of Pension CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 13 4. a) Pension shall be payable if the total service of an officer/executive at the time of retirement or death is 10 years or more. Gratuity shall be payable if the service of an officer/executive at the time of retirement or death is more than 5 years but less than 10 years. b) Pension shall be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service. Where qualifying service is less than 30 years but not less than 10 years, proportionate reduction in percentage shall be made. Any amount of pension in excess of Rs.1,000/- shall be reduced by 50%. A Pension Table regulating all the four pensions, namely, Compensation Pension, Superannuation Pension, Invalid Pension and Retiring Pension is enclosed as Annexure I. c) If, for a pensioner with qualifying service of 30 years or more, the amount of a pension calculated under sub-para (b) above falls short of the amount of pension (inclusive of dearness increases) that would have been admissible to a Government servant under the Federal Government rules prior to 1.2.1977, or exceeds it by less than Rs.45/-, the amount under the formula mentioned herein shall be so increased as to make such difference one of Rs.45/-. Where qualifying service is less than 30 years but not less than 10 years, proportionate reduction at the rate of Rs.1/50 for each year short of years shall be made while working out the amount of minimum increase mentioned above. d) All spells of continuous service of one year or more rendered by an officer/executive shall count and qualify for pension or gratuity as the case may be. In calculating the total length of service for the purposes of the admissibility of pension or gratuity, the periods of interruption of service and leave without pay shall be excluded. Total service thus calculated be rounded off to the nearest fully year. A period of less than six months shall be ignored for this purpose and of more than six months counted as full year. e) The term “emoluments”, i.e. Pensionable pay, shall also include dearness allowances sanctioned from time to time. f) Pension shall be calculated on the basis of the average monthly basic pay plus dearness allowances drawn by an officer/executive during the last three years of service including the period of leave but excluding the extra-ordinary leave without pay. C- Gratuity for Service of less than 10 years but not less than 5 years. 5. In case of an officer/executive who has rendered service of 5 years or more but less than 10 years a gratuity equal to one month’s emoluments for each completed year of service may be granted to him on retirement. If, however, retirement is due to invalidation, or if an officer/executive dies in service, the rate shall be 1 ½ months of emoluments for each completed year of service. In the case of death of such an officer/executive, it shall be payable to his legal heir(s). D-Gratuity and Commutation For Pensioners Retiring After 10 years Service. 6. a) A pensioner shall be allowed to draw full gross pension i.e. one forth of the pension under this scheme need not compulsorily be paid in the form of gratuity. If, however, a pensioner so wishes, he may, at any time before expiry of one month from the date of his retirement, ask for gratuity upto 25% of his gross pension together with the remaining net amount of pension; the gratuity shall be paid at the following rates :- If qualifying Service is 10 years or more but less than 15 years. Rs.187 for every rupee of pension surrendered. If qualifying service is 15 years or more but less than 20 years. Rs.173 for every rupee of pension surrendered. If qualifying service is 20 years or more. Rs.160 for every rupee of pension surrendered. b) Commutation of 25% of the gross pension shall be further admissible in accordance with the Civil Pensions (Commutations Rules) as applicable to the Federal Government employees. Commutation shall, CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 14 however, not be subject to medical certification if it is asked for within one year of retirement. The payment in such cases shall become absolute on the date of application by the pensioner. This concession of commutation without medical certification is not admissible to those officers/executives who retire on invalid pension. E-Family Pension 7. a) In the case of death of an officer/executive while in service, gratuity in lieu of one forth of the gross pension will be allowed at the rates shown in para 6(a). In addition, family pension shall be admissible for a period of 10 years at 50% of the gross pension. b) In the case of death within 10 years of retirement, family pension for unexpired period of 10 years at 50% of the pension (net, or gross, as the case may be) shall be admissible. c) Subsidiary rules and procedure in connection with the sanction and receipt of pension shall be framed by the institution concerned. F-Pensions/Gratuity for Injury or Death in course or consequence of duty. 8. The classification of disabilities and the criteria for determining their attributability to service shall be as detailed in (annexure III). The rate and scale of disability/death pension and gratuity shall be as under :- Class of Injury Pension Gratuity Child without own mother Child with one mother living A 20% of pay subject to a maximum of Rs.600 and a minimum of Rs.100 p.m. (Note: After death it will devolve on the widow). 6 months pay. 5% of pay, subject to a maximum of Rs.100 & minimum of Rs.50/- per child. 2 ½ of pay subject to a maximum of Rs.50/- and a minimum of Rs.25/- per child. B 15% of pay subject to a maximum of Rs.450 and a minimum of Rs.75 p.m. Nil 4% of pay, subject to a maximum of Rs.80/- & Minimum of Rs.40/- per child. 2% of pay subject to a maximum of Rs.40/- and a minimum of Rs.20/- per child. C -do- Nil Nil Nil DEATH (SPECIAL FAMILY) PENSION/ GRATUITY 1. 20% of pay subject to a maximum of Rs.600 and a minimum of Rs.100 p.m. 6 months pay. 5% of pay, subject to a maximum of Rs.100 & A minimum of Rs.50/- per child. 2 ½ of pay subject to a maximum of Rs.50/- and a minimum of Rs.25/- per child. Note :- The pensions/gratuities mentioned in this para will be in addition to the pensions and/or gratuities mentioned in paras 3 to 6 above. 9. An officer who was in non-pensionable service on 1st May, 1977 and who was entitled to the benefits of Contributory Provident Fund, shall, unless the amount of the Contributory Provident Fund has been paid be allowed to opt for the new scheme of Pension, Gratuity and Provident Fund, in lieu of the existing retirement benefits admissible to him. This option shall be exercised in writing and communicated to the competent authority within 6 months from the date of the issued of these orders. Those officers who do not exercise and communicate their options for the pensionery benefits sanctioned in this circular within the prescribed time limit, shall not be entitled to the benefits thereof and shall continue on their existing terms. CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 15 10. Since the rates of pension and gratuity given above have been fixed by the Pay Commission for banks and financial institutions one the same lines as obtaining on the side of the Federal Government, the existing provisions and any changes or revision in the rates or scales of pension or gratuity that may hereafter be made by the Federal Government shall also apply to the officers/executives of the Bank. 11. The existing schemes of Pension, Contributory Provident Fund and Gratuity shall be discontinued. Sd/- Sd/- (HUMAYUN AKHTAR ADIL) (MOHAMMAD USMAN) EXECUTIVE VICE PRESIDENT SENIOR EXECUTIVE VICE PRESIDENT PERSONNEL DIVISION ADMINISTRATION.” 9. A look at the notification reproduced above would show that it provided a comprehensive basis for determination of rate and scale of pension. This notification has not been termed as the one notifying the rules but it in its tone and tenor possesses all such attributes from whatever angle it is looked at. It has not been stated in the notification that it has been issued under Section 20 of the Banks Nationalization Act but the fact is that no other provision of the Act could enable the Federal Government to issue a notification dealing with the matters envisaged by Section 20 of the Act. The words used in para 1 to 10 of the notification leave no doubt that it was issued under Section 20 of the Act. Issuance of the circular, which is almost replica of the notification confirms its status as a statutory instrument. Para one of the notification rescinding and replacing the existing scheme of pension, the Contributory Provident Fund and Gratuity by providing in para 1 that “the existing scheme of pension in the case of National Bank of Pakistan, the Contributory Provident Fund and Gratuity shall be discontinued” amply and overwhelmingly proves its statutory status. It would be rather unjust and even unrealistic to treat such notification as an administrative or executive instruction when it admittedly rescinded and replaced the existing scheme of Pension Contributory Provident Fund and Gratuity having their origin in the NBP’s employees Pension Provident and Gratuity Rules, 1958 made with the prior approval of the Central Government and the N.B.P. (Staff) Service Rules, 1973 made with the prior approval of the Federal Government. It cannot be looked at as a bolt from the blue either when it was preceded by an extensive spadework of the Pay Commission and succeeded by the circular dated 26.12.1977. In this CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 16 context the notification cannot be construed as an event independent of Section 20 of the Act or isolated therefrom. It also does not appear to be deficient on any score when examined in the light of the criteria laid down in the case of Mustafa Impex. Vs. Government of Pakistan (supra), when nothing has been brought on the record to show that any of the provisions of the Rules of Business, 1973 was ignored or violated. We, therefore, have no hesitation to hold that the notification dated 30.11.1977 having been issued by the Federal Government in terms of Section 20 of the Act is statutory in nature and violation of any of its provisions is amenable to the constitutional jurisdiction of the High Court. The case of Muhammad Zaman and others. Vs. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others (supra) has therefore no relevance to the case in hand. 10. Next comes the question as to what are the functions of the Board and whether the Board after the dissolution of the Pakistan Banking Council has the power to rescind, replace or repeal the notification issued by the Federal Government of Pakistan in terms of Section 20 of the Act. To answer these questions we have to see the relevant provisions of the Act dealing with the powers of the Board. It thus reads as under :- “11. General provisions pertaining to management of banks.—(1) Subject to Subsection (2), a bank shall have a Board consisting of— (a) a President, who shall be its Chief Executive; and (b) not less than five and not more than seven other members 5[including one or more directors whose election by the private shareholders, removal and other matters shall be governed by the Companies Ordinance, 1984 (XLVII of 1984)]. (2) The Federal Government may, if it deems necessary, appoint a Chairman of the Board in respect of a bank. (3) The Chairman, the President, and other members of the Board 1[representing the Federal Government’s direct and indirect shareholding”]___ (a) shall be appointed by the Federal Government, in consultation with the State Bank, for a term of three years, on such terms and conditions as may be fixed by the General Meeting of the bank: provided that the Chairman and the President shall be appointed from amongst professional bankers whose names are included in a panel of bankers qualified to be the Chairman or the President, CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 17 which panel shall be determined, maintained and varied, from time to time, by the State Bank ; (b) may be removed for misconduct or physical and mental incapacity before the expiry of the three years term by the Federal Government in consultation with the State Bank; (c) shall stand removed if he becomes ineligible on any of the grounds specified in subsection (12); and (d) may be reappointed by the Federal Government, in consultation with the State Bank of Pakistan, 2[for such further term or terms as may be determined.”.] (4) The general direction and superintendence of the affairs and business of a bank, and overall policy making in respect of its operations, shall vest in its Board. (5) The Board shall determine— (i) the credit policies of the banks ; (ii) evaluation criteria for the performance of the employees of the bank other than the President; (iii) personnel policies of the bank, including appointment and removal of officers and employees ; (iv) guidelines for entering into any compromise with borrowers and other customers of the bank ; and (v) any other policy matter. (6) The Chief Executive and other officers of the bank shall act in accordance with the policies, criteria and guidelines determined by the Board. (7) The Board shall appoint committees from amongst the executives of the bank, and determine the powers, functions and duties of such committees. (8) Where the Federal Government has appointed a Chairman, he shall preside over the meetings of the Board, and in case a Chairman has not been appointed, then the President shall preside over the meetings of Board. In the absence of the Chairman or the President, as the case may be, the directors may elect one of the member to preside over the meetings. (9) The President, subject to the control and directions of the Board, shall exercise powers of management of the affairs of the bank. (10) All selections, promotions and transfer of employee of banks except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel policies determined by the Board. (11) The Board, the President and other officers shall exercise their powers and discharge their duties in accordance with sound banking principles and prudent banking practices and shall ensure compliance with regulations and directions that may be issued by the State Bank from time to time. (12) No person shall be eligible for appointment as the Chairman, the President, or a member of the Board if— CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 18 (a) he is or has at any time been adjudged insolvent or has suspended payment or has compounded with his creditors ; or (b) he is a minor or is found a lunatic or of unsound mind ; or (c) he is not citizen of Pakistan ; or (d) he was at any time in the service of the Federal Government or a corporation controlled by any such Government or in the service of a bank and was dismissed ; or (e) he is a person against whom any action has been taken or any proceedings are pending under section 412 of the Companies Ordinance, 1984, (XLVII of 1984) or section 83 of the Banking Companies Ordinance, 1962 ; (LVII of 1962) or (f) he is, or has been, convicted for tax evasion under any law for the time being in force ; or (g) he is a member of the Senate, National Assembly, any Provincial Assembly or an elected Member of a local council constituted under any law relating to local councils ; or (h) he is holding an office in a political party. ]” 11. A careful reading of the provisions reproduced above would reveal that the Board with the dissolution of the Pakistan Banking Council became more autonomous and independent in managing the Bank and determining the terms and conditions of services of the officers and executives of the bank. It, in exercise of such powers, introduced circular No.3799, dated 16.6.1999 revising the pay structure bringing substantial increase in the salaries of the officers and executives of the bank. It, however, has not been given a power by any of the provisions in general and Section 11 of the Act in particular to rescind, replace or repeal a statutory dispensation already in force. In the case of Muhammad Tariq Badr and another. Vs. National Bank of Pakistan and others (2013 SCMR 314) this Court while dealing with a similar controversy held as under :- “It is an admitted position that 1980 Rules have not been framed as per the mandate of law ibid, inasmuch as these rules are neither made by the Federal Government nor published in the, official gazette. There is also no cavil/quibble that the said rules have not been composed/enforced with the prior approval of the Government or any subsequent benediction was conferred to those by the Government. Rather (admittedly) the rules have been formulated by the Board of the respondent-bank constituted under section 11 of the Act, 1974 which stipulate the general power of the Board pertaining to policy making and the administration and management of the nationalized banks. Subsection (4) thereof specifically provides "The general direction and superintendence of the affairs and business of a bank, and overall policy making in respect of its operations, shall vest in its CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 19 Board". Furthermore, as per subsection (5) of the Act, 1974 the Board shall determine "personal policies of the bank, including appointment and removal of officers and employees" and in accordance with subsection (10) "All selections, promotion and transfer of employees of banks except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel polices determined by the Board". From the above it is unequivocally clear that the 1980 Rules have been framed by the Board of the bank pursuant to its authority in the nature of management/ superintendence of the affairs of the bank and/or the policy making power; however for all intents and purposes, it is so done in the exercise of an executive authority under the statute, but having even no remote or possible or permissible connection and nexus to any statutory jurisdiction, these rules thus can at best be termed, understood, comprehended and construed merely as the guidelines or the domestic instructions of the N.B.P., for the purposes of highlighting, elucidating or beneficially revamping the service structure of bank's employees for their advantage, provided the same do not in any manner contravene the 1973 Rules, but nothing more than that can be imputed to those; and in any case the rules do not enjoy the status of a statutory instrument.” 12. Now a question arises where Section 20 of the Act provided that the Federal Government may by notification in the official gazette, make rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act, what would be the consequence of its failure to have it published in the official gazette? The answer to the question was given in detail in the case of SAGHIR AHMED through Legal Heirs. Vs. PROVINCE OF PUNJAB through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 SC 261) in the words as follows:- 10. Even otherwise, the provisions of a statute for the publication or a notification in official Gazette are generally regarded by the Courts as directory and where their strict non-compliance does not provide any consequences. The legal certainty also requires that ordinarily a statutory instrument should not be treated as invalid because of a failure on the part of public functionaries to publish it in the official Gazette. There may be many things done on the basis of such an instrument. It would seem unfortunate were these things held to be invalid if it were at some stage discovered that there had been a failure by a public authority to go meticulously by the manner and mode of publication of an instrument or notification in the Official Gazette. In the case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423) this Court took the view that even if Karachi Building and Town Planning Regulations, 1979 were not published in the official Gazette under section 21-A(3) of the Sindh Buildings Control Ordinance, 1979, they could be construed and acted upon as regulations for the purpose of the said Ordinance. In Pakistan through Secretary, Ministry of-Defence and others v. Late Ch. Muhammad Ahsan (1991 SCMR 2180), the factual acquisition of land had not been denied and same had been acted upon for nearly 50 years and there was an airfield in the land for such a CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 20 long time. The notice/notification although had been signed and issued to all concerned but had not been gazetted. In other words, the purpose of the publication in the ordinary sense was practically served almost contemporaneously when the acquisition took place and in fact it was more substantial publication insofar as the owners were concerned than if it would have been in the official Gazette. It was further observed that mere fact that publication in the Gazette was delayed, would not invalidate the notification. A somewhat similar view was taken in Muhammad Siddique v. Market Committee, Tandlianwala (1983 SCMR 785). In the case of Manzur-ul-Haq v. Controlling Authority, Local Councils, Montgomery and others (PLD 1963 SC 652) it was held, by reference to the provisions of Article 26 of the Basic Democracies Order, 1959, and section 17 of the Municipal Administration Ordinance, 1960, that mere provision in a statute for notifying name of holder of office in Gazette was not a condition precedent to the holding of the office. In Chief Commissioner, Karachi v. Jamil Ahmed and another PLD 1961 SC 145 the Court held that the provision in section 280(1) of the City of Karachi Municipal Act, (1933) relating to general elections being notified in official Gazette was directory and not mandatory and a substantial compliance with that would be enough. In Regina v. Sheer Metalcraft Ltd. and another (1954 1 QB 586), Lord Streatfeild, J., took the view that "a statutory instrument, made by a Minister or other competent authority was valid and effective as soon as it was made, notwithstanding that the provisions of the Statutory Instruments Act, 1946, and the regulations, mode thereunder relating to the printing and issuing of statutory instruments had not been complied with". We, agreeing with the dictum reproduced above, reaffirm that failure to have the notification published in the official gazette would not shear it off its statutory status. 13. The argument of the learned Sr. ASC for the appellant that where Circular No. 3799 dated 16.06.1999 bringing substantial increase in salaries of the officers and executives of the bank and reducing the pension factor was accepted and acted upon by the officers and the executives of the bank without any qualms for more than a decade, they could not have turned around to question it so long as they do not refund the increase in the salary, does not have much force firstly because the respondents never sat idle or slept over their rights emanating from the circular dated 30.1.1977 as is evident from their correspondence at different levels and secondly because there could be no estoppel against the statute or the rules having statutory force. The argument that such petitions are also hit by the principle of laches when they were instituted more than ten years after the issuance of the circular dated 16.06.1999 is CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 21 also devoid of force when the respondents have been questioning the circular reducing the pension factor at different fora and stages. Even otherwise, the principle of laches cannot be over emphasized when pension is a recurring right as has been held in the cases of Pakistan Telecommunication Employees Trust (PTET) through M. D., Islamabad and others. Vs. Muhammad Arif and others, Secretary, Government of Punjab, Finance Department and 269 others. Vs. M. Ismail Tayer and 269 others, Constitution Petition No. 127 of 2012, decided on 11.04.2013 regarding Pensionary Benefits of the Judges of Superior Court, Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others. Vs. Federation of Pakistan through Secretary Ministry of Interior and others, Pakistan Tobacco Company Ltd. and another. Vs. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others, Civil Aviation Authority, Islamabad and others. Vs. Union of Civil Aviation Employees and another, Shahid Pervaiz. Vs. Ejaz Ahmad and others, etc., Muhammad Mubeen-us- Salam and others. Vs. Federation of Pakistan through Secretary Ministry of Defence and others and I. A. Sharwani and others. Vs. Government of Pakistan through Secretary Finance Division, Islamabad and others (supra). 14. The argument of the learned ASC for the respondents that the notification issued by the Finance Division, Government of Pakistan and Circular No. 228(C) issued by the Bank could be treated at par with the statutory rules when they have been acted upon for decades and decades together would loose its relevance and so would the judgments rendered in the cases of Pakistan. Vs. Sheikh Abdul Hamid, Dr. Habibur Rahman. Vs. The West Pakistan Public Service Commission, Lahore and 4 others, Khan Faizullah Khan. Vs. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another(supra), once we have held above that the notification dated 30.11.1977 having been issued by the Federal Government in terms of Section 20 of the Act is statutory in nature. CIVIL APPEALS NO. 353 OF 2015 AND CMA NOS. 1493 AND 2079 OF 2015 AND CIVIL APPEALS NO. 632 TO 673 OF 2017 22 15. As a sequel to what has been discussed above, we allow Civil Appeal No. 353 of 2015 alongwith the CMAs. No. 1493 and 2070 of 2015, set aside the judgment of the Peshawar High Court whereas we dismiss the Civil Appeals No. 632 to 673 of 2017 filed by the National Bank of Pakistan and maintain the judgment of the Lahore High Court, dismissing the Intra Court Appeal. JUDGE JUDGE JUDGE Announced in open Court at Islamabad on __________________. JUDGE ‘Not Approved for Reporting’ M. Azhar Malik

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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 Tariq Parvez CIVIL PETITION NO. 357 OF 2012 AND CONST. PETITION NO.32 OF 2012 AND CIVIL MISC. A. NO. 2911 OF 2012, CMA-3338/12, ETC. Regional Director ANF vs. Rizwan Ahmed & others. Sh. Rasheed Ahmed vs. Federation of Pakistan, etc. For the petitioners : Raja Shahid Abbasi, ASC. Brig. Fahim Ahmed, Force Commander, ANF Lt. Col. Akhtar Abbas, Joint Director. Mr. Bashir Hussain, Special Prosecutor Abid Zulfiqar, Dy. Director./IO ANF. Nemo.(in Const.P.32/12) For the applicants : Mr. Muhammad Tanvir (in-person). (in CMA.3338/2012) For M/o NRS : Nemo. For M/o Interior : Khawaja Siddique Akbar, Secretary. For DRAP : Qazi Abdul Saboor, CEO/DG Health For M/s Barlex Lab : Nemo. For respondent No.13: Nemo. For respondent No.15: Nemo. For Danas Pharma : Nemo. For FIA : Nemo. For NAB : Nemo. Date of hearing : 09.08.2012. * * * * * * * CP-357/12 etc. 2 O R D E R Civil Misc. Application No. 3338 of 2012.–. Khawaja Siddiuqe Akbar has filed a statement wherein he had denied the allegations of Muhammad Tanvir, Dy. DG, DRAP. The statement be kept on record. However, in the meanwhile, Secretary M/o Services & Regulations Division informed about the issue of the transfer of Muhammad Tanvir to Gilgit-Baltistan on the last date of hearing. On having gone through the relevant rules and regulations he was of the opinion that the transfer order of Mr. Muhammad Tanvir, Dy. DG. DRAP was not proper, as such the same has been withdrawn and his salaries have also been paid. The grievance of the applicant apparently seems to have been redressed. We may, however, observe in categorical terms that the concerned authorities of the Division which also include Directorate of Health are not required to pressurize any of the employees persuading them so they may not cooperate in ephedrine case which is under investigation with ANF as being an important case in its nature. ANF needs cooperation from all concerned to unearth a crime in a transparent manner as it is against this country and society. 2 Qazi Abdul Saboor, DG Health and CEO, DRAP stated that as he has given proposal for transfer of Mr. Muhammad Tanvir from Gilgit-Baltistan to Islamabad and due to this reason he has also been transferred but uptil now no notification has been issued. He stated that the concerned authority wants to appoint a person of their own CP-357/12 etc. 3 choice against this post. We have noted the anticipated grievance of the DG but as there is still no notification on record showing his transfer, therefore, no action is required for the time being. However, in future if so happened at the cost of his cooperation in the investigation in the ephedrine matter, the DG may move an application which shall be decided after having taken into consideration the relevant rules on the subject. The application filed by Mr. Muhammad Tanvir stands disposed of. CJ. J. J. Islamabad, 09.08.2012.

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ORDER OF THE BENCH By majority of four to one, the Chancellor while exercising revisional powers under Section 11-A of the Act is not required to seek advice of the Chief Minister, therefore, on this legal point, view rendered in the cases of University of Punjab vs. Sardar Ali (1992 SCMR 1093) and Federation of Pakistan vs. Muhammad Tariq Pirzada (1999 SCMR 2189) is approved whereas the contrary view rendered in the case of, Rana Aamer Raza Ashfaq vs. Dr. Minhaj Ahmad Khan (2012 SCMR 6), is not approved. 2. By majority of three to two, the Appeal is allowed, the impugned judgment is set aside and the matter is remanded to the Lahore High Court to decide the Writ Petition No.1691 of 2012 filed by the Respondent No.1 on merits. It is expected that the Lahore High Court shall decide the Writ Petition within 03 months from the date of communication of this judgment, as the Petition relates to the year 2012. Chief Justice Judge Judge Judge Judge Islamabad the,_____________, 2016. Approved for reporting. J IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali, CJ Mr. Justice Mian Saqib Nisar Mr. Justice Amir Hani Muslim Mr. Justice Iqbal Hameedur Rahman Mr. Justice Khilji Arif Hussain Civil Appeal No.359 of 2013. (On appeal from judgment dated 15.01.2013 of the Lahore High Court, Lahore, passed in W.P.No.1691 of 2012). Dr Zahid Javed. …Petitioner. VS Dr Tahir Riaz Chaudhry and others. …Respondents. For the Petitioner: Sardar Muhammad Aslam, ASC. Raja Muhammad Afsar, AOR. For Respondent No.1: Mr. Abdul Rehman Siddiqui, ASC. For Respondent No.2: Mr. Tahir Munir Malik, ASC. For Respondent No.3: Nemo. On Court’s Notice: Mr Nisar Durrani, A.G Sindh. Mr Ayaz Swati, Addl.A.G Balochistan. Mr Razzaq A Mirza, Addl.A.G, Punjab. Mr Abdul Latif Yousafzai, A.G, KPK. Mian Muhammad Rauf, A.G, Islamabad. Mr Muhammad Waqar Rana, Addl. Attorney General for Pakistan. Amicus Curie: Mr. Makhdoom Ali Khan, ASC. Kh. Haris Ahmed, Sr.ASC. Date of hearing: 03.03.2016. . . . . . . . . . . . . JUDGMENT C.A.No.359 of 2013 2 AMIR HANI MUSLIM, J. This Appeal, by leave of the Court, is directed against judgment dated 15.01.2013, passed by the Lahore High Court, Lahore, whereby the Writ Petition filed by the Respondent No.1 has been allowed. 2. The facts necessary for the present proceedings are that on 29.04.2005, the University of Punjab got published an advertisement in the press, inviting applications to various positions including the post of Associate Professor in Social Work Department. The Appellant, amongst others, applied for the said post which he was offered. Through Office Order dated 07.11.2007, the Vice Chancellor of the University, in anticipation of the approval of the Syndicate and upon the recommendations of the Selection Board, exercised the powers vested in him under Section 15(3) of the University of the Punjab Act 1973, and appointed the Appellant to the said post on one year’s probation. 3. The Respondent No.1 challenged the appointment of the Appellant made through Office Order dated 07.11.2007, before the Lahore High Court by filing Writ Petition No.319 of 2008, which was disposed of with the direction to the Syndicate of the University to decide the issue of appointment of the Appellant. Accordingly, the Syndicate of the University in its 1689th meeting held on 29.10.2011 considered the appointment of the Appellant and decided to cancel the said appointment. The Appellant filed Petition under Section 11-A of the University of the Punjab Act 1973, before the Chancellor challenging the order dated 29.10.2011 of the Syndicate of the University. The Petition was allowed by order dated 06.06.2012, and the appointment of the Appellant was restored with all consequential benefits. C.A.No.359 of 2013 3 4. Feeling aggrieved, the Respondent No.1 filed Writ Petition before the Lahore High Court challenging the order dated 06.06.2012 of the Chancellor, which was allowed by the impugned judgment dated 15.1.2013, and consequently the order dated 06.06.2012, restoring the Appellant to his previous position, was set aside. The Appellant filed Civil Petition No.202 of 2013 for Leave to Appeal before this Court in which leave to Appeal was granted on 15.04.2013. 5. During the hearing of the aforesaid Appeal on 18.11.2013 by a two member Bench, it was noticed that the issue raised required hearing by a larger Bench and the Honourable Chief Justice of Pakistan was requested to constitute a five member Bench. The relevant portion of the order dated 18.11.2013 by the said Bench is reproduced hereunder: “On one of the last dates of hearing the question of interpretation and applicability of Section 11(8) of the Act came up for consideration obviously in the context of Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), as also other relevant provisions of the Act, including Section 11-A and Section 43 therefore, thus a notice was issued to the learned Advocate General, Punjab, to appear in person and to answer the queries in relation thereto. During the course of hearing, the Acting Advocate General, Punjab has placed reliance upon the judgment reported as Rana Aamer Raza Ashfaq and another Vs. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6) to argue, that according to the enunciation of law therein, the functions/powers of the Governor even if acting as Chancellor are regulated in terms of Article 105 of the Constitution, but when queried, he has stated that in the judgment supra the earlier law on the subject having close nexus to the issue in hand reported as Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad Vs. Muhammad Tariq Pirzada and others (1999 SCMR 2189) seemingly it has eluded the attention of this Court; besides for the exercise of the functions of the Chancellor/the Governor specified in the Act, especially Section 11-A and Section 43, which are the relevant provisions, need deeper examination if such functions/powers are subject to the provisions of Article 105 of the Constitution. Moreover, the impact of the eighteenth amendment in the Constitution should also be taken into account which was not adverted to in the case of Rana Aamer Raza Ashfaq (supra). We think, that these propositions, which have emerged during the course of hearing, are of considerable importance and may in the given circumstances of the case need some elucidation of the Rana Aamer Raza Ashfaq’s case (supra) and/or reconsideration of the law enunciated therein, therefore we feel expedient that the matter be brought C.A.No.359 of 2013 4 to the notice of the Hon’ble Chief Justice of Pakistan for considering the desirability of constitution of a larger bench.” 6. The larger Bench comprising of five members was constituted by the Honorable Chief Justice to resolve the issues raised in these proceedings. The Bench issued notices to the Attorney General for Pakistan and Advocate Generals of all four provinces under Order 27-A Rule 1, CPC, as well as appointed Messrs Makhdoom Ali Khan and Khawaja Haris ASCs as Amicus Curiae to assist this Court on the proposed issues which have far reaching effect. 7. Mr. Sardar Muhammad Aslam learned ASC for the Appellant commenced his arguments by contending that the Chancellor of a Province, while exercising his functions under the University of the Punjab, Lahore Act 1973 (the “University Act”), is not required to act on the advice of the Chief Minister. The learned ASC for the Appellant referred to Articles 45, 49, 51, 54, 56, 57, 59, 75, 89, 100, 145(2), 200, 208, and 234 of the Constitution and submitted that the said provisions enumerate the powers and functions vested in the President under the current constitutional set up. He contended that the functions that the President exercised under the foregoing provisions are those which require the President to act on the advice of the Prime Minister. While placing reliance on a judgment of this Court in the case of Federation of Pakistan vs. Muhammad Tariq Pirzada and others, (1999 SCMR 2189), the learned ASC submitted that it has been held by this Court that the President of Pakistan, when hearing appeals from the decision of the Wafaqai Mohtasib, exercises quasi judicial powers and is, therefore, not required to seek the advice of the Prime Minister. He C.A.No.359 of 2013 5 submitted that, similarly, the Governor of a Province / Chancellor of a University, in exercise of his functions under Section 11A of the University Act, also exercises quasi-judicial functions. He contended that if the Chancellor whilst exercising his revisional / appellate powers under the Act was required to seek the advice of the Chief Minister then it would loose all semblance of an independent application of judicial mind. 8. Learned counsel for the Appellant further contended that under the University Act, the Chancellor performs various functions which could be demarcated as administrative and quasi-judicial functions. The Chancellor revisional / appellate functions, the learned ASC contended, would fall within the latter category, in exercise whereof, it was not necessary for the Chancellor to seek the advice of the Chief Minister. 9. Mr. Makhdoom Ali Khan, Sr. ASC learned Amicus Curiae at the very outset contended that the Governor of a Province does not exercise quasi judicial powers. He referred to Tariq Pirzada Case (ibid) and submitted that he would beg to differ with the ratio of the aforesaid pronouncement of this Court insofar as it holds that the President, when hearing representations / appeals from a decision of the Wafaqi Mohtasib, exercises quasi-judicial functions. He submitted that the office of the ombudsman was created with the object that no government should countenance maladministration and the ombudsman is a statutory check upon the government and that is all. He contended that it cannot be termed as a judicial function because there is no power of enforcement of its decision. He submitted that a judicial function has to be exercised by authorities other than those that are executive. He contended that when C.A.No.359 of 2013 6 quasi-judicial authorities are created, the officers who preside over such authorities can only be appointed with the consultation of the Chief Justice of Pakistan or by the Chief Justice of a province. 10. Mr. Makhdoom Ali Khan Sr.ASC submitted that the office of the Governor is a constitutional office and when the Constitution talks of the functions of the Governor it is talking of its constitutional functions and not of functions outside the Constitution. However he contended that functions conferred upon the Governor outside the Constitution by a statute, would inherently be functions conferred upon him as a persona designata and he would not be acting in terms of Article 105 of the Constitution. He submitted that a law can be passed by a provincial assembly, the elected representatives of the people, in the exercise of their legislative powers whereby they specify that a certain person should be appointed to a statutory post and consequently the functions that person exercises would indeed be statutory functions. He contended that in the facts and circumstances of this case the appointment of the Chancellor is statutory but if the statute itself provides that the Chancellor, whilst exercising his statutory functions, is subject to Article 105 of the Constitution, then there can be no question about the law being ultra vires. 11. Mr. Makhdoom Ali Khan next submitted that pursuant to the position in terms of the statutory provisions of the Act prior to the amendment whereby Section 11(8) was inserted, the Chancellor would undoubtedly be exercising statutory functions without the advice of the Chief Minister. In support of his submission he placed reliance upon a judgment of this Court in the case of University of the Punjab, Lahore vs. C.A.No.359 of 2013 7 Chaudhry Sardar Ali (1992 SCMR 1093) and a judgment of the Indian jurisdiction in the case of Dr. S.C. Barat and another v. Hari Vinayak Pataskar and others (AIR 1962 Madhya Pradesh 73.) 12. Mr. Makhdoom Ali Khan continued his arguments by identifying the functions and powers of the Governor under the Constitution. He submitted that the Governor was appointed by the President under Article 101 of the Constitution, whereas Article 105 r/w Article 48(2) of the Constitution stipulates that the Governor in discretionary matters is not bound by the advice of the Chief Minister. The learned Amicus demarcated the functions of the Governor enumerated in the Constitution as those non discretionary functions performed on the advice of the Chief Minister, in terms of Article 105 of the Constitution, and those discretionary functions that can be performed without the advice of the Chief Minister. He submitted that the functions of the Governor under Article 110 (Right of Governor to address Provincial Assembly), Article 128 (Power of Governor to promulgate Ordinances), Article 129 (The Provincial Government), Article 131 (Governor to be kept informed), Article 132 (Provincial Ministers), Article 139 (Conduct of business of Provincial Government) and Article 140 (Advocate General for a Province) of the Constitution were all non discretionary in nature. Conversely he submitted that the provisions of the Constitution under which the Governor was vested with discretion, either by the specific use of the word “discretion” or by the very structural nature of the function being performed, were Article 112(2) (Dissolution of Provincial Assembly), Article 116(2)(b) (Governors assents to Bills), Article 130(7) (vote of confidence), and Article 133 (Chief Minister continuing in C.A.No.359 of 2013 8 office) of the Constitution. He submitted that in addition to the aforesaid discretionary powers of the Governor, Article 234 of the Constitution goes a step further and by its sub-clause (2) explicitly excludes the application of Article 105 of the Constitution. 13. Mr. Makhdoom Ali Khan further contended that Article 105 of the Constitution itself provides for exceptions to the said Article which are embedded in the constitutional structure. He contended that Article 105 r/w Article 48 of the Constitution creates certain exceptional discretionary powers which may arise by the specific words used in the Constitution i.e. where the word “discretion” is used or by the very structure of the constitution itself i.e. vote of confidence, vote of no confidence, Chief Minister continuing in office, dissolution of the assembly etc. He submitted that while the constitutional rule is that the Governor is bound by the advice of the Chief Minister, the constitutional exception is that in certain matters he is not bound by the advice of the Chief Minister. He submitted that insofar as Section 11(8) of the University Act is concerned, the legislature whilst referring to Article 105 of the Constitution, is referring to the constitutional role and not the constitutional exceptions. 14. Mr. Makhdoom Ali Khan submitted that Section 11(8) of the University Act states that in the performance of his functions under the Act, the Chancellor shall act and be bound in the same manner as the Governor of a province acts and is bound under Article 105 of the Constitution. He submitted that Section 11-A is also a function performed by the Chancellor under the Act, therefore, Section 11-A will be subject to Section 11(8) of the University Act. He further submitted that Section 11-A, whereby revisional C.A.No.359 of 2013 9 power is vested with the Chancellor, is not judicial or quasi judicial in nature but to the contrary is executive supervisory power. He submitted that the only way Section 11-A could override Section 11(8) is if it is held that Section 11-A is a special power vested in the Chancellor while Section 11(8) is general in nature, therefore, the former would override the latter. 15. Mr. Makhdoom Ali Khan the learned Amicus further developed his argument by contending that there are two interpretations which may be given to Section 11(8) and 11-A of the University Act. According to literal interpretation rule, the revisional powers of the Chancellor under Section 11- A of the Act are nothing more than one of the functions that the Chancellor exercises under the Act and are therefore, subject to Section 11(8) of the Act. He further contended that the purposive interpretation on the other hand would be that the office of Chancellor was created to keep it away from the political expediencies of the day and consequently in these matters there would be no interference warranted from the Provincial Government and the Chancellor has to apply his own mind in the capacity of an independent statutory functionary. He, however, submitted that a purposive interpretation, rendering Section 11-A independent of 11(8) of the Act, should only be resorted to if holding otherwise would lead to an absurdity. He further submitted that if the latter course of interpretation is taken, then this Court will be making the assumption that the Governor will never act out of political expediency and the Government will always act out of political expediency. 16. The learned Amicus Mr. Makhdoom Ali Khan reiterated that the statutory function of the Chancellor under the Act was not circumscribed C.A.No.359 of 2013 10 earlier but post insertion of Section 11(8), it has been circumscribed and the new statutory dispensation provides that the Chancellor should act on the advice of the Chief Minister. He submitted that if the Chancellor is given a statutory function independent of his constitutional functions, then Article 105 would clearly not apply, but the legislature by introducing Section 11(8) of the Act has essentially legislatively overruled the Sardar Ali Case (ibid), therefore, the current legislative scheme mandates that Article 105 of the Constitution will be attracted to the exercise of the Chancellor statutory functions as well. 17. Mr. Makhdoom Ali Khan concluded his arguments by bringing to our attention that the Governor under the Constitution is a federal appointee and for constitutional purposes, he is the representative of the Federation. He submitted that if the purposive interpretation is resorted to by us and Section 11A of the University Act is construed independently of Section 11(8) every time the province gives the Governor a function to perform, which under the purposive interpretation he could examine independently, this could tantamount to permitting federal interference in provincial matters, consequently creating a situation where a federal nominee would be interposed between the Provincial Government and the University. This he contended would inevitably lead to a conflict between the Federal and Provincial Governments. He submitted that this point had been attended to in the Judgment of this Court in the case of Rana Aamer Raza Ashfaq vs. Dr. Minhaj Ahmad Khan (2012 SCMR 6). 18. Mr. Khawaja Haris Ahmed Sr.ASC Amicus Curiae submitted that the law laid down by this Court in the Rana Aamer Raza Case (ibid) C.A.No.359 of 2013 11 was the correct enunciation of law and that he endorsed the arguments of Mr. Makhdoom Ali Khan. He submitted that upon a reading of Article 105 of the Constitution, although the Governor is bound by the advice of the Chief Minister, there are certain exceptions as stated in Article 48(2) of the Constitution, which are essentially in exercise of the Governor’s discretionary powers. He submitted that what must be examined is whether there are discretionary functions exercised by the Chancellor under the University Act as well. He contended that under the Constitution, the Chancellor in exercise of some of his functions, by virtue of certain constitutional exceptions, is not bound by the advice of the Chief Minster with respect to those matters in which he has discretionary powers. He submitted that similarly the Chancellor, whilst exercising his powers / functions under the Act, would also not be bound by the advice of the Chief Minister in matters in which he has discretion. 19. Mr. Khawaja Haris Ahmed further submitted that Section 11-A of the Act vests revisional powers in the Chancellor, which powers he submitted were by their very nature discretionary, and that the discretionary powers of the Chancellor exercised under the University Act will not come within the mischief of Section 11(8) of the Act. He submitted that this Court ought to examine what provisions in the University Act qualify as discretionary powers of the Chancellor. These discretionary powers, he submitted, would not be hit by Section 11(8) as opposed to those functions of the Chancellor strictly performed under the Act. He submitted that exceptions to Article 105(1) are given in 105(5) read with Article 48(2) and if Section 11(8) of the Act is legislation by reference to Article 105 of the C.A.No.359 of 2013 12 Constitution, then the concept of a discretion based bifurcation of the powers of the Governor, being subject to the advice of the Chief Minister, would also have to be imported and read into Section 11(8) of the Act. 20. Mr. Muhammad Waqar Rana, learned Additional Attorney General submitted that prior to the insertion of Section 11(8) of the University, whereby Article 105 has been incorporated by reference, there was a possibility that the Governor and the Provincial Government would be considered two separate bodies and there would be a likelihood of conflict and therefore a need arose to incorporate 11(8) in the Act. He submitted that as Article 105 of the Constitution has been specifically mentioned in Section 11(8) of the Act, the same has to be followed in letter and spirit. He submitted that if there was an exception to the applicability of Article 105 of the Constitution in terms of the powers exercised by the Chancellor under the Act, it ought to have been expressly mentioned. Otherwise, if an interpretation is placed that in exercise of his revisional powers the Chancellor is acting on his own then this may defeat the provisions of Section 11(8). He further submitted that had this been the intent of the legislature that the Chancellor would be acting on his own without seeking the advice of the Chief Minister, then nothing stopped the legislature from expressly providing for the same. He submitted that the law laid down by this Court in the Rana Aamer Raza Case (ibid) is the correct enunciation of law and in all matters the Chancellor / Governor is bound by the advice of the Chief Minister. He placed reliance in support of his contentions on a judgment of this Court in the case of Pakistan Burmah Shell Ltd. vs. C.A.No.359 of 2013 13 Nasreen Irshad (1989 SCMR 1892), and on two judgments of the Indian jurisdiction reported as 2006 2 SCC 1 and 2010 SCC 331. 21. Mr. Razzak Ali Mirza learned Additional Advocate General Punjab submitted that it was the stance of the Provincial Government, as per his instructions, that the powers vested with the Chancellor under Section 11-A of the Act were discretionary in nature. He submitted that the advice of the Chief Minister would not be attracted when the Chancellor is called upon to judicially determine the rights of the employees of the University or when the Chancellor acts in a quasi judicial manner. 22. Mr. Nisar Durrani Advocate General Sindh endorsed the arguments of Mr. Makhdoom Ali Khan Amicus Curiae and submitted that the law laid down by this Court in the case of Rana Aamer Raza (ibid) is the correct enunciation of law. 23. Mr. Abdul Latif Yousafzai, learned Advocate General KPK submitted that when the Governor exercises powers under the Constitution he is bound by the advice of the Chief Minister, however, when the Chancellor whilst acting under the University Act exercises quasi-judicial and discretionary functions which are statutory in nature, he is not bound by the advice of the Chief Minister. In support of his submission he placed reliance upon a 5 member bench judgment of the Lahore High Court in the case of Aurangzeb Shaafi Burki vs. Province of Punjab (2011 PLC (C.S.) 735.. 24. Mr. Ayaz Swati, the learned Additional Advocate General Balochistan submitted that the legislation governing universities in C.A.No.359 of 2013 14 Balochistan did not have a provision in pari materia to that of Section 11(8) of the University Act. Although the Governor of the Province acts as Chancellor for Universities in Balochistan as well, yet there was no legislation by reference to Article 105 of the Constitution, hence the legislative framework to the extent of the province of Baluchistan was distinguishable from that of the other Provinces. 25. Mian Muhammad Rauf, AG Islamabad endorsed the arguments of Mr. Makhdoom Ali Khan, the learned Amicus Curiae. He drew our attention to an opinion of this Court in the case reported as Reference No.2 of 2005 by the President of Pakistan (PLD 2005 SC 873) to stress the point that there are certain functions which the Governor performs which are discretionary in nature thereby not requiring the advice of the Chief Minister. 26. Although Sardar Muhammad Aslam learned ASC for the Appellant had addressed this Court extensively on the lis at hand, however the AOR for the Appellant requested that he be allowed to make his submissions with respect to some factual matters including the procedural history of the case before the High Court, a request that we acceded to. He submitted that the Appellant in lieu of the advertisement for the post of Associate Professor at the University was the only candidate who applied and the selection board headed by the Vice Chancellor, including 3 foreign consultants, had recommended his appointment. He further contended that the Respondent had earlier filed a similar writ petition before the High Court (Respondent No.1 in this appeal) which had been unconditionally withdrawn. He submitted that this Court must examine the effect of there C.A.No.359 of 2013 15 being two High Court orders, one of dismissal on account of unconditional withdrawal and one of acceptance, regarding the same matter. 27. Mr. Abdul Rehman Siddiqui learned ASC for the Respondent No.1 submitted that he adopts the contentions of Mr. Makhdoom Ali Khan, the learned Amicus Curiae. With respect to the submissions of the AOR for the Appellant, he contended that the earlier writ petition had been filed prematurely by the Respondent (petitioner before the High Court) whilst his revision was pending before the Governor. He submitted that subsequent to the passing of the order by the Governor on the revision petition, the Respondent herein instituted a fresh writ petition before the High Court. Replying to the contentions of the AOR with respect to the merits of the Appointment of the Appellant, the learned ASC for the Respondent submitted that the Appellant was appointed by the Vice Chancellor of the University in anticipation of approval by the Syndicate. The Syndicate did not provide the required approval on account of the Appellant lacking the requisite degree, experience and documentation. Insofar as the broader question of law is concerned, learned ASC for the Respondent submitted that Article 105 of the Constitution was imported into Section 11(8) of the Act, therefore, no exceptions to Section 11-A can be read into the statute. 28. We have heard the learned Counsel for the parties, the learned Advocate Generals, as well as the learned Additional Attorney General for Pakistan and have perused the record with their assistance. The question requires to be answered in these proceedings is whether the Chancellor while exercising revisional powers under Section 11-A of the Act is bound to act and or seek advice of the Government/ Chief Minister in view of the C.A.No.359 of 2013 16 language of Section 11 (8) of the Act. Sections 11-A and 11 of the Act are reproduced as under: 11. Chancellor.-(1) The Governor of the Punjab shall be the Chancellor of the University. (2) The Chancellor or his nominee shall preside at the Convocation of the University and the meetings of the Senate. (3) If the Chancellor is satisfied that the proceedings of any Authority are not in accordance with the provisions of this Act, the Statutes, the Regulations, or the Rules, he may, after calling upon such Authority to show cause why such proceedings should not be annulled, by order in writing, annal the proceedings. (4) Every proposal to confer an honorary degree shall be subject to confirmation by the Chancellor. (5) The Chancellor shall have the power to assent to such Statutes as are required to be submitted to him by the Senate or withhold assent or refer them back to the Senate for re- consideration. (6) The Chancellor may remove any person from the membership of any Authority if such person:- (i) has become of unsound mind; or (ii) has been incapacitated to function as member of such Authority; or (iii) has proceeded outside Punjab for a period exceeding six months; or (iv) has ceased to hold the position, office or qualification which was pre-requisite for his election/appointment as member of such Authority; or (v) has been convicted by a court of law for an offence involving moral turpitude; (vi) has failed to attend three consecutive meetings of the authority; or (vii) has accepted any assignment which involves his absence from the University for a continuous period of six months or more. C.A.No.359 of 2013 17 (7) [ Repealed] (8) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. 11-A. Revisional powers of the Chancellor.- The Chancellor may, of his own motion or otherwise, call for and examine the record of any proceedings in which an order has been passed by any authority for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or order and may pass such orders as he may deem fit. 29. A bare reading of Section 11 of the Act prescribes functions of the Chancellor whereas Section 11-A confers revisional powers upon him. A three member Bench in the case of University of Punjab vs. Sardar Ali reported in (1992 SCMR 1093), while interpreting Section 11 (8) of the Act has held that Sub-Section 8 of Section 11 relates to the manner in which the Chancellor shall act in discharge of his duties and provides that he would be bound by the advice of the Chief Minister in the same manner as provided under Article 105 of the Constitution. However, it was concluded that powers conferred on the Chancellor under Section 11-A are independent of any restrictions contained in Section 11(8) of the Act which are relatable to his functions under the Act. Following the judgment in the case of Dr S.C Barat and another vs. Hari Vinayak Pataskar (AIR 1962 MP 73), this Court has further held that the powers and duties of the Chancellor conferred under the Act are not akin to the powers and duties of the office of the Governor. The judgment concluded that the appointments of the Respondents (employees) fall within the domain of the Chancellor notwithstanding the language of Sub-Section 8 of Section 11 of the Act. C.A.No.359 of 2013 18 30. The second judgment rendered by another three Member Bench of this Court in the case of Federation of Pakistan vs. Muhammad Tariq Pirzada (1999 SCMR 2189), in a way endorses the same view, interpreting the powers conferred on the President under Article 32 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order. It concluded that powers exercised by the President as Appellate Authority are quasi judicial in nature and that Article 48 of the Constitution does not debar the President from exercising appellate powers conferred on him under the aforesaid order independently. However, the view taken in the aforesaid two judgments was not endorsed by a four Member Bench of this Court in the case of Rana Aamer Raza Ashfaq vs. Dr. Minhaj Ahmad Khan (2012 SCMR 6), where this Court has held that the Chancellor under the Act was bound by the advice of the Government/Chief Minister while exercising revisional and or appellate powers. In fact the Bench in this judgment only interpreted Section 11 (8) of the Act which relates to the functions of the Chancellor and held that in discharge of his functions under the Act, he is bound by the advice of the Chief Minister/Government. In this judgment this Court has considered the case of Federation of Pakistan vs. Muhammad Tariq Pirzada (1999 SCMR 2189), but the learned Bench did not take note of the earlier judgment in the case of University of Punjab vs. Sardar Ali reported in (1992 SCMR 1093) and rendered conflicting judgment by holding that while exercising revisional powers, the Chancellor was bound to seek/act on the advice of the Government/Chief Minister. 31. In order to appreciate the contentions of the parties on the conflicting views recorded in the aforesaid judgments, it would be necessary C.A.No.359 of 2013 19 for us to examine the scheme of the Act. Generally speaking the statutes confer powers, functions and duties on different statutory authorities. These are distinct concepts of administrative law, which have been developed by the Courts over a long period and have different jurisprudential overtone and consequences. Even in the case of Federation of Pakistan vs Durrani Ceramics and others (2014 SCMR 1630), a distinction of the nature has been drawn. A bare perusal of Sections 11 (8), 11-A, 15, 24, 26, 28 and 29 of the Act would instantly indicate that the legislature has consciously used three distinct concepts in different provisions of the Act. While the restriction envisaged in Section 11 (8) is relatable to functions, Section 11-A refers to powers of the Chancellor. Thus the restrictions envisaged in Section 11 (8) would be applicable to cases where functions are discharged by the Chancellor, but would not extend in cases of exercise of powers conferred on him such as is the case under Section 11-A. Section 11 spells out the functions of the Chancellor. The term “Function” in its ordinary parlance means an act in which the Authority does not have the discretion whereas the term “Power” implies exercise of discretion by the Authority. 32. The term ‘Function’ as defined in Words and Phrases (Permanent Edition - 17A) is that the word “function” is derived from the Latin “functus’ which is the past participle of the verb ‘fungor’, which means to perform, execute, administer. The most usual signification of the term “function” is the fulfillment or discharge of a set duty or requirement; exercise of a faculty; that power of acting in a specific way which appertains to a thing by virtue of its special constitution. “Function” is that mode of action or operation which is proper to any organ, faculty, office, structure, C.A.No.359 of 2013 20 etc; and is the kind of action or activity, proper to a person or thing. “Function’ is not patentable, but function shows the explanation of the form, the result, the means of obtaining the result, and the operation and co- operation of the elements to produce the result. “Function” performed by an authority is inherent and goes by the office. 33. The term ‘Power’ as defined in Words and Phrases (Permanent Edition - 33) simply connotes the discretionary authority to perform. Unless otherwise defined by statute, a “Power” is “General” when it is exercisable in favor of any person that a donee may select and is “special”, “limited”, or “particular” when it is exercisable only in favor of persons or a class of persons designated or described in the instrument creating the power. “Power” is a lawful ability to accomplish a given purpose. “Power” conferred on an authority is derived or drawn from the law. 34. Now the next question would be whether the powers conferred under Section 11-A of the Act are administrative powers and/or quasi judicial powers to be exercised by the Chancellor. The word “Quasi” is defined ‘as if’, as though, as it were, in a manner, in a certain sense or degree, seeming, seemingly, analogous to and it may mean resemblance. The quasi judicial power is a duty conferred by words or by implication on an officer to look into facts and to act on them in the exercise of discretion, and it lies in the judgment and discretion of an officer other than a judicial officer. A “quasi judicial power” is one imposed on an officer or an authority involving the exercise of discretion, judicial in its nature, in connection with, and as incidental to, the administration of matters assigned or intrusted to such officer or authority. A “quasi judicial act” is usually not C.A.No.359 of 2013 21 one of a judicial tribunal, but of a public authority or officer, which is presumably the product or result of investigation, consideration, and human judgment, based on evidentiary facts of some sort in a matter within the discretionary power of such authority or officer. A quasi judicial power is not necessarily judicial, but one in the discharge of which there is an element of judgment and discretion; more specifically, a power conferred or imposed on an officer or an authority involving the exercise of discretion, and as incidental to the administration of matters assigned or entrusted to such officer or authority. 35. After examining the terms “Function”, “Power” and “Quasi Judicial Power” we revert back to Article 105 of the Constitution, which provides that the Governor under the Constitution, who is persona designata Chancellor of the University, has to act on the advice of the Chief Minister. Article 105 (1) provides that the Governor is bound to act on the advice of the Chief Minister. This Article starts with the prefix ‘subject to the Constitution’. In fact, under the scheme of the Constitution, there are provisions where the Governor is bound by the advice of the Chief Minister, but then there are exceptions where the Governor being the nominee of the President is not required to follow the advice of the Chief Minister or where the power has been conferred on the Governor to act independently or under the Constitution. 36. The argument of learned Sr.ASC, Mr. Makhdoom Ali Khan, that since Section 11(8) has been introduced by an amendment, restricted the powers of the Chancellor provided under Section 11-A to act on the advice of the Chief Minister in the manner provided under Article 105 of the C.A.No.359 of 2013 22 Constitution, therefore, Section 11(8) of the Act is applicable to Section 11- A and the powers exercised by the Chancellor can only be exercised by him on the advice of the Chief Minister. He further submits that the Revisional powers of the Chancellor in terms of Section 11-A of the Act are not quasi judicial in nature but are administrative in nature, therefore, the Chancellor has no discretion to decide a revision or appeal independently. We are not persuaded by these arguments for more than one reason. Section 11(8) was amended on 12.03.1975, by Act XVI of 1975. To start with the Revisional powers conferred under Section 11-A of the Act on the Governor (Chancellor) of the Province are not qua his position as the Governor of the Province but a statutory functionary namely, the Chancellor, who for the time being happens to be the Governor of the Province as well. Had this not been so, the Rules of Business of the Punjab Government would have also specifically adverted to this category of cases which are required to be decided by the Governor qua his position as Governor. It is similar to the cases where the Judges of the High Courts are appointed as Members of the Tribunals such as the Tribunal which hears appeals against the orders passed by Returning Officers prior to the general elections under the Representation of Peoples Act, 1976. 37. The next contention of the learned Amicus Curiae that powers conferred on the Chancellor under Section 11-A are not quasi judicial is also not persuasive. In the foregoing paras, we have discussed that the term “Quasi Judicial Power” refers to powers which cannot be delegated and are to be exercised by the Persona Designata mentioned in the statute. Such powers, functions or duties can neither be delegated to any other person or C.A.No.359 of 2013 23 authority nor can be exercised on the recommendation of any other authority or person. The powers, functions and duties provided under the scheme of the Act are to be performed or discharged by the person or authority designated by the statute and none other. Any other interpretation would lead to absurd results; for instance while the entire proceedings including the personal hearing shall be conducted by the person or authority specified in the statute (Chancellor), yet the decision, which may be contrary to his own findings, shall be taken by the Government (Chief Minister). This would be a completely sham exercise. We are neither prepared to do gross injustice to the plain language of the statute nor attribute such outcome to the legislative intent. The more logical interpretation which comports with the legislative intent is to look at the particular provision of the statute and determine the nature of powers, functions and duties conferred by the statute. If it is in the nature of quasi judicial power, then the Persona Designata is required to act personally and not on the basis of any advice by any other person or authority. 38. Where the Tribunal or an Authority is conferred with quasi judicial powers by the Statute, the duty to act fairly, justly by a proper application of mind to the facts of the case after providing opportunity of hearing to the person affected is far greater than compared to cases the powers conferred by the Statute is of purely administrative nature involving the multiple options to the authority and consideration of policy issues. 39. Mr. Makhdoom Ali Khan, learned Sr.ASC, was of the view that the Governor (Chancellor) while exercising revisional powers under Section 11-A or under any other provision of the Act has to seek the advice of the C.A.No.359 of 2013 24 Chief Minister. This view does not appeal to reason. If such interpretation is attached to the provisions of Section 11(8) and the powers conferring discretion under Section 11-A on the Chancellor are restricted in the manner that the Chancellor shall seek advice of the Government, after hearing the party and before deciding the Revision, this by itself would be violative of Article 10-A of the Constitution and against all the natural norms established in the legal parlance. We have noticed that the scheme of the Act has not been adverted to by the Honourable Bench while deciding the case of Rana Aamer Raza Ashfaq vs. Dr. Minhaj Ahmad Khan (2012 SCMR 6), instead it has concluded that functions in terms of Section 11(8) or otherwise provided by the Act were synonymous to the powers of the Chancellor conferred by the Act. 40. As we have also noticed that the earlier judgment in the case of University of Punjab vs. Sardar Ali (1992 SCMR 1093) has not been considered in the judgment of Rana Aamer Raza Ashfaq (supra), which was directly on point. In the judgment of University of Punjab (supra), it has been held that Section 11 (8) relates to the manner in which the Chancellor shall act in discharge of his duties. All that Sub-Section 8 of Section 11 provides is that the Chancellor (Governor) shall be bound by the advice of the Chief Minister in the manner as he is bound in the discharge of his functions under Article 105 of the Constitution. Mere reference to Article 105 of the Constitution in Section 11 (8) does not take away the revisional powers of the Chancellor conferred on him under Section 11-A of the Act. Section 11 (8) provides that “the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article C.A.No.359 of 2013 25 105 of the Constitution”. This clearly manifests that the restriction is relatable to the function of the Chancellor whereas Section 11-A empowers the Chancellor to exercise his discretion, when he hears revision and or appeal. In other words, the Chancellor, who is Persona Designata under the Act, is conferred power but in a different capacity which cannot be termed identical to that of the office of the Governor. Looking from another angle, the Punjab Government has introduced the Punjab University Employees (Efficiency & Discipline) Statutes, 1975 (hereinafter referred to as Statutes of 1975. The Statute of 1975 is made applicable to the Universities Employees except holders of such posts as specified by the Chancellor and regulates the terms and conditions of the Employees of the Universities of Punjab. This Statute confers powers of appointments, promotions and actions against Employees of the Universities. Sections 12,15,17 and other provisions confer powers on the Chancellor for hearing Revisions and Appeals preferred by the Employees against the orders of the competent authorities. If Section 11 (8) is interpreted in the manner as advanced by the learned ASC, it would mean that if an employee prefers a Revision or Appeal by invoking the provisions of the Act or Statutes of 1975, the Chancellor cannot pass an order unless he reverts back to the Chief Minister and or the Government for its advice. The case of University of Punjab vs. Sardar Ali referred to hereinabove has focused this issue while interpreting Section 11(8) of the Act and held that the Chancellor will apply his mind and decide the appeals or revisions independently and Section 11(8) will not come in his way. C.A.No.359 of 2013 26 41. Mr. Khawaja Haris learned Amicus Curiae in fact has argued that the powers of Chancellor cannot be restricted by Section 11(8) while he exercises the Revisional powers under Section 11-A of the Act. He has relied upon the language of Section 11(8) and said that even in the scheme of Constitution, the Governor has been given discretion to exercise some of the powers independently and has not been made to responsible to act on the advice of the Chief Minister of the Province on all the issues. He contended that in the like manner the Chancellor is not bound by the advice of the Chief Minister in the matters where the Chancellor has been conferred powers as discussed. 42. From the aforesaid discussion, we are clear in our minds that the principles enunciated in the judgments rendered by this Court in the cases of University of Punjab vs. Sardar Ali (1992 SCMR 1093) and Federation of Pakistan vs. Muhammad Tariq Pirzada (1999 SCMR 2189), are in consonance with the spirit of the provisions of the Act and the conflicting view in the case of Rana Aamer Raza Ashfaq vs. Dr. Minhaj Ahmad Khan (2012 SCMR 6) is not the good law. Section 11-A or the other provisions of the Statute of 1975 under which Chancellor exercises revisional or appellate powers, are independent and do not make it obligatory on him to seek and or act on the advice of the Chief Minister in terms of Section 11(8) of the Act. 43. We have also perused the additional note of one of the Honourable Judge of this Court in the case of Rana Aamer Raza Ashfaq, who while concurring with the findings of the bench has concluded that by the 18th Amendment, the concurrent list was abolished and the ‘subject of C.A.No.359 of 2013 27 Education’ went within the exclusive legislative domain of the Province. The Honourable Judge, while interpreting different provisions of the Constitution has held that after the 18th Amendment, if the power of the Governor (Chancellor) is not curtailed in terms of Section 11(8), it may lead to conflict of interest between the Federation and the Province. The Hon’ble Judge was persuaded to reach such a conclusion on the ground that under the scheme of the Constitution, the Governor is the nominee of the President and is also bound by the advice of the Chief Minister. According to the Hon’ble Judge that after abolition of the concurrent list, the President may ask the Governor (Chancellor) to act contrary to the advice of the Chief Minister on the subject of Education. We, with profound respects, differ with the view of the Honourable Judge. Under the scheme of the Constitution, the Governor has to perform certain functions provided therein. The Article 105 of the Constitution opens with the prefix “subject to Constitution” and specifies the functions of the Governor performed by him on the advice of the Chief Minister but the scheme of the Constitution also includes the President who may make such provision as he thinks fit for discharge of functions of the Governor “in any contingency not provided for in this part”. Therefore, the functions of Governor in terms of Article 105(1) would be distinct from the functions of the Governor, which he has to discharge in terms of Article 101(5) of the Constitution. Both these provisions of the Constitution are independent of each other and mutually exclusive. There are other provisions of the Constitution which confer powers on the Governor to exercise his discretion without seeking advice of the Chief Minister/ or act on the directives of the President. Since 1975 till date, the Provincial Governments have been legislating laws on Education and the Federation C.A.No.359 of 2013 28 has never intervened. This approach of the Hon’ble Judge perhaps is not in conformity with the scheme of the Constitution. We, for the aforesaid reasons, do not endorse the view of the Hon’ble Judge. 44. Before parting with the judgment, we acknowledge the able assistance extended by both the learned Amicus Curiae, Additional Attorney General for Pakistan and Advocate Generals of the Provinces and the Counsels representing the parties. 45. For the aforesaid reasons, this appeal is allowed and the judgment of the Lahore High Court allowing the Writ Petition of the Respondent is set aside. The matter is remanded to the High Court for hearing the Writ Petition on merits to be decided within three months from the date of communication of the orders. Chief Justice Judge Judge Judge Judge Announced in open Court on _____________________. (Approved for Reporting) Judge Sohail/** Civil Appeal No.359 of 2013 MIAN SAQIB NISAR, J:- I have had the benefit of going through the judgment rendered by my learned brother, Justice Amir Hani Muslim, however I beg to differ with the opinion expressed therein, and therefore take the liberty to present my dissenting view. 2. The key question involved in the matter is whether the Chancellor of the University of Punjab (University), is bound by the advice of the Chief Minister of Punjab in terms of Section 11(8) of the University of Punjab Act, 1973 (the Act), while exercising his (Chancellor’s) powers under Section 11-A of the Act. 3. The facts of the case and the arguments put forth by the learned counsel for the appellant, the learned amici curiae, learned law officers for the Federation and the respective Provinces, and the learned counsel for the respondents have been succinctly expressed in my brother’s opinion, and thus for the sake of brevity the same are not reproduced here. 4. Heard. In order to resolve the proposition at hand, the relevant provisions of law are reproduced below:- University of Punjab Act, 1973 “11. Chancellor.– (1) The Governor of the Punjab shall be the Chancellor of the University. (2) The Chancellor or his nominee shall preside at the convocation of the University and the meetings of the Senate. (3) If the Chancellor is satisfied that the proceedings of any Authority are not in accordance with the provisions of this Act, the Statutes, the Regulations, or the Rules, he may, after calling upon such Authority to show cause why such Civil Appeal No.359 of 2013 2 proceedings should not be annulled, by order in writing, annul the proceedings. (4) Every proposal to confer an honorary degree shall be subject to confirmation by the Chancellor. (5) The Chancellor shall have the power to assent to such Statutes as are required to be submitted to him by the Senate or withhold assent or refer them back to the Senate for re-consideration. (6) The Chancellor may remove any person from the membership of any Authority if such person:- (i) has become of unsound mind; or (ii) has been incapacitated to function as member of such Authority; or (iii) has proceeded outside Punjab for a period exceeding six months; or (iv) has ceased to hold the position, office or qualification which was pre-requisite for his election/appointment as member of such Authority; or (v) has been convicted by a court of law for an offence involving moral turpitude; (vi) has failed to attend three consecutive meetings of the authority; or (vii) has accepted any assignment which involves his absence from the University for a continuous period of six months or more. Provided that no order under this subsection shall be passed unless the person to be affected thereby is afforded an opportunity of being heard; (7) [Repealed] Civil Appeal No.359 of 2013 3 (8) In the performance of his functions under the Act the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution of the Islamic Republic of Pakistan. 11-A. Revisional powers of the Chancellor.– The Chancellor may, of his own motion or otherwise, call for and examine the record of any proceedings in which an order has been passed by any authority for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or order and may pass such orders as he may deem fit. Provided that no order under this section shall be passed unless the person to be affected thereby is afforded an opportunity of being heard.” * * * * * * * Constitution of the Islamic Republic of Pakistan, 1973 “105. Governor to act on advice, etc. (1) Subject to the Constitution, in the performance of his functions, the Governor shall act on and in accordance with the advice of the Cabinet, or the Chief Minister Provided that within fifteen days the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall, within ten days, act in accordance with the advice tendered after such reconsideration. (5) The provisions of clause (2) of Article 48 shall have effect in relation to a Governor as if reference therein to “President” were reference to “Governor”. Civil Appeal No.359 of 2013 4 48. President to act on advice, etc. (1) ……………………………………………………………… (2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever.” An analysis of the proposition at hand requires an examination of the role and functions of the Chancellor of the University. The Chancellor, as envisaged by Section 10 of the Act, is the highest ranking officer of the University, and exercises numerous functions and/or powers as prescribed by the Act (see, inter alia, Section 11(3) to 11(6) specially). His functions and powers include, inter alia, the power to nominate members of the Senate, Syndicate, etc., to remove any person from the membership of the Senate, Syndicate, Academic Council, etc., and to review orders of the Syndicate. Section 11(8) of the Act, in which reference has been made to Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution), binds the Chancellor, in the performance of his functions under the Act, by the advice of the Chief Minister, as the Governor of a Province is bound under Article 105 ibid. 5. This allows us to segue into a discussion about the interplay between the offices of Governor and Chancellor. The office of the Governor is a constitutional one and therefore his functions are constitutional. The office of the Chancellor is a statutory one created by the Act and therefore his functions are statutory. Hence, functions conferred upon the Governor, or more accurately the person who acts as the Governor, by any law other than the Constitution, would be in the nature of functions Civil Appeal No.359 of 2013 5 conferred upon a persona designata. The persona designata doctrine, is that non-judicial functions can be conferred on judges in their personal capacity. The Latin phrase means that a person is considered as an individual rather than as a member of a class. Originally the idea was that a judge, in his personal capacity, could be appointed to an office involving the performance of administrative or executive functions including functions which were quasi-judicial in their nature. In this case the Governor, a member of the executive, as persona designata, would be exercising administrative powers of a Chancellor, when deciding matters under the provisions of Section 11-A of the Act. The duties and powers of the Chancellor are not conferred upon the Governor, but upon the person who happens to occupy the office of Governor. The Chancellor does not perform his functions or act in exercise of powers available to him as Governor under the Constitution and is not bound by the advice of the Chief Minister as per Article 105 of the Constitution, rather since the appointment of the Chancellor is statutory, the functions and powers would be controlled by the statute, and the Chancellor would be bound by the advice of the Chief Minister as per Section 11(8) of the Act. This is manifest from a plain reading of Section 11(8) which draws a parallel with Article 105 by using the words “in the same manner as…” This fine distinction which may appear illusory is in fact very real and important and thus needs to be appreciated. This reasoning is bolstered by the fact that the statutory position of Chancellor under the Act could just as easily have been conferred upon anyone else, such as a Provincial Minister, a Provincial Secretary, or a retired Judge of the Supreme Court or a High Court, and the statute could have placed a limitation that he (Chancellor) would be bound by the advice of the Chief Minister. To this extent, the judgment reported as University of the Punjab, Lahore and 2 others Vs. Civil Appeal No.359 of 2013 6 Ch. Sardar Ali (1992 SCMR 1093) in which a judgment from across the border reported as Dr. S. C. Barat and another Vs. Hari Vinayak Pataskar and others (AIR 1962 Madhya Pradesh 73) was relied upon and cited with approval, is the correct enunciation of law. 6. Going further, under Article 105(1) of the Constitution, the Governor is to act on and in accordance with the advice of the Cabinet or the Chief Minister. According to Article 105(5) read with Article 48(2) of the Constitution, the Governor, in respect of matters in which he is empowered by the Constitution to exercise his discretion, is not bound by the advice of the Cabinet or the Chief Minister. At this juncture it may be pertinent to mention that the Constitution itself draws a distinction between those functions of the Governor in which he has no discretion and is bound by the advice of the Chief Minister, in other words the Governor’s constitutional duties and powers, and those functions in which the Governor is empowered to exercise his discretion and is therefore not bound by the advice of the Chief Minister. The articles of the Constitution which spell out discretionary powers of the Governor where he is not bound by the advice of the Chief Minister can be identified thus: either the article itself contains the word “discretion” or the exercise of discretion is spelt out from the wording/language of the article, or the structure of the function conferred upon the Governor in the article is such that it demands that the Governor exercise his discretion without the advice of the Chief Minister, or the particular article explicitly excludes the application of Article 105. The interpretation of the said article unfolds the constitutional rule that the Governor is bound by the advice of the Chief Minister and the constitutional exception is that the former is not bound by the advice of the latter in certain matters which have been placed solely within the former’s domain. When Article 105 of the Civil Appeal No.359 of 2013 7 Constitution is referred to in Section 11(8) ibid it embodies both, the constitutional rule and the constitutional exception. But for this purpose it is not the constitutional provisions which require exposition rather the Act simpliciter. 7. A bare reading of Section 11(8) of the Act clearly provides that the Chancellor would be bound by the advice of the Chief Minister in the performance of the former’s functions “under the Act”. This unequivocally stipulates the constitutional rule (embodied in the Act) and means that any functions undertaken or carried out by the Chancellor under the Act would be subject to the advice of the Chief Minister. What is now required to be ascertained is whether there are any exceptions to the said rule. All the learned counsel who argued the matter before us have not relied upon any other provision of the Act to indicate the same except Section 11-A. The submission of the counsel for the appellant is that this section confers a revisional power upon the Chancellor which is a quasi- judicial function therefore it should be interpreted to mean an independent power of the Chancellor. Mr. Makdoom Ali Khan, learned amicus, has argued that it is one of the functions of the Chancellor under the Act and that it is not his discretionary power so as to fall within the exception. Mr. Khawaja Haris Ahmed, the other learned amicus, has submitted that the very nature of the revisional power makes it a discretionary power of the Chancellor. In view of the above, the entire controversy revolves around the interpretation of Section 11-A. 8. Section 11-A does not provide that the revisional power so exercised by the Chancellor shall be in his “discretion”; it also does not provide a specific exclusion that whilst exercising the revisional power the Governor shall not be bound by the advice of the Chief Minister. Should the exercise of discretion be spelt out from the words of the section or Civil Appeal No.359 of 2013 8 discretion should be read into it? Does the structure, purpose and object of the function exercised by the Chancellor require that he not be bound by the advice of the Chief Minister? In this context, it is salutary to recall that the power of revision is a supervisory power, jurisdiction, or function of an authority, be it executive or judicial/quasi-judicial. In the exercise of executive supervisory power a superior executive officer/authority may, either suo moto or when approached by someone affected by any action/order of a subordinate authority, in appropriate proceedings available under the law (note: if revisional powers are provided under the law) correct the action or order. Correspondingly a superior judicial forum may exercise its supervisory power/function in aid of a person aggrieved by the order of a subordinate judicial forum. But these two revisional jurisdictions, one on the executive side and the other on the judicial side, occupy different spheres and the two do not overlap. The exercise of the revisional power on the executive side remains purely administrative in its own hierarchy, whilst the exercise of the judicial power retains its judicial character. Only for the reason that the power of the Chancellor as per Section 11-A has been described to be a revisional power does not make him a judicial/quasi-judicial authority. It may be pertinent to mention here that according to Section 11(3) ibid the Chancellor, if satisfied that the proceedings of any authority are not in accordance with the provisions of the Act etc. may, after calling upon such authority to show cause why such proceedings should not be annulled, annul such proceedings by order in writing. It is nobody’s case that this is a discretionary power of the Chancellor and that while exercising this power/function he is not bound by the advice of the Chief Minister. When we compare the revisional power envisaged by Section 11-A and the one referred to above [Section 11(3)], these are akin and both are administrative in nature. I beg to Civil Appeal No.359 of 2013 9 differ with the distinction drawn by my brother in his opinion between Section 11 which provides for “functions” and Section 11-A which provides a “power” and on the basis whereof my learned brother restricts the applicability of Section 11(8) to the former and does not extend it to the latter. With profound respect, I am not persuaded that the applicability or otherwise of Section 11(8) rests upon the distinction between “function” and “power”. The argument that while exercising his functions under Section 11 the Chancellor is bound by the advice of the Chief Minister but while exercising power under Section 11-A the Chancellor is not bound by such advice on account of an element of discretion involved in the exercise thereof, overlooks the fact that the word “power” has been used in Section 11(5) itself. How can the word “Chief Minister” be read instead of the word “Chancellor” for purposes of all provisions in Section 11, but not Section 11-A, especially when Section 11(5) also stipulates a power of the Governor? To my mind the bifurcation between “functions” and “powers” of the Chancellor is ephemeral and cannot be used to determine the applicability of Section 11(8). 9. I find myself unable to agree that Section 11-A is a quasi- judicial function and therefore it would be absurd that though the Chancellor has discretion, he would still be bound by the advice of the Chief Minister. In my considered view, the power of revision under Section 11-A is not of a quasi-judicial nature but an executive supervisory power, conferred upon the highest ranking officer in the University hierarchy, i.e. the Chancellor, in order to serve as a check and balance mechanism to ensure that the Senate, Syndicate, Academic Council, etc. pass orders in accordance with law and propriety. In this respect, the illustration quoted by Mr. Makhdoom Ali Khan has much force, in that Article 45 of the Constitution, whereby the President is empowered to grant pardon, is not Civil Appeal No.359 of 2013 10 a judicial/quasi-judicial function, rather it is the exercise of a prerogative conferred upon the Head of State by the Constitution, on the advice of the Government, to pardon a person or commute a sentence etc., and so ultimately it is an executive function. Likewise, on the statutory plane, the office of the Ombudsman is essentially an executive function, which (Ombudsman) serves as a statutory check on the Government to so as to curb instances of maladministration. In this regard the enunciation of law in the judgment reported as Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad Vs. Muhammad Tariq Pirzada and others (1999 SCMR 2189) to the extent that the President exercised quasi-judicial powers while deciding representations under the Ombudsman law, does not seem to be the correct exposition of law for the reason that the very functions of the Ombudsman are not of a judicial nature, since the Ombudsman simply holds a probe into maladministration by a Government agency and makes recommendations which is very different from the orders a judicial officer passes, and from those recommendation(s), a representation lies to the President. Further there is no power of enforcement of the Ombudsman’s recommendations, and neither is there any mechanism for enforcement of the President’s decision. I do not find that it would negate the spirit and purpose of the power of revision or lead to any manifest absurdity to make the Chancellor bound by the advice of the Chief Minister in respect of the exercise of power under Section 11-A. The argument that it would render the Governor’s power redundant is in fact quite contrary to our constitutional scheme and democratic structure, wherein the executive functions are primarily exercised by the Prime Minister or the Chief Minister as the case may be. The Governor is a representative of the Federation. On the touchstone of separation/trichotomy of powers it is Civil Appeal No.359 of 2013 11 incomprehensible as to how the Governor can be given the discretion to interfere in the executive functions of the Province. 10. Coming back to the reasons as to why I am of the view that Section 11(8) controls Section 11-A of the Act, Section 11(8) specifically provides for the exercise of certain functions by the Governor and refers to Article 105 of the Constitution which is to be followed in letter and spirit. The provisions of Act do not provide for any exception that allows the Governor to act otherwise than in accordance with the advice of the Chief Minister. If there was meant to be an exception to this general rule of being bound by the advice of the Chief Minister, then such an exception would/should have been expressly mentioned in the statute or else fall into one of the categories outlined above. The interpretation that whilst exercising his powers of revision under Section 11-A the Governor is to act on his own without the advice of the Chief Minster would defeat the mandate of the clear provisions of Section 11(8). Furthermore, Section 11- A was inserted by the University of the Punjab (Amendment) Ordinance, 1982, approximately nine years after the promulgation of the Act; had the Legislature so wanted, it could have framed the section ibid as a non- obstante clause, but this was not done, making it patently clear that the intention of the Legislature was to render Section 11-A subject to the already existing Section 11(8). 11. The argument that the office of the Chancellor was created to keep such matters away from political expediencies and considerations in order to forestall the Government of the day from interfering in the affairs of the University and further that the Chancellor has to apply his independent mind; suffice it to say that the very fact that the Governor is to act as the Chancellor as persona designata negates this argument, which (argument) assumes that the Chancellor, who is the Governor, will not Civil Appeal No.359 of 2013 12 be influenced by political considerations and conversely that the Government (Chief Minister) will act whilst keeping political concerns at the forefront. We cannot assume that making the Chancellor bound by the advice of the Chief Minister would necessarily lead to the powers under Section 11-A being exercised in favour of the University. The University is a statutory body and the Chancellor a statutory functionary. Section 11-A does not provide for a quasi-judicial function but an administrative or executive supervisory function, therefore even the principle of separation of powers is not violated. 12. Moreover, by interpreting Sections 11(8) and 11-A of the Act in such a way so as to empower the Chancellor with the sole discretion whilst exercising revisional powers would essentially result in the Federation interfering with Provincial autonomy as mentioned above. The Governor is for all constitutional intents and purposes, a Federal appointee and a representative of the Federation in the respective Province. Since the Eighteenth Amendment, education has become a Provincial subject, thus no interpretation can be placed upon the Act which does violence to the Constitutional scheme and the Federation cannot be allowed to interfere and impinge upon the autonomy of the Province, as has been highlighted by my learned brother, Justice Asif Saeed Khan Khosa, in his note in the judgment reported as Rana Aamer Raza Ashfaq Vs. Dr. Minhaj Ahmad Khan (2012 SCMR 6), which I believe is the correct exposition of law. 13. In light of the above, the crux of this opinion is that the Chancellor is bound by the advice of the Chief Minister in view of Section 11(8) of the Act, and that the said section governs the powers exercised by the Chancellor under Section 11-A of the Act. Therefore, while deciding the revision petition of the appellant under Section 11-A ibid, the Civil Appeal No.359 of 2013 13 Chancellor ought to have sought the advice of the Chief Minister on the matter and would have been bound by the same. The Chancellor whilst deciding the revision himself has not acted in accordance with law, thus the view taken by the learned High Court in this regard in the impugned judgment is correct and does not warrant interference by this Court, in the light whereof, this appeal is dismissed. JUDGE

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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 MANZOOR AHMAD MALIK CIVIL APPEAL NO.363-L OF 2015 (Against the judgment dated 13.9.2011 of the Lahore High Court, Lahore passed in RFA No.279/2009) Ch. Nazir Ahmed …Appellant(s) VERSUS Ali Ahmed and another …Respondent(s) For the Appellant(s): Mr. Muhammad Farooq Qureshi Chishti, ASC For the Respondent(s): Mr. Alamgir, ASC Mr. Mehmood-ul-Islam, AOR On Court’s call: Ms. Ayesha Hamid, Advocate Amicus Curiae (with the permission of the Court) Date of Hearing: 04.12.2015 … JUDGMENT MIAN SAQIB NISAR, J.- Vide order dated 27.11.2015 leave in the matter was granted to consider:- (i) whether a suit for dissolution and rendition of accounts of a partnership firm, which is not registered would be barred in terms of section 69 of the Partnership Act, 1932 and that the plaint should be rejected on that account under Order VII Rule 11 CPC and/or (ii) if the suit is not for dissolution of partnership or rendition of accounts of an unregistered firm whether such suit is barred by law and thus the plaint could be rejected. 2. This appeal arises from the following facts:- that the appellant filed a suit for declaration that respondent No.1 be bound to act as per the partnership deed, specific performance (of the partnership deed), rendition of Civil Appeal No.363-L/2015 -: 2 :- accounts, cancellation of document (Waqaf-ul-Aulad) and permanent injunction (hereinafter the “suit”) on the basis of an unregistered partnership deed dated 22.02.1986 executed by and between the appellant and the respondent no.1 (real brothers) for the purpose of establishing and running a school. Upon the refusal of the respondent no.1 to pay profits after 2006 and upon learning that the school property of the partnership had been transferred by the respondent no.1 to the respondent no.2 (his real son) through a Waqaf-ul-Aulad in 2004, the appellant was constrained to file the suit. Vide order dated 28.04.2009 the Civil Court at Lahore accepted the respondents’ application under Order VII, Rule 11 CPC and rejected the plaint on the basis that the suit is barred under section 69 of the Partnership Act, 1932 (the Act) as the noted firm is not registered with the concerned authority. This order has been upheld by the learned High Court through the impugned judgment dated 13.09.2011 when challenged by the appellant in RFA 279/2009. 3. The learned counsel for the appellant argued that the impugned judgments are against the law and facts. He submitted that the firm did not exist at the time of institution of the suit and therefore the appellant could sue for rendition of accounts under sub-section (3) of section 69 of the Act. He stated that the bar of section 69 ibid was not attracted. Whereas, the learned counsel for the respondents supported the impugned judgments. He argued that the bar of section 69 was absolute and the same was attracted to the suit. He submitted that the partnership deed was for a period of 30 years and this time period was set to expire in February 2016 at which time the plaintiff would be free to file a suit for accounts but that such a suit for accounts was barred till such time as the partnership was not dissolved. The appellant, rather than seeking dissolution had contrarily sought specific performance of the partnership. He relied on The Australasia Bank Ltd. Vs. Messrs A. Ismail Ji & Sons Civil Appeal No.363-L/2015 -: 3 :- and others (PLD 1952 Lah 314), Lakhani Textile International through Partner Vs. Messrs Southern Agencies (Pvt.) Ltd. (2008 CLC 444), Province of Sindh through Secretary, Public Work Department, Government of Sindh, Karachi and 6 others Vs. M/s Royal Contractors (1996 CLC 1205), Syed Nazir Hussain Vs. Ahtisham Muhammad Ali and 2 others (1989 MLD 88) and Abdul Rehman Vs. Parvez Ahmed Butt and 2 others (1983 CLC 1740). 4. The amicus curiae submitted that the bar contained in Section 69(1) and (2) of the Act is absolute and during the subsistence of the partnership (which is not dissolved), no suit of the nature mentioned therein can be filed, however from the language of sub-section (3)(a), three (3) exceptions have been drawn where the disability under this section will not operate i.e.:- (a) the enforcement of any right to sue for the dissolution of a firm; (b) for accounts of a dissolved firm; and (c) any right or power to realize the property of a dissolved firm. These exceptions are carved out to meet such types of exigencies where a partner of an unregistered firm files certain proceedings for enforcement of any right to sue for the dissolution of the firm or any proceedings to seek accounts or realize the property of a dissolved firm. She in the above context has relied on Usman vs. Haji Omer (PLD 1966 SC 328), Kantilal Jethalal Gandhi Vs. Ghanshyam Ratilal Vyas (AIR 1994 Guj 56), Mahan Traders Vs Civil Appeal No.363-L/2015 -: 4 :- 309 (Del)] and Prem Lata and another Vs. Ishar Dass Chaman Lal and others (AIR 1995 SC 714). Furthermore in order to highlight the true import, she has elucidated the scope and object of Section 69 ibid (which as pleaded by her shall reflect in the succeeding part of this opinion). However she submitted that as many as five (5) reliefs have been sought by the appellant in the suit and the Court(s) has to determine the nature of the suit, in pith and substance and if the bar of section 69 is attracted to one or more of such claim/relief the Court may apply the rule of severance and save the plaint from rejection to the extent of that relief qua which the bar is not attracted. This according to her can be done by implying the dissolution of the firm. 5. Heard. Section 69 of the Partnership Act is as under:- “69. Effect of non-registration: (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect- (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to release the property of a dissolved firm, or Civil Appeal No.363-L/2015 -: 5 :- (b) the powers of an official assignee, receiver or Court under the insolvency Federal Territory of Karachi Act, 1909], or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner. (4) This section shall not apply – (a) to firms or to partners in firms which have no place of business in Pakistan, or whose places of business in Pakistan are situated in areas to which, by notification under section 56, this Chapter does not apply, or (b) IX of 1887: to any suit or claim of set-off not exceeding one hundred rupees in value which, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.” [emphasis supplied] From the unambiguous language of the section the intent and purpose of the legislature is loud and clear, that is to make the adverse effects of non- registration so broad-based and comprehensive so as to make the provisions virtually compulsive. This seems to have been mandated with an unmistaken object to exert pressure which is to be brought to bear on the partners to have the firm and themselves registered. The section provides for the effect of non-registration of firms, in that sub-section (1) relates to suits by partners against firms or the partners and sub-section (2) relates to suits by firms against third person, as fatal, while sub-sections (3) and (4) lay down exceptions to the (lethal) effects of the non-registration of firms[1]. On account of the penal consequences provided by sub-sections (1) [1] Partnership Law by P. N. Chada Civil Appeal No.363-L/2015 -: 6 :- and (2) of Section 69 there cannot be two opinions that the registration of the firm, though has been left optional for the partners and that the facility of registration has been provided without compulsion (see Section 58 of the Act), for the purposes of suits falling within its purview the provisions of Section 69 are absolutely mandatory[2]. In this regard the outline of the provisions may be broadly captured as below: (i) A partner of an unregistered firm cannot sue the firm or any of its partners, past or present, for enforcing a right conferred by the Act or arising out of the contract of partnership. (ii) An unregistered firm cannot file a suit against any third person for enforcing a right arising out of a contract. (iii) The above two disabilities also apply to a claim of set off or any other proceeding to enforce a right arising out of contract. But they do not apply to – (a) the right to sue for dissolution or for accounts of a dissolved firm, or to realize the property of a dissolved firm; or (b) the power to realize the property of an insolvent partner. (iv) The section does not affect, – (a) firms located in areas to which the Act does not extend or which are exempt from the operation of the Act; (b) proceeding, etc. not exceeding Rs.100 in value. In other words sub-sections (1) and (2) of Section 69 place a complete bar on every proceeding initiated vide a suit by an unregistered firm and its partners. However, as expressly provided by sub-sections (3) and (4), the aforesaid rules causing disabilities are not applicable to, and registration of a firm is not necessary in, the following cases:- [2] Law of Partnership by Avtar Singh Civil Appeal No.363-L/2015 -: 7 :- (1) where the suit is for the dissolution of a firm; (2) where the suit is for rendition of accounts of a dissolved firm; (3) where the suit is for realization of the property of a dissolved firm. 6. In view of the above, it may be pointed out (reiterated) that though the Act places no prohibition upon an unregistered partnership making contracts either inter se the partners or with some third party, nor forbids an unregistered partnership acquiring property or assets, all Section 69 does is to make a suit instituted by an unregistered partnership to recover property or enforce rights, unenforceable and precluded. This undoubtedly is a penal provision, therefore on this account it must be construed strictly. In other words the registration of a firm is a condition precedent and sine qua non to the right to institute a suit by or on behalf of the firm or its partner(s) as the case may be and any suit instituted against the mandate of law shall be barred, with the obvious consequences of rejection of the plaint by the Court as per Order VII Rule 11(c), CPC which provides “where the suit appears from the statement in the plaint to be barred by any law”. The purpose of section 69 would appear to be that in the event of a dispute the aggrieved party should be able to easily identify the name and details of persons who would eventually be liable for discharging the obligations of the firm and enforcing their rights against the firm and its partners, because unlike a company, a partnership firm is not a distinct legal entity and its partners remain personally liable for all the liabilities and debts of the firm subject to their inter se contract and proportions under thereto. Sub-section (2) of Section 69 in particular seems to have been enacted in the interest of strangers dealing with the partners representing a firm to ensure the responsibility of the firm and the respective partner(s) and in this context and for that purpose the Civil Appeal No.363-L/2015 -: 8 :- registration of the firm has been made compulsory (note:- only for the legal proceedings) but it is further required that the persons suing on behalf of the firm should be shown in the “Register of the Firms” as partners in the firm. This section as mentioned above is mandatory in character and its effect is to render a suit by a plaintiff (the firm or partners) barred in respect of a right available to it/him under the contract(s) or the law. Our above view is fortified by the law already laid down in a judgment of this Court reported as Usman vs. Haji Omer (PLD 1966 SC 328), wherein it has been held:- “……….Non-registration of the firm under section 69 of the Partnership Act does not affect the validity of the partnership or prevent any of the partners from suing for the dissolution of the firm or for accounts or the realization of the property of a dissolved firm. This section only bars a suit for enforcing a right arising out of a contract against either the firm or any past or present member of it or against any third party.……….” We also find force in the judgment reported as The Australasia Bank Ltd. Vs. Messrs A. Ismail Ji & Sons and others (PLD 1952 Lah 314) holding: “……….It has been consistently held that subsection (2) of section 69 of the Partnership Act, is mandatory and makes a suit instituted by an unregistered firm entirely invalid and that subsequent registration of the firm is of no avail……….Courts are not makers but only interpreters of law and cannot water down the effect of a provision of a statute, because the interpretation based on well established principles is likely to work hardship in some cases falling within the plain meaning of that provision……….The language of subsection (2) of section 69 leaves no room for doubt that if a suit falling within subsection (2) of section 69 of the Partnership Act is instituted by a firm which is not registered at the time of the institution of the suit, the plaint Civil Appeal No.363-L/2015 -: 9 :- must be rejected and the subsequent registration of the firm cannot validate the proceedings which were invalid in their inception”. To the same effect are some other judgments from foreign jurisdictions cited by the learned amicus (note:- Section 69 of Indian Partnership Act is pari materia to our provision) and we feel inclined to quote a portion from Prem Lata vs. Ishar Das Chaman Lal (AIR 1995 SC 714) which reads as: “……………Sub-section (3)(a) carves out three exceptions to sub-sections (1) and (2) of section 69 and also to the main part of sub-section (3) of section 69, namely, (1) the enforcement of any right to sue for the dissolution of firm; (2) for accounts of the dissolved firm; and (3) any right or power to realise the property of the dissolved firm. Having excluded from the embargo created by the main part of sub-section (3) or sub-section (1) and (2) of S.69, the right to sue would not again to be construed to engulf the exceptions carved out by sub-section (3) or sub-section (4) of S.69 of the Act. Any construction otherwise would render the exceptions, legislature advisedly has carved out in sub- sections (3) and (4) of S.69, otiose. The object appears to be that the partnership having been dissolved or has come to a terminus, the rights of the parties are to be worked out in terms of the contract of the partnership entered by and between the partners and the rights engrafted therein. The exceptions carved out by sub-section (3) are to enforce those rights including the rights to dissolution of the partnership despite the fact that the partnership firm was an unregistered one……….” 7. Be that as it may, having laid down the law that section 69 ibid is mandatory and penal in nature, the bar to the suit(s) falling within the ambit thereof is absolute and unequivocal and that the three (3) exceptions are prescribed to such absolute rule (bar); we may mention that these Civil Appeal No.363-L/2015 -: 10 :- exceptions, are akin to a proviso to a provision, thus per the law meant for the purposes of interpretation thereof the exceptions should be strictly construed and applied. However, before examining whether the statement of plaint in the present case is hit by the said bar (section 69), or qualifies the test of exceptions, it must be prescribed that the partners of a firm, whether registered or not, stand in a fiduciary relationship to each other and Section 9 of the Act imposes a statutory duty upon them “to render true accounts”. Section 12(d) of the Act provides “every partner has a right to have access and to inspect and copy any of the books of the firm”. In terms of section 18 of the Act a partner is an agent of the firm. Further, in terms of section 46 of the Act, on dissolution of a firm every partner is entitled to have the firm’s property applied towards payment of debts and to have the surplus distributed. These noted provisions are sufficient to establish the rights which a partner(s) possesses and the duties which the other owes (vice versa) especially for seeking and rendering the accounts of the firm. It may also be mentioned that regardless of the above the relationship between partners is fiduciary in nature making them liable to provide accounts to each other, in the same manner as a bank is obliged to render true and faithful accounts to its customer for the amounts deposited by the latter with the bank, or for the financial facilities availed by the borrower (customer) and the amounts which are repaid by him for the discharge of his obligation towards the bank for the repayment of the debt/financial facility and/or seeking justification(s) for any questionable, unjustified or unauthorized claim or entry made/reflected in the statement of accounts and/or accounts/ledger books maintained by the bank/financial institution. 8. A suit for accounts shall thus be competent by the partner(s) against the other, however with the clear limitation and qualifier that the firm should have already been dissolved and if not so, be first sought to be dissolved, because an exclusive and simple suit for the rendition of Civil Appeal No.363-L/2015 -: 11 :- accounts while the partnership/firm is in existence shall not be competent in view of the absolute bar contained in section 69 ibid. As shall be explained in the succeeding part of this opinion, such suit (rendition of accounts simpliciter) on the principle of strict interpretation and application of the exceptions shall not fall within the stringent connotation of any one of the three exceptions mentioned above. 9. Be that as it may, before proceeding to examine if the instant case on the basis of its own facts falls within the exceptions, it seems relevant to mention here, that there are basically three means (mediums) as to how a firm (even unregistered) stands dissolved, first if it was constituted and meant for a specific purpose which is accordingly achieved/accomplished and that was so mentioned in the partnership instrument, or the purpose is frustrated, secondly if it was for a fixed period of time upon the expiry of such period and lastly if not covered by the above two aspects and eventualities it was a “partnership at will” (see Section 7 of the Act) and was so dissolved. 10. Attending now to the aspect as to whether the present case qualifies the strict test of the exceptions laid down above, we have examined the pith and substance of the appellant’s suit (whether it falls within the three exceptions highlighted above) and for this purpose, at the cost of repetition, are resorting to the exceptions contemplated by sub-section (3)(a) of Section 69 of the Act one by one. The interpretation of the first exception, “the enforcement of any right to sue for the dissolution of a firm”, seems quite simple in that where the firm has not been dissolved prior to the institution of the suit as per any of the three noted modes, the partner(s) may sue for the dissolution of the firm simpliciter and may not ask for any other relief such as the rendition of accounts, but it does not mean that the relief of rendition etc. as ancillary, incidental or consequential relief flowing on account of dissolution cannot be sought for. Therefore a composite suit in Civil Appeal No.363-L/2015 -: 12 :- this behalf can always be filed. But where the accounts are being sought for an existing firm which is not yet dissolved the suit shall be barred because of the clear expression of the statute i.e. “for accounts of a dissolved firm” which is preceded by the word OR meaning that the words “dissolved firm” can neither be held to be superfluous, redundant nor can be read down or watered down or ignored or expunged to stultify the effect thereof; rather the expression (dissolved firm) has to be given its due meaning, which obviously is that the firm for which the accounts are being sought must be one which is “dissolved”. Thus, the condition precedent for seeking the accounts of the firm is the dissolution of the firm itself prior to the institution of the suit. If however the firm was not dissolved, in such an eventuality a composite suit can be filed by any of the partner(s) to seek the dissolution of the firm and at the same time ask for the rendition of accounts. As regards the third exception seeking enforcement of “any right or power to release the property of a dissolved firm”, again in view of the clear language of the exemption the condition is the same i.e. the “dissolved firm”, postulating that the firm should have been dissolved as a prerequisite for the enforcement of the right of realizing the property etc. or a composite suit should be filed. It may be pertinent to state here that in case of a dispute between the parties as to whether a firm has been dissolved or not, where the dissolution is not being sought by the plaintiff rather the other reliefs falling within the exceptions are sought, the court shall primarily consider and determine this aspect of the matter (i.e. the dissolution of the firm) and depending upon the positive outcome in favour of the plaintiff shall consider and grant the second (or ancillary) relief(s) of rendition of accounts, or realization of property etc. as the case may be. It may be noted that in order to cross the bar of section 69 when it is set out as a defence by the other side the plaintiff can always seek amendment of the plaint and ask for dissolution at the appropriate stage of the proceeding; Civil Appeal No.363-L/2015 -: 13 :- but this has not been so done in the present case. It may be candidly specified that this second relief(s) in all the cases falling within exception is subservient and is circumscribed by the dissolution of the firm in the first instance and is not an independent and separate relief(s) by itself. In case the firm is not dissolved, such relief(s) being hermetically insulated thereto cannot be granted and the plaint is liable to be rejected as the suit shall be barred by law (section 69 ibid). 11. In the instant case when we look at the contents of the plaint, not only from the title of the suit but also from the averments made therein it is unmistakably clear that the appellant is seeking a declaration to the effect about the existence of the firm which means the firm is existent; for the specific enforcement of his rights under the partnership deed and performance of respondents duties on that basis, as also in relation to the business of the firm, again with the clear assertion that the firm is intact, and then for the rendition of accounts and the cancellation of the document vide which the respondents has created a Waqaf-ul-Aulad of the firm property(ies) to his son which the appellant claims to be violative of his rights under the deed and for permanent injunction. All those statements and the relief(s) are not in consonance with and do not fall strictly within the exceptions created by law. In this context it shall be quite relevant to reproduce the prayer clause of the plaint, which reads as below:- “1. It be declared that the defendants are bound to act upon the partnership deed dated 22-02-1986 executed between the plaintiff and the defendant No.1 in its true letter and spirit. 2. It be declared that defendant No.2 has got nothing to do with the suit property and defendant No.1 is bound to perform his part of the partnership deed supra and to act upon and perform his obligations towards the plaintiff. That the defendants be Civil Appeal No.363-L/2015 -: 14 :- ordered to pay the due profits to the plaintiff till the expiry of partnership deed and also to pay the net price of the construction building according to new construction this time, 30% of the goodwill of the school thereon the plot/land according to terms and conditions of partnership deed dated 22-02-1986. 3. That alleged document of waqaf Ali-ul-ulad dated 20-01-2004 executed by the defendant No.1 in the favour of defendant No.2 is liable to be cancelled qua the rights of the plaintiff and to pay the requisite profits qua the school by way of rendition of account. It also be declared that document waqaf-ul-ulad dated 20-01-2004 executed by the defendant No.1 in the favour of the defendant No.2 is totally based on malafides, ulterior motives just to grab the rights of the plaintiff qua the school concern and to avoid the partnership deed. 4. That defendants be ordered not to violate and to infringe the terms and conditions qua the rights of the plaintiff by any way. 5. That the defendants be restrained by way of permanent injunction not to alter, change the structure and status of the school by any way or to cause any sought of lien qua the school in question.” Obviously, on account of the nature of the suit, the statement(s) contained therein, and the prayer made or the reliefs claimed in the plaint, the plaint falls within the purview of the clear bar contemplated by Section 69(1) and (2) and as per the law declared in Usman vs. Haji Omer (PLD 1966 SC 328) and the law being expressed vide this opinion. Such bar being absolute, unequivocal and categorical, and as the case of the appellant does not fall within the strict exceptions of the law, explained above, which we have already held should be construed on the standards Civil Appeal No.363-L/2015 -: 15 :- meant and are akin to the rules of interpretation of a proviso attached to a provision (section); and it is settled law that such exception or proviso should be strictly construed and applied. Applying this principle to the case in hand from the clear wording of the exceptions (reproduced above) the case of the appellant does not fall within those. As regards the submission of the learned amicus that the rule of severance may be applied and that the partial rejection of plaint is not permissible, suffice it to say that though the pleas may be worthy of consideration and resolution in some other case but in view of the ratio of this opinion the same can be skipped. In light thereof, we do not find any force in this appeal which is liable to be dismissed. It may however be observed that we agree with the submission of the learned counsel for the respondents that the appellant may either file a fresh suit first seeking dissolution of the firm or wait for the dissolution thereof till February next year, which in any case shall give him a fresh cause of action and the bar of section 69 and for that matter the period of limitation shall obviously not come in his way. Before parting we may express our appreciation for the valuable and able assistance provided by the learned amicus. The appeal is dismissed. JUDGE JUDGE JUDGE Announced in open Court on 23.12.2015 at Lahore Approved For Reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE JAMAL KHAN MANDOKHAIL MRS. JUSTICE AYESHA A. MALIK CIVIL APPEALS NOS. 364-P,365-P/19, 368-P to 391-P, 393-P to 403-P, 405-P, 407-P/2019 & C.P.590-P/2019 AND CAs.409-P to 412-P/2019 AND CA.Nos. 04-P, 11-P,12-P,17-P,20-P,21-P/2020 (Against the judgments dated 17.06.2019, 26.7.2019, 18.11.2019, 10.2.2020 passed by the Peshawar High Court, Peshawar in R.F.A.267-P/2018, R.F.A.294-P/2017, R.F.A.167-P/2018, R.F.A.186-P/2017, R.F.A.18-P/2018, R.F.A.172-P/2018, R.F.A.173-P/2018, R.F.A.175-P/2018, R.F.A.176-P/2019, R.F.A.177-P/2018, R.F.A.178-P/2018, R.F.A.180-P/2018, R.F.A.20-P/2019, R.F.A.30-P/2019, R.F.A.31-P/2019, R.F.A.96-P/2019, R.F.A.168-P/2018, R.F.A.169-P/2018, R.F.A.170-P/2018, R.F.A.171-P/2018, R.F.A.179-P/2018, R.F.A.174-P/2018, R.F.A.93-P/2019, R.F.A.94-P/2019, R.F.A.95-P/2019, R.F.A.97-P/2019, R.F.A.180-P/2013, R.F.A.142-P/2017, R.F.A.249-P/2017, R.F.A.49-P/2019, R.F.A.59-P/2019, R.F.A.60-P/2019, R.F.A.61-P/2019, R.F.A.62-P/2019, R.F.A.72-P/2019, R.F.A.50-P/2019, R.F.A.131-P/2014, R.F.A.67-P/2014, R.F.A.72-P/2019, 12(2).P.24-P/2019 in R.F.A.36-P/2018, R.F.A.59-P/2019, R.F.A.71-P/2019, R.F.A.83-P/2019, R.F.A.63-P/2019, R.F.A.03-P/2018, R.F.A.98-P/2019, R.F.A.03-P/2018, RFA-92- P/2019, RFA-142-P/2013, RFA-143P/2013). 1. C.A.364-P/2019 Nawabzada Abdul Qadir Khan v. Land Acquisition Collector Mardan& others 2. C.A.365-P/2019 Mst. Parwar Sultana v. District Land Acquisition Collector/District Collector Mardan& others 3. C.A.368-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Shams ul Qamar & others 4. C.A.369-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Faqir Khan & others 5. C.A.370-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Mst. Parwar Sultana & others CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 2 6. C.A.371-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Saifullah Khan & others 7. C.A.372-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Muhammad Yousaf & others 8. C.A.373-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Abdul Ghani & others 9. C.A.374-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Bakht Zamin Shah & others 10. C.A.375-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Muhammad Maqsood & others 11. C.A.376-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Ghulam Muhammad & others 12. C.A.377-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Waqar Ali & others 13. C.A.378-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Syed Afzal & others 14. C.A.379-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. HazratWali& others 15. C.A.380-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Nasir Khan & others 16. C.A.381-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Hazrat Khan & others CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 3 17. C.A.382-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Ihsanullah& others 18. C.A.383-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Aminullah& others 19. C.A.384-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Zahir Shah & others 20. C.A.385-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Syed Amjid Ali & others 21. C.A.386-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Shah Hussain Afridi & others 22. C.A.387-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Ahmad Ali & others 23. C.A.388-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Hizbullah& others 24. C.A.389-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Mst. Nazuk Badan & others 25. C.A.390-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Muhammad Naeem Khan & others 26. C.A.391-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Sher Bakhta& others 27. C.A.393-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Mst. Haleema& others CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 4 28. C.A.394-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Faqir Khan & others 29. C.A.395-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Mst. Parwar Sultana & others 30. C.A.396-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Syed Masood ur Rehman & others 31. C.A.397-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Ali Akbar & others 32. C.A.398-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Naeem Shah & others 33. C.A.399-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Sher Zada & others 34. C.A.400-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Wali Khan & others 35. C.A.401-P/2019 Vice Chancellor Abdul Wali Khan University Mardan v. Hashim Khan & others 36. C.A.402-P/2019 Vice Chancellor Abdul Wali KhanUniversity, Mardan v. Ayub Khan & others 37. C.A.403-P/2019 Vice Chancellor Abdul Wali KhanUniversity, Mardan v. Ayub Khan & others 38. C.A.405-P/2019 Abdul Wali KhanUniversity, Mardan through Chairman v. Mst. Qadarmana& others CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 5 39. C.A.407-P/2019 Land Acquisition Collector/District Collector, Mardan (now) Deputy Commissioner, Mardan& others v. Hashim Khan & others 40. C.P.590-P/2019 Vice Chancellor Abdul Wali Khan University Mardan& another v. Mst. Haleema& others 41. C.A.409-P/2019 Provincial Govt through DOR, mardan (Now) Deputy Commissioner Mardan& others v. Ali Akbar & others 42. C.A.410-P/2019 Secretary to Govt of KP, Higher Education Archives & Libraries Peshawar& others v. Abdul Sattar & another 43. C.A.411-P/2019 Govt. of K.P. through CosllectorMardan (Now) Deputy Commissioner Mardan& others v. Redi Gul & others 44. C.A.412-P/2019 Land Acquisition Collector, Mardan (now) Deputy Commissioner, Mardan& others v. Nawabzada Abdul Qadar Khan & others 45. C.A.4-P/2020 Mst. Parwar Sultana v. District Land Acquisition Collector/District Collector, Mardan and others 46. C.A.11-P/2020 Vice Chancellor Abdul Wali KhanUniversity, Mardan v. Arshaf Khan and others 47. C.A.12-P/2020 Vice Chancellor Abdul Wali KhanUniversity, Mardan v. Mst. Parwar Sultana and others 48. C.A.17-P/2020 Vice Chancellor Abdul Wali KhanUniversity, Mardan v. Mst. Muhammadia and others 49. C.A.20-P/2020 Vice Chancellor Abdul Wali khan University, Mardan v. Mst. Sher Bakhta, Widow and others CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 6 50. C.A.21-P/2020 Vice Chancellor Abdul Wali Khan University, Mardan v. Hasham Khan and others …Appellant(s)/Petitioner(s)/Respondent(s) For the Appellant(s)/ Petitioner(s): Syed Haziq Ali Shah, ASC Mr. Tariq Aziz, AOR (In C.A.364-P/19 AND Res: in CA.412-P/19) Mr. Muhammad Ajmal Khan, AOR (In C.A.365-P/19, CA.04-P/20 AND Res: in CA.12-P/20) (Via V/L, Peshawar) Mr. Khalid Khan, AOR/ASC (In C.As.368-P to 391-P, 393-P to 403-P, 405-P/19, CAs.11-P, 12-P/20 & CP.590-P/19) (Via V/L, Peshawar) Mr. Zahid Yousaf Qureshi, Addl. AG, KPK Malik Akhtar Hussain, Addl. AG, KPK Qazi Ayaz, Litigation Officer (In C.As.407–P,409-P to 412-P/19) Mr. Ghulam Mohyuddin Malik, ASC (In C.As.17-P, 20-P,21-P/2020) - Via V/L, Peshawar For the Respondent(s): Mr. Abdul Ahad Khan, ASC (In C.As.371-P, 372-P/19, 375-P, 386-P, 390-P, 398-P, 411-P/2019 & CA.17-P/2020) – (Via V/L, Peshawar) Other Respondent(s): Nemo Date of Hearing: 05.09.2022. JUDGMENT IJAZ UL AHSAN, J-. Through instant Appeals, the Appellants have challenged a judgment of the Peshawar High Court, Peshawar dated 17.06.2019 (hereinafter referred to as the “Impugned Judgment”) whereby Regular First Appeals No.180-P/2013, 67 & 131-P/2014 and 142 & 249-P/2017 were allowed and the judgements and decrees of the Additional District Judge-VIII/Judge Referee Court Mardan CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 7 (the “Referee Court”) were modified to the extent that the quantum of compensation for all the land acquired under notification dated 16.09.2008 was set at Rs.125,000/- per marla. 2. The necessary facts giving rise to this lis are that the Government of Khyber Pukhtunkhwa (the “Government of KP”) through the District Officer (Revenue), Mardan issued a notification under Section 4 of the Land Acquisition Act, 1894 (the “LAA 1894”) on 16.09.2008. Through the said notification, the Government of KP preliminarily notified the acquisition of all land situated in Mauza Palatoo, Tehsil and District Mardan for the establishment of Abdul Wali Khan University, Mardan (the “Contesting University”). A corrigendum with regard to notification dated 16.09.2008 was issued on 25.10.2008 when the NWFP Agricultural University, Peshawar intimated their desire to establish a sub-campus in Mardan to the Government of KP. To that extent, the notification dated 16.09.2008 was modified to include both the establishment of Abdul Wali Khan University as well as the establishment of a sub-campus of the NWFP Agricultural University in Mardan. Afterwards, the District Officer (Revenue) Mardan, vide award under Section 11 of the LAA 1894 dated 20.07.2010, set the price for compensation at the rate of Rs.2800/- per marla along with 15% compulsory acquisition charges. Aggrieved of the said valuation of their land, several landowners filed references under Sections 18, 30 & 31 of the LAA 1894 before the Referee Court. The CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 8 Contesting University and other acquiring departments objected to the references and after pro and contra evidence was led, the Referee Court set the quantum of compensation at Rs.20,000/- per marla. The said valuation was challenged by both the land owners as well the Contesting University before the High Court which, vide judgement dated 01.12.2016, remanded all the reference petitions to the Referee Court for decision afresh. After the matter was remanded to the Referee Court, the Referee Court appointed local commissioners in each reference petition to conduct spot examinations and accordingly submit their reports. After the local commissioners submitted their respective reports, the Referee Court set the quantum of compensation at the rate of 45,000/-, 75,000/- & Rs.125,000/- per marla as compensation in the respective reference petitions along with 15-percent compulsory acquisition charges and 6-percent interest from the date of acquiring of possession till final payment. The judgements and decrees of the Referee Court in the various reference petitions were assailed before the High Court. The High Court, vide the impugned judgement, allowed the appeals of the landowners and dismissed the appeals filed by the Contesting University as well as the Government of KP. In allowing the appeals of the landowners, the High Court set the quantum of compensation at the rate of Rs.125,000/- across the board for all land acquired under notification dated 16.09.2008. The impugned judgment is now being assailed by the landowners, the Contesting University and the Government of KP before this Court. CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 9 3. At the very outset, the Learned ASCs for the land owners as well as the Agricultural University, Mardan and Bacha Khan Medical University, Mardan in their various Appeals before this Court have, on instructions, submitted hat the amount of compensation set by the High Court is reasonable and that they no longer have any grievances insofar as their relevant appeals are concerned. 4. The Learned counsel for the Contesting University on the other hand has argued that the impugned judgement is liable to be set aside on the ground that the acquired land at the time when it was acquired by the Government of KP for the Contesting University was barren and had no potentiality whatsoever. It was only after the land had been acquired for the University that the value of the land increased. He prays that the judgements of both the High Court as well as the Referee Court may be set aside, the reference petitions of the Respondents be dismissed and that the original award compensation of Rs.2,800/- per marla be restored. 5. The Additional Advocate Generals for KP have contended that the only grievance of the Government of KP insofar as the present appeals are concerned is the imposition of six-percent interest from the date of acquisition till the date of final payment. Further contend that in light of a judgement passed by the Federal Shariat Court declaring usury/riba forbidden and repugnant to the injunctions of Islam, interest was not payable. He therefore submits that the Referee Court CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 10 had no power to impose six-percent interest on the amount of compensation payable to the landowners when the same had been declared against the injunctions of Islam. They pray that the impugned judgement may be modified to the extent of removal of six-percent interest. 6. We have heard the learned counsels for the parties at length and gone through the case record. 7. Before we touch the merits of the arguments submitted in the instant Appeals, it is prudent to first go over all the relevant provisions of the LAA 1894 that are necessary for the purposes of these instant Appeals. Section 23 of the LAA 1894(as amended in the KP in 2018) lays down a criteria for how a Referee Court is to determine compensation. It is reproduced below for ease of reference:- “23 MATTERS TO BE CONSIDERED IN DETERMINING COMPENSATION. (1) In determining the amount of compensation to be awarded for land acquired under this Act the Court shall take into consider consideration: firstly, the market-value of the land at the date of taking possession of the land. EXPLANATION - For the purpose of determining the market value, the Court shall take into account transfer of land similarly situated and in similar use. The potential-value of the land to be acquired if put to a different use shall only be taken into consideration if it is proved that land similarly situated and previously CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 11 in similar use has, before the date of the notification under subsection (1) of section 4, been transferred with a view to being put to the use relied upon as affecting the potential value of the land to be acquired: Provided that – (i) if the market-value has been increased inconsequence of the land being put to a use which is unlawful or contrary to public policy that use shall be disregarded and the market-value shall be deemed to be the market-value of the land if it were put to ordinary use; and (ii) if the market-value of any building has been increased in consequence of the building being so overcrowded as to be dangerous to the health of the inmates such overcrowding shall be disregarded and the market-value shall be deemed to be the market-value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from overcrowding. secondly, the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land: fourthly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of the acquisition CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 12 injuriously affecting his other property, movable or immovable in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. (2) In addition to the market-value of the land as above provided, the Court shall award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty-five per centum on such market-value if the acquisition has been made for a Company.” A bare perusal of Section 23 shows that according to the LAA 1894, there are six matters that need to be taken into consideration by a Referee Court in determining compensation for land acquired under the LAA 1894.While the market value of the land acquired at the time of possession may be the first matter a Court must take into consideration, it is not the only matter. The Court is bound to consider when a determination has to be made under Section 23 of the LAA 1894. Instead, the other five considerations, from their very text, imply that whenever a Court is to CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 13 consider the quantum of compensation, it must be duly aware and cognisant of the loss being caused to the landowners due to the Federal or Provincial Government’s exercise of eminent domain under the LAA 1894.In essence, landowners are deprived of their constitutionally-guaranteed proprietary rights under Article 24 of the Constitution of Pakistan, 1973 whenever a government, be it Federal or Provincial, exercises eminent domain under the LAA 1894. It is therefore only fair and just that the persons who are affected by the exercise of eminent domain are at the centre of consideration when it comes to determining the quantum of compensation. 6. Coming to the merits of the arguments raised by the Contesting University, perusal of the record reveals that the Contesting University had been a party before both the Referee Court as well as the High Court. The Contesting University has been heard by all the Courts below. Both the courts below have held that the compensation award for Rs.2,800/- per marla was on the basis of a one-year average (Aust Yaksala) of the acquired land. The argument of the Contesting University that the initial rate of Rs.2,800/- was the correct valuation is unsustainable for the reason that basing compensation on a one-year average of the land acquired would go against the criteria laid down in Section 23 of the LAA 1894. The rate of Rs.2,800/-per marla in the present case was based solely on the one-year average of the acquired land. As noted above, the intention of the legislature CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 14 behind Section 23 is one where a Court, when determining compensation under the said Section, needs to be considerate and sympathetic to those who have been subjected to eminent domain by the government. Section 23 allows the Court to bring landowners, who have been subjected to eminent domain, back to their positions before the eminent domain was exercised. To base compensation on a one-year average of the acquired land would defeat the intent of the legislature behind Section 23.Even otherwise, in a judgement passed by this Court in Pakistan Brumah Shell Ltd. vs. Province of NWFP (1993 SCMR 1700), this Court held that:- “6. We are not persuaded to strike off the award on the rectitude of these submissions. Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is the date of the notification under section 4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and the price evidenced by the transaction of similar land at the time of notification are the factors to be kept in view. One year's average of the sales taking place before the publication of the notification under section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment. From the perusal of the record we find that there are two "Makhloot Ausat Punjsala" on the land acquisition file; one for village Bhabi for the period from 21-7-1985 to 21-7-1986 comprising 5 transactions yielding an CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 15 average sale price of Rs. 9,000 per Kanal only; and the other is for village Taru covering the period from 9-7-1984 to 9-7-1985, but only one transaction is mentioned in it; of which the sale price comes to Rs. 24,280 per Kanal. It is significant to point out that there is nothing on the land acquisition file to give any indication regarding the location, potentiality and other characteristics of the different pieces of land included in these "Aust Yaksala". Neither their distance from the land in question is ascertainable nor it is known as to whether or not these are possessed of similar advantages and capable of prospective use as the land acquired by the appellant. The "AksShajra" of the land of the appellant amply demonstrates that it is a well shaped, one rectangular compact block having a fairly wide frontage and on one side, it abuts on the railway line. The Land Acquisition Collector's observation in the award that this land is of highest value and situate near the National Highway, for the purposes of assessment of its market value is of paramount importance. We have glanced through the MEO's letter dated 1-11-1986 referred to in the award under which an area measuring 6.065 acres situate in village Taru-Bhabi was sold to Pakistan State Oil Company for a consideration of Rs. 48,00,000. It is pertinent to point out that all the Oil Companies were directed by the Provincial Government to shift their storage depots from Peshawar City and it was in this connection that the Pakistan State Oil Company purchased a piece land in village Taru-Bhabi. It seems to us that the locality being lucrative the appellant also chose to acquire land therein. In these circumstances, the reliance of the Land Acquisition Collector on the said sale transaction for determination of the market value of the land is not open to exception.” (Underlining is ours) CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 16 The Learned Counsel for the Contesting University could not point out any ground which could persuade us come to the conclusion that the High Court had committed an error in law or otherwise when it determined the rate of compensation at the rate of Rs.125,000/- per marla. No mis-reading or non- reading of evidence could also be pointed out by the Learned Counsel for the Contesting University. 7. Coming to the points raised by the Additional Advocate Generals for KP, we note that Section 34 of the LAA 1894 has never been repealed by the KP Provincial Assembly, and therefore have no qualms in arriving at the conclusion that the imposition of six-percent interest imposed by both the Courts had been done in accordance with law. To that extent, the Additional Advocate Generals, KP have not been able to point out any illegality in the imposition of the six- percent interest by both the Courts below. Section 34 of the LAA 1894 still holds the field and continues to do so. It is, however, important to clarify that unlike riba/interest that accrues out of a financial obligation between the parties, the word “interest” in Section 34 of the LAA 1894 is not interest stricto sensu. The interest awarded to landowners under Section 34 is compensatory in nature that allows the Court to compensate the landowners for the financial loss landowners would suffer from the date of acquisition till payment of compensation by the acquiring authority. Unlike a financial transaction, where parties are often assumed to be equal in CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 17 bargaining power and are deemed to be consenting to a transaction, an exercise of eminent domain cannot in any sense be construed as either a consenting transaction between the parties involved (i.e. the State and the landowners) nor can it be assumed by any stretch of imagination that the state and the landowners are equal in terms of bargaining power. Eminent domain is, after all, a unilateral power of the government and no consent from the affected landowners is required under the law before the state can exercise eminent domain under the LAA 1894. Even otherwise, as held by this Court in the case of Sheikh Muhammad Ilyas Ahmed vs. Pakistan thr. Secretary, Ministry of Defence (PLD 2016 SC 64), the benefit of Section 34 is statutory in nature and such benefit cannot be withheld from the landowners on the ground that interest has been declared against the injunctions of Islam. Whilst riba/usury may be predatory in nature, the interest under Section 34 of the LAA 1894 is beneficial in nature since it allows landowners to be compensated after the Federal or Provincial Government’s unilateral exercise of eminent domain and to cover the financial loss that the landowners would invariably suffer on account of loss of use of their land/property till the time they recover compensation for the same. 8. In light of what has been discussed above, we find that the judgement of the High Court is well-reasoned, takes note of all material aspects of the case and has elaborately noted all the reasons why it enhanced the quantum of CIVIL APPEALS NO.364-P, 368-P, 393-P, 405-P, 590-P, 409-P, 412-P OF 2019 A/W 4-P, 11-P, 12-P, 17-P, 20-P, 21-P OF 2020 18 compensation at the rate of Rs.125,000/- per marla for all the land acquired in Mauza Palatoo, Tehsil and District Mardan. No ground has been raised which could lead us to a conclusion different than the one taken by the High Court. No perversity or illegality could also be pointed out in the impugned judgment when the High Court set the rate of compensation at the rate of Rs.125000/- per marla for all the land acquired in Mauza Palatoo, Tehsil and District Mardan by virtue of notification dated 16.09.2008. The impugned judgement passed by the Peshawar High Court, Peshawar is accordingly upheld. All these matters are accordingly dismissed. Judge Judge Judge ISLAMABAD, THE 5th of September, 2022 Khalil Sahibzada 1926, LC*/- NOT APPROVED FOR REPORTING*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Amir Hani Muslim Civil Appeals Nos. 368 to 370 of 2011. (Against the judgment dated 28.10.2010 passed by the Lahore High Court, Lahore in WPs Nos. 10398/08, 17812/09 & 20670/2010 respectively). Pakistan Sports Board and another. … Appellants (In all cases) VERSUS Pakistan Volleyball Federation etc. … Respondents (CA 368/11) Athletics Federation of Pakistan & another. … Respondents (CA 369/11) Abdul Rashid Khan etc. … Respondents (CA 370/11) For the appellant (s): Mr. M. Munir Piracha, ASC in all cases. For the respondent (s): Mr. M. Akram Sheikh, Sr. ASC (for respdts.1-4 in CA 368/11) For the respondent (s): Mr. Ali Raza, ASC (for respdts.5 in CA 368/11, No. 1-2 in CA 369/11 & for No.2 in CA 370/11) For the respondent (s): N.R. (for respdts.3-4 in CA 370/11) For the respondent (s): Ex-parte (for respdts.1 & 5 in CA 370/11) Date of hearing: 8.5.2012 Judgment Jawwad S. Khawaja, J.- The appellants namely, Pakistan Sports Board (appellant No.1) and the Federation through the Secretary, Ministry of Culture, Sports and Youth Affairs (appellant No.2) impugn the judgment of the High Court dated 28.10.2010 whereby writ petition No. 20670/10 filed by respondents Nos.1 to 4, was allowed. 2. The said respondents Nos. 1 to 4 are respectively the Pakistan Volleyball Federation, the Pakistan Handball Federation, the Pakistan Cycling Federation and the Pakistan Gymnastic Federation. These are sports bodies created by private individuals for the promotion of the sports which are part of their respective names. In the High Court the respondents had agitated a grievance against certain portions of the Revised National Sports Policy which had been notified by the Federal Government vide SRO No. 1249 (1)/2005, dated 5.12.2005 (the Sports Policy). The Sports Policy was made pursuant to a decision taken by the Federal Cabinet. Paragraphs 5 and 6 of the writ petition filed by the respondents set out with clarity the grievance of the respondents. To understand the same, paragraphs Nos.5 and 6 ibid are reproduced as under:- CAs 368 to 370 of 2011 2 “5. That the subject matter of controversy in this case is the following provision made in para 10 (5) of this Policy, the relevant portion of which reads as follows:- ‘National Federations should be re-structured on the following lines within one year upto December, 2006 namely, 10 (5) Tenure restriction of Office Bearers. (a) One tenure of any member of Federation or Association will be of four years only. (b) President, Honorary Secretary and the Treasurer will be allowed a maximum of two tenures, in any office of the Federation or Association after which they will become ineligible for holding the same posts of that particular Federation or Association. However, they will be allowed to context for next higher Post/Association at any time. (c) Tenure restrictions will not be applicable on the office bearers of the Federations holding posts of President or Secretary of World/Asian Federation”. . . . . . . 6. That para 11 of this policy deals with the office bearers of the National and Federal Olympic Committee. This para also contains similar provisions in places (b) and (c) of para 11, which reads as follows:- (b) One tenure of any office bearer of these Committees will be of four years. (c) President, Secretary and Treasurer will be allowed two tenures only. They will become ineligible for any office after two tenures and must vacate their position for new incumbents. However, an individual will be allowed to contest for next higher Association at many times”. 3. It is clear from the above that the grievance of the respondents relates to restrictions which were sought to be imposed on the office bearers of various sports bodies affiliated with the PSB. The respondents Nos. 1 to 4 are sports bodies established on All-Pakistan basis, which claim affiliation with the Pakistan Sports Board. At this point, it is relevant to note that the Pakistan Sports Board (PSB) was constituted in exercise of powers conferred by Sections 3 and 4 of the Sports (Development and Control) Ordinance, 1962 (the Ordinance) vide Notification No. S.R.O.222(1)/81, dated 16.3.1981. Rules were also framed by virtue of the said notification for determining inter alia, the powers and functions of PSB. These rules are called the PSB Rules, 1981. The respondents Nos.1 to 4 were never compelled by PSB to become affiliated with PSB, but they chose to do so on their own. 4. Learned counsel for the appellants contended that the Ordinance empowered the Federal Government to establish the PSB and to make the PSB Rules. This has been done, as noted above. The PSB Rules as originally framed have been amended to allow the PSB inter alia, “to approve, amend and repeal constitution of National Sports Federations CAs 368 to 370 of 2011 3 and Associations”. According to learned counsel, the Sports Policy, including the provisions thereof reproduced above could be implemented by the PSB through exercise of powers vested in it under the PSB Rules as amended. The High Court, by means of the impugned judgment proceeded on the basis of considerations which, we say with respect, were neither germane nor relevant to the controversy raised by the respondents in their writ petition. It was observed by the High Court that the above referred provisions of the Sports Policy “might be the result of Chief Executive’s Order No. 19 of 2002 whereby the qualification to hold certain public offices was settled” and it was stipulated that “a person who has, at any time, held the office of the Prime Minister or that of a Chief Minister of a Province or a combination of such offices for two terms, . . . shall not be qualified to hold the office of the Prime Minister or that of a Chief Minister”. It is evident that these remarks are based on mere conjecture as there is no lawful basis for connecting the Sports Policy with the Chief Executive’s Order or for observing that the Order ‘might’ have been the cause of the Sports Policy. 5. The High Court then noted that the aforesaid provisions which were part of the Constitution had been removed therefrom through the 18th amendment. The inclusion or subsequent exclusion of these provisions from the Constitution have no relevance with the Sports Policy which was framed pursuant to a decision of the Federal Cabinet. The High Court also observed (without adverting to the Ordinance or the Constitutionally recognized functions of the Cabinet) that the provisions of the Sports Policy “are not recognized by any law of the land”. The learned Judge-in-Chambers in the High Court then remarked that the only power vested in the Federal Government was to constitute a Board and to specify its powers and functions under section 4 of the Ordinance. This is not correct as a statement of law because policy making constitutes an important element in the exercise of the executive authority of the government. The restrictive provisions of the Sports Policy which were impugned by the respondents were within the domain and competence of the Federal Government. It is an important function of the Government to frame policies. It is important to note as rightly emphasized by learned counsel representing the appellants that the PSB does not and cannot compel the respondents or any other national sports body to seek affiliation with CAs 368 to 370 of 2011 4 the PSB. If, however, a sports body does seek and obtain such affiliation, it would be obliged to abide by the rules of the PSB including rule 4 which authorizes the Board to require a sports body affiliated with it to incorporate the terms of the Sports Policy in its constitution. 6. In the foregoing circumstances, Article 17 of the Constitution has no application whatsoever. The right of the respondents or their members to join an association is nowhere under challenge and nor has it been infringed in any manner. The members of the respondents are free to enter into any association or union, and to adopt any constitution of their own choosing including one which allows for life tenures for office bearers. If, however, they seek and become affiliated with the PSB, it follows naturally that they will have to subordinate their constitution to the directives which may be issued by the PSB under the PSB Rules. The learned Judge-in-Chambers in the High Court, therefore, fell in error because he proceeded on the premise as if the PSB was interfering in the freedom of association guaranteed to the members of the respondents under Article 17 ibid. This premise quite clearly is not tenable because the PSB cannot regulate or control an association which does not seek affiliation with it. We are, therefore not in any doubt that the members of the respondent associations would have the right to form their associations without interference from the PSB but this can only happen if the respondents donot voluntarily, and on their own initiative, seek PSB affiliation. But if they want to be affiliated with the PSB and to reap the benefits which accrue with such affiliation, they cannot claim any exemptions from following the directives which may be given by the PSB in accordance with the PSB Rules. 7. Learned counsel for the respondents Nos. 1 to 4 premised his argument on a challenge to the vires and constitutionality of the Ordinance. This, however, is not a ground either taken or urged in the writ petition before the High Court. In fact, as noted above, the controversy is restricted to para 10 (5) and para 11 of the Sports Policy which have been reproduced above. In the entire writ petition, the validity of the Ordinance has been acknowledged. Furthermore, we fail to see how the respondents can challenge the Ordinance while at the same time claiming affiliation with the PSB which has been constituted in accordance with and under the Ordinance. We should also add that a CAs 368 to 370 of 2011 5 grievance that the right of a citizen granted by Article 17 has been infringed in circumstances such as the present raises multiple factual and legal issues. These had to be specifically pleaded in the writ petition. However, as noted above, this was not done and cannot be allowed at this stage in the absence of relevant averments in the writ petition. In any event, in view of our finding that the fundamental right guaranteed to the respondents has not been infringed, the deficiency in the pleadings or its correction at this stage has no relevance. 8. For completeness, we may add that learned counsel for the respondents referred to the cases tiled Ghulam Rasul v. Chief Administrator of Auqaf (PLD 1966 (W.P) Lahore 978), Abul A’la Maudoodi v. Govt.of West Pakistan (PLD 1964 SC 673), Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26) & I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041). We have gone through the cited precedents and observe that none of these have any application or relevance to the facts and circumstances of the case before us. 9. In view of the foregoing discussion, we agree with the submissions of learned counsel for the appellants that the learned Judge-in-Chambers in the High Court proceeded on erroneous grounds while allowing the writ petition filed by the respondents Nos. 1 to 4. In this view of the matter, the appeals are allowed. Consequently, the impugned judgment is set-aside and as a result, the writ petition, filed by the respondents, is dismissed. 10. Before parting with this judgment, we may note that the matter before us was confined to a controversy between the appellants on the one hand and respondents Nos. 1 to 4 on the other. Respondent No. 5 namely, the Pakistan Olympic Association was not affected by the impugned judgment and remains unaffected by our present decision. Judge Judge Islamabad. A. Rehman. 8th May, 2012 Approved for reporting.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Gulzar Ahmed, HCJ Mr. Justice Ijaz ul Ahsan Civil Appeal No.370 of 2020 (Against the judgment dated 3.3.2017, passed by the Punjab Service Tribunal, Lahore, in Appeal No.377 of 2014) Commissioner Faisalabad Division, Faisalabad and another ... Appellant (s) Versus Allah Bakhsh son of Mian Muhammad, Patwari Halqa, Chak No.490/JB, Tehsil Shorkot, District Jhang … Respondent (s) For the Appellant (s) : Ch. Faisal Fareed, Addl. Advocate General, Punjab Mr. Babar Hayat Tarar, Sr. Member, Board of Revenue Mr. Ishrat Ali, Commissioner, Faisalabad Mr. Faizan Ahmad, A.C., Shorkot For Respondent (s) : Mr. Shahid Azeem, ASC Mr. Ahmad Nawaz Ch., AOR with Respondent Date of Hearing : 01.07.2020 JUDGMENT GULZAR AHMED, CJ.- The Senior Member, Board of Revenue, Punjab (SMBR) has appeared before the Court and filed a Report showing that as many as four persons were involved in making the present matter time-barred (at petition stage). Out of those four persons, one has expired and against remaining three, disciplinary proceedings have already been initiated. The matter is at the stage of passing of the final order by the Competent Authority. Such Report of Civil Appeal No.370 of 2020 2 SMBR is kept on the record. As explained in the said Report and for the reasons assigned in the application for condonation of delay, the delay is condoned and in such terms, the application is disposed of. 2. On the merits of the case, the learned Additional Advocate General, Punjab has contended that the respondent had admitted the fact of signing the mutation of Government land in favour of one Iqbal. Despite such admission of the respondent, the Punjab Service Tribunal (the Tribunal) found such commission on the part of respondent to be not misconduct, and the penalty of dismissal from service, imposed upon him, was found to be not commensurate with the gravity of the offence. The penalty thus imposed on the respondent by departmental authorities was converted into forfeiture of two years’ approved service. 3. We note that such manner of dealing of the appeal filed by the respondent before the Tribunal is totally not in accordance with the law. Where the respondent himself has admitted the commission of the offence that he has transferred Government land measuring 270 Kanals, situated in Chak No.492/JB, District Jhang, causing loss of millions of rupees to the Government exchequer, such conduct of the respondent could not be considered as mere negligence, rather it constitutes misconduct and maximum penalty under the law has to be imposed upon him. 4. We also note that the Tribunal has for a considerable time been taking a lenient view of misconduct by government servants even where an employee of the Department has admitted the commission of an offence constituting serious misconduct or the offence has been proved through inquiry. Despite this, the Tribunal reduced the penalty imposed upon such an employee by the Authority/Department, Civil Appeal No.370 of 2020 3 considering the same to be harsh and not commensurate with the gravity of the offence, without assigning any legally sustainable reasoning by stating that the Tribunal enjoys “vast powers” under Section 5 of the Service Tribunals Act, 1973 to confirm, set aside, vary or modify orders passed by the departmental authorities. The question is how “vast” are the powers of the Tribunal and whether these powers are discretionary, at the whims of the Tribunal and totally unstructured and unlimited. 5. It is important to note that the Government properties and the Government funds are not to be doled out by the Government officials, either to private persons or to themselves, and such conduct amounts to fraud upon the Government and person(s) committing fraud or embezzlement of the Government property or money could, in no circumstances be treated leniently in disciplinary proceedings and in appropriate cases, be allowed to continue in the service. 6. The respondent was proceeded against departmentally by issuing of a Show Cause Notice and the Statement of Allegations against him. An inquiry was conducted and the requirements of natural justice were duly complied with. We note that the judgment of the Tribunal holding that the respondent had been given harsh punishment and the punishment was not commensurate with the gravity of the offence, is altogether misplaced; more particularly, when looked at from the point of view that the respondent has transferred/mutated Government land in favour of private parties, causing huge loss to the Government exchequer. 7. The submission of the learned counsel for the respondent that no loss has been caused to the Government because the land in question was later taken back by the Government is of non- Civil Appeal No.370 of 2020 4 consequence in the facts and circumstances of the present case, even if true. When the conduct of the respondent came to light, the Government machinery took steps to rectify such transfer of the Government land to the private persons. The mere fact that despite commission of the offence no loss was caused to the Government exchequer or the loss caused was recovered cannot be a mitigating factor in punishing a government servant whose misconduct stands established. If he gets off scot free or with a minor penalty what is there to prevent him from repeating the same offence and the next time loss may actually be caused and not recovered. This is the inherent flaw in the argument of the learned counsel for the respondent. 8. The contention of the learned counsel for the respondent is that even if he has committed some misconduct, the appellants were not justified in passing the order of dismissal against him, is misconceived and without substance. Once misconduct is established, it is the prerogative of the department to decide on the quantum of punishment, out of the various penalties provided in law. Unless the Tribunal finds exercise of such prerogative by the departmental authority to be perverse and totally disproportionate to the gravity of the offence/misconduct for which reasons have to be recorded penalty imposed by the departmental authorities cannot be interfered with. Such reasons must valid and meet the standards of logical and judicial reasoning. The powers of the Tribunal under Section 5 of the Punjab Service Tribunals Act, 1974 to confirm, set aside, vary or modify orders appealed against are neither discretionary nor unbridled. Such powers have to be exercised cautiously, carefully and with circumspection where the order imposing the penalty is wholly perverse or ex facie so demonstratably disproportionate and excessive Civil Appeal No.370 of 2020 5 for the offence/misconduct, that to let it stand would be unfair, unjust and inequitable. Further, where powers are exercised under Section 5 ibid, detailed reasons must be recorded justifying such exercise which would withstand the test of judicial scrutiny by this Court. The Tribunal has in this case reduced the penalty without much ado and no reasoning although the respondent was found guilty of misconduct by all fora in all departmental proceedings. 9. In this view of the matter, we have found the order of the Tribunal to be self contradictory in excess of jurisdiction and devoid of any reasoning let alone cogent and legally acceptable. The impugned judgment of the Tribunal can therefore not be sustained. The appeal is accordingly allowed and the impugned judgment is set aside. Consequently, the order passed against the respondent for his dismissal from service is restored. Copy of this order be supplied to the Chairman as well as the Members of the Federal Service Tribunal and all the Provincial Service Tribunals. Chief Justice Islamabad, the, 1st July, 2020 Mahtab H. Sheikh/* ‘APPROVED FOR REPORTING’ Judge

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Qazi Faez Isa Mr. Justice Sajjad Ali Shah Civil Appeal No. 383 of 2013. (Against the order dated 10.6.2011 passed by the Lahore High Court Rawalpindi Bench in WP 1436/2011) Muhammad Miskeen … Appellant(s) Versus District Judge Attock, etc. … Respondent (s) For the Appellant (s) : Mr. Mazhar Masood Khan, ASC Mr. Mehmood A. Sheikh, AOR For the Respondent-3 : Sh. Ahsan ud Din, ASC Ch. Akhtar Ali, AOR For the Respondent-4 : Sh. Azmat Ali Bukhari, ASC Date of Hearing : 26.11.2019 Judgment Sajjad Ali Shah, J. Briefly, the respondent Firdos Khan on 1st November, 1999 entered into an agreement to purchase six marlas of land situated in Kamilpur Syedan Tehsil and District Attock from one Abdul Rehman. The agreement neither provided the description of land by metes and bounds nor identified it through specifying Khasra numbers, khewat numbers etc. The agreement even did not mention the sale consideration agreed between the parties but only narrated that an advance of Rs.50000/- was paid to the said Abdul Rehman. It appears that this agreement could not be materialized and consequently the respondent Firdos Khan, on 28.2.2000, filed a suit seeking specific performance of the stated agreement but somehow the other he, on his own, described in the plaint Khewat No. 255, Khasra Nos. 853, 854 & 855. That on being summoned, Abdul Rehman filed his written statement wherein he has categorically stated that since CA 383 of 2013 2 Firdos Khan had failed to pay the balance sale consideration in terms of the agreement, therefore, he has sold his land and confiscated the advance in terms of the agreement. 2. Firdos Khan adduced evidence in support of his claim his witnesses were cross examined and it was suggested that the price was orally agreed at Rs.50,000/- per marla and Abdul Rehman repeatedly asked Firdos Khan to pay the balance sale consideration of Rs.250,000/- and get the sale deed executed in his favour but Firdos Khan avoided as he had no money. The defendant Abdul Rehman had no interest in the lis as he had already sold the land, therefore, he choose not to appear in the witness box and consequently the suit was decreed on 1.6.2001. It is very interesting that neither the agreement nor the plaint stated the total sale price but the Court on its own determined the total sale price as Rs.78,000/- i.e. Rs.13000/- Per Marla. 3. On the other hand, the record reflects that on 1.3.2000 the present appellant Muhammad Miskeen purchased six marlas of land bearing Khewat No. 198/326, Khasra Nos. 851 & 852 and Khewat No. 255, Khasra Nos. 854 & 855 situated in the revenue estate of Kamilpur Syedan Tehsil and District Attock through registered sale deed dated 1.3.2000 carrying mutation No.3200 from Mst. Razia Begum and Mst. Shabana who happened to be the real mother and sister of said Abdul Rehman. The possession of land was handed over to the present appellant Muhammad Miskeen who on 9.7.2001 got the construction plan sanctioned from Municipal Corporation Attock and excavated a well, raised boundary wall and installed gate thereon. 4. It appears that on 4.9.2001 respondent Firdos Khan, after depositing Rs.28000/- (the balance sale price in terms of decree) in government treasury, initiated execution proceedings, seeking execution of the conveyance deed. This was the first time appellant Muhammad Miskeen entered appearance in Court and on 8.10.2001 filed objections to the CA 383 of 2013 3 execution proceedings in which he categorically disclosed that the subject property was owned by Mst. Razia Sultana and Shabana Bibi from whom he has purchased on 1.3.2000 through a registered conveyance deed. The trial Court vide its order dated 12.4.2002 dismissed the objection on the ground that the suit was filed on 28th February, 2000 and the conveyance deed was executed in favour of objector on 1.3.2000, therefore, the transaction was hit by principle of lis pendens. 5. The appellant Muhammad Miskeen filed an appeal against the said order and the learned Additional District Judge Attock vide its order dated 11.7.2002 set-aside the said impugned order of Civil Judge by holding that principle of lis pendens is inapplicable and directed to decide the application after framing of issues and recording of evidence. The trial Court after recording evidence of both the sides again vide its order dated 18.10.2006 dismissed the objection petition. The appellant again filed an appeal and the learned Additional District Judge vide its order dated 30.1.2008 this time dismissed the appeal on the ground that the appropriate remedy for the appellant was to file an application under section 12(2) CPC. 6. Soon after dismissal of the appeal, the executing Court issued a writ of possession in respect of the subject property in favour of Firdos Khan and consequently the Bailiff, on 4th February, 2008, in presence of Abdul Rehman handed over the peaceful vacant possession of the subject plot to Firdos Khan. 7. The appellant Muhammad Miskeen, in consequence to the observations of the Additional District Judge, on 26.2.2008 moved an application under Section 12(2) CPC. The Court framed issues on 26.7.2008 and thereafter two witnesses were examined one from Building Department of TMA Attock who produced the plan which was got approved by Muhammad Miskeen appellant for the construction of his house on the subject property whereas the other witness Razia Begum stated that her earlier statement recorded on the application resisting the execution may be CA 383 of 2013 4 treated as her statement. It appears that thereafter on 27.1.2010 the respondent Firdos Khan moved an application seeking rejection of application under Section 12(2) CPC on the ground that it was barred by time and the Court after hearing the parties vide its order dated 25.2.2010 rejected the application by holding the application to be barred by time. The appellant thereafter filed a revision petition before the learned District Judge who vide its order dated 3.5.2011 dismissed the same by affirming the view of the Civil Judge. The appellant thereafter approached the Lahore High Court by invoking its writ jurisdiction and the High Court too, vide its impugned order, maintained the concurrent findings that the application under Section 12(2) CPC was barred by time. 8. Leave was granted by this Court on 9.10.2017 in terms of order dated 7.9.2011 to examine that since the appellant, who had purchased the subject property through registered sale deed, had been diligently pursuing his remedy and thus as to whether his application under Section 12(2) CPC could have been dismissed on the ground of limitation. We, while hearing this appeal, on 20.11.2019 added the following additional points in the leave granting order not only to put the counsel on notice of the points which during their submission had come to our attention but to solicit their assistance:- i) Whether the agreement of sale deed dated 11th April, 1999, which did not mention the particulars of the property and consideration, is compliant with section 29 of the Contract Act, 1872; ii) Whether the plaint complied with the provisions of Order VII Rule 3 of the Code of Civil Procedure; and iii) The consequences in respect of error or mistake committed by a court”. 9. Counsel for the appellant contended that since the sale agreement neither provided the description of the property nor the sale consideration, therefore, it was void and could not have been enforced CA 383 of 2013 5 through a suit for specific performance. It was next contended that the executing Court without determining the title/entitlement of Abdul Rehman to sell and without giving finding on the registered conveyance deed in favour of the appellant Muhammad Miskeen, could not have executed the decree by issuance of writ of possession as Abdul Rehman was not the owner of the property. It was further contended that the appellant has suffered on account of the mistake committed by the Court by enforcing a void agreement which needed to be corrected. It was lastly contended that the plaint did not specify the subject property by metes and bounds in terms of Order VII Rule 3 CPC, therefore, was in-executable in itself but the Court without there being anything on record dispossessed the appellant and handed over the possession of his property to respondent Firdos Khan. 10. On the other hand, counsel for responded Firdos Khan fairly and frankly conceded that the agreement of sale neither specifies khasra numbers or khewat numbers etc. nor describe the property by metes and bounds. He also admits that there was no sale consideration fixed but contends that since this dispute has already been adjudicated rightly or wrongly and this Court has only to consider as to whether the application under Section 12(2) CPC was rightly dismissed on account of being barred by time or not. However, he further states his no objection for condoning the delay in filing application under Section 12(2) CPC and submits that the trial Court may be directed to record the evidence on the appellant’s application under section 12(2) CPC and then to pass appropriate orders in accordance with law. 11. We have heard the arguments of learned counsel for the respective parties and have minutely perused the record. 12. Section 22 of the Specific Relief Act clearly lays down that the jurisdiction to decree a suit for specific performance is purely discretionary and the Court is not bound to grant such relief merely because its lawful to do so and further that such discretion of the Court is not arbitrary but is CA 383 of 2013 6 based on sound and reasonable judicial principles. In our opinion the Courts below have totally ignored the law on the subject while decreeing the suit on the basis of an agreement which neither specified the property under sale by metes and bounds nor provided for the sale consideration. The agreement merely states that a sum of Rs.50,000/- was paid in advance towards an unspecified sale price in respect of six marlas of land situated in Kamilpur Syedan Tehsil and District Attock without specifying Khasra numbers, khewat numbers etc. The plaint filed by the respondent Firdos Khan though has prescribed the khasra numbers (without any supporting documentary evidence showing the ownership of the seller in respect of land claimed) but is totally silent regarding the agreed sale consideration. The trial Court without framing any issue to find out the veracity of the plaintiff’s claim regarding the claimed land or the title of the seller believed the statement of plaintiff/respondent No.1 and decreed the suit. The other failure on the part of the trial Court was to fix the total sale price of the plot on its own ignoring the fact that neither the agreement nor the plaint prescribed the sale price. The trial Court allowed the plaintiff/respondent Firdos Khan to build a case which was even not pleaded in the plaint. The Court even did not feel it necessary to frame an issue to find out the sale price and placed reliance on totally extraneous documents. In these circumstances, the trial Court ought to have given convincing reasons for decreeing the suit by allowing specific performance and for ignoring all the deficiencies in the agreement as well as in the plaint specially when the relief was discretionary. 13. The other important fact which was not taken care by the trial Court or the respondent Firdos Khan was that Abdul Rehman in his written statement had clearly mentioned that he had sold the subject property despite no efforts were made to implead the purchaser before decreeing the suit. CA 383 of 2013 7 14. The matter does not end here. It appears that when the respondent Firdos Khan filed execution application on 4.9.2001, the appellant Muhammad Miskeen filed objections which in the first round were dismissed on the ground of lis pendens and on remand by the appellate Court to decide the objection after framing issues. It appear that the Court thereafter framed issues and allowed the parties to lead evidence and even one of the issues was:- “Whether decree has not passed by fraud and collusion” 15. Thereafter the objection petition was dismissed and in appeal the appellate Court without looking into this aspect that the trial Court has already allowed the parties to adduce evidence and giving his finding on this particular issue, rejected the appeal by making an observation that the proper remedy was to file an application under section 12(2) ignoring the fact that the trial as well as the executing Court were one and the same. The appellant Muhammad Miskeen, thereafter filed another application under Section 12(2) CPC which till the High Court was dismissed being barred by time. Though Mr. Sheikh has conceded that the delay in filing of application under section 12(2) could be condoned and the matter may be remanded to the trial Court so that the parties could adduce evidence. However, we have found that such plea of fraud and misrepresentation was taken in the first application on which an issue was framed regarding fraud and misrepresentation and thereafter parties were allowed to lead evidence. Therefore, it would be totally unfair to again throw the parties at the mercy of litigation for another 20 years as the present round of litigation has almost consumed two decades. 16. We have also found from the record that on first objection petition, not only a challenge to decree on the ground of fraud was thrown but as observed a specific issue, to this effect, was framed. Appellant Muhammad Miskeen had appeared in the witness box, he was cross- examined by the counsel for respondent Firdos Khan and thereafter CA 383 of 2013 8 respondent Firdos Khan appeared, adduced his evidence and was cross- examined by counsel of appellant Muhammad Miskeen. Firdos Khan further produced Shabana Begum, Razia Begum and one Muhammad Safdar Qureshi as his witnesses and were duly cross examined and interestingly the trial as well as the executing Court were the same. 17. We note with great concern that though both applications filed by the appellant first before the executing Court objecting the execution of decree against his property and second before the trial Court under section 12(2) CPC challenging the decree by pleading fraud, misrepresentation and lack of jurisdiction, were competently filed and were wrongly dismissed. The first application was competent for the reason that the appellant had placed title documents before the executing Court in respect of Khewat No.198 (326), Khasra Nos. 851 and 852 which did not form part of the decree and, therefore, could have been validly objected to under Order XXI Rule 58 or under other provisions of Code of Civil Procedure whereas the second application under Section 12(2) was also competent as the respondent Miskeen had obtained a decree in respect of Khewat No.255, Khasra Nos. 854, 855 for which the appellant was holding registered conveyance deed and unless such conveyance deed would have been cancelled, no fresh decree regarding ownership of the said property could not have been passed. We have noticed that the sole defendant namely, Abdul Rehman in his written statement has disclosed the sale of the said property and it has come in evidence subsequently in execution proceedings that the parties were known to each other or there was a jirga, (the veracity whereas we cannot vouch) reflects that the respondent Firdos Khan was aware of the sale, therefore, he ought to have joined the appellant in the proceedings. 18. Though it is a fit case where this Court could go beyond what was appealed in order to do a complete justice between the parties, however, while exercising restraint, we would set-aside all orders passed on appellant’s application under Section 12(2) CPC as we have noticed that the CA 383 of 2013 9 Courts below have not followed the rules or procedures provided in the Code of Civil Procedure by accepting stances and documents which did not form part of the pleadings and have conducted the proceedings as there are no rules which regulate the proceedings before the trial Court while exercising the civil original jurisdiction. The objection to the decree as well as to the execution proceedings would be deemed to be pending before both the Courts and the already recorded evidence as we have noticed in para 16 above would be valid for the purposes of both the proceedings as we have found commonality in both the proceedings. None of the orders on record would come in the way of trial as well as executing Court to adjudge the dispute but strictly on the basis of pleadings. However, the parties would be at liberty to adduce any fresh evidence in support of their pleadings and the trial Court should ensure that the application under Section 12(2) CPC is decided within 60 days and in case the judgment and decree could not be sustained then restitution of property in terms of Section 144 should also be considered. In case any of the Court is fell vacant, the District Judge would ensure that the matter is transferred to the next nearest Court having the jurisdiction to try the matter. 19. The appeal is allowed in the above terms leaving the parties to bear their own costs. Judge Islamabad, the Announced on 15.01.2020. A. Rehman Judge Approved for Reporting.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE KHILJI ARIF HUSSAIN CIVIL APPEAL NO.384 OF 2014 (On appeal from order dated 7.2.2014, passed by the Election Tribunal, Quetta-1, in E.P.No.01/2013) Muhammad Khan … Appellant (s) Versus Obaidullah Jan Babat and others … Respondent (s) For the Appellant (s) : Mr. Muhammad Akram Sheikh, Sr. ASC a/w Barrister Sajeel Sheryar, Advocate Ch. Hasan Murtaza Mann, Advocate Miss Sundas Hurain, Advocate For the Respondent (s) : Mr. Tariq Mehmood, Sr. ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing : 20 and 26.01.2016 JUDGMENT SH. AZMAT SAEED, J.- This Civil Appeal under Section 67(3) of the Representation of People Act, 1976 (ROPA) is directed against the Order dated 07.02.2014, whereby an Election Petition bearing No.1 of 2013, filed by the present Appellant, was dismissed. CA.384/2014. 2 2. Brief facts necessary for adjudication of the lis at hand are that the General Elections were scheduled for the 11th of May, 2013, including for the Provisional Assembly of the Province of Balochistan. The Appellant and the present Respondents filed their respective Nomination Papers to contest the Elections from Constituency PB-16 Loralai-II. It appears from the record that the Appellant filed two separate Nomination Papers to contest the said Elections, however, both were rejected by the Returning Officer vide Order dated 07.04.2013, holding the Appellant disqualified to contest the said Elections. Aggrieved, the Appellant filed two Appeals i.e. Election Appeals No.21 and 25 of 2013 before the learned Election Tribunal, which failed to find favour and were dismissed vide Order dated 17.04.2013. The said Order dated 17.04.2013, was challenged through Constitutional Petitions No.286 and 287 of 2013 before the learned High Court of Balochistan, which too were dismissed vide Order dated 19.04.2013. 3. The Appellant challenged the above-said Order dated 19.04.2013 of the learned High Court of Balochistan by invoking the appellate jurisdiction of this Court through two CA.384/2014. 3 separate Civil Petitions for Leave to Appeal No.520 and 521 of 2013. 4. The aforesaid two Civil Petitions for Leave to Appeal came up for hearing before this Court on 25.04.2013 when CPLA No.521 of 2013 was not pressed and was disposed of; and leave to appeal was granted in CPLA No.520 of 2013. The said CPLA No.520 was accompanied by a Civil Misc. Application bearing No.2348 of 2013, seeking interim relief thereupon, the following Order was passed: “Notice for a date during next month. Meanwhile operation of the impugned judgment shall remain suspended.” 5. In the above backdrop, the Appellant was permitted to contest the elections along with the Respondents and after the poll Respondent No.1 was declared and notified as a Returned Candidate while the Appellant was runner up. 6. The Civil Appeal No.444 of 2013 arising out of Civil Petition for Leave to Appeal No.520 of 2013 wherein leave to appeal has been granted vide Order dated 25.04.2013 referred to above, came up for hearing before this Court on 06.11.2013. 7. In the meanwhile, the Appellant had already challenged the elections of Respondent No.1 through an CA.384/2014. 4 Election Petition under Section 52 of the ROPA, which was pending adjudication before the learned Election Tribunal. On 20.12.2013, Respondent No.1 filed an application seeking dismissal of the Election Petition filed by the Appellant, inter alia, contending that the said Election Petition was not maintainable as the Appellant had no locus standi to maintain such Election Petition as he (the Appellant) was not a “validly nominated candidate” for the purposes of Section 52 of ROPA. The said contentions found favour with the learned Election Tribunal and the Election Petition filed by the Appellant was dismissed vide Order impugned dated 07.02.2014. 8. It is contended by Mr. Muhammad Akram Shaikh, learned Sr. ASC that the Appellant was not disqualified from contesting the elections as no Court of competent jurisdiction had returned a finding against the Appellant, in this behalf, hence his Nomination Papers could not have been legally rejected. In the above backdrop, after the illegal rejection of the two Nomination Papers filed by the Appellant, the matter was agitated right up to this Court by filing Civil Petitions for Leave to Appeal No.520 and 521 of 2013. The Appellant, it is contended, had filed one Nomination Paper to contest the CA.384/2014. 5 Elections as an Independent Candidate while the other Nomination Paper had been filed as a Candidate of a Political Party. Since the Appellant decided to contest the Elections on the ticket of a Political Party, the Civil Petition for Leave to Appeal arising from the Order rejecting the said Nomination Paper was not pressed. However, leave was granted in the Civil Petition pertaining to the matter of rejection of the Nomination Paper of the Appellant filed as a Candidate of a Political Party. Interim relief was granted by this Court to the Appellant to contest the Elections. The afore-said is evident from the Order of this Court dated 25.04.2013. Pursuant to the said Order, the Appellant contested the Elections. After the Elections had been held the Appellant withdrew the pending proceedings before this Court without prejudice to his rights as is apparent from the Order dated 06.11.2013, hence, by operation of law, the Appellant was clothed with the locus standi to file an Election Petition under Section 52 of ROPA, 1976 and such Election Petition could not be summarily rejected by the learned Election Tribunal vide Order impugned, which is, therefore, not sustainable in law. CA.384/2014. 6 9. In the alternative, it is further contended by the learned counsel for the Appellant that in Section 2 of ROPA, 1976, the various terms employed in the said Statute have been defined. Such words and expressions defined in the said provision include “candidate”, “validly nominated candidate”, “contesting candidate” and “returned candidate”. Such expressions have been defined in the Statutes in contradistinction to each other. In Section 52 of ROPA, 1976, a “candidate” can file an Election Petition, and the expression “candidate” has been defined in Section 2 sub section (iv) as “means a person proposed as a candidate for, or seeking election as a member”. The learned counsel also referred to Section 2 sub section (xxvi) of ROPA, 1976, wherein “validly nominated candidate” has been defined to “mean a candidate whose nomination has been accepted”. Thus, even if it is presumed that the Appellant was not a “validly nominated candidate” in as much as his Nomination Papers were legally rejected, he the Appellant, in law could file an Election Petition in terms of Section 52 of ROPA, 1976, as it is a settled law that the words and expressions used in a Statute or any provision thereof must necessarily be interpreted inconformity with the CA.384/2014. 7 definitions given in the Interpretation Clause of such Statute. It is added, had the intention of the law been to limit the scope of Section 52 of ROPA, 1976, to the Election Petitions being filed only by validly nominated candidates or by the contesting candidates, it is such expression, which would had been employed in the said provision (Section 52 of ROPA, 1976). Therefore, the learned Election Tribunal has misconstrued, misinterpreted and misapplied the law by way of the impugned judgment, which is consequently not tenable in law and liable to be set aside. 10. The learned counsel further contended that the entire election process was tainted and both, the Appellant as well as the Contesting Respondents had expressed their dissatisfaction and separately sought verification of the thumb impressions on the counterfoils of the Ballot Papers through National Database and Registration Authority (NADRA). The learned counsel also pointed out that the number of rejected votes (900) exceeded the votes separating the Appellant from the Contesting Respondents in terms of notified result thereby denuding such result of credibility and authenticity. It was urged that the impugned judgment be set aside and the CA.384/2014. 8 Election Petition filed by the Appellant be decided on merits. In support of his contentions, the learned counsel relied upon the judgments, reported as (1) Raja Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066), (2) Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), (3) Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), (4) Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299), (5) Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736) and (6) Naeem Hussain Chattha v. Tawakkal Ullah and another (1997 CLC 192). 11. The learned Sr. ASC for the Contesting Respondents controverted the contentions raised on behalf of the Appellant by contending that pursuant to the General Elections held in 2008, it was discovered that the Appellant had utilized fake and fraudulent educational testimonials and the Election Commission of Pakistan (ECP) concluded that the Appellant was disqualified and directed the initiation of criminal proceedings against him. In view of the afore-said CA.384/2014. 9 determination of the ECP, both the Nomination Papers filed by the Appellant for the Elections of 2013 were rejected on the ground that the Appellant was disqualified from contesting the Elections. The Appellant invoked the jurisdiction of this Court through two separate Civil Petitions for Leave to Appeal i.e. CPLA No.520 and 521 of 2013. One of such Petition was withdrawn as is evident from the Order of this Court dated 25.04.2013. Thus, the Order of the Returning Officer holding the Appellant to be disqualified and rejecting his Nomination Papers in this behalf attained finality. Therefore, it was contended, both in fact and in law, the Appellant was disqualified from contesting the Elections in question held on the 11th of May, 2013. Furthermore, with reference to the Civil Petition for Leave to Appeal which was not withdrawn by the Appellant and interim Order was passed merely suspending the operation of the judgment impugned therein i.e. the judgment passed by the learned High Court, dismissing the Constitutional Petition filed by the Appellant. The legal consequence of such suspension would at best result in the revival of the Order of the Returning Officer rejecting the Nomination Papers of the Appellant. Thus, despite the Order of CA.384/2014. 10 this Court dated 25.04.2013, purportedly granting interim relief, the Appellant was not entitled to contest the Elections and the ECP misconstrued the said Order by allowing the Appellant to participate in the electoral process. Consequently, the very candidature of the Appellant was non-est in the eye of law who, therefore, had no locus standi to file an Election Petition in terms of Section 52 of ROPA, 1976, as has been correctly held by the learned Election Tribunal by way of the impugned judgment. After the Elections were held and Respondent No.1 was declared and notified as a Returned Candidate, the Appellant withdrew his Civil Petition for Leave to Appeal without prejudice only to the matter pending before the ECP pertaining to the Elections of 2008, as is apparent from the Order dated 06.11.2013. As a consequence of such withdrawal, there can be no manner of doubt that the question of disqualification of the Appellant and rejection of his Nomination Papers became a past and closed transaction. Furthermore, had the Appellant wished to achieve the locus standi to file an Election Petition under Section 52 of ROPA, 1976, he should have pressed the Civil Petition for Leave to Appeal before this Court and sought its adjudication on merits. CA.384/2014. 11 On account of the aforesaid withdrawal, the Appellant it was contended lost not only the nascent status to file an Election Petition under Section 52 of ROPA, 1976, but was also estopped in law from doing so and such Election Petition filed by the Appellant was not maintainable and rightly dismissed. 12. The learned counsel for the Respondents drew the attention of the Court to the various provisions of ROPA, 1976, in an effort to establish that during the electoral process a person seeking to contest the Elections attains various legal status separately and distinctly referred to in the various provisions of the law. A person who is proposed is referred to as a “candidate”, if Nomination Papers filed are accepted he attains the status of a “validly nominated candidate”, and if such validly nominated candidate does not withdraw or retire from elections, such person is referred to as a “contesting candidate”. During the poll and thereafter, the only persons recognized by law and available in the field are “Contesting Candidates” while the others i.e. persons whose Nomination Papers have been rejected or have been withdrawn or who have retired from the Elections disappear from the scene and it is only such Contesting Candidates who can challenge the CA.384/2014. 12 Elections by filing an Election Petition under Section 52 of ROPA, 1976, as has been held by way of the impugned judgment. It was added that all expressions defined in Section 2 of ROPA, 1976, when employed in the succeeding provisions can only be assigned the meaning given in Section 2 of ROPA, 1976, if there is nothing repugnant to the context in which such expressions are used in the other provisions of ROPA, 1976. Therefore, the expression “candidate” when used in Section 52 of ROPA, 1976, means a Contesting Candidate and not a Candidate whose Nomination Papers have been rejected and as a consequence thereof, has exited from the electoral process. To interpret Section 52 of ROPA, 1976, as is being canvassed by the learned counsel for the Appellant, it is contended, would offend against the scheme of the law and may also result in absurdity. The learned counsel further contended that each provision of law must be given a purposive rather than a literal interpretation as is the settled law and when examined purposively Section 52 of ROPA, 1976, offers only one interpretation i.e. that the Election Petition can only be filed by a Contesting Candidate. CA.384/2014. 13 13. The learned counsel further contended that this Court had already held that a person whose Nomination Papers have been rejected, has no remedy before an Election Tribunal, after the Elections. Furthermore, if the intention of the law had been to permit persons other than the Contesting Candidates to file Election Petitions after the Elections, express words, in this behalf, would have been employed as has been done in the Indian Representation of People Act, 1951. Consequently, the judgment of the learned Election Tribunal is in accordance with the law and should not be interfered with. In support of his contentions, the learned counsel referred to various treaties on Interpretation of Statutes and relied upon the judgments, reported as (1) Jaffar Khan v. Chief Election Commissioner, Pakistan and others [PLD 1965 (W.P.) Peshawar 245], (2) Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299), (3) Raja Abdul Qayyum v. Ch. Latif Akbar, Advocate and 2 others (1994 CLC 2041), (4) Harbhajan Singh v. Press Council of India and others (AIR 2002 SC 1351), (5) Charan Lal Sahu v. Shri Fakruddin Ali Ahmed and others (AIR 1975 SC 1288), (6) Amin Lal v. Hunna Mal (AIR 1965 SC CA.384/2014. 14 1243) and (7) Kanai Lal Sur v. Paramnidhi Sadhukhan (AIR 1957 SC 907). 14. Heard. Available record perused. 15. The real matter in issue which goes to the heart of the controversy involved in the instant case is regarding the person who can file and maintain an Election Petition under Section 52 (1) of ROPA, 1976, which reads as follows: “No election shall be called in question except by an election petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner) (emphasis supplied) The expression “candidate” has been defined in Section 2 sub section (iv) as follows: “means a person proposed as a candidate for, or seeking election as a member;” The said Section 2 also defines the expression “contesting candidate” in sub section (viii) in the following terms: “means a validly nominated candidate who has not withdrawn his candidature;” A “validly nominated candidate” is defined in Section 2 sub section (xxvi) as follows: “means a candidate whose nomination has been accepted;” CA.384/2014. 15 A “returned candidate” has been defined in Section 2 sub section (xxi) as follows: “means a candidate who has been declared elected as a member under this Act;” 16. In pith and substance, it is the case of the Appellant that in terms of Section 52 of ROPA, 1976, an Election can be called into question by a candidate. The expression “candidate” has been defined by Section 2 sub section (iv), reproduced hereinabove and an expression defined in a statute must be given only the said meaning. Had the intention of the Legislature been to the contrary any of the other defined terms i.e. “validly nominated candidate” or “contesting candidate” would have been employed in Section 52 of ROPA, 1976. 17. It may be noticed that the definitions enumerated in the various clauses of Section 2 of ROPA, 1976, are prefaced with the rider “In this Act unless there is anything repugnant in the subject or context”. 18. With regard to construing the true import and effect of an Interpretation Clause in a Statutory Instrument, the Privy Council in its judgment, reported as Indian Immigration Trust Board of Natal v. Govindasamy (AIR 1920 Privy Council 114) held as follows: CA.384/2014. 16 “Now, when the interpretation clause in a statute says that such and such an expression shall include so and so, a Court in construing a statute is bound to give effect to the direction unless it can be shown that the context of the particular passage where the expression is used shows clearly that the meaning is not in this place to be given effect to, or unless there can be alleged some general reasons of weight why the interpretation clause is to be denied its application. …” In the judgment of this Court, reported as The Bank of Bahawalpur Ltd. through its Manager v. The Chief Settlement & Rehabilitation Commissioner, Lahore and others (PLD 1977 SC 164), in the minority view of Muhammad Afzal Cheema, J. by relying upon the aforesaid judgment of the Privy Council, it was observed as follows: “Although normally an expression if defined in a Statute has to be given the same meanings wherever it occurs therein, yet there is ample authority for the principle of interpretation that a definition of a term in a Statute is merely declaratory in nature and should not be unnecessarily inflicted where it does not fit in with the subject and context and might lead to anomalies and absurd results. Further strength is lent to this justifiable invocation of the above principle by the express qualification or exception with which section 2 was prefaced, namely, “unless there is something repugnant in the subject or context”. From this, it is abundantly clear that the definition of "house" or of "possession" like any other definitions contained in section 2 would apply only where it is in consonance and fits in with the subject and the context and not otherwise. The repugnancy is only CA.384/2014. 17 too obvious and incapable of resolution on any other reasonable hypothesis. …” Subsequently, in a later judgment, the aforesaid minority view was endorsed and followed by this Court in the case, reported as Iftikhar Ahmad and others v. President, National Bank of Pakistan and others (PLD 1988 SC 53) in the following terms: “10. It is difficult to subscribe to the view taken by the learned Judges in the High Courts. No doubt, the award given by the Wage Commission is not included in the definition of the term 'award' as given in section 2(ii) of the Ordinance, but then as the governing clause of section 2 itself states the definitions given therein are to be read subject to anything repugnant in the context in which the defined terms occur. Apart from that, as held by this Court in Bank of Bahawalpur v. Chief Settlement and Rehabilitation Commissioner PLD 1977 S C 164 that although normally an expression if defined in a Statute has to be given the same meaning wherever it occurs therein, yet there is ample authority for the principle of interpretation, that a definition of a term in a Statute is merely declaratory in nature and should not be unnecessarily inflicted where it does not fit in with the subject or context. …” 19. The matter again came up for consideration before this Court in the case reported as Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others (1991 SCMR 1699), wherein it was held as follows: “18. We may observe that a definition clause in a statute is of a declaratory nature though CA.384/2014. 18 normally the definitions provided for in the definition clauses are to be read into the provisions of the Act while interpreting the defined terms/words, but if the contents of the provisions of the Act indicate otherwise, the definition clause cannot override a main provision of the statute. In the present case, section 2 makes it explicit by providing that “unless there is anything repugnant in the subject or context”.” In the aforesaid judgment, the following extracts from various Treaties or Interpretation Statutes were quoted with approval: “Craies on Statute Law Seventh Edition: It is a sound rule of construction, said Cleasby B. in Courtauld v. Legh, (1869) L.R. 4 Ex. 126, 130. Lewise v. Cattle (1938) 2 K.B. 454, 457. R. v. Belfast JJ. (1947) N.I. 191) "to give the same meaning to the same words occurring in different parts of an Act of Parliament". The presumption that the same words are used in the same meaning is however very slight and it is proper, "if sufficient reasons can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act. (Per Turner L.J. in Re National Savings Bank (1866) L.R. 1 Ch. App. 547, 550). For instance, if, as Fry L.J. said in Re Moody and Yates' Contract, (1885) 30 Ch. D. 344, 349) "a word is used inaccurately in one section of a statute, it must not be assumed to have been used inaccurately when it occurs in another section of the same statute". And, in fact, a word may be used in two different senses in the same section of an Act. (Maddox v. Storer (1963) 1 Q.B. 451). "It is obvious", said North J. in Re Smith, Green v. Smith, (1883) 24 Ch. D. 672, 678) "that the word `property' is used in section 54 of the repealed Bankruptcy Act, 1869 in two totally different senses". The CA.384/2014. 19 Court said, in Doe d. Angell v. Angell (1846) 9 Q.B. 328). "Considerable difficulty arises in the construction of the Real Property Limitation Act, 1833 by reason of the word `rent' being used in two different senses throughout viz. in the sense of a rent charged upon land, and of rent reserved under a lease". Similarly, in R. v. Allen (1872) 1 C.C.R. 367, 374) the Court held, as to the word "marry" in section 57 of the Offences against the Person Act, 1861 (which enacts that "whosoever, being married, shall marry any other person during the life of the former husband or wife………shall be guilty of felony") that "it is at once self-evident that the proposition that the same effect must be given to the term `marry' in both parts of the sentence cannot possibly hold good.” “Crawford on Interpretation of Laws 1940 Edition Strictly speaking, construction and interpretation are not the same (U.S. v. Wiltberger, 5 Wheat. (U.S.) 76, 5 L. Ed. 37), although the two terms are often used interchangeably (U.S. v. Keitzel, 211 U.S. 370, 53 L. Ed. 320, 29 S.Ct.123). Construction however, to be technically correct, is the drawing of conclusions with respect to subjects that are beyond the direct expression of the text, from elements known and given in the text (U.S. v. Farenholt, 206 U.S. 226, 51 L.Ed. 1036, 27 S. Ct.123; People v. Comrs. of Taxes, 95 N.Y. 554), while interpretation is the process of discovering the true meaning of the language used (Bloomer v. Todd, 3 Wash. T. 599, 19 Pac. 135, 1 L.R.A. 111). Thus, the Court will resort to interpretation when it endeavors to ascertain the meaning of a word found in a statute, which when considered with the other words in the statute, may reveal a meaning different from that is apparent when the word is considered abstractly or when given its usual meaning (Anderson v. City of Hattiesburg, 131 Miss. Miss. 216, 94 So. 163). CA.384/2014. 20 But when the Court goes beyond the language of the statute and seeks the assistance of extrinsic aids in order to determine whether a given case falls within the statute, it resorts to construction (Union Trust Co. v. McGinty, 212 Mass. 205, 98 N.E. 679). The process to be used in any given case will depend upon the nature of the problem presented. And, as is apparent, both processes may be used in seeking the legislative intent in a given statute. If the legislative intent is not clear after the completion of interpretation, then the Court will proceed to subject the statute to construction (2 Williston, contracts (1920) 1160-1161).” “Maxwell On The Interpretation of Statutes Twelfth Edition The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment (Towerfield (Owners) v. Workington Harbour and Dock Board (1949) P. 10. per Scott and Asquith L. JJ., and Freed v. D.P.P. (1969) 2 W.L.R. 390). Their meanings found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject, or in the occasion on which they are used, and the object to be attained (Per cur., R. V. Hall (1822) 1 B. & C. 123). Grammatically, words may cover a case but whenever a statute or document is to be construed it must be construed not according to the mere ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject-matter with regard to which they are used, unless there is something which renders it necessary to read them in a sense which is not their ordinary sense in the English language as so applied (Lion Mutual Marine Insurance Association V. Tucker (1883) 12 Q.B.D. 176, per Brett M.R.).” CA.384/2014. 21 In the case, reported as Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 SC 260), it was held as follows: “It is settled law that definition clause or a section in a statute is meant generally to declare what certain words or expressions used in that statute shall mean, the obvious object of such a clause is to avoid the necessity of frequent repetition in describing all the subject matter to which the word or expression so defined is intended to apply. …” The Supreme Court of India in the judgment, reported as Commissioner of Sales Tax, Gujarat v. M/s. Union Medical Agency (AIR 1981 SC 1) expressed a similar view, which reads as under: “14. It is a well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute. But where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification-'unless there is anything repugnant in the subject or context', or 'unless the context otherwise requires'. Even in the absence of an express qualification to that effect such a qualification is always implied.” CA.384/2014. 22 “18. There is no dispute with the proposition that the meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely 'unless the context otherwise requires'. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section. But where there is no obscurity in the language of the section, there is no scope for the application of the rule ex visceribus actus. …” A perusal of the aforesaid reveals that the words and expressions used in a Statute are ordinarily to be interpreted in accordance with their normal dictionary meaning and the same words used in different Sections of the same Statute usually carry the same meaning. Words and expressions may be defined in the Interpretation Clause of Statutes. Such definitions are declaratory in nature and are incorporated to avoid repetitiveness. Normally, such words and expressions occurring in the main provisions of the Statute carry the same meaning, as are available in the definition. However, both the aforesaid general principles are subject to the overriding condition that the said words and expressions must always be construed with reference to the context they are used in the CA.384/2014. 23 Statutes the subject of provisions wherein they are used and examined with reference to the scheme of the Statute and the intent and purpose to be achieved thereof. The possibility that such words and expressions may have a different meaning in individual Sections of the Statute cannot be entirely ruled out as the meaning of such words and expressions must be construed subject to the context in which they are employed in the specific provision. Usually, definition clauses in the Statutory Instruments are scribed subject to the rider that the words and expressions so defined will carry the meaning ascribed to them where the context and the subject so permit. Where the defined meaning being employed results in an obvious anomaly or absurdity, it is not permissible to mechanically and mindlessly inflict such meaning regardless of repugnancy to the context or the subject, to the words or expressions in the provision sought to be interpreted. 20. In the instant case, it is canvassed on behalf of the Contesting Respondent that if the expression “candidate” as used in Section 52 of ROPA, 1976, reproduced hereinabove, if given the meaning as defined in Section 2 sub section (iv), it would result in an anomaly and absurdity and also run CA.384/2014. 24 contrary to the scheme of ROPA, 1976. It is the veracity of such argument, which needs to be examined. Section 12 of ROPA, 1976, deals with filing of the Nomination Papers for election and confers a right on any Elector of the Constituency to propose or second the name of any duly qualified person in this behalf. The Nomination Papers also require the signatures of such a person who is referred to in the said provision as a “Candidate”. A person so proposed is in fact a “candidate” as defined by Section 2 sub section (iv) of ROPA, 1976. The Nomination Papers so filed are subjected to scrutiny in terms of Section 14 of ROPA, 1976. A candidate whose Nomination Papers are accepted is referred to as a “validly nominated candidate” whose name is published in a prescribed manner (Sections 15 and 26). Such validly nominated candidate may subject to law withdraw from the elections under Section 16 or retire therefrom under Section 17 of ROPA, 1976. Such validly nominated candidate who has neither withdrawn nor retired from the Elections is the Contesting Candidate as defined by Section 2 sub section (viii) of ROPA, 1976. The names of such Contesting Candidates are published in terms of Section 21 (b) of ROPA, 1976. It is the CA.384/2014. 25 names and symbols of the Contesting Candidates alone which are published on the Ballot Papers. 21. When the electoral process reaches a stage where the names of the Contesting Candidates are finalized and their names and symbols published on the Ballot Papers, all candidates whose Nomination Papers were rejected and such order of rejection has attained finality as well as such validly nominated candidates who have either withdrawn or retired in accordance with law, for all intents and purposes cease to have any further relevance in the subsequent process of the conduct of the Elections. Yet, in the provisions that follow which pertain to the electoral process, even prior to the stage of the resolution of the electoral disputes there is repeated reference to the expression “candidate”. If the said expression is interpreted in a manner as canvassed by the learned counsel for the Appellant, it would result in an obvious anomaly bordering on absurdity rendering such provisions meaningless, as is obvious from the following: (a) In Section 22 (1) a “candidate” may appoint an election agent and the name and details of such appointment are to be transmitted to the Returning Officer (Section 22 sub section 3). However, when CA.384/2014. 26 the aforesaid provision is examined in juxtaposition with Section 23 (1), it appears that a “contesting candidate or his election agent” may appoint polling agents for each polling station. Thus, if the definition of the expression “candidate” as given in Section 2 sub section (iv) is pressed into service while interpreting Section 22, it would result in an obvious anomaly that while a candidate whose Nomination Papers have been rejected may appoint an Election Agent but cannot appoint any Polling Agent. Even otherwise, the appointment of election agents by such candidates would be an exercise in futility. (b) Similarly, in sub section 2 of Section 23, the provision pertaining to revoking the authority of polling agent, the expression “candidate” is employed. Such candidate cannot be anyone other than a Contesting Candidate as only a contesting candidate can appoint an election agent. Thus, by interpreting the expression “candidate” with reference to the context wherein it is employed the only possible conclusion that can be drawn is that such candidate is in fact the Contesting Candidate and not the candidate as defined by Section 2 sub section (iv) i.e. a candidate whose Nomination Papers may have been rejected. (c) In Section 30 (4) (c), it is stated that the empty Ballot Boxes would be shown to the “candidates or CA.384/2014. 27 their election agents or polling agents” as may be present. The expression “candidate” used in the said provision obviously refers to a Contesting Candidate as only such Contesting Candidate would have polling agents in view of Section 23. Giving the term “candidate” the meaning as set forth in Section 2 sub section (iv) would render the said provision meaningless. (d) Section 35 sub section (1) pertaining to challenge of electors, it is provided that a “candidate or his polling agent” can raise such objection. The expression “candidate” in the said provision obviously means a Contesting Candidate as only such Contesting Candidate can appoint a polling agent. The expression as defined in Section 2 sub section (iv) if pressed into service would result in a legal impossibility. Hence, in order to attribute any meaning to the said provision, the term “candidate” must be interpreted with reference to the context in which it is employed. (e) In Section 38 sub section (11) the Presiding Officer is required to provide a certified copy of the statement of the count and a ballot paper account to the “candidates, their election agents or polling agents” as may be present. Here again the expression “candidate” obviously means a Contesting Candidate, as such Contesting Candidate CA.384/2014. 28 alone can appoint polling agents. The aforesaid becomes even more obvious in view of sub section (13) of the said provision which provides that upon each statement and packet prepared under sub section (12), the signatures of the Contesting Candidates or their election agents or polling agents could be obtained. Yet again, the expression “candidate” must necessarily be interpreted with reference to the context and subject in accordance with the scheme of the law rather than the meaning enumerated in the Interpretation Clause i.e. Section 2 sub section (iv). (f) In Section 40, yet again reference is made to a candidate and their election agents obviously it refers to the Contesting Candidates only as they alone can have election agents. (g) In Section 41, the term “candidate” is employed while referring to drawing of lots in case of the equality of votes. Obviously, such candidate means a Contesting Candidate, as there is no question of equality of votes between the Contesting Candidates and a candidate whose Nomination Papers were rejected and his name and symbol was not present on the Ballot Paper. Thus, the definition of “candidate” as given in Section 2 sub section (iv) of the expression candidate is inapplicable to Section 41. CA.384/2014. 29 (h) In Chapter VI, which is pertaining to election expenses, in Sections 48 and 49 (1), the expression candidate is employed, yet in Section 49 (2) with regard to the amount of election expenses, the term “Contesting Candidate” is mentioned. Subsequently, in sub section (3) yet again, the term “candidate” is used with regard to receipts of election expenses. However, by virtue of sub section (1) of Section 50, the Contesting Candidates are required to file the return of election expenses. It is evident that the expression “candidate” in Sections 48 and 49 implies a Contesting Candidate only. If the definition of the term “candidate” as used in Section 2 sub section (iv) is pressed into service an obvious anomaly would result as a candidate whose Nomination Papers are rejected would be required to maintain accounts of election expenses and receipts thereof without any legal necessity of filing the same. An overview of the aforesaid provisions of law leaves little room for doubt that the expression “candidate” does not in all events and in each and every provision carry the meaning that attributed to it in Section 2 sub section (iv) of ROPA, 1976 and must necessarily be interpreted with reference to the context in which it is employed in each and every provision so as to avoid an anomaly or absurdity. The expression “candidate” must be CA.384/2014. 30 construed after contextualizing the same with regard to the subject of the provision, as is not only the settled rule of construction but also the mandate of the opening lines of Section 2 itself. The legal premises of the contentions of the learned counsel for the Appellant to the contrary are not only in conflict with the time honoured rules for interpretation but also would result in obvious anomaly and render various provisions meaningless, as is apparent from the examples cited above. It also appears to be the scheme of the law that by and large in the absence of clear and unequivocal statement to the contrary, in the provisions pertaining to the electoral process subsequent to the publication of the list of the Contesting Candidates and printing of their names and symbols on the Ballot Papers, the expression “candidate” occurring in any such provision would tend to mean a Contesting Candidate and not a Candidate, whose Nomination Papers have been rejected. 22. The provisions of Section 52 of ROPA, 1976, which pertain to the real matter in controversy involved in the instant case, must necessarily be interpreted in the above backdrop. 23. Section 52 (1) of ROPA, 1976, reproduced hereinabove, is couched in negative terms and enjoins that no CA.384/2014. 31 election can be called into question except through an Election Petition filed by a “candidate for the election” (referred to as the Petitioner in Chapter VII). It needs to be ascertained whether the expression “candidate” as occurring in Section 52(1) of ROPA, 1976, would include a candidate whose Nomination Papers have been rejected or has otherwise withdrawn or retired from the election. In this behalf, reference may be made to Section 54 of ROPA, 1976, which reads as follows: “54. Parties to the petition.- The petitioner shall join as respondents to his election petition – (a) all contesting candidates; and (b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition.” A perusal of the aforesaid provision makes it clear and obvious that only Contesting Candidates are per se necessary and proper parties to an Election Petition. Other candidates can only be impleaded, if there are allegations of corrupt or illegal practices against them. It is difficult to accept that a candidate whose Nomination Papers have been rejected and against whom there CA.384/2014. 32 are no allegations of corrupt or illegal practices and who is neither a necessary nor a proper party to the proceedings can maintain an Election Petition. Section 66 of ROPA, 1976, in the same Chapter i.e. Chapter VII, makes reference to the expression “candidate”. The said provision for ease of reference is reproduced herein-below: “66. Recrimination where seat is claimed.- (1) Where in an election petition a declaration is claimed that a candidate other than the returned candidate has been duly elected, the returned candidate or any other party may produce evidence to prove that the election of such other candidate would have been declared void had he been the returned candidate and had a petition been presented calling his election in question: Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he or it has, within the fourteen days next following the commencement of the trial, given notice to the tribunal of his intention so to do and has also deposited the security referred to in section 52. (2) Every notice referred to in sub-section (1) shall be accompanied by a statement of the case, and all the provisions relating to the contents, verification, trial and procedure of an election petition, or to the security deposit in respect of an election petition, shall apply to such a statement as if it were an election petition.” 24. Yet again, the expression “candidate” would imply a Contesting Candidate, as only such Contesting Candidate can CA.384/2014. 33 be declared as a duly elected candidate, as it is a legal impossibility for a candidate whose Nomination Papers have been rejected to be declared an elected candidate by the learned Election Tribunal. 25. The orders that can possibly be passed by an Election Tribunal are enumerated in Section 67 sub section (1) (c) of ROPA, 1976, which reads as follows: “67. Decision of the Tribunal.- (1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order- (a) …………………………….…….. (b) ……………………………….….. (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected;” Reference may also be made to Section 69 of ROPA, 1976, which reads as under: “69. Ground for declaring a person other than a returned candidate elected.- The Tribunal shall declare the election of the returned candidate to be void 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 petitioner or such other contesting candidate was entitled to be declared elected.” CA.384/2014. 34 In the aforesaid two provisions reproduced hereinabove, which are part of Chapter VII of ROPA, 1976, the expression “petitioner or any other contesting candidate” and the expression “petitioner or such other contesting candidate” have been employed. The expression “such” in legal parlance has a peculiar and well settled connotation : In West’s Legal Dictionary 2010 Edition Such: Of that type, kindred, corresponding, similar, of that sort, of that kind, comparable, suchlike, analogous, twin, allied, matching. In Words and Phrases Permanent Edition Such: The word ‘such’ is defined as of the sort or degree previously indicated or contextually implied. People v. Heslen, Cal., 163 P.2d 21, 30. Word ‘Such’ means of this or that kind, character or measure: of the sort or degree previously indicated or contextually implied. Campbell v. Mueller, CCA Ohio, 159 F.2d 803, 806. ‘Such’ is defined by Webster as “having the particular quality or character specified …”. State v. Estep, 71 P. 857, 859, 66 Kan. 416. Word ‘Such’ means … of the same kind or class as something mentioned … People ex rel. Miller v. Mobile & O. R. Co., 29 N.E.2d 604, 607, 374 I11. 376. Black’s Law Dictionary Fifth Edition Such: Of that kind, having particular quality or character specified. Identical with, being CA.384/2014. 35 the same as what has been mentioned. Alike, similar, of the like kind. (emphasis supplied) 26. When examined in the above context, there can be no manner of doubt that the expression “petitioner” as used in Sections 66 and 69 of Chapter VII of ROPA, means a person having identical attributes and characteristics of a contesting candidate and therefore, means a validly nominated candidate, who has neither withdrawn nor retired from the election process. The said provisions pertaining to the relief, which may be granted to a petitioner under Section 52 of ROPA, where such expression “petitioner” has been defined to mean a candidate. The intention of the Legislature appears to be clear and unambiguous that the expressions “Candidate“ and “Petitioner” are used in Chapter VII including Section 52 thereof is limited to “a contesting candidate” and does not include a candidate whose Nomination Papers have been rejected. 27. If the expression “candidate” as used in Section 52 of ROPA, 1976, is interpreted to include a person whose Nomination Papers though filed were rejected and such person is permitted or held entitled in law to maintain an Election CA.384/2014. 36 Petition in terms thereof but to what end? It has been noticed that the illegal rejection of the Nomination Papers is not a ground available under Chapter VII of ROPA, 1976, for grant of any relief. With reference to the aforesaid, this Court has already held that the candidate whose Nomination Papers are rejected, even illegally cannot seek any relief through an Election Petition under Section 52 of ROPA, 1976, or other provisions of Chapter VII thereof. Reference, in this behalf, may be made to the judgment of Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299). The relevant portion of the said judgment is reproduced hereunder: “It may also be pertinent to mention that subsection (1) of section 68 of the Act gives the grounds on which the election of a returned candidate can be declared as void. The above subsection (1) of section 68 reads as follows:-- “68. Ground for declaring election of returned candidate void.—(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that— (a) the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or CA.384/2014. 37 (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.” 20. It may be noticed that the above grounds do not admit the filing of a petition by a candidate whose nomination papers were illegally rejected and who could not participate in the elections on that account. …” (emphasis supplied) 28. It appears to have been held in clear and unequivocal terms by this Court in the above quoted judgment that a candidate whose Nomination Papers have been rejected cannot maintain an Election Petition under Section 52 of ROPA, 1976. 29. The compulsion to interpret the expression “candidate” in terms of Chapter VII with reference to the context in which it has been employed and the subject to which the provisions pertain is overwhelming. If the petitioner for purposes of the said Chapter i.e. Chapter VII of ROPA, 1976, were to include a candidate whose Nomination Papers have been rejected, the result would be anomalous and lead to CA.384/2014. 38 unexpected and unforeseen situations rendering the provisions meaningless. There appears to be little doubt that only a validly nominated candidate who has neither withdrawn nor retired from the Elections i.e. a Contesting Candidate can file or maintain an Election Petition under Section 52 of ROPA, 1976. 30. Adverting now to the facts of the instant case, it appears from the record that in the General Elections held in 2008, the Appellant was elected as a Member of the Provincial Assembly of the Province of Balochistan. Subsequently, the educational testimonials of the Appellant were scrutinized and the ECP, in this behalf, came to a prima facie conclusion that the Appellant had become a Member of the Provincial Assembly by employing illegal and unfair means in as much as the educational testimonials appended by the Appellant with his Nomination Papers while contesting the Elections in 2008 were fake and fictitious. Criminal proceedings, in this behalf, were directed to be initiated against the Appellant. When the Appellant submitted his Nomination Papers to contest the General Elections held on 11th of May, 2013, his Nomination Papers were rejected on the ground that he had filed fake and fictitious educational testimonials while contesting the General CA.384/2014. 39 Elections of 2008. Findings to this effect were returned by the ECP after an inquiry, hence, the Appellant was held to be disqualified in view of Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973. Such Order of rejection was challenged unsuccessfully by the Appellant before the learned Election Tribunal as well as the learned High Court of Balochistan and eventually, the matter reached this Court wherein some interim relief was granted with reference to one of the rejected Nomination Papers filed by the Appellant. The Appellant appears to have been permitted to contest the Elections on the strength of the said interim Order. The Civil Appeal No.444 of 2013 arising out of Civil Petition for Leave to Appeal No.520 of 2013 wherein leave to appeal has been granted vide Order dated 25.04.2013 referred to above, came up for hearing before this Court on 06.11.2013, when the following Order was passed: “It has been informed by the learned counsel for the appellant that the appellant has already approached the Election Commission for redressal of his grievance, against the result of election held in the year 2008, therefore, in such view of the matter instant appeal be disposed of with the observation that no prejudice shall be caused to the cases of either party pending before the concerned forum. CA.384/2014. 40 Dispose of accordingly.” 31. A perusal of the afore-said Order reveals that the withdrawal was without prejudice to the proceedings pending before the ECP pertaining to the Elections of 2008 and not with regard to the Elections of 2013. Even without examining and adjudicating upon the contentions of the learned counsel of Respondent No.1 with regard to the fact that Civil Petition for Leave to Appeal No.521 of 2013 pertaining to the rejection of one set of Nomination Papers had been withdrawn on 25.04.2013 and the interim relief granted did not permit the Appellant to contest the Elections, there can be no manner of doubt that on account of the withdrawal the aforesaid Order of the Returning Officer, rejecting the Nomination Papers of the Appellant for the General Elections of 2013, was not set aside and attained finality. Consequently, the Appellant neither has the status nor the locus standi of the Contesting Candidate, hence, was not in law a “petitioner” entitled to challenge the Elections in an Election Petition under Section 52 of ROPA, 1976, or seek any relief under any other provision of Chapter VII of ROPA, 1976. The conclusions drawn by the learned Election Tribunal, in this behalf, by way of the impugned CA.384/2014. 41 judgment appear to be in accordance with law and no ground warranting interference therewith is available to the Appellant. 32. Consequently, this Civil Appeal, being without merit is dismissed with no order as to cost. Chief Justice Judge ‘APPROVED FOR REPORTING’ Judge Mahtab H. Sheikh/* Announced on 02.03.2016 at Islamabad. Judge

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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 Appeal No.394 of 2014 (Against the judgment dated 4.2.2014 of the Election Tribunal, Rawalpindi passed in E.P. No.187/2013/Rwp/04/0013) Sardar Muhammad Naseem Khan Appellant(s) VERSUS Returning Officer, PP-12, etc Respondent(s) For the Appellant(s) : Mr. Muhammad Ilyas Sheikh, ASC Syed Rifaqat Hussain Shah, AOR For Respondent No.2 : Mr. Muhammad Aurangzeb Khan, ASC Date of Hearing : 22.04.2015 … ORDER MIAN SAQIB NISAR, J.- The appellant and respondent No.2 (the respondent) contested the (General) election for PP-12, Rawalpindi. Respondent is the returned candidate, whereas appellant is the runner up, who filed an election petition challenging the election of the former. An objection was raised by the respondent that such petition is not duly verified and, therefore, is liable to be dismissed in terms of provisions of Article 63 of the Representation of the People Act, 1976 (the Act). However, the objection was overruled by the learned Election Tribunal holding that the petition is duly verified. Subsequently, in furtherance to the above challenge the appellant moved an application seeking amendment in the election petition so as to add two grounds i.e. ‘h’ and ‘i’. The claim for seeking amendment(s) obviously was founded on the plea that such grounds (amendments) are expedient and Civil Appeal No.394 of 2014 - 2 - imperative for the cause of the appellant. This request was allowed by the Tribunal and two grounds, mentioned above, were added and an amended petition was filed. The added grounds challenging the election of the respondent read as under:- “h. That the respondent namely Mr Ejaz Khan Jazi has been declared returned candidate on the basis of fake documents attached by him while contesting the elections from PP-12 in the recent elections. It is important to mention here that Mr. Ejaz Khan Jazi has not even passed Intermediate. Prior to this, he contested elections in 2012 when the condition of BA was a pre-requisite. Thereafter he contested zimni elections in 2008 and in 2009. Article 62 of the Constitution of Islamic Republic of Pakistan 1973 fully applies/attracts to his case. Likewise, Article 63 of the Constitution completely debars Mr. Ejaz Khan Jazi to contest elections. He does not possess the qualification required for a Member of Provincial Assembly, hence he was not eligible at all to contest the elections but to my utter surprise, he has been declared as a returned candidate. He is thus liable to be disqualified. Detail of letters issued to the respondent for production of Intermediate certificate, BA and others degrees is as under:- (1) Notification No.Admin/94-835 dated 6.7.1994 issued to Mr. Ejaz Khan Jazi by the Assistant Registrar that admission of the student was cancelled as he had sought admission on the basis of a fake F.A. Marks sheet in M.Sc Ist Semester Spring 1992. (2) Letter No.NIPS-D-391 dated 20.4.1994 to appear before Dr. G.A. Murtaza, Professor, for inquiry. (3) Letter No.F.9-6/HSSC/SEC/93/9848 dated 13.3.1993 for verification of marks sheet of respondent. (4) Letter No.F.7-1/92 dated January 1992 issued to the respondent for production of educational documents. (2) In the light of above narration of facts, respondent No.2 was not eligible: at all to contest the elections from PP-12 but even then he has been declared as a returned candidate. Hence he is liable to be disqualified outrightly. Civil Appeal No.394 of 2014 - 3 - i. That respondent No.2 has not fulfilled the correct and exact statement of accounts about the expenses e.g. in the gowshwara he has shown the expenses of only petrol and load (sic) speaker. Likewise respondent No.2 has concealed the expenses incurred on posters, stickers, banners and his central office. For getting voter list from the Election Commission for PP- 12, Rs.14,000/- or 15,000/- are to be paid as official fee but respondent No.2 did not pay the said amount. Respondent No.2 has also not shown the expenses incurred on different polling stations, booths, distribution of voter list and other expenses of stationary. This act of respondent No.2 is against the election laws and is in violation of Election Rules.” It is quite clear from the above that the amendments are material and independent in nature and by themselves are a substantial challenge to the election of the respondent, but the amended election petition was neither duly verified by the appellant in terms of Order 6 Rule 15, CPC read with Section 55(3) of the Act nor was got attested from the Oath Commissioner. Therefore an objection was raised qua non- verification of election petition by the respondent, who sought its summary dismissal per Section 63 supra. This time the learned Election Tribunal held that as the amended petition was not duly verified, it came within the mischief of the law supra and accordingly dismissed the petition vide the impugned judgment. Hence this appeal. 2. Learned counsel for the appellant has argued that the amended election petition, in fact, was part and parcel of the original election petition and was an addition thereto, thus in law it (the amended petition) has merged in the original petition; and as the original petition Civil Appeal No.394 of 2014 - 4 - was verified and earlier held by the Tribunal to be so in accordance with law, therefore regardless of whether the amended petition was verified or not, the defect shall not fall within the purview of Section 55(3) ibid. It is also submitted, that an amended (election) petition means that something is being added to a thing which is already in existence and as election petition of the appellant was already in existence and contained proper verification, non verification of the amended petition shall not attract any penal consequences (of Section 55(3) and Section 63 ibid). Lastly, it is urged that at best the learned Tribunal could strike out the grounds ‘h’ and ‘i’ which were brought by way of amendment in the original election petition and the original petition should have been tried and decided on its own merits. 3. Heard. In election disputes, the petition (the election petition) and the reply thereto are the foundational documents, which are of utmost importance and significance. And undoubtedly for all intents and purposes these are akin to the pleadings of the parties in a purely civil litigation, which (pleadings) are structural in nature, whereupon the edifice of the case is rested. The election petition lays down the foundation of the claim of an election petitioner, whereas the written reply thereto of the respondent (returned candidate) is the underpinning of his defence. The importance of the pleadings and its legal value and significance can be evaluated and gauged from the fact that it is primarily on the basis thereupon that the issues are framed; though the pleadings by themselves are not the evidence of the case, the parties to a litigation have to lead the evidence strictly in line and in consonance thereof to prove their respective pleas. In other words, a party is bound by the averments made in its pleadings and is also precluded from leading evidence except precisely in terms thereof. A Civil Appeal No.394 of 2014 - 5 - party cannot travel beyond the scope of its pleadings. It may be pertinent to mention here, that even if some evidence has been led by a party, which is beyond the scope of its pleadings, the Court shall exclude and ignore such evidence from consideration. Thus, it is clear that if any party to a lis wants to prove or disprove a case and some material has to be brought on the record as part of the evidence, which (evidence) otherwise is not covered by the pleadings, it shall be the duty of such party to first seek amendment of its pleadings (note:- for the support of the opinion, see judgments1). 4. Attending to the question of whether the amended pleading shall merge into the original pleading or otherwise, we have not been able to lay our hands on any case law from our jurisdiction, however some jurisprudence has been developed in foreign jurisdictions, such as in the English case of Warner Vs. Sampson and another (1959) 2 WLR 109 wherein the Court of Appeal has propounded:-“once pleadings are amended, that which stood before amendment is no longer material before the Court”. Per a judgment of Allahbad High Court reported as Brij Kishore Vs. Smt. Mushtari Khatoon (AIR 1976 Allahabad 399) it has been concluded:-“the amended pleading alone should be considered and no reference ought to be made to the original pleadings while deciding an issue”. Another judgment from the same jurisdiction is B. Parbhu Narain Singh and others Vs. B. Jitendra Mohan Singh and another (AIR (35) 1948 Oudh 307) in which it has been held:-“Court must take the pleadings in the case as they stand and leave out of consideration the pleadings as they stood before the amendment”. 5. From the ratio of the above case law and from our own understanding of law, we are of the considered view that principle of 1 Muhammad Akram and another Versus Mst. Farida Bibi and others (2007 SCMR 1719), Aurangzeb through L.Rs and others Versus Muhammad Jaffar and another (2007 SCMR 236), Sh. Fateh Muhammad Versus Muhammad Adil and others (PLD 2007 SC 460), Binyameen and 3 others Versus Chaudhry Hakim and another (1996 SCMR 336) Civil Appeal No.394 of 2014 - 6 - merger as put forth by the learned counsel is neither relevant nor shall apply in this situation, rather it is the principle of substitution which shall be attracted. For the determination and resolution of issues in disputes before the Court, it is the amended pleading which shall be taken into consideration and not the former pleadings. It is on the basis of the amended pleadings that the issues shall be framed; and if already so framed, shall be modified to either score off any existing issue or to add the issues arising out of the amended pleadings (note:- however in the cases where there is any unauthorized addition in the amended pleadings for scoring it off or for the purposes of confronting someone within the earlier pleadings as a previous statement, the earlier pleadings may have some relevance). The amended petition in this case for all intents and purposes shall be a final, independent and separate document (election petition) which had to be verified per the mandate of law. It is conceded by the learned counsel for the appellant, when confronted with the fact that the amended election petition filed by the appellant has not been verified in accordance with law, that if the original election petition is ignored from consideration, the amended petition will be hit by the provisions of Sections 55(3) and 63 of the Act. Obviously on account of the above, the impugned decision of the Tribunal is unexceptionable. As regards the other argument of the learned counsel that grounds ‘h’ and ‘i’, which were part of the amended petition, should be struck off or ignored from consideration and the Election Petition should be tried per its original contents, suffice it to say that, as has been opined above, once the original petition was replaced and substituted by the amended petition, the earlier could not be resorted to and it is not left to the choice of the appellant to fall back on the original petition and have the two grounds deleted for the resolution of Civil Appeal No.394 of 2014 - 7 - the election dispute agitated by the appellant. Besides, the striking off of the two grounds mentioned above was not the case of the appellant before the Election Tribunal and such a prayer even does not fall within the purview of Order 6 Rule 16 of the Code of Civil Procedure, which stipulates the striking off the pleadings in the following terms:- “Striking out pleadings.---The court may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.” It may be pertinent to mention here, that per Section 64 of the Act, Code of Civil Procedure is attracted and no case has been made out by the appellant in terms of the provisions ibid (for striking off the pleadings). It may further be added that even in the present appeal, the plea that grounds ‘h’ and ‘i’ to the amended election petition must be scored out has not been set out in particular, therefore such plea cannot be allowed. In light of the above, no case for interference has been made out. Dismissed accordingly. JUDGE JUDGE Islamabad, the JUDGE 22nd April, 2015 Approved For Reporting Ghulam Raza/*

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{'id': 'C.A.394_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Faez Isa Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal No. 396 of 2018 (Against the order dated 19.01.2017 passed by Lahore High Court Rawalpindi Bench in C.R. No.199 of 2008) Fazal Ellahi deceased through his legal heirs …Appellant(s) Versus Mst. Zainab Bi …Respondent(s) For the Appellant(s): Syed Moazam Ali Rizvi, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s): Syed Hamid Ali Shah Bokhari, ASC Mr. Tariq Aziz, AOR Date of hearing: 24.09.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J. Mst. Zainab Bi, respondent herein, had been non-suited by a learned Civil Judge, at Kahuta vide judgment and decree dated 17.5.2006; praying for a declaration, she disputed vires of mutation No.596 dated 14.8.1970, purportedly entered in consequence of a sale effected by her father, Alif, incapacitated by paralysis, in favour of appellants’ predecessor-in-interest; alleging fraud, she prayed for consequential reliefs. A learned Additional District Judge vide judgment and decree dated 22.5.2008, reversed the findings returned by the learned Trial Court and decreed the suit, a decision subsequently affirmed by a learned Judge-in-Chambers of Lahore High Court Rawalpindi Bench Rawalpindi, being assailed, by leave of the Court, on a variety of grounds, ranging from a duly Civil Appeal No. 396 of 2018 2 mutated valid transaction, expiry of period of limitation as well as alleged knowledge of the sale, attributed to the respondent on the basis of a suit filed by her for possession through preemption qua the same chunk of land. Controverted by the respondent on the ground that there was no occasion for the revenue staff to enter the impugned mutation on a national holiday, that too in the absence of the vendor as well as two respectable persons to confirm his identity before completion of the process. The bottom line is that a vulnerable lady in a rural neighborhood was surreptitiously duped and that she recoursed the law at the first available opportunity. 2. Heard. Record Perused. 3. Even if entry of mutation on 14th of August, a national holiday, is unsuspectingly ignored, there are many other intriguing aspects, surrounding the controversy that cannot be possibly overlooked. It is admitted, at all hands, that Alif, respondent’s predecessor-in-interest was a physically incapacitated person and as such he neither attended the proceedings nor anyone was deputed to confirm/verify his assent. There is no entry in the Roznamcha as contemplated by Section 42 of the West Pakistan Land Revenue Act, 1967 (XVII of 1967), inter alia, providing identification by two respectable persons to confirm the transaction; non compliance with the procedure, though directory, nonetheless, puts us on caution. With a suspect entry, entire transaction is structured upon a self serving statement pointed upon the legitimate proprietary rights of a hapless female in a rural neighbourhood. It is by now well settled that a mutation by itself does not create title unless demonstrated to be backed by a valid transaction. A sale without a vendor or by his duly authorized attorney/agent is a farce. Appellants’ emphatic stress on the period of limitation is beside the mark inasmuch as their reference to the institution of a suit for possession through preemption by no other than the respondent herself is a far cry as well, as nothing has been placed on the record throughout the proceedings before the Courts below to even obliquely suggest that the respondent ever instituted any suit for the same piece of land. Civil Appeal No. 396 of 2018 3 Documents placed, for the first time before this Court, are also devoid of relevant details. Even otherwise having found the impugned transaction with the strappings of deceit, we are not impressed by the argument. Fraud vitiates most solemn proceedings and thus period of limitation would not embargo a justiciable claim directed against fraud. View taken by the Appellate Court, affirmed by the High Court, being well within the remit of law, calls for no interference. Appeal is dismissed. Judge Judge Judge Islamabad 24.09.2019 Not approved for reporting. Ghulam Raza/-

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{'id': 'C.A.396_2018.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE NASIR-UL-MULK MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE AMIR HANI MUSLIM CIVIL APPEALS NO. 39/2010, 1150/2010, 1162/2010, 142- K/2009, 177-K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66-K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188-K/2011, 232- K/2011, 75-K/2012 AND 82-K/2012 CIVIL APPEAL NO. 39/2010 (On appeal from the judgment dated 18.5.2009 passed by the High Court of Sindh, Karachi in Constitution Petition D- 1933/2008) Pakistan Defence Officer Housing Authority and others … Appellants VERSUS Lt. Col. Syed Jawaid Ahmed … Respondent For the Appellants: Mr. Khalid Javed, ASC For the Respondent: Mr. Shoaib Shaheen, ASC a/w respondent in person CIVIL APPEAL NO. 1150/2010 (On appeal from the judgment dated 26.11.2010 passed by the High Court of Sindh, Karachi in Constitution Petition No. D- 1713/2006) Pakistan International Airline through its Chairman … Appellant CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 2 VERSUS S.M. Nawaz and others … Respondents For the Appellant: Mr. Khalid Javed, ASC Sardar Muhammad Aslam, ASC Mr. Arshad Ali Ch, AOR For the Respondents: In person CIVIL APPEAL NO. 1162/2012 (On appeal from the judgment dated 24.9.2012 passed by the High Court of Sindh, Karachi in Constitution Petition No. D-141/2011) M/s Pakistan through itst Chairman / CEO, Karachi … Appellant VERSUS Muhammad Aslam Chaudhry and others … Respondents For the Appellant: Mr. Sanaullah Noor Ghouri, ASC Mr. Arshad Ali Chaudhry, AOR For Respondent (1): In person CIVIL APPEAL NO. 142-K/2009 (On appeal from the judgment dated 17.4.2009 passed by the High Court of Sindh, Karachi in C.P. No. D-1690/2007) N.E.D. University of Engineering and Technology and others … Appellants VERSUS Hafeezullah Khawaja … Respondent For the Appellants: Mr. Nadeem Azhar Siddiqui, ASC Mr. Khalid Javed, ASC For the Respondent: In person CIVIL APPEAL NO. 177-K/2010 (On appeal from the judgment dated 3.6.2010 passed by the High Court of Sindh, Karachi in CPs D-2705/2009, D-1768/2006, D- 1771/2006, D-1871/2006, D-1872/2006, D- 1894/2006, D-1895-, D-1896/2006, D- 1897/2006, D-2018/2006, D-2031/2006, D- 1918/2006, D-405/2006, D-563/2007, D- 574/2007, D-795/2007, D-871/2007, D- CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 3 1320/2007, D-1331/2007, D-1643/2007, D- 1648/2007, D-1951/2007 & D-2464/2007) M/s House Building Finance Corporation and another … Appellants VERSUS Shahid Mehmood Usmani … Respondent For the Appellants: Mr. M.A. Rehman Qureshi, ASC For the Respondent: N.R. CIVIL APPEAL NO. 178-K/2010 (On appeal from the judgment dated 3.6.2010 passed by the High Court of Sindh, Karachi in CPs D-2705/2009, D-1768/2006, D-1771/2006, D-1871/2006, D- 1872/2006, D-1894/2006, D-1895-, D-1896/2006, D- 1897/2006, D-2018/2006, D-2031/2006, D- 1918/2006, D-405/2006, D-563/2007, D-574/2007, D- 795/2007, D-871/2007, D-1320/2007, D-1331/2007, D-1643/2007, D-1648/2007, D-1951/2007 & D- 2464/2007) Chairman Pakistan Steel Mills and others … Appellants VERSUS Sirjauddin Ghori … Respondent For the Appellants: Mr. M.G. Dastagir, ASC For the Respondent: N.R. CIVIL APPEAL NO. 228-K/2010 (On appeal from the judgment dated 30.9.2010 passed by the High Court of Sindh, Karachi in Constitution Petition No. 1549/2010) Pakistan International Airline and another … Appellants VERSUS Hamayun Raja … Respondent For the Appellants: Mr. Munib Ahmed Khan, ASC Mr. Arshad Ali Chaudhry, AOR For the Respondent: N.R. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 4 CIVIL APPEAL NO. 57-K/2011 (On appeal from the judgment dated 8.1.2010 passed by the High Court of Sindh, Karachi in CP D-2122/2006) Pakistan Steel Mill through its Chairman … Appellant VERSUS Shakir Ali Khan and another … Respondents For the Appellant: Mr. Nadeem Azhar Siddiqui, ASC For the Respondents: N.R. CIVIL APPEAL NO. 63-K/2011 (On appeal from the judgment dated 28.11.2010 passed by the High Court of Sindh, Karachi in Constitution Petition No. D- 1489/2007) Pakistan Steel Mills Corporation (Pvt) Ltd … Appellant VERSUS Muhammad Rafiq Memon and others … Respondents For the Appellant: Mr. Munir Ahmed Khan, ASC For the Respondents: In person CIVIL APPEAL NO. 65-K/2011 (On appeal from the judgment dated 20.12.2010 passed by the High Court of Sindh, Karachi in Constitution Petition No. D- 1871/2006) Pakistan Steel Mills Corporation (Pvt) Ltd … Appellant VERSUS Noor Muhammad Awan and others … Respondents For the Appellant: Mr. Munib Ahmed Khan, ASC For the Respondents: N.R. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 5 CIVIL APPEAL NO. 66-K/2011 (On appeal from the judgment dated 20.12.2010 passed by the High Court of Sindh, Karachi in Constitution Petition No. D- 1872/2006) Pakistan Steel Mills Corporation (Pvt) Ltd … Appellant VERSUS Noor Muhammad Awan and others … Respondents For the Appellant: Mr. Munib Ahmed Khan, ASC For the Respondent (1): In person CIVIL APPEAL NO. 83-K/2011 (On appeal from the judgment dated 5.3.2011 passed by the High Court of Sindh, Karachi in Constitution Petition No. D-574/2007) Port Bin Qasim Authority through its Chairman and another … Appellants VERSUS Irshad Ahmed and another … Respondents For the Appellants: Mr. M.G. Dastagir, ASC For the Respondents: Mr. Muhammad Aqil Awan, Sr. ASC CIVIL APPEAL NO. 91-K/2011 (On appeal from the judgment dated 8.10.2010 passed by the High Court of Sindh, Karachi in Constitution Petition No. 871/2007) Pakistan Steel Mills Corporation (Pvt) Ltd … Appellant VERSUS Muhammad Sadiq and another … Respondents For the Appellant: Mr. M.G. Dastagir, ASC For the Respondent (1): In person CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 6 CIVIL APPEAL NO. 135-K/2011 (On appeal from the judgment dated 2.12.2010 passed by the High Court of Sindh, Karachi in Constitution Petition No. D-1771/2006) Pakistan Steel Mills Corporation (Pvt) Ltd … Appellant VERSUS Arshad Nadeem … Respondent For the Appellant: Mr. Shaukat Ali Sh, ASC For the Respondent: Syed Amjad Hussain, ASC CIVIL APPEAL NO. 136-K/2011 (On appeal from the judgment dated 31.3.2011 passed by the High Court of Sindh, Karachi in C.P. No. D-2498/2010) Pakistan Steel Mills Corporation (Pvt) Ltd through its Chairman … Appellant VERSUS Abid Hussain and another … Respondents For the Appellant: Mr. Muhammad Ikram Siddiqui, ASC For the Respondents: N.R. CIVIL APPEAL NO. 137-K/2011 (On appeal from the judgment dated 6.4.2011 passed by the High Court of Sindh, Karachi in C.P. No. D-1770/2006) Pakistan Steel Mills Corporation (Pvt) Ltd … Appellant VERSUS Qazi Ghulam Rehmani and another … Respondents For the Appellant: Mr. Muhammad Ikram Siddiqui, ASC For the Respondents: Syed Amjad Hussain, ASC CIVIL APPEAL NO. 188-K/2011 (On appeal from the judgment dated 10.5.2011 passed by the High Court of Sindh, Karachi in CP 3316/2010) M/s Pakistan State Oil Company Ltd and others … Appellants CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 7 VERSUS Imran Hassan Khan and another … Respondents For the Appellants: Mr. Muhammad Humayun, ASC For the Respondents: Mr. Muhammad Aqil Awan, Sr. ASC CIVIL APPEAL NO. 232-K/2011 (On appeal from the judgment dated 16.5.2011 passed by the High Court of Sindh, Karachi in Constitution Petition No. D-1643/2007) Pakistan Steel Mills Corporation (Pvt) Ltd … Appellant VERSUS Mirza Hassan Ali … Respondent For the Appellant: Mr. Shaukat Ali Sh, ASC For the Respondent: N.R. CIVIL APPEAL NO. 75-K/2012 (On appeal from the judgment dated 19.7.2012 passed by the High Court of Sindh, Larkana in Constitution Petition No. D- 381/2012) S.M.E. Bank Ltd … Appellant VERSUS Akbar Ali Abbasi and another … Respondents For the Appellant: Mr. Agha Faqeer Muhammad, ASC For the Respondent (1): In person CIVIL APPEAL NO. 82-K/2012 (On appeal from the judgment dated 18.4.2012 passed by the High Court of Sindh, Karachi in C.P. No. D-1667/2010) Pakistan Steel Mills Corporation (Pvt) Ltd … Appellant VERSUS Miss Shakeela Naz … Respondent For the Appellant: Mr. Sanaullah Noor Ghori, ASC For the Respondent: N.R. Date of Hearing: 02.05.2013 CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 8 JUDGMENT TASSADUQ HUSSAIN JILLANI, J.- This judgment shall dispose of the above titled appeals as the questions of law raised are common. BRIEF FACTS IN APPEALS: 2. In Civil Appeal No. 39/2010 the respondent was serving as Vice Principal of Pakistan Defence Officers Housing Authority, Karachi. He was proceeded against departmentally inter alia on the ground that he violated service discipline by filing a constitution petition (bearing No. 1276 of 2008) seeking a direction that he may be ordered to be appointed as Principal. The enquiry culminated in the award of major penalty of termination of service. The High Court allowed the constitution petition on the ground that the order passed was not sustainable as the procedure prescribed in Removal from Service (Special Powers) Ordinance 2000 [hereinafter referred to as the ‘Ordinance 2000’] had not been followed. 3. In Civil Appeal Nos. 177-K/2010, 178-K/2010, 65- K/2011, 66-K/2011, 83-K/2011, 91-K/2011, 135-K/2011 & 232- K/2011 the respondents are employees of various organizations which are admittedly under the control of Federal Government. Those organizations included House Building Finance Corporation, Port Qasim Authority, Pakistan Steel Mills Corporation (Pvt) Ltd, S.M.E. Bank and Pakistan International Airlines Corporation. Respondents were proceeded against under the Ordinance, 2000 and awarded major penalties. Some of them initially approached CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 9 the Federal Service Tribunal and their appeals before the Tribunal were held to have abated on account of judgment of this Court in Muhammad Mubeen-us-Salam Vs. Federation of Pakistan and others (PLD 2006 SC 602). They filed Constitution petitions and relying on a judgment of this Court in Civil Aviation Authority through its Director General Vs. Javed Ahmed and another (2009 SCMR 956), the High Court of Sindh held that if an employee is proceeded under the Ordinance, 2000, the High Court is competent to consider as to whether the action taken was in accordance with law or not. A Division Bench of the High Court having decided the question of jurisdiction directed the Constitution petitions to be listed before the appropriate benches. 4. In Civil Appeal No. 142-K/2009 the respondent was an employee of the NED University of Engineering & Technology, Karachi. He was proceeded against departmentally which culminated in the award of major penalty of termination from service. The court relied on Tanveer Hussain Vs. Divisional Superintendent, Pakistan Railways etc (PLJ 2006 SC 1092) & Federation of Pakistan through D.G. Military Lands and Cantonment Rawalpindi and others Vs. Syed Ibrahim Shah and others (2007 PLC (C.S) 1288) to hold that the Ordinance, 2000 being general law has overriding effect and the proceedings held under the University Statute of 1990 could not be sustained. The University, however, was given the option to proceed de novo against the respondent under the Ordinance 2000. 5. In Civil Appeal No. 1150/2010 respondent was Manager Accounts in Pakistan International Airlines Corporation. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 10 He was awarded major penalty of compulsory retirement. He challenged the said order before the Service Tribunal which partly allowed the appeal and altered the major penalty to minor penalty of withholding of increment for three years without cumulative effect. However, on account of the judgment in Mubeen ul Islam’s case (PLD 2006 SC 602), appeal before the Service Tribunal stands abated whereafter the respondent filed a constitution petition which was allowed by the High Court and respondent was directed to be reinstated but the Court observed that it would be open for the competent authority to reconsider the matter on the basis of the report of the Enquiry Committee after issuing respondent a show cause notice. 6. In Civil Appeal No. 228-K/2010 respondent was employed as Baggage Attendant / Loader in the Pakistan International Airlines, Karachi Airport. He was proceeded against under section 3 of the Ordinance 2000 and was awarded major penalty of dismissal from service. The High Court allowed the writ petition and directed his reinstatement as it was of the view that no eyewitness appeared during enquiry and the enquiry stood vitiated on account of the enquiry officer’s bias. 7. In Civil Appeal No. 57-K/2011 respondent was an employee of the Pakistan Steel Mills. He was proceeded against on charges of misconduct, which culminated in the award of major penalty of removal from service. The learned High Court allowed the Constitution petition and converted the penalty of removal from service into compulsory retirement as it found that the CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 11 penalty awarded was not proportionate to the charge. He was also held entitled to the beneifts of retirement. 8. In Civil Appeals Nos. 63-K/2011, 136-K/2011, 137- K/2011, and 82-K/2012, the respondents – writ petitioners were employees of the Pakistan Steel Mills Corporation. They were proceeded against departmentally and awarded various penalties. The Constitution petitions were disposed of inter alia holding that those Constitution petitions were maintainale as respondents had been removed under the Ordinance, 2000; that the charges levelled against them could not be proved and that the penalties awarded were not sustainable. 9. In Civil Appeal No. 188-K/2011 respondent was an employee in the Pakistan State Oil. He was proceeded against departmentally in terms of the Ordinance, 2000 and awarded major penalty of dismissal from service. However, the learned High Court allowed the Constitution petition inter alia on the ground that the charges had not been established during inquiry and he was directed to be reinstated with all the consequential back- benefits. 10. In Civil Appeal No. 1162/2012 respondent was an employee of the Pakistan Steel Mills. He was proceeded against on charges of misconduct. The Constitution petition was allowed mainly on the ground that it was a case of no evidence and the allegations levelled had not been established. 11. In Civil Appeal No. 75-K/2012, respondent was an employee of the S.M.E. Bank. He was proceeded against under the Ordinance 2000 and awarded major penalty of termination of his CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 12 service vide order dated 1.12.2000. The said order was however withdrawn by the competent authority; he was reinstated but later onfresh enquiry was held which culminated in the award of the same major penalty of dismissal from service vide order dated 12.12.2001. He challenged the order in appeal before the Service Tribunal which was allowed vide order dated 19.3.2010. However the said order was challenged before this Court which set aside the order of the Service Tribunal vide judgment dated 11.6.2010. Meanwhile, respondent filed a representation before the Secretary Finance who vide order dated 2.12.2011 allowed the said representation and finding that he had been condemned unheard, reinstated him and left the question of payment of back benefits to a Committee constituted by the President of the Bank. The said Committee, however, did not grant him back benefits whereafter he approached the High Court in constitution petition which was allowed inter alia on the ground that there was no evidence on record that he was gainfully employed and merely because he had invested some money in defense certificates does not disentitle him to back benefits. Gist of the Arguments: 12. In support of Civil Appeal No. 39/2010 learned counsel for the appellants Mr. Khalid Javed, ASC submitted that the learned High Court of Sindh has failed to appreciate that the service of the respondent was neither regulated by any law nor statutory rules of service and the petition under Article 199 of the Constitution was not maintainable; that the learned High Court has failed to consider that the termination order dated 9.9.2008 of CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 13 the respondent was a ‘termination simplicitor’ and there being no stigma attached the petition for reinstatement was not maintainable; that the learned Court fell in error in not appreciating that the Ordinance, 2000, did not provide substantive rights to employees but only laid down procedure for taking action against them for any act or omission which may fall within the mischief of law and that the service of the respondent was being regulated by regulations which were non-statutory and therefore, the Constitution petition was not maintainable. 13. In support of the submissions made, learned counsel relied on Pakistan International Airline Corporation Vs. Tanweer- ur-Rehman (PLD 2010 SC 676 (relevant paras 19, 23 25), Pakistan Telecommunication Co. Ltd Vs. Iqbal Nasir (PLD 2011 SC 132), R.T.H. Janjua Vs. National Shipping Corporation (PLD 1974 SC 146), Secretary, East Pakistan Industrial Development Corporation Vs. Md. Serajul Haque (1970 SCMR 398), Pakistan International Airlines Corporation Vs. Shahabuddin and others (1993 PLC (CS) 1), Raziuddin Vs. PIA Corporation (PLD 1992 SC 531), Muhammad Yusuf Shah Vs. Pakistan International Airlines Corporation (PLD 1981 SC 224), Shafaullah Vs. Saif ur Rehman (PLD 1991 SC 1106), Pakistan Red Crescent Society Vs. Nazir Gillani (PLD 2005 SC 806). 14. Learned counsel for the appellants in all the remaining appeals adopted the arguments of learned counsel for the appellant in Civil Appeal No. 39/2010. 15. Learned counsel for the respondents in Civil Appeal Nos. 188-K/2011 and 83-K/2011 M/s Muhammad Humayun, ASC CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 14 and Muhammad Aqil Awan, Sr. ASC defended the impugned judgments of the learned High Court as according to them the Constitution petitions were maintainable because the Ordinance, 2000 had an overriding effect and any violation thereof was amenable to writ jurisdiction of the High Court. They added that after promulgation of Ordinance 2000, there was a statutory intervention and the respondents who were aggrieved of the violation of the said statute could invoke the jurisdiction of the High Court under Article 199 of the Constitution. 16. In support of the submissions made, learned counsel relied on I.G. HQ Frontier Corpos and others Vs. Ghulam Hussain etc (2004 PLC (CS) 1187 at page 1199), Daud Shah and another Vs. Pakistan Water and Power Development Authority and others (2007 PLC (CS) 281 at page 284-F para), Federation of Pakistan Vs. Syed Ibrahim Shah and others (2007 PLC (CS) 1288 at 1290(b)), Tanveer Hussain Vs. Divisional Superintendent (PLJ 2006 SC 1092 at 1095-A para 5-6), Azizullah Memon Vs. Province of Sindh (2007 SCMR 229 at 231), Evacuee Trust Property Board Vs Muhammad Nawaz (1993 SCMR 1275 at 1277), Muhammad Zubair Ikram Vs. Aithison College, Lahore through its Principal (NLR 2000 Civil 519 at 530), Aitchison College Vs. Muhammad Zubair (PLD 2002 SC 326 at 341), Managing Director, Ittehad Chemical Vs. Musthaq Ahmed (NLR 1997 Service 119), Pakistan International Airlines Vs. Nasir Jamal Malik (2001 SCMR 934 at 943 and 944-F), Principal Cadet College, Kohat Vs. Muhammad Shoab (PLD 1984 SC 170 at 176-B), Muhammad Ashraf Vs. Director General, Multan Development Authority etc (2000 PLC (CS) 796 at 801-C), CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 15 Muhammd Dawood Vs. Federation of Pakistan and others (2007 PLC (CS) 1046), Civil Aviation Authority Vs. Javed Ahmed (2009 SCMR 956) and (2010 PLC (CS) 1360 at 1375). 17. Leave was granted by this Court (In Civil Appeal No. 1162 of 2012) against the judgment of the High Court in following terms:- 4. We have heard the learned Advocate Supreme Court for the petitioner and learned Deputy Attorney-General, the latter relied upon the judgment in the case of Civil Aviation Authority v. Javed Ahmad (2009 SCMR 956) and stated that in such like cases when a person has been dismissed under the Ordinance of 2000, he can invoke the jurisdiction of the High Court as he cannot be left without any remedy. He relied upon following paragraph from the judgment in the case of Javed Ahmed (supra):-- "8. Needless to mention here that FBR through Circular No.7 dated l9th July, 2008 clarified that scheme is applicable to all undisclosed assets/income which somehow or the other could not be disclosed and remained unexplained and that cases are pending in appeal or raised/detected by the department would be dealt under normal law and not under specific provisions of scheme. The second deviation took place when the FBR issued Circular No.8 of 2008 whereby the scheme was restricted so as to exclude pending cases before the department, appellate authority or any Court, thus, the state of law was changed. We are of the view that amendment brought through the referred circular is of substantive nature thereby restricting the scope of the original scheme and the state of law stood changed from the said date effecting the right and liabilities of those who have acted upon the scheme in good faith under its original scope. Therefore, Circular No.8 of 2008 cannot apply retrospectively and show-cause notices stand vacated. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 16 5. It is pertinent to mention here that besides the above judgment, in another case i.e. Hyderabad Electric Supply Company v. Mushtaq Ali Brohi (2010 PSC 1392), this Court has held that as the services of the respondent were not governed by the statutory rules, therefore, the High Court had no jurisdiction to entertain the petition under Article 199 of the Constitution. It may not be out of context to note that in another case reported as Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCMR 1484), this Court in its paragraph No.9 observed as under:-- 9. The principle perceived from the above judgments is that the employees of those organizations, which are discharging functions in connection with the affairs of Federation, can approach the learned High Court under Article 199 of the Constitution but subject to the condition if their services are protected under the statutory rules." 6. As far as the jurisdiction of the Tribunal under Article 212 of the Constitution is concerned, it was opined that the Tribunal would have jurisdiction under Article 212 of the Constitution for redressal of grievance of those employees whose terms and conditions are governed under the statutory rules. Admittedly, terms and conditions of the respondent in the present case have not been settled under the Constitutional provision referred to hereinbefore, therefore, inter alia, the question for consideration would be as to whether, if a person being employee of a corporation like Steel Mills has been proceeded against under the provisions of Ordinance of 2000, would he have no remedy to challenge such order. 7. Leave to appeal is granted, inter alia, to examine the above questions and to resolve the divergent opinions in the judgments noted hereinabove. Office is directed to put up a note for the purpose of constituting larger Bench to set at naught these discrepancies in the judgments noted above.” CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 17 18. Having considered the submissions made by learned counsel for the parties and having gone through the precedent case law cited at the bar as also the conflict of opinion reflected in the leave granting order, the questions which crop up for consideration broadly would be as follows:- (i) Whether the appellants are persons discharging functions in connection with affairs of Federation or a Province within the meaning of clause (5) of Article 199 of the Constitution and amenable to writ jurisdiction of the High Court? and (ii) Whether the respondent-employees being ‘person in corporation service’ within the meaning of section 2(c) of the Removal from Service (Special Powers) Ordinance, 2000 and having been deprived of their right to appeal by a judgment of this Court in Mubeen us Islam’s case (PLD 2006 SC 602), could invoke Article 199 of the Constitution against the order of the departmental authority in view of the law laid down by this Court in Civil Aviation Authority through Director General v. Javed Ahmad and another (2009 SCMR 956) or their remedy is a claim of damages as held in Pakistan International Airline Corporation Vs. Tanweer-ur-Rehman (PLD 2010 SC 676), Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCMR 1484), Hyderabad Electric Supply Company v. Mushtaq Ali Brohi (2010 PSC 1392) and CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 18 Civil Aviation Authority through Director General v. Javed Ahmad (2009 SCMR 956)? Questions of Law and Opinion of the Court: Question No.1: Whether the appellants are persons discharging functions in connection with affairs of Federation or a Province within the meaning of clause (5) of Article 199 of the Constitution and amenable to writ jurisdiction of the High Court? 19. To better appreciate the question mooted above, it would be of relevance to give a brief overview of the law, structure and functions of the statutory bodies/corporations/authorities (appellants). (i) Pakistan Steel Mills Pakistan Steel Mills is admittedly a public sector project. It was established in July 1968 under the Companies Act, 1913 as a private limited company. It is not denied that the Federal Government makes appointments in the top management of the Mills and plays a pivotal role in its policy making. Though it is not a statutory body, but its employees are “persons in corporation service” within the scope of section 2(c) of the Ordinance, 2000. Admittedly, their disciplinary matters were being regulated by a statutory regime (the Ordinance 2000) and they had sought enforcement of the said regime/statutory intervention when the said regime was in the field by invoking Article 199(1)(a)(ii) of the Constitution as they had been deprived of their right to appeal. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 19 (ii) Port Qasim Authority: Port Qasim Authority is a statutory body created under the Ports Qasim Authority Act, 1973. A bare reading of various provisions of this Act would indicate that in its management and functions the Federal Government has effective control. The Government by notification in the Official Gazette defines the limits of the Port Qasim Authority (Section 3); the management of the Authority is carried out by the Board comprising of at least three and not more than seven members including the Chairman to be appointed by the Federal Government (Section 6); the Board is guided on policy mattes by directions issued by the Federal Government from time to time [(Section 5(2)]; the remuneration and conditions of service of the Chairman and Members of the Board are determined by the Federal Government (section 7); all schemes under the Act are to be prepared in such manner and form as the Federal Government may specify (section 12); the Authority is mandated to frame scale of tolls, dues, rates and charges, annual or other, to be paid by the owners of vessels. Such scales are to be published in the Official Gazette after approval by the Federal Government [Section 12 (3) (4)]; the Federal Government has the power to exempt any goods or class of goods from operation of the charging section (Section 20(3); the Authority has the power to acquire land within the Board Area (Section 34); the Chairman, members, officers and servants of the Authority when acting under the Act are deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code (Section 52). CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 20 Thus the composition and functions as given in various provisions of the Statute to which reference has been made above indicate that: first the Federal Government has an overriding role in the appointment of the Chairman and members of the Board, in policy making and even in charging provisions and with regard to powers of land acquisition. Second the functions and powers it exercise have some elements of public authority. The Authority therefore can be classified as a ‘person’ performing functions in connection with the affairs of the Federation within the meanings of Article 199(1)(a)(ii) read with Article 199(5) of the Constitution of Islamic Republic of Pakistan. iii) S.M.E. Bank: S.M.E. Bank is established under the Regional Development Finance Corporation and Small Business Finance Corporation (Amalgamation and Conversion) Ordinance, 2001 (Ordinance LVI of 2001). Its employees would come within the purview of the Ordinance 2000, section 2(c) of which defines ‘person in corporation service’ as “every person in the employment of a corporation, corporate body, authority, statutory body or other organization or institutions set up, established, owned, managed or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein.” It was on account of the above mandate of law that CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 21 admittedly its respondent-employees were proceeded against this Ordinance. iv) Defence Housing Authority, Karachi: The Defence Housing Authority Karachi was established under the Pakistan Defence Officers Housing Authority Order, 1980 (promulgated on 9th of August 1980). The management and authority vests in the Governing Body which comprises of the Secretary-General, Ministry of Defence, Government of Pakistan, who would be its Chairman and the other members/officers include (a) Vice Chiefs of Staff of the three Services or one Principal Staff Officer from each of the three Services to be nominated by the respective Chiefs of Staff; (b) the President; (c) the Director, Military Lands and Cantonments; and (d) the Administrator [(Section 5 (1)]. For day to day working, an Executive Board of the Authority comprises of Corps Commander who would be its President and other members include: (a) a serving Naval Officer not below the rank of a Commodore posted at Karachi, to be nominated by the Chief of the Naval Staff; (b) a serving Air Force officer not below the rank of an Air Commodore posted at Karachi, to be nominated by the Chief of the Air Staff; (c) a serving Army Officer not below the rank of a Brigadier posted at Karachi, to be nominated by the Chief of the Army Staff; (d) the Administrator; and (e) co-opted members, to be appointed by the Executive Board for a period not exceeding two years at a time, provided that such co-opted members shall not have any right of vote. [(Section 5(2)]. The Executive Board of the Authority has the CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 22 power to acquire land under the law, undertake any work in pursuance of any scheme or project; no master plan, planning or development scheme can be prepared by any local body or agency for the specified area without prior consultation with, and approval of, the Executive Board (Section 9). The Authority through the Executive Board has the power to raise funds for the purpose of its working capital in a manner the Board may think proper, through loans or levy of any charges which may be prescribed by it under the Rules (Section 10). The Administrator functions in accordance with the policy laid down by the Governing Body (Section 11). All schemes/projects/works carried out by the Authority are deemed under the law to be schemes for public purposes (section 12). The employees of the Authority are deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code (Section 16). The Governing Body has the power to make Rules by notification in the Official Gazette for carrying out the purposes of the Order/Statute. (Section 22). The Executive Board has the power to make Regulations not inconsistent with the provisions of the Order and the rules as it may consider necessary or expedient for the administration and management of the affairs of the Authority. (Section 23). In Civil Appeal Nos. 1150 and 228-K of 2010, respondents were employees of Pakistan International Airlines Corporation. In Civil Appeal No. 117-K of 2010, respondents were employees of Housing Building Finance Corporation. In Civil Appeal No. 142-K of 2009, respondents were employees of N.E.D. University. In Civil Appeal No. 188-K of 2011, respondents were CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 23 employees of Pakistan State Oil. All these employees were proceeded against under the Ordinance, 2000 and were awarded various penalties. The learned High Court decided the question of jurisdiction holding that writ was maintainable as the appellants were “persons” within the meaning of Article 199(5) of the Constitution and further that respondent-employees had no alternate remedy as their right of appeal under section 10 of the Ordinance had been declared to be ultra vires of the Constitution. 20. While dilating on this question whether the appellants- organizations are “persons” within the meanings of Article 199(1)(a)(ii) read with Article 199(5) of the Constitution, the expanded functions of the Federation or a Province in contemporary age have to be kept in view. An important dimension of the modern welfare State is that the role of the State and its various institutions has increased manifold. The government is regulator and dispenser of special services. It has the power to create jobs, issue licenses, fix quotas, grant mining rights or lease of estate, sign contracts and provide variety of utility services to the people. Such entrepreneurial activities at times are carried out through companies created under the Statute or under the Companies Ordinance. The functions these companies / institutions perform have elements of public authority. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private gain or profit. Such an authority, however is not precluded from making a profit for the public benefit. The Courts have generally applied what has been CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 24 classified as a “function test” to consider whether a statutory body is a ‘person’ within the meaning of Article 199 of the Constitution. In Salahuddin v. Frontier Sugar Mills & Distillery Ltd (PLD 1975 SC 244), the Court laid down similar test to assess whether a body or authority is a person within the meaning of Article 199 of the Constitution and observed:- “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 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.” 21. The afore-referred view was further affirmed in Aitchison College, Lahore through Principal v. Muhammad Zubair (PLD 2002 SC 326), and while not interfering with the judgment of the Lahore High Court whereby the latter court had held that the said college was amenable to the jurisdiction of the High Court under Article 199 of the Constitution, this Court laid down as follows:- “Applying the above test on the facts of instant cases, we feel no hesitation in drawing inference that the Board of Governors, Aitchison College, Lahore headed by the Governor of the Province as its President along with other officers i.e. Secretaries Education, Finance and General Officer Commanding as well as unofficial Members are involved in providing education which is one of the responsibility of the State and by taking over its management and control the Board, exercises sovereign powers as well as public powers being a statutory functionary of CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 25 Government who in order to provide it full legal/Constitutional protection had brought it into the folds of its Education Department by amending the Provincial Rules of Business as back as in 1994 and even if for sake of arguments if it is presumed that no financial aid is being provided to the College from the Provincial Public exchequer, even then, the College remains in dominating control of the Provincial Government through Board of Governors. Therefore, the above test stands fully satisfied and we are persuaded to hold that organization of the Aitchison College, Lahore falls within the definition of a person.” 22. In Pakistan International Airlines v. Tanweer-ur- Rehman (PLD 2010 SC 676), reiterating the earlier view, the Court laid down a similar three pronged test: (i) whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; (ii) whether the control of the organization vests in a substantial manner in the hands of Government; and (iii) whether the bulk of funds is provided by the State. 23. A comparative study of constitutional law on issues under consideration would be instructive. In Sukh Dev Singh and others v. Beghatram Sardar Singh Raghwamshi and another (AIR 1975 SC 1331), the questions mooted before the Court were inter alia whether action of a statutory corporation in derogation to its Rules could be annulled in writ jurisdiction and whether the Rules framed by the corporation under the Statute were statutory. The Court held as follows:- "33. ……….A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class.. The' Oil and CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 26 Natural Gas Commission, the Life Insurance Corporation and Industrial Finance corporation are all required by the statute to frame regulations, inter alia, for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option. to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual .relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies, there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been' said that the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by Courts by declaring dismissal in violation of rules and regulations to be valid. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute. " 24. Somewhat similar view was taken by this Court in The Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 SCMR 1275) and the judgment of this Court in C.P.S.L.A. No. 645/74 titled as Chairman Evacuee Trust Property Board Lahore, etc., v. Noor Elahi and C.P.L.S.A. No. 646/74, titled as Chairman Evacuee Trust Property Board Lahore, etc v. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 27 Muhammad Ramzan, upholding the judgment of the High Court was followed with approval. This Court held:- "It appears from the order passed by the learned Chief Justice of the High Court on the two Constitution Petitions that the Board at its 6th Meeting held in May 1969, passed the following resolution :‑‑ "Agreed. Central Government Rules would apply to the Board's employees for all intents and purposes." Under paragraph 43 of the scheme the Board is authorized to make rules to carry out the; purposes of the scheme framed under section 16‑A(i) of the Displaced Persons (Compensation and Rehabilitation) Act 1958, and under section 14(2) of the Displaced Persons (Land Settlement) Act 1958. Paragraph 16 of the Scheme provides that no employee of the Board shall be dismissed or otherwise punished except in accordance with the rules framed by the Board and approved by the Central Government. In our opinion the aforesaid resolution amounted to making of the rules by the Board.” It was not disputed before the learned Chief Justice that till such time the Board framed its own rules, the employees were governed by the Efficiency and Discipline Rules 1960, framed by the Central Government. Admittedly these rules were not followed in the cases of the two respondents and, therefore, no fault can be found with the impugned orders of the learned Chief Justice. Both the petitions are accordingly dismissed." 25. The Court further candidly held, “Even otherwise it is well‑settled that where statutory rules govern the service conditions of an employee, then the pleasure of the master stands surrendered to the extent the matter is covered by the relevant rules”. 26. Whether a company or authority is an instrumentality of the State has also been subject of debate in constitutional CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 28 jurisprudence of India. The Indian Supreme Court in Ramana v. I.A. Authority of India (AIR 1979 SC 1628) adverting to the factors which make a corporation or authority an instrumentality of the State held:- “It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government. We have referred to some of these factors and they may be summarized as under: Whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to Governmental functions. This particularization relevant factors is, however, not exhaustive and by its very nature it cannot be because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is Government instrumentality or agency. Moreover, even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the Court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularized inquiry into the facts and circumstances of each case. ‘The dispositive question in any State action case’, as pointed out by Dougles, J., in Jackson v. Matropolitan Edison Co. (1974) 419 US 345 (supra) is not whether any single fact or relationship presents a sufficient degree of State involvement, but rather whether the aggregate of all relevant factors compels a finding of State responsibility. It is not enough to CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 29 examine seiatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding to that effect. It is the aggregate or cumulative effect of all the relevant factors that is controlling.” 27. Keeping in view the Statutes which established and the functions of the appellants’ authorities, and having considered in the light of “function test”, we hold and declare that these are statutory bodies, performing some of the functions which are functions of the Federation/State and through the exercise of public power, these bodies create public employments. These bodies are therefore “persons” within the meanings of Article 199(1)(a)(ii) read with Article 199(5) of the Constitution. If their actions or orders passed are violative of the Statute creating those bodies or of Rules/Regulations framed under the Statute, the same could be interfered with by the High Court under Article 199 of the Constitution. Question No.2: Whether the respondent-employees being ‘person in corporation service’ within the meaning of section 2(c) of the Removal from Service (Special Powers) Ordinance, 2000 and having been deprived of their right to appeal by a judgment of this Court in Mubeen us Islam’s case (PLD 2006 SC 602), could invoke Article 199 of the Constitution against the order of the departmental authority in view of the law laid down by this Court in Civil Aviation Authority through Director General v. Javed Ahmad and another (2009 SCMR 956) or their remedy is a claim of damages as held in Pakistan International Airline Corporation Vs. Tanweer-ur-Rehman (PLD 2010 SC 676), Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCMR 1484), Hyderabad Electric Supply Company v. Mushtaq CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 30 Ali Brohi (2010 PSC 1392) and Civil Aviation Authority through Director General v. Javed Ahmad (2009 SCMR 956)? 28. For a better appreciation of the question framed, it would be pertinent to comprehend the ambit and scope of the Ordinance 2000 and its various provisions. It has not been disputed before this Court that the appellants are statutory bodies within the meaning of section 2 of the Ordinance and that is why all the respondent-employees were proceeded against under the said law except those of NED University and regarding that the High Court of Sindh vide the impugned judgment had observed that those employees too ought to have been dealt with under the said Ordinance. To discern that the Ordinance 2000 has an overriding effect a reference to certain provisions at this stage would be in order. Section 1(4) of the Ordinance 2000 stipulates that “it shall apply to persons in Government service and corporation service.” The expression “person in corporation service” has been defined in section 2(c) which reads as under:- “2. Definitions.--- ---- (a)----- (aa) ------ (b)------ (c)'person in corporation service' means every person in the employment of a corporation, corporate body, authority, statutory body or other organization or institutions set up, established, owned, managed or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has a controlling share or interest and includes CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 31 the Chairman and the Managing Director, and the holder of any other office therein. (d) ----- ” 29. The right of appeal given under section 10 of the Ordinance (before the Service Tribunal) was held to be ultra vires in view of the law laid down in Mubeen-us-Salam’s case (PLD 2006 SC 602). To further buttress its overriding effect, Section 12 of the Ordinance 2000 provided:- “Proceedings under this Ordinance. - All proceedings initiated on the commencement of this Ordinance in respect of matters and persons in service provided for in this Ordinance shall be governed by the provisions of this Ordinance and rules made thereunder. Provided that the Federal Government may, by notification in the official Gazette, exempt any class or classes of employees of a Corporation, a corporate body, authority, statutory body or other organization or institution set up, established, owned, managed or controlling share or interest from the provisions of this Ordinance and such class or classes of employees shall, notwithstanding anything contained in this Ordinance, be proceeded against and dealt with under the laws and rules applicable to such employees before the commencement of this Ordinance.” 30. This Ordinance was promulgated on 27th of May 2000 and remained in force till its repeal on 6th of March, 2010. 31. The expression ‘person in corporation service’ appearing in section 2(c) of the Ordinance 2000 is fairly comprehensive and indicates that the legislative intent was that every person in the service of a corporation, a corporate body, authority, statutory body or other organization or institution which is established, owned and managed or controlled by the Federal Government or under any law for the time being in force in which CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 32 the Federal Government has a controlling share shall be treated as a “person in corporation service”. Section 12 mandates that proceedings in service matters against the employees of such statutory bodies/organizations shall be governed by the provisions of the Ordinance 2000. However, it carries a rider i.e. unless, “the Federal Government may, by notification in the official Gazette, exempt any class or classes of employees of a Corporation, a corporate body, authority” as defined in section 2(c) from the provisions of this Ordinance and the said notification further provides that those employees would, “be proceeded against and dealt with under the laws and rules applicable to such employees before the commencement of this Ordinance”. It has never been the case of the appellant-organizations before this Court that the Federal Government had in this regard issued any notification in the Official Gazette exempting the respondent-employees from the provisions of Ordinance 2000. Hence the matters of their service discipline had to be dealt with under the said Ordinance. 32. Before we proceed to discuss the issue raised, a brief reference to the precedent case law in writ jurisdiction with regard to the employees of statutory bodies generally would be relevant. 33. The actions of statutory bodies in service matters have been subject of judicial scrutiny in all jurisdictions. In some cases, Courts have interfered in exercise of the power of judicial review on a variety of grounds, while in others they have refrained invoking the principle of Master and Servant. There is need to discern the principles which have weighed with the Courts in varied situations. In Maloch Vs. Aberdeen Corporation (1971) 1 W.L.R. 1578 Lord CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 33 Wilberforce, in speaking about the anomaly created by judicial decision in the area of contractual and statutory employments narrowed down the parameters of ‘pure master and servant cases’ in observing:- “A comparative list of situations in which persons have been held entitled or not entitled to a hearing or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizarre. A specialist surgeon was denied protection which is given to a hospital doctor; a University professor, as a servant has been denied the right to be heard, a dock labourer and an undergraduate have been granted it; examples can be multiplied. One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called “pure master and servant cases”, which I take to mean cases in which there is no element of public employment or service, no support by statue, nothing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter parties aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void. (Emphasis is supplied) I think that employment under public corporation of the nature under consideration here is public employment and therefore the employee should have the protection which appertains to public employment.” 34. In Viteralli v. Saton (359 US 535 Second Series 1012), the American Supreme Court speaking through Judge Frankfurter held that the authority is bound to follow the procedure prescribed in law: “An executive agency must be rigorously held to the standards by which it professes its action to CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 34 be judged……Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed……This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.” 35. In Sukhdev Singh, Oil & Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II Officers, Shyam Lal, Industrial Finance Corporation (AIR 1975 SC 1331), the questions before the Indian Supreme Court were whether an order for removal from service contrary to regulations framed under the Oil and Natural Gas Commission Act, 1959; the Industrial Finance Corporation Act, 1948; and the Life Insurance Corporation Act, 1956 would enable the employees to a declaration against the statutory corporation of continuance in service or would only give rise to a claim for damages. Second whether an employee of a statutory corporation is entitled to claim protection of Articles 14 and 16 against the Corporation. The Court by majority held as follows:- “60. The Oil and Natural Gas Commission is owned by the Government. It is a statutory body and not a company. The Commission has the exclusive privilege of extracting petroleum. The management is by the Government. It can be dissolved only by the Government. …………………………………………….. 67. For the foregoing reasons, we hold that rules and regulations framed by the Oil and Natural Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation have the force of law. The employees CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 35 of these statutory bodies have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. By way of abundant caution we state that these employees are not servants of the Union or the State. These statutory bodies are “authorities” within the meaning of Article 12 of the Constitution.” 36. In Lt. Col. Shujaddin Ahmad v. Oil & Gas Development Corporation (1971 SCMR 566), the question mooted was whether the Oil & Gas Development Corporation was a government department and, if so, whether its employees could challenge the order of departmental authority before the High Court under Article 199 of the Constitution. The Court while reiterating that relationship between the Corporation and its employees in the said case was that of master and servant dismissed the petition and held as follows:- “The consistent view of this Court therefore has been that the employees of such statutory Corporations do not acquire the status of Government servants nor are the guarantees given by the Constitution applicable in their case. The High Court was, therefore, in our view, right in vacating the order of interim injunction, for according to the law of Master and Servant, a contract of service cannot be specifically enforced. It follows, therefore, that no temporary injunction can either be granted in such case. This petition is, accordingly dismissed.” This view was further affirmed in Raziuddin v. Chairman, Pakistan International Airlines Corporation (PLD 1992 SC 531), and while dismissing the appeal of the employees whose services had been terminated by the respondent, this Court held as follows:- “Even if we are to agree with Mr. Niaz Ahmad Khan's above submission, we cannot hold that CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 36 section 10(2) of the Act is violative of any fundamental rights guaranteed by the Constitution, keeping in view the factum that to the absence of statutory provisions for regulating the relationship of a statutory Corporation and its employees, the relationship is that of Master and Servant. We may also observe that subsections (2), (3) and (4) of section 10 of the Act have been omitted by the Pakistan International Airlines Corporation (Amendment) Act,. 1989 (Act No.V11 of 1989), gazetted on 2-11-1989, and therefore, the above subsection (2) of section 10 is no longer on the statute.” 37. The above rule of master and servant, it may however, be noted, was departed in situations where relationship between a corporation and its employees was regulated by statutory provisions and violation of such provisions was complained of. Thus in Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275), the Court upheld the judgment of the High Court by holding that, “Where statutory rules governed the service conditions of an employee, then the pleasure of the master stands surrendered to the extent the matter was covered by the relevant rules.” 38. The afore-referred view was followed in Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194) wherein this Court laid down as follows:- “The test of the employer/employee relation is the right of the employer to exercise control of the details and method of performing the work. It follows that if the relationship is the result of a contract freely entered into by the contracting parties then the principle of Master and Servant will apply. The principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil servant for whom there are constitutional safeguards, is not governed by the principle of Master and Servant; for he is possessed of a legal character for the CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 37 enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of Master and Servant will not apply. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be entitled to an action for his reinstatement:" (Emphasis is supplied) 39. In Principal, Cadet College, Kohat and another v. Mohammad Shoab Qureshi (PLD 1984 SC 170), this Court reiterated the above principle and held as follows: “It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition." . 40. The above principle was reiterated in following cases:- (1) Nisar Ahmad v. The Director, Chiltan Ghee Mills 1987 SCMR 1836. (2) National Bank of Pakistan v. Manzoorul Hasan 1989 SCMR 832. (3) Sindh Road Transport Corporation through , its Chairman v. Muhammad Ali G. Khokhar 1990 SCMR 1404. (4) Karachi Development Authority and another v Wali Ahmad Khan and others 1991 SCMR 2434. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 38 41. In Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434), this Court did not interfere in the judgment of the High Court under Article 199 of the Constitution whereby the petitions were allowed because the action of the authority was tainted with malice notwithstanding the non- statutory nature of Regulations under which the employee was being governed. 42. In Mrs. Anisa Rehman v. PIAC and another (1994 SCMR 2232), the scope of judicial review was further enlarged despite Regulations being non-statutory and violation of principles of natural justice was held to be a valid ground to invoke writ jurisdiction under Article 199 of the Constitution. In the said case, the employee was aggrieved of an order of demotion passed without hearing him and the said right of hearing was not being claimed by him through statutory provision. This Court nevertheless held that the principles of natural justice were part of law and the order of the authority was struck down. 43. In Walayat Ali Mir v. Pakistan Intl. Airlines Corporation through its Chairman (1995 SCMR 650), the Court held that the Corporation was bound by its Regulations though those may be non-statutory and struck down the order of the authority which was violative of those Regulations. It also laid down parameters of exercise of this discretionary jurisdiction. 44. In Housing Building Finance Corporation through Managing Director, Karachi and another v. Inayatullah Shaikh (1999 SCMR 311), this Court while reiterating the earlier view that the Corporation may terminate the service of an employee under CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 39 Regulation 11 simplicitor qualified it with a proviso; provided it acts in good faith and in the interest of Corporation. Though the principle of ‘Master and Servant’, was reaffirmed, yet the Court did not interfere with the judgment of the High Court whereby the writ petition had been allowed and the employee of the House Building Finance Corporation was reinstated since the order of the competent authority terminating the service of the employee had not been placed before the High Court. 45. In Pakistan International Airlines Corporation (PIAC) v. Nasir Jamal Malik (2001 SCMR 934), the PIA had challenged the judgment of the Service Tribunal wherein it had allowed respondents-employees’ appeal and directed their reinstatement as their services had been terminated without assigning any reason but it was left to the organization to proceed against them in accordance with law. This Court upheld the judgment of the Service Tribunal and reiterated the law laid down in Mrs. Anisa Rehman v. PIAC (1994 SCMR 2232) to the effect that the employees of PIAC were governed by the principle of “Master and Servant” but put a rider that “the employer who itself has framed Rules as well as the Regulations for its domestic purposes is bound to strictly follow/adhere them because deviation therefrom is bound to violate settled principles of justice including the one enshrined in the maxim Audi alteram partem i.e. no one is to be condemned unheard.” 46. The violation of principles of natural justice in disciplinary proceedings has been found to be valid ground for CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 40 judicial review in U.K. as well. In a very instructive Article1 titled ‘Judicial Review of Dismissal from Employment: Coherence or Confusion?’ by Bernadette A. Walsh, with reference to plethora of case law, the author stated that:- “In the context of dismissal from employment, the major significance of the grounds of judicial review is that they enable a dismissed employee to challenge his dismissal on the grounds that the decision to dismiss him was taken in disregard of procedural requirements, including the rules of natural justice, or that it was so unreasonable that no reasonable body could have taken it2. By contrast, in an ordinary action for wrongful dismissal, the traditional view was that the employee was confined to arguing that there had been a breach of the terms of his contract pertaining to notice3. Ridge v. Baldwin4 established that an office-holder was entitled to challenge his dismissal on the additional ground that there had been a breach of the rules of natural justice. Ridge itself concerned an action begun by writ, but there was no argument in the case as to the appropriate procedure for seeking relief.” 47. In Azizullah Memon v. Province of Sindh (2007 SCMR 229), this Court annulled the order of the departmental authority because notwithstanding the overriding effect of the Removal from Service (Special Powers) Ordinance (Sindh Ordinance IX) of 2004, the said civil servant had not been dealt with under the said Ordinance. The Court observed as follows:- “In the presence of express and specific language employed in the Ordinance neither the departmental authorities nor the Tribunal 1 Appeared in Public Law (1989) 131. 2 In C.S.S.U. v. Minister for the Civil Service [1985] A.C. 374, Lord Diplock described the latter ground as “irrationality”. However, in R. v. Devon County Council, ex parte G. [1988] 3 W.L.R. 49, Lord Donaldson M.R. stated that he preferred the term “unreasonable” to that of “irrational”, because the latter term is widely interpreted as casting doubt on mental capacity. 3 See, e.g. the discussion in Smith and Wood, Industrial Law (1986, 3rd ed.), 199-218. 4 [1964] A.C. 40. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 41 bothered to notice that after the date of promulgation of the Ordinance all disciplinary proceedings should have been initiated under Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a number of judgments that this Ordinance has the overriding effect over all other laws on the subject except in case of proceedings, which were already pending before promulgation of the Ordinance. Since the impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it has vitiated the entire proceedings including the final order, which cannot be sustained under the law. The proceedings as well as final order is, therefore, liable to be set aside.” 48. In Muhammad Dawood and others v. Federation of Pakistan and others (2007 PLC (C.S.)1046), the High Court of Sindh was seized of the cases of employees of statutory/corporate bodies (including the Civil Aviation Authority, etc.) who had been proceeded against under the Ordinance, 2000 and their appeals before the Service Tribunal were abated which obliged them to challenge the order of the departmental authority in writ jurisdiction. The Court allowed those petitions and speaking through its Chief Justice, Mr. Justice Sabihuddin Ahmed held as follows:- “From the above somewhat detailed discussion, we have arrived at the following conclusions:- (i) Irrespective of an employee of a State controlled corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution. (ii) The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 42 The expression “violation of law” would not be confined merely to violation of any specific provision of a statute but the expression “law”, as observed by Hamoodur Rehman, J., (as his Lordship then was) in Government of West Pakistan v. Begum Agha Abdul Karim Sorish Kashmiri PLD 1969 SC 14 at page 31 and ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, for instance, include the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the Court would be competent to grant relief of reinstatement.” 49. While affirming the afore-mentioned judgment of the High Court of Sindh, this Court considered the effect of the Ordinance 2000 qua the jurisdiction of the High Court under Article 199 of the Constitution for the first time in Civil Aviation Authority through Director General v. Javed Ahmad (2009 SCMR 956). The Court observed as under:- ““The learned High Court was fully empowered to consider whether the action complained of is in accordance with the Removal from Service (Special Powers) Ordinance, 2000. Therefore, the violation of law falls within the parameters of the constitutional jurisdiction and the petition was properly entertainable regarding punishment of compulsory retirement to Javed Ahmed. The right of individual by change of law cannot be closed as past transaction and the constitutional petition remains alive to agitate the rights guaranteed under the Constitution. The departmental action on the statement of allegations contained 23 allegations which include additional allegations, was passed on malice and pre-determined desire to get rid of Javed CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 43 Ahmed. After abatement of his service appeal, there was no remedy available under the law in view of Mubeen-us-Salam's case and the petition before the High Court was maintainable” 50. The principles of law which can be deduced from the foregoing survey of the precedent case law can be summarized as under:- (i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction. (ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of ‘Master and Servant’. (iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 44 (iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction. (v) That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution. 51. This brings us to the precedent case law of this Court which reflects the conflict of opinion with regard to remedies available to an employee of a statutory body. As we examine the law, it may be kept in view that prior to Mubeen-us-Salam’s case (PLD 2006 SC 602), there were two remedies available to the employees of the statutory corporations: (i) section 2A of the Service Tribunals Act; and (ii) under section 10 of the Ordinance, 2000. Section 2A of the Service Tribunals Act, was declared ultra vires of the Constitution and the appeals pending before the Tribunal abated. The effect of section 10 of the Ordinance 2000, however, was not considered by the Court in the said judgment. As discussed in para 49 above, the effect of deprivation of right to CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 45 appeal granted under section 10 of the Ordinance, 2000 with reference to remedy under Article 199 of the Constitution was considered for the first time in Civil Aviation Authority v. Javed Ahmad supra. In the said case, the facts were that an employee of Civil Aviation Authority was proceeded against under the Ordinance 2000 and awarded major penalty of compulsory retirement. He filed appeal before the Service Tribunal which was directed to have abated by order of the Service Tribunal on account of the judgment of this Court in Mubeen-us-Salam’s case (PLD 2006 SC 602). He along with several employees similarly placed challenged the order of departmental authorities before the High Court of Sindh. The petitions were allowed only on question of jurisdiction by a Full Bench of which one of us (Sarmad Jalal Osmany, J.) was a member and it was held that those petitions under Article 199 of the Constitution were competent and were directed to be listed before appropriate Benches of High Court of Sindh for hearing on merit [Muhammad Dawood and others Supra (2007 PLC (C.S.)1046)]. The Court allowed those petitions in terms as referred to in para 48 above. The said judgment was upheld in Civil Aviation Authority supra (2009 SCMR 956). 52. In Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi (2010 SCMR 1484) wherein a contra opinion was rendered, this Court was seized of several appeals filed by the employees of statutory bodies against the judgment of the Federal Service Tribunal. The question mooted in those appeals inter alia was whether the Service Tribunal had jurisdiction to entertain and CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 46 decide appeals in view of the law laid down in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 62) and Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681). The question of jurisdiction of the High Court under Article 199 of the Constitution was not considered. The Court relying on these two judgments and Pakistan Telecommunication Company Ltd. V. Muhammad Zahid (2010 SCMR 253) held as under:- “10. Now coming towards the definition of a person in 'corporation service' or a person in 'government service', as defined in section 2(c) and (d) of the RSO, 2000. Such persons can be subjected to the RSO, 2000 but keeping in view the definition of the 'civil servant' under the Civil Servant Act, 1973 as well as the dictum laid down in Muhammad Mubeen-us- Salam's case (ibid), only those employees can approach the Service Tribunal, who fall within the definition of civil servant', holding posts in connection with the affairs of the Federation. As far as the remaining categories of employees, including the contractual ones; are concerned, if they are aggrieved of any adverse action, the Service Tribunal is not the appropriate forum for redressal of their grievance, in view of above conclusion, because it is a forum constituted under Article 212 of the Constitution for the redressal of grievance of those employees, whose terms and conditions are settled under Article 212(1)(a) of the Constitution. Similarly, any action taken against such persons shall not be questionable before the Service Tribunal as it is not meant to provide a forum to the employees, whose services are governed by non-statutory rules or who do not fall within the definition of a person in 'government service' as defined in section 2(d) of the RSO, 2000. Admittedly, in the present case the employees of AIOU, SME Bank and Pakistan Steel Mill, who approached the Service Tribunal for redressal of their grievance, were CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 47 not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they will be governed by the principle of Master and Servant.” 53. In Pakistan International Airlines Corporation PLD 2010 SC 676 supra, (taking a contra view) the Court distinguished the case of Anisa Rehman v. PIAC (1994 SCMR 2232) by relying on the case of Justice Khurshid Anwar Bhinder (Supra). In the latter case, the petitioners who were Judges of the High Court had filed review applications against the judgment of this Court in Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) wherein the appointment of the then Chief Justice of Pakistan and the entire consultative process leading to their appointments had been found to be unconstitutional and non est. The grievance of the review petitioners was that they had been condemned unheard. The Court while dismissing their review applications came to the conclusion that there can be exceptions to the principle of natural justice that no one should be condemned unheard. The Court observed as follows: “42.………Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of natural justice. "(Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh 2009 PLC (C.S.) 161, Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Abdul CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 48 Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769). It has been elucidated in the detailed reasoning of the judgment of 31.7.2009 how the order passed by a seven Member Bench of this Court has been flagrantly violated. Besides that the applicants had no vested right to be heard and furthermore they have acted illegally and in violation of the order of seven Member Bench for obtaining illegal gains and benefits which cannot be ignored while examining the principle of `audi alteram Partem'. 54. The afore-referred justification for dispensing with the principle of natural justice was understandable as there was already in the field a conclusive finding by this Court (Sindh High Court Bar Association’s case PLD 2009 SC 879 supra) qua the nature of the consultative process which culminated in the appointment of those Judges. But in the instant cases, there was no prior conclusive finding by this Court qua the merits of respondents’ cases in disciplinary proceedings and also with regard to the effect of statutory intervention of the Ordinance, 2000. In Hyderabad Electric Supply Co. v. Mushtaq Ali Brohi (2010 PSC 1392), an employee of Hyderabad Electric Supply Co., had challenged the award of major penalty of dismissal from service under the Ordinance, 2000 in writ jurisdiction which was allowed. This Court set aside the said judgment holding that since the service regulations were non-statutory, writ was not competent. In this case as well, it was not appreciated that though the Rules/Regulations may be non-statutory but there was statutory intervention in the shape of the Ordinance and the employees had to be dealt with under the said law. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 49 55. In an attempt to resolve a conflict of judicial opinion, this Court must keep in mind: first the purpose of law the Court is called upon to interpret; second that law is a living organism which adapts to societal change and sometimes change in law precedes the former; third the ambit of court’s jurisdiction and its limitations as defined in the Constitution; fourth the Court must be consistent i.e. in similar situations/cases, the judicial opinion will be similar; fifth though the Supreme Court is not bound by the principle of stare decisis, but the departure from the precedent should be well reasoned, proper and in accordance with the established principles of law. A Judge’s role is to interpret the law and to correct its mistakes. The twin role of a developer in law and an earnest interpreter of legislation, though challenging, is in accord with the role the Supreme Court has in the constitutional scheme as also consistent with society’s perceptions of the role of judiciary in a liberal democracy. In the context of the case in hand, the mandate of two constitutional provisions should be kept in mind i.e. Article 4 and Article 10A which read as follows:- “4. (1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan. (2) In particular--- (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. (b) No person shall be prevented from or be hindered in doing that which is not prohibited by law; and CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 50 (c) No person shall be compelled to do that which the law does not require him to do. 10A. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” 56. The legislative intent in the promulgation of Ordinance 2000, inter alia, was that “persons in corporation service” in their service matters should be dealt with in accordance with the provisions of the said law and to ensure a fair deal/trial it was inter alia provided in the Ordinance that unless specifically so exempted by a reasoned order, the competent authority shall hold a regular enquiry against an employee accused of misconduct and that he shall have a right of appeal (Section 10 of the Ordinance). 57. The right of appeal is a substantive right. The respondents were deprived of the said right not by any 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 68). 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 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 CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 51 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. 58. The High Court in the exercise of its jurisdiction under Article 199 of the Constitution can pass an appropriate order “declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect.” [(Article 199(1)(a)(ii)] The grievance of the respondent-employees in most of the cases was that the order of the departmental authority was violative of the Ordinance, 2000 and of no legal effect (as they were proceeded against under the said law) while in other cases it was that they had not been dealt with under the said law despite its overriding effect, the High Court had jurisdiction to interfere and allow the petitions. 59. For what has been discussed above, the cases of this Court reported as (Pakistan International Airlines Corporation PLD 2010 SC 676, Executive Council Allama Iqbal Open University 2010 SCMR 1484 and Hyderabad Electric Supply Co. 2010 PSC 1392 Supra), we observe with respect, did not declare or enunciate any principle of law but were rendered in their own peculiar facts and circumstances and may not be treated as precedent on the issue we are seized of, because:- CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 52 (i) The issue before this Court in Executive Council Allama Iqbal Open University supra was only whether the Service Tribunal had jurisdiction to hear the appeal in view of the law laid down in Mubeen-us-Salam’s case supra and whether the writ jurisdiction under Article 199 of the Constitution could be invoked in the event of violation of Ordinance, 2000. (ii) In all the above cases, the point that irrespective of the Rules/Regulations being non-statutory the promulgation of Ordinance 2000 was a statutory intervention and any violation thereof would be amenable to writ jurisdiction was not considered. In Hyderabad Electric Supply Co. 2010 PSC 1392 Supra, there was no allegation that there was any violation of any provision of the Ordinance 2000 and enforcement of Service Rules was sought which were found to be non- statutory. (iii) Neither the mandate of Articles 4 and 10A of the Constitution nor the law laid down in Civil Aviation Authority through Director General v. Javed Ahmad (2009 SCMR 956) and Azizullah Memon v. Province of Sindh (2007 SCMR 229) was considered in those cases. CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 53 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 Islam’s case (PLD 2006 SC 602) and Muhammad Idrees’s case (PLD 2007 SC 68)]. 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 therefrom as given in Para 50 above. 61. These are the detailed reasons for our short order dated 2.5.2013 which is reproduced hereinbelow:- “For the reasons to be recorded later in the detailed judgment we are of the view that Removal from Service (Special Powers) Ordinance, 2000 had overriding effect and any violation or non-compliance of the said statute was amenable to writ jurisdiction. The impugned judgments CIVIL APPEAL NOs. 39/2010, 1150/2010, 1162/2010, 142-K/2009, 177- K/2010, 178-K/2010, 228-K/2010, 57-K/2011, 63-K/2011, 65-K/2011, 66- K/2011, 83-K/2011, 91-K/2011, 135-K/2011, 136-K/2011, 137-K/2011, 188- K/2011, 232-K/2011, 75-K/2012 AND 82-K/2012 54 rendered by the High Court on that score are not open to exception. In the afore-referred circumstances all these appeals are dismissed.” JUDGE JUDGE JUDGE JUDGE JUDGE Islamabad, the 2nd of May, 2013 APPROVED FOR REPORTING Khurram Anees/-

{'id': 'C.A.39_2010.pdf', 'url': ''}

{'id': 'C.A.39_2010.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Gulzar Ahmed Mr. Justice Umar Ata Bandial Mr. Justice Maqbool Baqar CIVIL APPEAL NO. 39 OF 2015 (On appeal from the judgment/order dated 28.05.2004 passed by High Court of Sindh at Karachi in Const.P.D-794 of 1999) The Administrator General Zakat, Central Zakat Administration, Islamabad & others … … … Appellants Versus Pakistan Insurance Corporation thr. its Secretary, Karachi & others … … … Respondents. For the appellants : Mr. Abdur Rasheed Awan, DAG. Ch. Akhtar Ali, AOR. For respondent No.1 : Syed Asghar Hussain Sabzwari, ASC. Date of hearing : 15.02.2016 JUDGMENT UMAR ATA BANDIAL, J. – The judgment under appeal dated 28.05.2004 passed by a learned Division Bench of the High Court of Sindh, Karachi allows the Constitutional Petition filed by the respondent Pakistan Insurance Corporation (“respondent Corporation”) and exempts it from the charge and collection of Zakat under the Zakat & Ushr Ordinance, 1980 (“the Ordinance”). It is held by the learned High Court that the respondent Corporation does not fall within the definition of ‘Sahib-e-Nisab’ given in Section 2(xxiii) of the Ordinance. Accordingly, the charging provision for Zakat i.e. Section 3(1) of the Ordinance, which applies the levy to a ‘Sahib-e- CA.39/2006. 2 Nisab’ as on a specified valuation date is not attracted to the investment in NIT units made by the respondent Corporation. 2. The learned Deputy Attorney General appearing on behalf of the appellant has argued that admittedly the respondent Corporation is created by statute but is not wholly owned by the Federal Government. Therefore, the sole controversy in the case is whether the exclusion of a “statutory corporation” that is wholly owned, directly or indirectly, by the Federal Government saves the respondent Corporation from the scope of ‘Sahib-e-Nisab’. He has read from Section 2(xxiii) of the Ordinance to urge that the respondent Corporation is not exempt from the category of chargeable persons. For the sake of convenience clauses (a) & (b) of Section 2(xxiii) ibid are reproduced herein below: “(xxiii) ‘sahib-e-nisab’ means a person who owns or possess assets not less than nasab, but does not include--- (a) The Federal Government, a Provincial Government or a local authority; (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; …” (emphasis supplied). 3. It is common ground that 51% of the issued equity of the respondent Corporation is owned by the Federal Government. The learned Deputy Attorney General contends that as the respondent Corporation is not owned wholly by the Federal Government, therefore, it does not qualify the exemption from ‘Sahib-e-Nisab’ given in clause (b) of the Section 2(xxiii) of the Ordinance. 4. On the other hand, learned counsel for the respondent- Corporation has invited our attention to the provisions of Section 1(1) & (2) of the Ordinance. These declare as follows: “(1) This Ordinance may be called the Zakat and Ushr Ordinance, 1980. (2) It extends to the whole of Pakistan, but as regards recovery of Zakat and Ushr, applies only to Muslim citizens of Pakistan and a company, or other association of persons, or CA.39/2006. 3 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.” (emphasis supplied) 5. It is clear from sub-section (2) of Section 1 of the Ordinance that a company or other association of persons or body of individuals, that has the majority of its shares owned by or its beneficial ownership held by Muslim citizens of Pakistan, is liable to the charge and collection of Zakat under the provision of the Ordinance. Under Section 2(xxiii)(a) of the Ordinance, the Federal Government is excluded from the status of ‘Sahib-e- Nisab’. As already noted above, Section 3(1) of the Ordinance makes Zakat chargeable upon a ‘Sahib-e-Nisab’ who is a person owning or possessing assets not less than value equaling nisab [Section 2(xxiii) of the Ordinance]. However, the said definition specifies only one qualification of a ‘Sahib-e- Nisab’ whereas Section 1(2) of the Ordinance enumerates certain other attributes of a person that complete the definition of ‘Sahib-e-Nisab’. These are that the person must be a Muslim citizen of Pakistan or in the case of an artificial juristic person when it has its majority equity owned by Muslim citizens of Pakistan. 6. In the present case, the majority equity ownership of the respondent Corporation lies with the Federal Government and not with Muslim citizen of Pakistan. Now the Federal Government is excluded from the status of ‘Sahib-e-Nisab’ under Section 2(xxiii)(a) of the Ordinance. Thus, the majority ownership of the respondent Corporation neither rests with Muslim citizens of Pakistan nor with a person qualifying as ‘Sahib-e-Nisab’. Hence the respondent Corporation fails the test laid down in Section 1(2) of the Ordinance. The learned High Court has relied on the judgment in Bank of Punjab vs. Administrator General, Central Zakat (PLD 1994 Lahore 207) that holds the Bank of Punjab to be exempt from the recovery of Zakat for reasons similar to those outlined above. CA.39/2006. 4 7. This appeal, accordingly, pursues a pedantic reading of the exemption of a statutory corporation wholly owned by the Federal Government from ‘Sahib-e-Nisab’ under Section 2(xxiii)(b) of the Ordinance. On the other hand, we find that by a joint reading of Section 1(2) with exemption of the Federal Government under clause (a) of section 2(xxiii) of the Ordinance, the respondent Corporation stands exempted from the charge and collection of Zakat as held by the impugned judgment. For the foregoing reasons, this appeal being devoid of merit is dismissed with no order as to costs. J. J. J. Islamabad, 15.02.2016. Irshad Hussain /* APPROVED FOR REPORTING.

{'id': 'C.A.39_2015.pdf', 'url': ''}

{'id': 'C.A.39_2015.pdf', 'url': ''}

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.3 AND 4 OF 2018 AND (on appeal from the judgment/order dated 07.12.2017 passed by the Lahore High Court, Lahore in I.C.A.98703/2017) CIVIL PETITIONS NO. 3412 OF 2017 AND 45 OF 2018 (on appeal from the judgment/order dated 28.08.2017 passed by the Islamabad High Court, Islamabad in W.P.2975/2016 and dated 07-12-2017 of the Lahore High Court, Lahore passed in I.C.A.98703/2017) AND C.M.A. NOS. 203 TO 209 OF 2018 IN CIVIL PETITIONS NO. NIL OF 2018 (on appeal from the judgment/order dated 07.12.2017 passed by the Lahore High Court, Lahore in I.C.A.98703/2017) 1. Pakistan Medical and Dental Council through its President In C.As.3 & 4/2018 2. Prof. Dr. Masood Hameed Khan In C.P.3412/2017 3. Pakistan Association of Private Medical and Dental Institution through its D.G. In C.P.45/2018 4. Pakistan Medical and Dental Council through its President In CMA 203-209/18 …Appellant(s)/Petitioner(s) VERSUS 1. Muhammad Fahad Malik etc. In C.A.3/2018 2. Pakistan Association of Private Medical and Dental Institution etc. In C.A.4/2018 3. Federation of Pakistan through Secretary M/o National Health Services Regulation and Coordination and another In C.P.3412/2017 4. Federation of Pakistan etc. In C.P.45/2018 5. Muhammad Osama & others In CMA 203/18 6. Taha Ahmed Train & others In CMA 204/18 7. Hubaid Haider & others In CMA 205/18 8. Shaniyaal Shahid & others In CMA 206/18 9 Mahnoor Ahsan Bhoon & others In CMA 207/18 10. Ahmed Iqbal & others In CMA 208/18 11. Azeem Izhar & others In CMA 209/18 … Respondent(s) For the appellant(s)/ petitioner(s): Mr. Muhammad Akram Sheikh, Sr. ASC Syed Rifaqat Hussain Shah, AOR (In C.As.3 & 4/2018 also in In CMA 203-209/18) Sardar M. Latif Khan Khosa, Sr. ASC Ch. Akhtar Ali, AOR (In C.P.3412/2017) Ch. Muhammad Ashfaq Bhullar, ASC Mr. Mahmood A. Sheikh, AOR Civil Appeal No.3 of 2018 etc. -: 2 :- (In C.P.45/2018) For the respondent(s): Respondent in person a/w father (For respondent No.1 In C.A.3/2018) Mr. Munawar-us-Salam, ASC Barrister Tariq Saeed Rana, Legal Advisor, Shalamar Medical College, Lhr. (For respondent No.8 in C.A.3/2018) Syed Ali Zafar, ASC Mr. Munawar-us-Salam, ASC Mr. Zahid Nawaz Cheema, ASC (For respondent No.1 in C.A.4/2018) Mr. Muhammad Akram Sheikh, Sr. ASC Syed Rifaqat Hussain Shah, AOR (For respondent No.2 in C.P.3412/2017) Commander (R) Farasat Ali, Deputy Registrar, NUMS (For respondent No.6 in C.A.3/2018) Mr. Ahsan Masood, Legal Advisor, CMH Lahore Medical College (For respondent No.7 in C.A.3/2018) Dr. Arshad Ali Khan, AMS + Usman Rana, Litigation Officer Ch. Muhammad Attique, Legal Advisor, UHS (For respondents No.3 & 4 in C.A.3/2018) For Federation: Mr. Ashtar Ausaf Ali, Attorney General for Pakistan Mr. Muhammad Waqar Rana, Addl.A.G.P. Ch. Aamir Rehman, Addl.A.G.P. On Court’s notice: Dr. Asim Hussain Date of Hearing: 12.01.2018 ORDER MIAN SAQIB NISAR, CJ.— C.M.A. Nos. 203 to 209/2018 are allowed office is directed to number the civil petitions. 2. For the reasons to be recorded later, Civil Appeals No. 3 and 4 of 2018, Civil Petitions No. 45 and 64 to 70 of 2018 are dismissed; whereas Civil Petition No.3412/2017 is converted into an appeal and allowed. The Pakistan Medical and Dental Council (PMDC) constituted under the law and any Executive Committee constituted by or under the law and presently working are dissolved and till the Civil Appeal No.3 of 2018 etc. -: 3 :- appointment/election of the fresh Council and the Executive Committees in accordance with law, we are constituting an ad-hoc Council to perform the functions and run the affairs of PMDC in accordance with the relevant law. The Council shall comprise of the following: 1. Mr. Justice Mian Shakirullah Jan, former Judge of this Court (Chairman); 2. The Attorney General for Pakistan (Member) or in case of his non-availability, his nominee/representative; 3. Federal Secretary Health, Islamabad (Member); 4. Surgeon General of Pakistan Armed Forces (Member); 5. Vice Chancellor of the National University of Medical Sciences (NUMS) (Member); 6. Vice Chancellor University of Health Sciences, Lahore (Member); 7. Executive Director, Jinnah Post Graduate Medical Centre, Karachi (Member); 8. Vice Chancellor Khyber Medical University, Peshawar (Member); and 9. Principal Bolan Medical College, Quetta (Member); 2. The above Council will take over and run the affairs of the PMDC immediately and its first meeting shall be convened on 18.01.2018. The present registrar of PMDC shall continue to work. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 12th January 2018. Mudassar/

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE YAHYA AFRIDI MR. JUSTICE JAMAL KHAN MANDOKHAIL FA) CIVIL APPEAL NO.401 of 2015 (Against the judgment dated 12.12.2014 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision Petition No.437-D of 2001). Province of Punjab through Secretary Housing and Physical Planning Department, Government of the Punjab, Lahore and others APPELLANTS VERSUS Syed Zia Ui Hassan Zaidi and others RESPONDENTS For the Appellant(s): Barrister Qasim Ali Chohan, Addl.AG, Pb. Zaheer Ahmed, Dy. Director (PHATA) Ismail Ch. Head Draftsman For the Respondent(s): Syed Moazarn Ali Rizvi, ASC Syed Rafaqat Hussain Shah, AOR Date of Hearing: 19.0 1.2022 JUDGMENT IJAZ UL AHSAN, J-. Through this appeal, the Appellants have challenged the judgment of the Lahore High Court, Lahore dated 12.12.2014 passed in Civil Revision No. 437-D of 2001 (hereinafter referred to as "Impugned Judgment"). The Respondents through their Civil Revision Petition had challenged the judgment and decree dated 03.05.2001 whereby the Appellate Court set-aside the judgment and decree dated 2 1.01.1998 passed by the learned trial Court and decreed the suit for declaration and consequential relief filed by the Respondents. 2. The brief facts giving rise to this its are that the Respondents filed a suit for declaration challenging the acquisition of land measuring 09 Kanals 16 Marlas failing in Khasra No. 505/62 situated in Khawaspur, Jhelum (hereinafter referred to as the "Disputed Land"). The Respondents belonged to the Shia community and started using the Disputed Land as "Karbala". It was claimed by the Respondents that the Disputed Land was transferred to the predecessor-in-interest of the Respondents. After the death of the said predecessor-in-interest, Respondent No. 01 (Syed Zia ill Hassan Zaidi) was appointed as the Administrator of the Disputed Land. In 1973, the Appellants acquired the land for the purpose of Area Development Scheme-I for low-income housing at Jhelum (hereinafter referred to as the "Scheme"). This gave rise to protests by the Shia community of Jhelum. Resultantly, a revised layout plan for the Scheme was placed before the Director of Housing and Physical Planning, Rawalpindi on 17.10.1973. The said Director approved the revised layout plan on 09.01.1974. Ultimately, vide letter dated 29.03.1982, it was recommended that the Disputed Land should be kept as open space and not included in the Scheme and, vide letter dated 03.09.1986, it was approved that the Disputed Land would be excluded from the Scheme. On the contrary, the Disputed Land was transferred to the Education Department vide letter dated 15.09.1987 for the construction of a school. The letter dated 15.09.1987 was challenged by the Respondents by filing a suit for declaration along with consequential relief. The trial Court after framing a issues and recording evidence, dismissed the suit of the Respondents vide judgment and decree dated 21.01.1998. Aggrieved, the Respondents filed an appeal before the learned District Judge which was allowed vide judgment and decree dated 03.05.2001. The Appellants filed a Civil Revision Petition thereagainst which was dismissed vide the Impugned Judgment. Aggrieved thereof, the Appellants have approached this Court. 3. Leave to appeal was granted by this Court vide order dated 11.05.2015 in the following terms: - "Learned Additional Advocate General has inter alia contended that the land in dispute was acquired with other land in the year 1973 for Area Development Scheme-I to provide houses to low income citizens and subsequently its possession was transferred to Education Department for establishment of Elementary College on 3.2.1990; that the claim of the respondents is that the land is being used by the Shia sect for the purpose of 'Karbala' etc and could not be transferred for establishment of College; that the land was ¶Banjar Qadeem' and was never shown or entered as 'Karbala' in the revenue record at the time of acquisition; that in the present case the courts below have gone beyond the pleading that Khasra No. 505-62 was never acquired in the year 1973; that the learned Single Judge in Chambers of the High Court has not discussed the case and has erroneously reproduced the findings of the learned Appellate Court and affirmed that the suit was rightly dismissed by the learned trial Court." 4. The learned Additional Advocate General, Punjab has argued that the Disputed Land was acquired as part of the Scheme in respect of which compensation was paid to the Respondents and the possession of the land was subsequently delivered to the Education Department on 03.02.1990 for construction of Elementary College, Jhelum. He has further argued that the land was shown as 'Banjar Qadeem' and not as 'Karbala' in the revenue record. He has further argued that an amended notification was issued in supersession of the Notification issued under Section 4(1) of the Punjab Acquisition of Land (Housing) Ordinance, 1973 dated 27.03.1973 (hereinafter referred to as the "Notification"). It has been argued that the purportedly, through the amended notification, the Disputed Land was acquired for the Scheme. 5. The learned ASC for the Respondents has argued that the Disputed Land was mentioned as 'Karbala' in the revenue record and that Moharram processions were taken to the said land for the past many years. He has further argued that the Director of Housing and Physical Planning specifically excluded the Disputed Land from the Scheme. As such, it could not have been transferred to the Education Department because the Disputed Land belonged to the Respondents and not to the Appellants. The learned ASC has relied upon the notification dated 29.03.1982 whereby the Disputed Land was declared as 'open space' by the A.0 (D) acting on behalf of the Commissioner, Rawalpindi. He has further relied upon the notification dated 03.09.1986 whereby the Chief Minister Punjab excluded the Disputed Land from the Scheme. The learned ASC has argued that the Disputed Land was not mentioned in the Notification under Section 4 of the Land Acquisition Act, 1894. He has argued that if the Disputed Land was to be mentioned in the Notification, the prescribed procedure starting from the notification, inviting objections, providing a hearing and then issuing an award ought to have been followed, which was not done in the case at hand. The learned Counsel has further argued that the fact that the Disputed Land was not mentioned in the Notification is admitted by witnesses/ revenue officials. 6. We have heard the learned Counsel for the parties and have perused the record. The issues which fall before this Court for determination are as follows: - (i) Was the Disputed Land mentioned in the Notification? (ii) Could an Award transferring the Disputed Land in favour of the Education Department be made? WAS THE DISPUTED LAND MENTIONED IN THE NOTIFICATION? 7. We have on record the Notification issued by the Office of the Deputy Commissioner, Jhelum which reads as follows:- "No. 3401 -G/DRA - Whereas it appears to the undersigned that the land is needed by the Government for a housing scheme known as Area Development Scheme for Low Income Housing at Jhelum. It is hereby notified under Section 4(1) of the Punjab Acquisition of Land (Housing) Ordinance, 1973 for information of the public that the Land in the locality in the schedule below is to be required for this purpose...." The Notification was issued under Section 4(1) of the Punjab Acquisition of Land (Housing) Ordinance, 1973 (since repealed) (hereinafter referred to as the "Act of 1973"), which reads as under: - Publication of preliminary notification and power of officers thereupon. - (1) Whenever it appears to the Deputy Commissioner that land in any locality is needed or is likely to be needed for any housing scheme a notification to that effect shall be publish in the Official Gazette and the collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality." It is mentioned in the Notification that the Land in the locality mentioned in the schedule to the Notification was being acquired for the development of the Scheme. We have gone through the said schedule and are unable to agree with the argument that the Disputed Land was mentioned therein. The said schedule mentions various khasra numbers which were acquired in the locality of Khawaspur. However, the Disputed Land is not mentioned anywhere in the said schedule. The entire acquisition for the Scheme was carried out based on the Notification which has no mention of the Disputed Land. When confronted with this, the learned AAG submitted that an amended notification was issued in supersession of the Notification whereby, the land in question was acquired for the Scheme. We have repeatedly asked the learned AAO to show us any such notification from the record. He has been unable to do so. 8. On the contrary, there is a notification dated 21.05.1973 on the record issued by the Office of the Deputy Commissioner, Jhelum which reads as follows: - 'No. 4696-41DRA - Whereas the land measuring about 100 acres which was required for housing scheme known as Area Development Scheme for Low Income Housing at Jhelum in the revenue estates of Rajipur, Khawaspur and Shahpur is no longer required for the said purpose. Now therefore, I, Mr. Muhammad Parvez Masood, C.S.P. Deputu Commissioner, Jhelum herebu withdraw notification No. 3401-GIDRA issued under Section 4(1) of the Punjab Acquisition of Land (Housing) Ordinance, 1973 in the EXTRAORDINARY GAZETTE Punjab Gazette of 27th March 1973 at pages 533 to 538" (Underlining is ours) The alorenoted notification establishes two facts; that the land mentioned in the Notification was no longer required for the purpose mentioned in the Notification, and, that the Notification was withdrawn by the competent authority i.e., the Deputy Commissioner, Jhelum as provided in Section 4(1) of the Act of 1973. There is nothing on the C record to show that the aforenoted notification was ever challenged by the Appellants or, that a subsequent notification was issued in supersession of the ibid notification. The learned High Court has correctly held that since the Disputed Land was purportedly acquired by the Appellants, it was for them to positively prove through cogent evidence that it was included in the Notification. The learned High Court has further held that the revised map of the locality was issued without approval and notification of the competent authority. The Notification was issued for a specific purpose. The said purpose was that land was required by the Government for a Scheme. The fact that the said Notification has been withdrawn shows that the Government changed its intention and decided that the land in question measuring 800 acres was no longer required. 9. The subsequent notification was issued by the Deputy Commissioner who, as per Section 19 of the Act of 1973 was perfectly empowered to do so. Section 19 of the ibid Act reads as under: - "The Deputy Commissioner, shall be at liberty to withdraw from the acquisition proceedings of any land, notified under this Act, of which possession has not been taken: Provided that Government or an Official Development Agency, as the case may be, has informed the Deputy Commissioner in this behalf in writing: Provided further that in case of non-acceptance of the award even as a result of the appeal made to the Commissioner the right of withdrawal from the acquisition may be exercised by the Government or an Official Development Agency, as the case may be." The first part of Section 19 of the Act of 1973 establishes that the Deputy Commissioner was at liberty to withdraw from the acquisition proceedings. The fact that a subsequent notification withdrawing the earlier Notification was issued further shows that possession of the land sought to be acquired was not taken by the Appellants. It is worth mentioning that, in the absence of any material suggesting that the subsequent notification was challenged, this Court under Article 129(e) of the Qanun-e-Shahadat Order, 1984 may presume the existence of the fact that the Disputed Land was not required by the Appellants. Article 129(e) of the ibid Order reads as follows: - "129. Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." The allegedly amended notification through which the land was statedly acquired or transferred to the Education Department has neither been brought on the record nor has it been shown to us that the said purported notification was published in the Official Gazette. Section 4(1) of the Act of 1973 uses the word "shall" making it obligatory upon the Appellants to publish any and all notifications in respect of acquisition under Section 4(1) of the Act of 1973. The requirement of publication of a notification under Section 4 is an essential requirement in acquisition proceedings because it is likely that the rights and interests of landowners will be adversely affected. Reliance in this respect is placed on Saghir Ahmed through Legal Heirs p. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 Supreme Court 261) wherein, this Court held as follows: - "However, a notification under section 4 of the Act specifically requires its publication in the official Gazette, if it appears to the Deputy' Commissioner that a particular land of a particular locality is needed or is likely to be needed for any housing-scheme. This is followed by another legal requirement of a public notice of the substance of such notification to be given at convenient places in that locality. The publication of notification under section 4 in the official Gazette has been made necessary as the rights and interests of the land owners are likely to be adversely affected by the acquisition proceedings. According to definition of word "notification" as given in section 2(41) of West Pakistan General Clauses Act, 1956, "it shall mean a notification published under the proper authority in the official Gazette" in the absence of anything repugnant in the subject or context." The fact that no such notification has been shown from the record leaves no doubt in our minds to hold that the said subsequent notification, as per the record, was never issued by the Appellants. In the absence of such documentary evidence, this argument of the learned AAG fails and is accordingly held to be unsustainable. On the contrary, we have on record two other notifications, the effect of which is that acquisition of the Disputed Land was withdrawn by the Appellants. COULD AN AWARD TRANSFERRING THE DISPUTED LAND IN FAVOUR OF THE EDUCATION DEPARTMENT BE MADE? 10. The learned Counsel for the Respondents has argued that the Disputed Land was transferred to the Education Department through the impugned Award whereby, inter alia, the entire Khasra No. 62 was transferred to the Education Department for the construction of a school. It has been argued that the Award made in favour of the Education Department , was illegal because there was no notification published in the official gazette to support the transfer as required by Section 4 of the Act of 1973. It has further been argued that even if it is assumed that the land was acquired, the Disputed Land could not have been used for any other purpose other than the one which is mentioned in the Notification. The learned High Court in this respect has held that the Assistant Director of the Appellant-Department appeared as DW-3 and admitted that the Disputed Land was not mentioned in the Notification. The learned High Court has held that this fact has been admitted by other DWs as well and these admissions were not taken into consideration by the trial Court. As such, the Respondents could not have been compelled to receive compensation through notice tendered in evidence as Exh.PW-9/1 1. 11. We have on the record various letters from the revenue authorities and the Director of the Appellant- Department, one of which is a letter issued by the A.0 (D) for the Commissioner, Rawalpindi Division dated 29.03.1982 paragraph 2 of which reads as follows: - "The proposal of the Deputy Commissioner, Jhelum, referred to in your office memorandum No. SOD-1-7-4179 dated 8th July 1979 to keep the area as an open space after excluding the same from the Scheme is supported by this of with the condition that it does not lead to the impression that any community has got the license to make any construction on it." (underlining is ours) Another letter in this respect is dated 18. 10. 1973 undersigned by the Director of the Appellant-Department which reads as follows: - I tie siae PUITLt&U (JILL UL4 tiLe IJCLtLLUHW IL UCL(L4 L4'U. lAO 'Karbala' has been adjusted in the recentl y revised layout plan. A copy of the layout plan had already been submitted to you for approval vide this office memo No. 2332 dated 17/x/73." (Underlining is ours) The aforenoted letters establish that the Disputed Land was in possession of the Respondents and, that the Appellant-Department itself excluded it from the Scheme. This is further supported by the letter dated 06.11.1978 issued to the Deputy Director of the Appellant Department by the Director-General of the Appellant Department wherein it was stated that the Disputed Land may be kept as an open space and, the viewpoint of the Deputy Commissioner, Jhelum may be obtained as well. The fact that the Disputed Area was excluded from the Scheme is also mentioned in the letter of the Section Officer (D-II) dated 03.09.1986 stating that the Chief Minister had excluded the Disputed Land from the Scheme. 12. The fact that the Disputed Land was included in the Award despite the availability of various letters including the letter of the Chief Minister stating that the Disputed Land was excluded from the Scheme leaves us in no manner of doubt that the inclusion of the Disputed Land in the Award was illegal and could not have been done, especially without issuing any notification under Section 4 of the Act of 1973. 13. The Notification mentions that the Disputed Land was being acquired for the Scheme. Subsequently, the Disputed Land was transferred to the Education Department for the construction of a school. The learned Counsel for the Respondents has argued that the Appellant-Department, even in a best-case scenario, could not have transferred/ used the land for any other purpose except that which is mentioned in C the Notification. The intent and purpose of the Government were unambiguous as seen from the Notification. There was no room for the Appellant Department to read something into the Notification, which was not there. Reliance in this regard is placed on Province of HP through Chief Secretary, Peshawar and others v. Farasatullah and others (2020 SCMR 1629). 14. The Notification is specific in its purpose and object and any interpretation of the Notification which is not in line with its terms would be violative of the law. The purpose for which the land has been transferred to the Education Department is entirely different from that which is mentioned in the Notification. A notification issued by the Government essentially reveals its intention. One of the purposes of publishing a notification is so that those who may be affected by it can know the intention of the Government as mentioned in the notification itself. Essentially, a notification is a means used by the Government to communicate with the general public regarding inter alia, any projects et cetera that it might prospectively undertake. The intent behind the notification or, the purpose for issuing the same must be mentioned because, as noted above, the rights of different stakeholders are involved. This is one of the reasons that there are various safeguards provided in the Act of 1973 such as Section 6 which requires, by using the words "Shall", the publication of a notice to make the intention of the Government to possess a certain piece of land clear. 15. If the said intention of the Government or the area sought to be acquired changes after the Notification under Section 4 has been issued; a fresh notification or an addendum to the earlier notification can be issued to enable the parties affect by it to avail remedies provided by the law. Further, the acquisition of the land does not ipso facto mean that the Appellant-Department could use the acquired land for any purpose that it considered appropriate. The acquiring agency/ department/ entity is restricted in its use of the land to the purpose mentioned in the notification and for no other purpose. Further, no additional land can be included in the award which was not mentioned in the Notification under Section 4 or any addendum or fresh notification after fulfilling all legal and procedural formalities required to be fulfilled in this regard. That being so, and land comprised in Khasra No. 505/62 having not been included in the Notification under Section 4 or any subsequent notification for addendum issued thereto, the Award could not include Khasra No. 505/62. The Appellant-Authority exceeded its jurisdiction in doing so and it is therefore held that the Award was, to the extent of the inclusion of Khasra No. 505/62, illegal. There is nothing in the Act of 1973 to the effect that the Deputy Commissioner/ Collector had the authority to add a Khasra number to either a notification or the Award of his own volition without following proper rules and procedure. As such, the Award could not have been issued without first complying with the mandatory provisions of the law. 1 found to be without merit. It is accordingly I16. The Impugned Judgment of the learned High Court dated 12.12.2014 is well reasoned, proceeds on the correct factual and legal premises and has correctly applied the relevant law, rules and regulations to the facts and circumstances of the cases before us. No legal, or 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 High Court in the facts and circumstances of the instant Appeal. We accordingly affirm and uphold the Impugned Judgment of the Learned High Court. 17. For the reasons recorded above, this appeal is Islamabad, the 191h January 2022 .Haris Ishtiaq LC/* 7Qt A pproved For Reporting

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IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE NASIR-UL-MULK, HCJ. MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IJAZ AHMED CHAUDHRY CIVIL APPEAL NO.404/2011 (On appeal against the judgment dated 2.4.2011 passed by the High Court of Sindh, Karachi in CP.D-932/2009) Ali Hassan Brohi Vs. Province of Sindh thr. Chief Secy. and others CIVIL APPEAL NO.405/2011 (On appeal against the judgment dated 2.4.2011 passed by the High Court of Sindh, Karachi in CP.D-932/2009) Ali Azhar Baloch Vs. Province of Sindh and others CIVIL APPEAL NO.407/2011 (On appeal against the judgment dated 2.4.2011 passed by the High Court of Sindh, Karachi in CP.D-932/2009) Abdul Ghani Jukhio Vs. Province of Sindh, thr. Chief Secy. and others CIVIL APPEAL NO.409/2011 (On appeal against the judgment dated 2.4.2011 passed by the High Court of Sindh, Karachi in CP.D-932/2009) Syed Abid Ali Shah Vs. Province of Sindh, thr. Chief Secy. and others. CIVIL APPEAL NO.411/2011 AND CMA. NO.4339/2013 (On appeal against the judgment dated 2.4.2011 passed by the High Court of Sindh, Karachi in CP.D-932/2009) Dr. Aftab Ahmed Mallah Vs. Dr. Nasimul Ghani Sahito etc CIVIL APPEAL NO.412/2011 AND CMA. NO.4340/2013 (On appeal against the judgment dated 2.4.2011 passed by the High Court of Sindh, Karachi in CP.D-932/2009) Dr. Muhammad Ali Vs. Dr. Nasimul Ghani Sahito etc CIVIL APPEAL NO.413/2011 (On appeal against the judgment dated 2.4.2011 passed by the High Court of Sindh, Karachi in CP.D-932/2009) Ahmed Hussain Vs. Dr. Nasimul Ghani Sahito etc CIVIL APPEAL NO.495/2011 (On appeal against the judgment dated 2.4.2011 passed by the High Court of Sindh, Karachi in CP.D-932/2009) Rasool Bux Phulphoto Vs. Province of Sindh thr. Chiefr Secy. and others 2 ATTENDANCE For the Appellant(s) (in CA.404 & 405/11) : Syed Iftikhar Hussain Gillani, Sr. ASC (in CA.407/11) : Mr. Adnan Iqbal Ch, ASC (in CA.409/11) : Mr. Asim Mansoor Khan, ASC (in CA.411 & 412/11) : Mr. Hamid Khan, Sr. ASC (in CA.413/11) : Mr. Abdul Rahim Bhatti, ASC (in CA.495/11) : Miangul Hassan Aurangzeb, ASC For Respondent(s) For Govt. of Sindh. : Sarwar Khan Add. A.G Sindh Abdul Fateh Malik A.G. Sindh Rafique Mustafa Shaikh, Add. Secretary Services(S&GAD) Ghulam Ali Bharmani, Dy. Secretary Services(S&GAD) CAs. 404, 405, 407, 409 & 411 TO 413/2011 3-13,15,16,18-25,27-41,43-49, 51 & 52: CA.495/2011 3-12,14,15,17-24,26-31,33- 40,42-48, 50,51 : Ch. Afrasiab Khan ASC Date of hearings : 5th, 6th, 10th June, 2014, 15th to 17th & 21st to 24th October, 2014. JUDGMENT AMIR HANI MUSLIM, J.- C.A. No.413 of 2011 Ahmed Hussain vs. Dr. Naseem ul Ghani Sahito by Mr. Adbul Rahim Bhatti, ASC 1. Mr. Abdul Rahim Bhatti, learned ASC submitted that on 24.10.1994, the Appellant was appointed as Protocol Officer in BS-17 in CM Secretariat. The post of Protocol Officer falls outside the purview of the Public Service Commission and in 2007 the post was upgraded to BS-18. Thereafter, on 03.01.2009 he was 3 absorbed as Deputy Secretary in Provincial Secretariat Service (PSS) with backdated seniority. 2. The learned Counsel for the Appellant contended that the writ filed by the Respondent was not in the nature of quo- warranto. According to him, a writ of quo-warranto could not be filed on opaque technicalities. He next contented was that the subject matter of the writ relates to the terms and contention of service, therefore, a writ in the nature of quo-warranto did not lie. In support of his contention, he has relied upon the case of Khalid Mahmud Advocate v. Muhammad Yaseen (1991 SCMR 1041). The learned counsel has contended that the view in the case of Khalid Mahmud (supra) has consistently been followed by this Court. He submitted that if a Civil Servant is aggrieved by an order of the Departmental Authority, he is required to file an Appeal before the Service Tribunal. According to him, the jurisdiction of the Service Tribunal cannot be bypassed by the Respondents claiming relief from the High Court under the garb of fundamental rights. He relied upon the case of Khalid Mahmood Wattoo v. Government of Punjab (1998 SCMR 2280) by submitting that a distinction has been drawn by this Court between the exercise of jurisdiction of the High Court under Article 199 of the Constitution and the bar placed on such an exercise by Article 212 of the Constitution. He contended that the Respondent could not have filed a Petition, which pertains to the term and condition of their service before the High Court. The learned Counsel has relied upon the case of Muhammad Liaquat Munir Rao vs Shams ud Din and others (2004 PLC (CS) 1328) and contended that a writ in the nature of quo- warranto could only be filed before the Tribunal and contended 4 that the issue pertaining to the terms and conditions could not be gone into by the High Court for want of jurisdiction, which falls within the purview of the Services Tribunal. He also cited case Dr. Azim-ur-Rehman Khan Meo vs Government of Sindh (2004 PLC (CS) 1142) in support of his contention. 3. The learned Counsel submitted that the judgment under review, should apply prospectively. He further contended that the judgment is discriminatory, as in some cases, the question of absorption has been saved by the High Court of Sindh under Rule 9-A. The learned Counsel submitted that the Petitioner was appointed under Rule 9(1) as he satisfied all the requirements of qualification, experience and Grade. 4. According to the learned Counsel, the appointment of the Appellant was made by the Competent Authority on following the codal formalities. He submitted that the Appellant could not be penalized for the act of the Government functionaries. He submitted that those officers, who have appointed the Appellant in violation of the rules may be proceeded against. Counsel relied upon the cases (1996 SCMR 1350), Iqbal Hussain Sheikh and 2 others v. Chairman FBR (2013 SCMR 281), Fahd Asadullah Khan v. Federation of Pakistan (2009 SCMR 412) and (2006 SCMR 678) to establish that if an order is passed by an authority erroneously or in violation of rules, it should firstly be determined which authority is responsible for the order. The learned Counsel has relied upon the case of Dr. Nighat Bibi vs Secretary, Ministry of Health (2009 SCMR 775) in support of his contention, wherein absorption was saved. He cited the case of Najam Abbas vs Superintendent of 5 Police (2006 SCMR 496) in support of his contention that no officer should be penalized for the act of functionaries. C.A. No.404, 405 of 2011 Ali Hassan Brohi (CA404/2011) Ali Azhar Baloch (CA.405/2011) v. Province of Sindh etc by Syed Iftikhar Hussain Gillani, Sr.ASC 5. The learned Counsel contended that he is in complete agreement with the judgment striking down the legislative instruments, however, the Sindh Government has misled this Court, and the Court believed the submissions made and passed the order. The Counsel submitted that this petition challenges para No.175 of the judgment under review. 6. The learned Counsel contended that on 19.09.1989, the Appellant Ali Hassan Brohi was appointed in BS-18 as Director in Ministry of Sports and Tourism, Government of Pakistan. After 5 years, on 02.03.1994, the Government of Sindh requisitioned his services on deputation in BS-18. On 07.11.1995, he was absorbed as Deputy Secretary in Provincial Secretariat Service (PSS). 7. The learned Counsel contended that the issue before the Court relates to the legality of initial absorption of the Appellant. He submitted that this Court assumed jurisdiction in the matter under Article 184(3) of the Constitution, to examine the vires of the legislative instruments, therefore, this Court could not strike down the provisions which were not challenged before it. He further contended that the judgment should be applied prospectively. 8. The learned Counsel submitted that the instruments struck down were enacted to protect absorptions, however, the job 6 of the Court is to strike down the instruments and not to deal with the cases of absorptions that have already taken place. He next contended that the date of 1994 was not in the mind of the author judge and there is no proof as to how the AG Sindh arrived at this cut off date. Counsel submitted that the constitutional duty of this Court ends the moment the law is struck down and what happens afterwards would not be the concern of this Court. The Counsel placed reliance on the case of (PLD 2013 SC 829) in support of his contention that the judgment has to be prospective. 9. The learned Counsel next referred to the Sindh Civil Servants (Regularization of Absorption) Act, Act 17 of 2011, and submitted that the cut off date of 1994 is arbitrary, based on the statement made by the learned AG Sindh. All illegal absorptions should be declared invalid, and not only those made post-1994. The Counsel contended that the Provincial Government has misled the Court and out of 1161 employees who were absorbed, in the similar manner, the action has only been taken against 278 Officers. C.A. No.495 of 2013 Rasool Baksh Phulpoto v. Province of Sindh by Mr. Miangul Hassan Aurangzeb, ASC 10. The Counsel submitted that the Appellant has retired five months ago but his pension has been stopped. He contended that when the judgment under review was pronounced, the Appellant was MD of Pakistan Housing Authority and had been appointed in the Federal Government on deputation. 11. The Counsel contended that, in 1973, he was appointed as a teacher in the Directorate of Technical Education, 7 Government of Sindh in BS-16. In May 1988, he was transferred and posted as Additional Private Secretary to CM Sindh in BS-16. He next contended that on 26.06.1988, the Federal Government requisitioned his services and he was sent on deputation as PS to Federal Minister Housing. The Appellant applied for the position of Deputy Director, Directorate of Special Education, a fresh appointment on ad hoc basis in BS-18. Then, in 1990, he was selected as Additional DG, Peoples Works Program and was transferred to the Local Government in the same grade. The Counsel contended that the department was devolved to the provinces, thus he became surplus. Thereafter, the CM Sindh wrote a letter to the Establishment Division stating that the Appellant has been absorbed w.e.f 25.05.1991 in the Sindh Government. The Counsel submitted that the Appellant was duly regularized in Provincial Government but has been reverted to the Federal Government under the impugned judgment and is not receiving any pension. C.A. No.407 of 2011 Abdul Ghani Jukhio v. Province of Sindh by Mr. Adnan Iqbal Ch., ASC 12. The learned Counsel submitted that on 22.11.1989, the Appellant was appointed as PRO in Directorate of Sindh Kachi Abadi Authority (SKAA) in BS-16. In 1995, he was appointed PRO to Minister Population Welfare in SKAA and the post was upgraded to BS-17 in May 1994. On 18.02.1996, he was appointed PS to Minister for Excise on deputation. He subsequently came back to his parent department from 1997 to 1999 as PRO. On 01.09.1997, he was promoted to BS-18 and was then appointed as Deputy 8 Director Coordination in SKAA. On 16.12.2002, he was appointed Town Municipal Officer in S&GAD and was reverted to his parent department in 2003 as Deputy Director Administration. Thereafter, in 2004, he was appointed Director, Field Office of SKAA in BS-19. On 31.01.2007, the Appellant was promoted to BS-19 and on 30.04.2007, he was appointed EDO Jamshoro in Ex PCS cadre. The Counsel contended that on 18.11.2008, the Appellant was absorbed as Additional Secretary in Provincial Secretariat Service (PSS) in BS-19 and his name was placed at the bottom of the seniority list. On 07.03.2011, he was appointed Secretary Mines and Minerals in BS-20. 13. The Counsel submitted that the Appellant is not posted anywhere and his lien with the SKAA has been terminated. He contended that the Appellant is not a beneficiary of any legislative instruments which protect absorptions. These statutes were limited to protect the officers who were on deputation and were subsequently absorbed under the statutes and the Appellant‟s absorption does not fall under it. 14. The learned Counsel submitted that absorption of the Petitioner is valid not only under Rule 9-A but under Rule 9(1) as well and the appointment procedure provided in these Rules was duly followed. He contended that the Appellant was a Civil Servant since his first appointment and service Rules of SKAA were not framed at that time. He contended that there are two parallel structures: one is the Civil Services and the other posts in connection with affairs of the Province. He contended that he Sindh Kachi Abadi Act was meant for both these servants and if those in Civil Services are allowed to move laterally to Government 9 departments, those holding posts in relation to affairs of the province should also be allowed to do the same. 15. He next contended that section 26 of the Composition and Cadre Rules of 1954 allows for appointment by transfer of private persons as well. He further contended that Section 7(2)(a) of Public Service Commission Act, 1989, envisages movement from Government Service to Civil Service and he relied on Hadi Buksh v. Sindh (1994 PLC (CS) 924) to submit that such movement has been endorsed by this Court. He lastly contended that in Nemat Ullah Butt v. Government of Punjab (1988 SCMR 1453), this Court held that there is nothing in the Act that prevents Government from creating additional, separate cadres for Government servants after absorption. C.A. No.409 of 2011 Syed Abid Ali Shah vs. Province of Sindh by Mr. Asim Mansoor Khan, ASC 16. The Counsel submitted that in 1976, the Appellant was appointed as Management Trainee in the Board of Management, Sindh for nationalized Ghee Industries. On 16.8.1997, he was appointed as Managing Director at Maqbool Co. Ltd. when the Sindh Government requisitioned his services. On 24.10.1997, the Appellant was sent on deputation for 3 years to the Ministry of Industries and Production. On 15.11.1997, he was appointed Cane Commissioner in BS-19. Then on 05.04.1998, he was transferred as DG, Bureau of Supply and Prices, Sindh. Subsequently, on 15.11.1998, he was repatriated to Ghee Corp. and on 14.01.1999, his services were placed at the disposal of Population Welfare department (PWD). On 18.01.1999, he was 10 appointed as Additional Secretary, PWD and on 09.08.1999, he was absorbed in PWD in relaxation of rules. Then, on 30.09.1999, Ghee Corp. relieved him but, on 18.12.1999, the Government sent a notification for repatriation of the Appellant. However, on 21.12.1999, the Secretary, Sindh Government, submitted that the Appellant has been absorbed therefore he cannot be repatriated. 17. The Counsel submitted that under an amendment to section 8 of the governing statute, the employees of PWD were declared Civil Servants. At the time of the judgment, the Appellant was appointed Secretary Livestock in BS-20. Counsel contended that he was de-notified on 02.07.2013 and repatriated to Ghee Corp. even though he had been merged in the Government of Sindh in PSS and Ghee Corp. was declared defunct. The Appellant retired one year after de-notification on 01.06.2014. C.A. No.411 of 2011 Dr. Aftab Ahmad Malah v. Dr. Naseem ul Ghani by Mr. Hamid Khan, Sr. ASC 18. The learned Counsel contended that in the year 2000, the Appellant Dr. Aftab was appointed Dental surgeon in BS-17 in the Ministry of Health. On 05.09.2008, he was promoted as Senior Dental Surgeon in BS-18 on the recommendations of committee and with approval of the competent authority. On 07.10.2008, he was transferred and posted as Deputy Secretary in BS-18 in the Health Department, Government of Sind. Subsequently, on 18.11.2008, he was absorbed and inducted in PSS cadre in the same grade and his name was placed at the bottom of the seniority list. 11 19. The Counsel contended that competitive examination is not the only channel available for induction of officers, citing Rule 9(1) as an example. C.A. No.412 of 2011 Dr. Muhammad Ali v. Dr. Naseem ul Ghani by Mr. Hamid Khan, Sr. ASC 20. The Counsel contended that the Appellant holds a degree of MSc Economics from Bradford University and in Sept. 2003, he received a Doctorate in Business Administration from Florida. He attended National Management Course from NIPA, Lahore and courses at Royal Institute of Public Administration, London. 21. The Counsel contended that on 18.06.1981, the Appellant was appointed as Staff Officer in BS-17 in Agriculture Development Bank of Pakistan (ADBP) and was prompted as Assistant Director ADBP in BS-18. In 1993, he was promoted as Joint Director in BS-19 and in 2001, the post was upgraded to Director. In 2002, Governor of Sindh recommended the Appellant for absorption in the Provincial Government as Secretary Food and Cooperatives. On 12.07.2004, he was posted as Additional Secretary in BS-19 in CM Secretariat on deputation. On 18.02.2005, he was appointed as Special Secretary (BS-20) Implementation in CM Secretariat, w.e.f 17.7.2004 and on 14.03.2006, he was absorbed in PSS. The Counsel contended that at the time of the judgment, the Appellant was on deputation to the Federal Government as Joint Secretary, Drug Regulatory Authority in BS-21. On 20.03.2013, he was promoted to BS-21 on the recommendations of the Provincial Selection Board. The 12 learned Counsel contended that on 21.12.2006, he was relived by ADBP due to his absorption in the Provincial Secretariat. 22. The learned Counsel submitted that the subject matter of the writ petition pertains to the terms and conditions of service, therefore, the jurisdiction of the High Court is barred under Article 212 of Constitution, read with section 4 of Sindh Service Tribunal Act. By filing a writ of quo-warranto, a question relating to terms and conditions of service can only be determined by the Tribunal. 23. The learned Counsel submitted that the Learned Judges of High Court of Sindh ignored Rule 9(1). He contended that the appointment of Dr. Aftab Malah was validly made under Rule 9(1) and that of Dr. Muhammad Ali was also validly made under section 24, as their services were requisitioned with the approval of the competent authority. Counsel submitted that appointment of Dr. Aftab Malah satisfied all three conditions laid down under Rule 9(1) and that Rule 6A relates to promotion and not appointment by transfer. Counsel submitted that lateral movement is permitted but it is governed by certain rules, which have been followed. 24. The learned Counsel contended that their remedy lies before the Service Tribunal, and not before the High Court; and this judgment goes beyond the jurisdiction of the High Court. While placing reliance on Superintendent Engineer Highways v. Muhammad Khurshid (2003 SCMR 1241), Counsel submitted that exclusive jurisdiction pertaining to terms and conditions of service lies with the Tribunal. He next contended that in Managing 13 Director v. Ghulam Abbas (2003 PLC (CS) 796), it was held that Service Tribunal could hear matters of absorption. 25. The Counsel contended that a writ of quo warranto is not available to one set of Civil Servants against another set of Civil Servants. He submitted that if a colleague is allowed to challenge another colleague‟s appointment, there would be no end to this; there will be anarchy in the Civil Service structure. He placed reliance on Dr. Azeem ur Rehman v. Government of Sindh (2004 SCMR 1299) and contended that if an appointment has been made and there is something wrong with such appointment, the Tribunal is the appropriate forum to challenge it. 26. The learned Counsel submitted that when they filed a writ of quo warranto, the Petitioners were bound to show as to how they were aggrieved, which they have failed to do. The learned Counsel contended that these writ petitions were hit by the principle of laches. Dr. Aftaf Malah was transferred in 2008 and Dr. M. Ali was appointed in 2006, while these petitions were filed in May 2009. He placed reliance on the case reported as (2012 SCMR 280). 27. The learned Counsel referred to section 24 of the Civil Servants Act. The Counsel contended that the Appellant was highly qualified and talented and there is always an exception available in the Rules. The Counsel next contended that the principle of locus poententiae is attracted as the appointment was validly made, he was qualified and the appointment had taken effect, and he placed reliance on Sarosh Haidar v. Muhammad Javaid (PLD 2014 SC 338). He further relied on the case reported as (PLD 1969 SC 407) 14 where it was held that the matter relating to salaries was against law but since it had taken effect, it could not be taken back. 28. The learned Counsel submitted that the High Court could not consider Rule 9(1) since appointment could also be made under it. The learned Counsel relied on Raunaq Ali’s case (PLD 1973 SC 236) in which a distinction was made between acts done without jurisdiction and those done improperly or with some irregularity. The Counsel contended that appointments have been made and have taken effect. In such instances, jurisdiction should be exercised very carefully. He also relied on Muhammad Hussain Munir v. Sikandar (PLD 1974 SC 139). The Counsel lastly submitted that legal principles laid down by this Court must operate prospectively and he placed reliance on (2009 SCMR 1169). 29. The learned Counsel, Ch. Afrasiab Khan, contended that the cutoff date of 1994 was not determined in vacuum and was based on data. The notification, dated 02.11.1994, at para. 6 of the Sindh High Court judgment, stated that 10% of appointments shall be made by transfer from other departments. This is why the learned AG Sindh submitted the date of 1994. Furthermore, the appointments placed on record before the Court were those made in 1994 and onwards, that is why the judgment relates to the appointments made after 1994. 30. The Counsel next contended that the judgment should operate retrospectively as there are at least four conclusive judgments of this Court in support of this point, including Dr. Mobashir Hassan’s case. (supra). 15 31. The Counsel lastly contended that the nomenclature of the legislative instruments which were challenged manifestly admit in their content that all absorptions were illegal, that is why it was called “Regularization of Absorption”. Regularization is only done of that which is wrong, illegal and void. 32. Mr. Sarwar Khan, learned Addl. Advocate General while referring to para. 2 of the judgment of the High Court, has contended that there was no absorption in PSS group prior to 1994. He next submitted that his contentions are the same which were made before the High Court, and are given in para. 25 of the judgment. 33. We have heard the learned Counsel for the Appellants and have perused the record. The Appellants were absorbed on different dates in Sindh Government. During the pendency of the Appeals, the issue of absorption in service, post and cadre was agitated in Constitution Petition No.71 of 2011 and other Petitions, which were heard and decided by the judgment dated 12.6.2013, whereby the „absorption‟ has been declared unconstitutional, therefore, these Appeals will have no bearing which have been preferred against the judgment of the High Court of Sindh dated 2.4.2011 in CP.D-932/2009 (Dr. Nasimul Ghani Sahito vs. Province of Sindh etc) in which the learned High Court while examining the scope of Section 24 of the Act has held that the authority was not authorized, in law, to absorb the Appellants in different cadres, service or posts. Since we have already decided the issues raised in these Appeals in the aforesaid judgment, review of which has also been dismissed, holding that absorption can neither be ordered under Section 24 of the Sindh Civil Servants Act 1973, nor under 16 Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, and is violative of the fundamental rights of the Civil Servants, consequently, these Appeals have lost their significance and are accordingly dismissed. Approved for reporting Sohail/Saeed/** Announced in open Court on 05.01.2015 at Karachi.

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{'id': 'C.A.404_2011.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Anwar Zaheer Jamali Mr. Justice Sarmad Jalal Osmany Mr. Justice Dost Muhammad Khan Civil Appeal No.407 of 2013 (On appeal from the judgment of Lahore High Court, Lahore dated 26.11.2012 passed in W.P.No.22454 of 2012) Pakistan Telecommunication Company Ltd. …Appellant Versus Member NIRC and others …Respondents For the Appellant: Syed Naeem Bukhari, ASC For respondents 1,3-6: Sheikh Riaz ul Haq, ASC For respondent No.2: Syed Shahid Hussain, ASC Respondents No.7 & 8: Ex-parte Date of hearing: 04.02.2014 JUDGEMENT Dost Muhammad Khan, J.— In this appeal leave was granted by this Court vide order dated 22.04.2013 against the judgment of the Lahore High Court, Lahore dated 26.11.2012, rendered in W.P.No.22454/2012, inter alia, on the following grounds:- “ORDER Syed Naeem Bokhari, learned ASC for the petitioner has strongly questioned the interpretation of the Civil Petition No.407/2013 2 relevant provisions of the Industrial Relations Act, 2012, (in short “the IRA”) recorded in the impugned judgment. He contends that the view taken in the impugned judgment is, inter alia, result of oversight and non-reading of section 54(h) of the IRA. In support of his submissions he has made reference to another judgment dated 10.1.2013, in writ petition No.25102/2011, passed by the same honourable judge in the Lahore High Court, wherein, according to him, on the same point, contrary view is taken. He has further placed reliance upon a recent order of this Court dated 13.02.2013, passed in Civil Appeal No.1150/2012 and other connected appeals, to show that the judgment impugned before this Court is contrary to the ratio of judgment delivered by this Court on the same point. 2. Contention raised requires consideration. Leave to appeal is, therefore, granted. Interim order passed earlier shall remain operative till further orders.” 2. Brief but relevant facts, giving birth to this controversy, are that respondents were employees of the appellant [PTCL], whose services were terminated on 01.09.2010 and 16.09.2010. They filed grievance petition under section 33(8) of the Punjab Industrial Relations Act, 2010 [ the PIRA 2010] read with Standing Order No.12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance VI of 1968 [the ICESO Ordinance 1968] before Labour Court No.4, Faisalabad. The appellant filed written statement. The learned Labour Court after recording evidence, allowed the grievance petition on 22.08.2011. The appellant filed appeal against the said order, which is pending disposal before the learned Punjab Labour Appellate Tribunal, Lahore. 3. In the meantime, the respondents filed contempt petition before the learned Labour Court No.4, Faisalabad under section 33(8) of PIRA 2010 read with sections 3 and 4 of the Civil Petition No.407/2013 3 Contempt of Court Ordinance, 2003 to implement the Labour Court’s order dated 22.08.2011. After receiving notice of contempt petition, the appellant approached the Bench of NIRC at Lahore for withdrawal of the contempt petition before the Labour Court No.4, Faisalabad. The respondent No.1 therein (NIRC) through order dated 26.01.2012 withdrew the contempt proceedings before the Labour Court No.4 and assigned the same to the Bench of NIRC at Lahore. The employees/respondents impugned the said decision of the NIRC dated 26.01.2012 through W.P.No.22454/2012 before the Lahore High Court, Lahore contending therein that NIRC was having no jurisdiction to pass the order, referred to above, as the matter was already decided and concluded by the competent Court, allowing the grievance petition. 4. Learned counsel for the appellant contends that the learned Judge in Chamber held in paras 17/22 of the impugned judgment that the provisions of the PIRA 2010 are applicable to those establishments, which are working exclusively in the Province of Punjab and are not maintaining trans-provincial establishment. However, the learned Judge contrary to the above view in para-3 of the impugned judgment held that the jurisdiction of NIRC comes into play only, where there is allegation of unfair labour practice as defined in section 32 of the IRA 2012, on the part of employer or workers or trade union; thus, the conclusion arrived at para 24 of the impugned judgment, in view of the learned ASC, is clashing with and is contrary to the view expressed by the learned Judge in Chamber of the Lahore High Court given in Paras 17/22 and that the provisions of sections 32, 33 and 34 have been misinterpreted. 5. Learned ASC further contends that in trans-provincial establishment like PTCL, all disputes including unfair practices, whether on the part of employer or employees/workmen, the Civil Petition No.407/2013 4 jurisdiction of the NIRC is overriding and exclusive in nature, not only because it is created and empowered by Federal Law, having super imposing effect over provincial law but also because if trans-provincial establishments, companies or their employees bring grievance petition with regard to the disputes, referred to above, in different Labour Courts of the Provinces, the same would create multiplicity and end result would be giving conflicting judgments by different Labour Courts and Appellate Tribunals and there will be no end to the litigation. The NIRC is a single forum at national level, upon which such jurisdiction has been expressly conferred by the provision of section 33 of the IRA 2012, whether the dispute is individual one or of collective nature and whether it is to be brought by the workers or through shop-steward or collective bargaining agents. 6. The learned ASC also contends that the learned Judge in Chamber of the Lahore High Court, ignoring the above legal position, misinterpreted and misconstrued the provision of section 33(8) of the PIRA 2010 and Standing Order 12(3) of the ICESO Ordinance, 1968, as in his view the power of contempt given to the Appellate Tribunal itself or that of Labour Court is confined and is only relevant if the Labour Court of a particular Province has the jurisdiction to decide a grievance petition of a local company/undertaking/enterprise, having no extra provincial activities, establishments, industrial units or industrial activities. 7. Learned ASC for the private respondents/employees, however, was of the firm view that the plain reading of the provision of sections 32 and 33 of the PIRA 2010 is a condition Sine qua non for the assumption of the jurisdiction by the local/provincial Labour Court and whenever unfair labour practice element is involved, the Labour Court of a particular Province, where a dispute arises, would have exclusive jurisdiction. Thus, in his view, the impugned judgment of the Lahore High Court Civil Petition No.407/2013 5 does not suffer from any jurisdictional effect nor it is a result of misreading or misinterpreting the relevant provisions of law, both Provincial and Federal, on the subject. 8. We have fairly attended to the legal propositions and have carefully read all the provisions of above law. 9. There is no denial of fact that through Eighteenth Constitutional Amendment, the Concurrent Legislative List was done away with and some Federal Ministries including Labour Ministry were devolved upon the Provinces. However, the Federal Government confronted with the anomaly that there are certain companies or groups of companies having trans-provincial industrial activities, where many people have been employed as workers or workmen, thus, if any industrial dispute including unfair labour practice arises, a single forum was needed to be provided for the settlement of such disputes so that class of companies having trans-provincial industrial units and their employers are not dragged into endless litigation on the question of jurisdiction as to whether the grievance petition in that case be taken cognizance by the Labour Court of the Province or by one single forum like NIRC, which has been established and constituted under the provision of section 53 of the Act X [ the IRA 2012]. The phrase, “trans-provincial” has been defined in clause (xxxiv) of section 2 of the Act X of 2012, which means, “any establishment, group of establishments, industry having its branches in more than one Provinces.” 10. Under the provision of section 53, the NIRC has been constituted by the Federal Government but its functions and jurisdiction has been explained and elaborated in the provision of section 54 of the IRA, 2012. According to clause (e), the NIRC has the powers and jurisdiction to deal with the cases of unfair labour practices specified in sections 31 and 32 of the Act on the part of employers, workers, trade unions, either of them or Civil Petition No.407/2013 6 persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 33 or sub-section (9) of section 33 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by regulations under section 66, measures calculated to prevent an employer or workman from committing an unfair labour practice. In addition to above powers and jurisdiction, the NIRC has been conferred upon additional powers under the provision of section 57 of the Act (ibid), which includes the powers to punish for contempt of court and may award simple imprisonment which may extend to six months or with fine, which may extend to Rs.50000/- or with both. 11. In the same provision, vide clause (2)(b), the Commission has been empowered to withdraw from a Labour Court of a Province any applications, proceedings or appeals relating to unfair labour practice, which fall within its jurisdiction; and (c) grant such relief as it may deem fit including interim injunction. A proviso has been added to the above provision, to following effect:- “Provided that no Court, including Labour Court shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice, which is being dealt with by the Commission. 12. After combined reading of the scheme of new labour laws, both Provincial and Federal, it may be concluded without any fear of rebuttal that two parallel forums have been created, one on a provincial basis whereas latter is federal level forum, called NIRC. Both these forums are having jurisdiction to deal with industrial disputes and unfair labour practice and other allied matters either attributable to the employer or the workers/workmen, however, the Federal Law has drawn a clear Civil Petition No.407/2013 7 demarcation line of jurisdiction of these two different forums, i.e. Labour Courts in the Provinces and the other NIRC at the Federal Level. It is not the nature of dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the NIRC. To be more clear on the point we have no hesitation to hold that once it is established though any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and super imposing effects over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc. related to the employer, having its establishment or branches or industrial units in more than one Province and re-course has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court. 13. Even otherwise under the provision of Article 143 of the Constitution of Pakistan, 1973, laws enacted by the Parliament have been given overriding and super imposing effects over the laws enacted by a Provincial Assembly of any of the Provinces and in case of any clash or repugnancy between the two, the laws enacted by the Parliament shall prevail. Thus, on the touchstone of the provision of Article 143 of the Constitution, the Act of Parliament has been placed on the high pedestal and any Provincial Law enacted by the Provincial Assembly shall give way to the Federal Law, enacted by the Parliament, if the former is inconsistent or repugnant to the latter. Therefore, it is held that the provision of Act X of 2012 (the IRA 2012) has overriding effect on all Provincial Labour Laws. Judged from this angle, we are of the firm view that in the present case, the learned Judge in Chamber of the Lahore High Civil Petition No.407/2013 8 Court, Lahore while drawing the impugned judgment dated 26.11.2012 could not properly comprehend the intents and objects of the above provisions of law, rather misconstrued and misinterpreted the same, resulting into miscarriage of justice, the impugned judgment being not sustainable in the eye of law is liable to be set at naught. 14. During hearing of this appeal, a question arose, as to whether the Parliament could enact any law relating to industrial relations/disputes, regulating the conduct of employers and workers or workmen and to establish an exclusive forum for such disputes at Federal Level without the express consent or requisition of the four Provincial Governments. After Eighteenth Amendment, doing away with the Concurrent Legislative List, by abolishing the same and when the Ministry of Labour and its all affairs have devolved upon the Provinces, whether such express consent of the Provincial Governments at any level or at the forum of CCI was not essential to give validity to the Federal Law on the subject, however, before us neither in the petition nor during the course of arguments addressed at the bar, the vires of the Federal Law, referred to above, was brought under challenge, therefore, we would leave it open to determine this question of law in some other appropriate case, where the vires of the Federal Laws are expressly challenged. 15. Accordingly, this appeal is allowed. The impugned judgment dated 26.11.2012 passed by the learned Judge in Chamber of the Lahore High Court, Lahore is set aside and the order of NIRC dated 24.01.2012 withdrawing the contempt petition from Labour Court No.4, Faisalabad to itself is hereby upheld and further proceedings in the matter be taken up by the NIRC and shall be decided positively within two months. Civil Petition No.407/2013 9 16. In view of the above judgment, allowing the appeal, Civil Miscellaneous Applications No.2265/2013 and 35 of 2014 are also disposed of accordingly. Judge Judge Judge Announced in open Court on 17.02.2014 at Islamabad Judge

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{'id': 'C.A.407_2013.pdf', 'url': ''}

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Civil Appeal No.40 of 2021 [Against the judgments dated 12.09.2019, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeal No.625/2018] Secretary Agriculture, Livestock & Cooperation Department, Peshawar & others. … Appellant(s) Versus Anees Ahmad. …Respondent(s) For the Appellant(s) : Mr. Zahid Yousaf Qureshi, Additional Advocate General, KP Asad ud Din, Asif Jan, Superintendents Javaid Maqbool Butt, Incharge Litigation, Agriculture Department, KP For the Respondent(s) : Mr. Fazal Shah Mohmand, ASC Date of Hearing : 08.06.2021 O R D E R Gulzar Ahmed, CJ.— Facts of the matter are that the respondent was promoted to the post of Office Assistant (BPS-14) in the year 2004 and his post was up-graded to BPS-16 in the year 2014. The service rules were notified on 20.04.2012, providing 90% quota for promotion on seniority-cum-fitness basis among the holders of the posts of Assistant/Accountant, who have completed five years’ service. In the year 2013, post of Superintendent became vacant. The working-paper for promotion of the respondent was prepared where his name appeared at Serial No.2. The C.A.No.40 of 2021 - 2 - Departmental Promotion Committee (the DPC) was scheduled on 19.06.2017 but it was delayed to 19.10.2017. On 19.10.2017 the case of the respondent for promotion was not considered by the DPC for the reason that he had already retired on attaining the age of superannuation on 21.06.2017. The respondent filed service appeal in the Khyber Pakhtunkhwa Service Tribunal, Peshawar (the Tribunal), by the impugned judgment dated 12.09.2019, the service appeal of the respondent was allowed and the appellants were directed to consider the case of the respondent for pro forma promotion from the date of his retirement. 2. We have heard the learned Additional Advocate General, KP (AAG) and have also gone through the record of the case. 3. Learned counsel appearing for the respondent has supported the impugned judgment. 4. The Government of Khyber Pakhtunkhwa Agriculture, Livestock & Cooperation Department, Peshawar (AL&C Department, KP) issued Notification dated 20.04.2012 containing the rules of recruitment. Item No.36 of the rules is as follows: - S.No. Nomenclature of post Qualification for appointment by initial recruitment. Age limit Method of recruitment. 1 2 3 4 5 PART-II MINISTERIAL STAFF 36. Superintenden ts (BPS-16). a). Ninety percent by promotion, on the basis of seniority-cum- fitness, from amongst the holders of the posts of Assistant/Accountants with five years service as such; and b). ten percent by promotion, on the basis of seniority-cum-fitness, from Senior Scale Stenographers with five years service as such. C.A.No.40 of 2021 - 3 - 5. Working-paper was prepared and the same was sent to the Secretary, AL&C Department, KP vide letter dated 26.05.2017. Model Working Paper, which is at Page-29 of the record shows that there were 08 posts of Superintendent (BPS-17) lying vacant in AE Department. Ninety percent of these posts were to be filled by promotion on the basis of seniority-cum-fitness from the post of Assistant/Accountant having five years’ service. In para-5 of this Model Working Paper appears a chart containing names of 14 Office Assistants. At Serial No.1 is the name of Muhammad Alam, it is mentioned that he has opted to forgo his promotion. At Serial No.2 appears the name of respondent. In the last but one para of this very Model Working Paper, following has been certified by the Director General, AE Department: - “It is certified that all the officials included in the panel for promotion:- i. Hold the lower post on regular basis and none of them is holding the post on adhoc basis. ii. No departmental examination has been prescribed for promotion to the post of Superintendent. iii. No disciplinary /Departmental proceeding/anti- corruption case /judicial inquiry are pending nor has any penalty been imposed during the last five years against any of the official of the penal. iv. The seniority list of the Office Assistant is final and un-disputed. 6. The very perusal of the Model Working Paper shows that the respondent has completed requisite five years’ service provided by the rules and the Director General, AE Department, has also certified that there is no impediment in grant of promotion to the persons named in the Model Working Paper. C.A.No.40 of 2021 - 4 - 7. The DPC for considering the promotion was held on 19.06.2017 but was adjourned on the pretext that fresh option of officials forgoing their promotion be obtained. This is mentioned in the letter of the Director General, AE Department dated 28.11.2018 at page-31 of the record. After adjourning of this meeting by DPC, the next DPC meeting took place on 19.10.2017 and in the meantime, the respondent retired from service on 21.06.2017. 8. Learned Additional Advocate General has contended that promotion to the post of Superintendent (BPS-17) was to be made on seniority-cum-fitness basis and this very aspect was to be determined by the DPC and as the DPC having not determined the matter of seniority-cum-fitness, respondent, could not be granted pro forma promotion after his retirement. He has further contended that the case of promotion of Superintendent (BPS-17) was placed before the DPC on 19.10.2017, but it was not considered as respondent has retired on 21.06.2017 and no illegality was committed. He was of the view that only the DPC is competent to consider the grant of promotion and in case, it does not consider or grant promotion, no other forum is competent to decide the question of granting of promotion or pro forma promotion. As to the last submission with due respect, we tend to disagree with the learned AAG for the reason that no doubt it is a function of the DPC to consider the case of promotion of the government servant but where the DPC in violation of law and rules omits to consider or omits to grant promotion, the remedies before statutory Courts/Tribunals are provided by law and such remedies could be C.A.No.40 of 2021 - 5 - availed by the aggrieved government servant and it is for the Courts/Tribunals to consider and decide whether the DPC has validly omitted to consider or omitted to grant promotion in accordance with law and rules. 9. In the present case the DPC has not considered the case for promotion of respondent and the reason assigned is that he has retired. This reason given by the DPC, apparently, is no reason in law, in that, once the Model Working Paper for promotion of respondent was placed before the DPC, it was incumbent upon it to have considered and decided the same, for that, though the law does not confer any vested right to a government servant to grant of promotion but the government servant surely has a right in law to be considered for grant of promotion. It is because of the department’s own non-vigilance and the DPC being insensitive to the employees who were on the verge of retirement of which the employees could not be made responsible, cannot simply brush aside the case of an employee by merely saying that he has retired. Once the case of respondent has matured for promotion while in service and placed before the DPC before retirement, it was incumbent upon the DPC to fairly, justly and honestly consider his case and then pass an order of granting promotion and in case it does not grant promotion, to give reasons for the same. This was not done by the DPC and in our view such was a miscarriage of justice to respondent. 10. In view of the above, we find that the impugned judgment of the Tribunal, directing the appellants to consider the case of promotion of respondent, does not suffer from any illegality C.A.No.40 of 2021 - 6 - and is maintained. The appeal is, therefore, dismissed. As the matter is quite old, we expect that the appellants will decide the question of promotion of respondent expeditiously, preferably within a period of three months from today. CHIEF JUSTICE JUDGE Bench-I Islamabad 08.06.2021 APPROVED FOR REPORTING Rabbani*/ JUDGE

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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. 410 OF 2020 (On appeal against judgment dated 16.10.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1184- R/2017) The Government of Pakistan through Secretary Establishment Division, Islamabad … Appellant VERSUS Muhammad Ismail and another … Respondents For the Appellant: Ch. Aamir Rehman, Addl. Attorney General Mr. Sajid ul Hassan, S.O. Establishment For the Respondent (1): In person Date of Hearing: 02.06.2021 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 16.10.2018 passed by the Peshawar High Court, Peshawar, whereby the writ petition filed by the respondent No. 1 was allowed. While handing down the judgment, the learned High Court directed the appellant department to appoint the respondent No. 1 in pursuance of ‘Prime Minister’s Assistance Package for Families of Government Employees who die in service’ dated 13.06.2006 to be effective from 01.07.2005, which was further amended on 20.10.2014, 04.12.2015 & 09.09.2016. 2. Briefly stated the facts of the matter are that respondent’s father while working as Senior Auditor in the office of Accountant General KPK, Peshawar, died on 14.10.1995. On 13.06.2006 the Government of Pakistan issued ‘Assistance Package for Families of Government Employees who die in service’ according to which son/daughter/widow/widower/family member, as the case may be, of the deceased government servant was made eligible for employment for Civil Appeal No. 410/2020 2 posts in BS-01 to BS-15 on two years contract without any advertisement. This package was amended time and again and finally an amendment was made vide Office Memorandum dated 09.09.2016 whereby the two years contract period was enhanced to 5 years and the same was also made extendable till the age of superannuation or regularization. The respondent No. 1 filed an application to the Accountant General KPK, Peshawar, for appointment on the quota of government employee, who died in service, on the basis of afore-referred memorandum dated 09.09.2016 but the same was never responded. The respondent then filed Writ Petition No. 1184-P/2017 before the Peshawar High Court, Peshawar, which has been allowed vide impugned judgment and it has been held that a statute or rule giving right to the citizens always operates retrospectively. Hence, this appeal by leave of the Court. 3. The crux of the arguments advanced by learned Additional Attorney General is that the father of the respondent died in the year 1995 when there was no policy in vogue for employment of deceased’s family member, therefore, the respondent could not have been given retrospective benefit of the policy, which was issued later on with prospective effect. He added that the learned High Court has wrongly interpreted that a statute or rule giving right to the citizens always operates retrospectively and the impugned judgment being not sustainable in the eyes of law may be set aside. 4. On the other hand, the respondent No. 1, who appeared in person, mainly stated that he possessed all the requirements/qualification but despite that he was not appointed on the basis of afore-referred office memorandum dated 09.09.2016, which amounts to depriving him from his legal right, which accrued to him in pursuance of the aforesaid Assistance Package. 5. We have heard learned Law Officer as also the respondent No. 1 in person and have perused the record. 6. It is an admitted fact that respondent’s father died in the year 1995 while he was in regular service of Accountant General KPK being Senior Auditor. At that time, there was no scheme/policy in field for induction of family member of deceased civil servant in service. It was on 13.06.2006 when the Government of Pakistan issued ‘Assistance Package for Families of Government Employees who die in service’, to be made effective from 01.07.2005, wherein employment for Civil Appeal No. 410/2020 3 posts in BS-01 to BS-15 on two years contract without advertisement for the families of deceased servant was surfaced. Thereafter, this package was amended thrice i.e. on 20.10.2014, 04.12.2015 and lastly on 09.09.2016 whereby the two years contract period was enhanced to 5 years and the same was also made extendable till the age of superannuation or regularization. We have perused the Assistance Package and the subsequent amendments but could not find any provision therein which gives it retrospective effect especially when the grievance of respondent was agitated with a lapse of almost 17 years. It is an established principle of interpretation of statutes / notifications / executive / administrative orders that they would operate prospectively unless they expressly provide for retrospective operation. This Court in the case of Hashwani Hotels Ltd. Vs Federation of Pakistan (PLD 1997 SC 315) has acknowledged this fact by observing that “it is a well- settled principle of interpretation of a notification and/or an executive order that the same can operate prospectively and not retrospectively. This principle is equally applicable to a statute in the absence of any express or implied intendment contrary to it.” In this view of the matter, when it is clear that afore-referred Assistance Package for legal heirs of deceased government employee was not available at the time when deceased employee died and the same was issued later on with prospective effect, the respondent was not deprived of any right accrued to him at the relevant time by not appointing him. The learned High Court has erroneously presumed that a statute or rule, which gives right to the citizens, always operates retrospectively. If this is accepted, it would tantamount to opening a floodgate for all other similarly placed persons. 7. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 2nd of June, 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 IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED CIVIL APPEALS NO. 411 TO 414 OF 2013 (On appeal from the judgment dated 18.4.2013 passed by the High Court of Balochistan, Quetta in CPS No. 270 to 273 of 2013) Abdul Ghaoor Lehri …. Appellant (in all cases) Versus The Returning Officer, PB-29, Naseerabad-II & others …. Respondents (in all cases) For the Appellant Mr. Kamran Murtaza, ASC For the Respondents Mr. Zahoor ul Haq Chishti, ASC (in CA 411/2013) Nemo (in CA 412/2013) Raja Abdul Rehman, ASC Mr. Arshad Ali Chaudhry, AOR (in CA 413/2013) Mian Abdul Rauf, ASC (in CA 414/2013) Date of hearing 24.05.2013 JUDGMENT IJAZ AHMED CHAUDHRY, J.- Through this single Judgment we intend to dispose of the civil appeals Nos. 411, C.As. 411 to 414/2013 2 412, 413 and 414 of 2013 as common questions of law and facts are involved in all of them and have arisen out of the same proceedings. 2. Abdul Ghafoor Lehri, appellant through the instant appeals, by way of leave of this Court vide order dated 7.5.2013, calls in question the legality of the order dated 18.4.2013 passed by a Full Bench of the High Court of Balochistan, Quetta in Constitution Petition No. 270 of 2013 whereby the same was dismissed against the order dated 17.4.2013 passed by the Election Tribunal, Balochistan allowing the appeal against acceptance of nomination papers of the appellant. 3. Succinctly, the facts forming background of the instant appeals are that the appellant filed his nomination papers to contest general elections, 2013 scheduled to be held on 11.5.2013 from PB-29-Naseerabad-II. The contesting candidates, namely, Nazim-ud-Din Lehri, Ali Hassan Jamot, Muhammad Amin Umrani and Ahmad Bukhsh filed objections against the nomination of the appellant on the grounds that the appellant while contesting the general elections held in the year 2002 made different entries in his nomination papers qua his qualification on the basis of his Sanad which differ from the contents of nomination papers filed by him to contest general election, 2013, as such, his act is in-violation of Article 62 and 63 of the Constitution of Islamic Republic of C.As. 411 to 414/2013 3 Pakistan as he was not righteous, sagacious and Ameen in terms thereof. The other objection for not showing the correct evaluation of his land was also enforced. The learned Returning Officer on the day of scrutiny of nomination papers by overruling the objections filed by the respondents accepted the nomination papers of the appellant declared him eligible to contest the elections, 2013. 4. Feeling dissatisfied with the aforesaid orders of the learned Returning Officer, the respondents filed election appeals before the learned Election Tribunal which were allowed. Consequently, the nomination papers of the appellant were rejected and he was declared ineligible to contest general elections of 2013 and the Returning Officer was directed to exclude his name from the list of validly nominated candidates. 5. Feeling aggrieved by the aforesaid order, the appellant called in question the legality of the said order by filing constitutional petitions Nos. 270, 271, 272 and 273 of 2013 before the learned High Court of Balochistan, Quetta which were dismissed by the said court through short order dated 18.4.2013 and recorded reasons thereof on 6.5.2013. The appellant still dissatisfied with the aforesaid judgment filed civil petitions Nos. 505 to 508 of 2013 for leave to appeal challenging the impugned judgment of the High Court of Balochistan, Quetta in which leave to appeal was granted C.As. 411 to 414/2013 4 inter-alia to consider the question as to whether validly, issued degree/Sanad by a Deeni Madrassa which was not found to be equivalent by the concerned University could disqualify the appellant in terms of Article 62 (f)(i) of the Constitution of the Islamic Republic of Pakistan 1973, to contest the elections. 6. Learned counsel for the appellant contends that the order dated 18.4.2013 passed by the Full Bench of the High Court of Balochistan is against law and facts of the case; that the learned Full Bench has misread and mis-appreciated the material available on record; that the Returning Officer after completing all codal formalities had rightly accepted his nomination papers but the learned Tribunal as well as the learned High Court have illegally set aside order of the Returning Officer; that the appellant was duly qualified to contest elections of 2013 as no condition of being graduate has been imposed to contest general elections the same having been erased from the statute, as such, both the learned Courts below have committed a patent illegality while upsetting well-reasoned order of the learned Returning Officer accepting the nomination papers of the appellant; that since the appellant has neither committed any sinful act nor cheated the Court while producing a Sanad from Madrassa, as such, the conditions laid down by Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be C.As. 411 to 414/2013 5 imposed upon the appellant to declare him that he is not righteous, sagacious or Ameen whereas the position is otherwise and that since the appellant has been declared as returned candidate after contest of general elections, 2013 under the orders of this Court, therefore, if the order impugned in these proceedings is not set-aside, the voters of his constituency will not only be deprived of their constitutional right to choose a representative of their choice but the constituency will also be left unattended/un- represented, in such circumstances, the impugned judgment/order is liable to be set aside. 7. On the other hand learned counsel for the respondents have vehemently opposed the contentions raised by the learned counsel for the appellant by contending that the appellant while contesting election for the seat of Nazim held in the year 2001 shown himself to be a matriculate and did not describe in the nomination papers that he was holding Sanad ul Fragh equivalent to B.A.; that the appellant passed Secondary School Examination (Matric) in the year 1983 whereas he is alleged to have obtained Sanad-ul-Fragh in the year 1985, the question arises that when the appellant was possessing Sanad-ul-Fragh at the time of filing of nomination papers to contest Local Bodies election in the year 2001, why he had not shown himself to be holder of Sanad-ul-Fragh. Thus he cannot be said to be a righteous, sagacious and C.As. 411 to 414/2013 6 Ameen within the meaning of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and was not eligible to contest election; that the appellant after having been declared as a returned candidate on the basis of Sanad produced by him before the Returning Officer to contest election in the year 2002 was declared fake and forged, therefore, on the basis of the said findings the appellant was debarred from contesting elections of 2013 his candidature being hit by Article 62 (f)(i) of the Constitution of Islamic Republic of Pakistan, 1973 as he, by his conduct, was not a righteous, sagacious or Ameen. 8. We have heard arguments of learned counsel for the parties and also gone through the available record. 9. Admittedly, the appellant at the time of filing of nomination papers to contest Local Bodies election in the year 2001, declared his qualification as Matric only but in the general elections held in the year 2002, he produced a Sanad known as Sanad-ul-Fragh allegedly issued by Madrassa Al- Quran-Ul-Arabia Behrul Uloom Qadria Abdullah Dahan Shikarpur which according to the appellant was equivalent to graduation. But, since the appellant while filing his nomination papers for contesting Local Bodies elections in the year 2001 had disclosed his qualification as Matric and despite holding the said Sanad-ul-Fragh, non-mentioning of the said fact in his nomination papers to contest Local Bodies Election C.As. 411 to 414/2013 7 in the year 2002 amounts to concealment of facts. Even otherwise, the course for obtaining the said Sanad is normally completed within six years but after passing the matriculation examination in the year 1983 how could it be possible for the appellant to pass the lengthy course within a short span of two years. Thus, genuineness of Sanad-ul-Fragh produced by him to contest the general elections in the year 2002 creates doubt in ones mind, the same being obtained without completing the educational course for the said Sanad. 10. On the basis of the aforesaid Sanad his nomination papers were accepted and he was declared returned candidate. However, his election was challenged by one Muhammad Sadiq Umrani by filing an election petition under section 52 of the Representation of the People Act, 1976 before the Election Tribunal alleging therein that the appellant was not qualified to contest election as he did not possess educational qualification as provided by Article 8-A of the Conduct of General Election Order, 2002 and the Sanad produced by him alongwith his nomination papers was firstly a bogus Sanad as he never studied in the Madrassa which issued the Sanad and secondly it was not equivalent to bachelor degree, the minimum qualification at the relevant time provided for becoming member of the Provincial Assembly. The said election petition was contested by the appellant and the learned Election Tribunal on divergent C.As. 411 to 414/2013 8 pleadings of the parties framed as many as four issues. After recording of the evidence of both the parties the learned Election Tribunal declared that the appellant was not qualified to contest election, as such, his election as member of the Balochistan Provincial Assembly from PB-29-Naseerabad-II Balochistan was declared void as a whole vide judgment dated 15.12.2003. The said findings of the learned Election Tribunal were challenged by the appellant through an appeal in this Court which alongwith other appeals came up for hearing on 18.6.2009 when the same was disposed of having become infructuous by efflux of time. The Sanad produced by the appellant while filing his nomination papers in the year 2002 reveals that the same has been certified by the University as an equivalent certificate to enable the persons holding said Sanad to seek admission in M.A. Arabic/Islamic Culture and was not at all equated with B.A. degree normally issued by the University. Article 8-A of the Conduct of General Election Order, 2002 permitted only those persons to contest election of the Parliament or the Provincial Assembly who were at least graduate or any degree equivalent to the graduation and recognized by the University Grants Commission. The appellant at that time was not admittedly a graduate within the meaning of Article 8-A of the Conduct of General Election Order, 2002. It is also evident from the notification issued on 25th July, 2002, whereby the University Grants Commission accorded the requisite recognition and C.As. 411 to 414/2013 9 equivalence to those Sanads only which were issued by the institutions mentioned in the said Notification, namely, 1. Wafaq-ul-Madaris, Markazi Office Gordon Town Sher ShahRoad, Multan. 2. Tanzeem,-ul-Madaris Ahle-Sunnat, Jamia Naeemia Rizvia, Garhi Shaho, Lahore. 3. Wafaq-ul-Madaris, Al-Salfia Hajiabad Post Code- 38600, Faisalabad. 4. Wafaq-ul-Madaris Shia, Jamia-al-Muntazar, H. Block Model Town, Lahore. 5. Rabita-ul-Madaris-Al-Islamia, Manzoor Road, Lahore. 6. Jamia Islamia Minhaj-ul-Quran, 368 Model Town, Lahore. 7. Jamia Taleemat-e-Islamia, Sargodha Road, Faisalabad. 8. Jamia Ashrafia, Ferozepur Road, Lahore. 9. Darul Uloom Mohammadia Ghousia Bhera, District Sargodha, 10. Darul Uloom, Korangi, Karachi. 11. According to the aforesaid list of the Madaris, the Madarassa which issued Sanad Fragh-ul-Uloom to the appellant does not figure anywhere in the said Notification and the University Grants Commission has restricted the grant of requisite status and recognition to the Sanads awarded by the institutions mentioned supra and had not extended the same to the institutions affiliated therewith. From the aforesaid Notifications, it is clear that the Sanad C.As. 411 to 414/2013 10 Fragh-ul-Uloom issued by the aforesaid Madrissa was certified by Shah Abdul Latif University, Khairpur as an equivalent certificate enabling the candidate to seek admission in M.A. Arabic/Islamic Culture and such equivalence certificate cannot be equated with B.A. degree normally issued by the University for other disciplines. The said decision has been circulated by Shah Abdul Latif University, Khairpur through circular dated 23.8.2002. Since the University with which the Madrassa which issued the Sanad in question is affiliated itself notified that the equivalence certificate cannot be equated with B.A. degree, therefore, the appellant could not have contested the election on the basis of said Sanad. This fact has already been taken note of by this Court in the case of Sanaullah Khan and others vs. District Returning Officer Mianwali and others (PLD 2005 S.C. 858) wherein it was held that UGC vide Notification No. 8-418/Acad/82/128 dated November 17, 1982 declared that the Sanad of Shahadat-ul-Almiyya-fil- Uloomil-Arabia-Wal-Islamia granted by a Deeni Madrassa whose name finds mention therein shall be considered equivalent to M.A. in Arabic/Islamic Studies for the purpose of teaching Arabic/Islamic Studies in the colleges and Universities and for pursuing higher studies in Arabic and Islamic Studies. However, for employment other than teaching, Sanad holders were required to qualify in two additional subjects other than Arabic and Islamic studies at B.A. level of a University. They have also to qualify in the C.As. 411 to 414/2013 11 newly introduced subjects of Elective Pakistan Studies and Islamic Studies at the B.A. level. In such circumstances, it is crystal clear as light of the day that as held by this Court in the case referred supra the Sanad produced by the appellant while contesting election in the year 2002 was not at all equal to B.A. degree, thus, he was not qualified to be elected or chosen as a member of the Provincial Assembly. 12. Since the Sanad produced by the appellant while contesting election, 2002 has been declared not equivalent to B.A. degree for the reasons mentioned in the preceding paragraphs, therefore, appellant was not at all qualified to contest election. Now the question arises as to whether the appellant is disqualified to contest election, 2013 or not. In this regard it is noticed that while producing aforesaid Sanad, the appellant sworn an affidavit to the effect that the Sanad produced by him was issued to him by a recognized institution and equivalent to a bachelor degree made false statement and submitted false or incorrect declaration in respect of his educational qualification, thus, he was not righteous, sagacious, non-profligate, honest and Ameen within the meaning of Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973, as such, was not qualified to be elected or chosen as a member of Majlis-e-Shoora. C.As. 411 to 414/2013 12 13. Since as per conclusions drawn by this Court in Sanaullah Khan’s case (supra) that the appellant knowingly and deliberately submitted a degree for becoming a parliamentarian which was not equivalent to B.A., therefore, had not only committed an offence by doing so but also defrauded the voters and the nation, as such, was disqualified to contest the election for not fulfilling the conditions contained in Article 62(1)(d) and (f) of the Constitution of Islamic Republic of Pakistan, 1973. This Court in the case of Malik Iqbal Ahmad Langrial vs. Jamshaid Alam and others (PLD 2013 SC 179) has held that a person who indulges into using unfair means in procuring his educational qualifications does not deserve to claim to be an honest, righteous or Ameen person so that he be assigned the high responsibilities of performing national functions of running the affairs of the country. Relevant paras therefrom are reproduced hereinblow:- “10. ….It is to be noted that Article 62(1)(f), as it stood prior to 18th Constitutional Amendment, provides that a person shall not be qualified to elected or chosen as a Member of Majlis-e-Shoora (Parliament) unless he is sagacious, righteous, non- profligate, honest and ameen. It is clear from the plain reading of the said Article that there is no restriction upon the Court/Tribunal to declare any person to be not sagacious, righteous or ameen. Admittedly the appellant used fake documents not only in the year 2002 but also in the year 2008 and also made false declaration making him liable to C.As. 411 to 414/2013 13 criminal action under certain provisions of P.P.C. In the case of Muddasar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80) this Court had upheld the findings of Election Tribunal, Punjab whereby it was held that a person who indulges into using unfair means in procuring his educational qualifications does not deserve to claim to be an honest, righteous or Ameen person so that he be assigned the high responsibilities of performing national functions of running the affairs of the country. The spirit with which the words sagacious, righteous, non profligate, honest and Ameen have been used by the Constitution of Islamic Republic of Pakistan, 1973 for the eligibility of the candidates contesting the elections of Members National or Provincial Assembly cannot be allowed to be frustrated if persons who secure their educational documents through unfair means and are found guilty of such a condemnable act by the competent authority are allowed to be given entry into the doors of National or Provincial Assemblies of our country. The respondent (therein) is thus not worthy of credence and cannot be allowed to be entrusted with State responsibilities of Law Making; to be in-charge of the National Exchequre or be eligible to represent the people of Pakistan.” “12. In a recent case tiled as Syed Mehmood Akhtar Naqvi, v. Federation of Pakistan (Constitution Petition No.5 of 2012) this Court has held that whoever makes false declaration at the time of filing of nomination papers, makes himself liable to be disqualified from being elected or chosen as Member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly for making misstatement or concealment of fact, and also exposes himself to criminal proceedings contemplated under sections 193, 196, 198 and 199, P.P.C. “ C.As. 411 to 414/2013 14 14. In the instant case, the appellant has failed to meet the criteria set out for proposed candidates under Article 62(1) (d) & (f) of the Constitution and sub-sections (d), (e), (f) and (g) of section 99 of the Representation of People Act, 1976. It may be noted that under Article 63 of the Constitution of the Islamic Republic of Pakistan there are certain disqualifications which are of temporary nature and a person disqualified under Article 63 can become qualified after lapse of certain period as mentioned therein, whereas, the requirement of Article 62 are of permanent nature and a person has to fulfill certain qualifications/conditions to become eligible to be elected or chosen as a member of Majlis-e- Shoora (Parliament), otherwise, he is not eligible to be a Member of Majlis-e-Shoora (Parliament). For this reason alone, Article 62 does not provide any period after which a person, who was declared disqualified under the said Article, can be eligible to contest the elections of the Parliament. In such view of the matter we hold that a person who is not qualified under Article 62(1)(f) cannot become qualified by efflux of time. Reference in this regard may also be made to the case of Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 SC 369). In such circumstances the appellant has rightly been disqualified to be elected as member of the Parliament by the learned Election Tribunal by allowing the election appeal filed against acceptance of his nomination papers by the Returning Officer which findings were upheld by C.As. 411 to 414/2013 15 the High Court of Balochistan. In view of the facts and circumstances of the case and the material available on record we are of the view that the findings of the learned High Court are based on correct appreciation of evidence on record and the law on the subject. 15. Even otherwise, the order, in the earlier round of litigation, passed by the learned Election Tribunal accepting the election petition filed by the contesting candidates qua election 2002 and disqualifying the appellant to be the member of the Parliament has attained finality for the reason that although the appellant had challenged his disqualification before this Court by filing a civil appeal, yet, it was not decided on merits and was disposed of having become infructuous on the statement of learned counsel for the appellant. Since the appellant was not qualified to contest the elections, therefore, his success in the general elections held under the stay order granted by this Court while granting leave to appeal, cannot be helpful to him as the question of his disqualifications has to be decided by this Court in the instant proceedings in continuation of rejection of his nomination papers and no premium of his success in the election could be given to him as he was not qualified to contest the election being not sagacious, righteous, non- profligate and honest and Ameen. C.As. 411 to 414/2013 16 16. For what has been discussed above, we find no merit in these appeals which are hereby dismissed with costs. As a sequel to the aforesaid findings, we set-aside the election of PB-29-Naseerabad-II held on 11.5.2013 and direct the Election Commission of Pakistan to hold fresh election in the said constituency accordingly. 17. These are the reasons of our short order of even dated announced in open Court. Chief Justice Judge Judge Islamabad 24th May, 2013 (Zulfiqar) NOT APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MANZOOR AHMAD MALIK CIVIL APPEAL NO.417-L OF 2009 (Against the judgment dated 16.3.2004 of the Lahore High Court, Lahore passed in C.R.No.368-D/1998) Province of Punjab through Secretary to Government of the Punjab, Communication & Works Department, Lahore and another …Appellant(s) VERSUS M/s Muhammad Tufail & Co. through Muhammad Tufail (deceased) through Legal Heirs …Respondent(s) For the appellant(s): Mr. Subah Sadiq Wattoo, A.A.G. Punjab For respondent No.1(ii): In person Amicus Curiae: Mr. Rassal Hassan Syed, ASC Ms. Ayesha Hamid, ASC Date of hearing: 06.09.2016 … JUDGMENT MIAN SAQIB NISAR, J:- In this appeal, with leave of the Court, the only legal point involved is, which Court shall have the territorial jurisdiction in terms of Section 2(c) and Section 31(1) of the Arbitration Act, 1940 (the Act) where an Arbitration Award could be filed and the same could be made Rule of the Court. 2. In the above context, the brief facts are that on 16.12.1982 the work of widening and strengthening of Jhang-Toba Tek Singh Chichawatni Road in Toba Tek Singh District was awarded to the respondent by appellant No.2 which (work) was completed on 30.12.1984. Thereafter a dispute arose on account of the respondent Civil Appeal No.417-L of 2009 -:2:- challenging an amount deducted by the appellant no.2 from its final bill. The respondent invoked the arbitration Clause 25-A of the agreement inter se the parties. On 29.6.1993 the Chief Engineer (South) of the Highways Department appointed Mr. Muzaffar Iqbal Sheikh Director (Admin) of the Highways Department as the Sole Arbitrator. The learned Arbitrator entered upon the reference and arbitral proceedings were held at Lahore. Appellant No.2 filed an annotated reply to the respondent’s claim and was represented by the Executive Engineer in person at the arbitral proceedings. On 1.11.1993 the Arbitrator passed an Award at Lahore in favour of the respondent and directed appellant No.2 to pay a sum of Rs.57,534.73 to the respondent within two months. The respondent filed an application under Sections 14 and 17 of the Act before the Civil Court at Lahore for the purposes of making the Award the Rule of the Court which was resisted by the appellant inter alia on the ground that the Courts at Lahore did not have the territorial jurisdiction, however vide judgment and decree dated 23.10.1995 the Civil Court, Lahore dismissed the said application on merits. Civil Appeal No.8/1996 of the respondent against such judgment and decree succeeded and vide order dated 5.5.1997 the learned Additional District Judge, Lahore made the Award the Rule of the Court. The present appellants challenged the decision ibid through Civil Revision No.368-D/98 before the Lahore High Court, Lahore which was dismissed vide the impugned order dated 16.3.2004. Vide order dated 17.06.2009 leave was granted by this Court inter alia to consider the question(s) mentioned in the opening portion of this opinion (the point about the award not being properly stamped was not pressed by the appellants’ counsel). 3. The learned AAG Punjab has argued that the impugned judgment was illegal as it was based on Section 20 of the Civil Appeal No.417-L of 2009 -:3:- Code of Civil Procedure, 1908 (CPC) which (provision) is inapplicable to arbitral proceedings as the jurisdiction of the Court in such a case is exclusively governed by Section 2(c) and Section 31(1) of the Act (being special law on the subject). He argued that the Courts at Lahore lacked jurisdiction in the matter as the subject matter of the reference was related to Toba Tek Singh because the contract was signed and executed at Toba Tek Singh. He relied on Ravi Glass Mills Ltd., Lahore Vs. I.C.I. Pakistan Power Gen Ltd. (2004 YLR 250 = PLJ 2004 Lah 1818), M/s Nalanda Ceramic & Industries Ltd. Vs. M/s N. S. Choudhury and Co. (P) Ltd. (AIR 1977 SC 2142) and Hitachi Limited and another Vs. Rupali Polyester and others (1998 SCMR 1618). 4. The learned counsel for the respondent contended that the courts at Lahore would have jurisdiction on account of the fact that the award was made at Lahore and because the head office of the appellant department was located at Lahore. He relied on Habib & Sons Ltd. & another Vs. Chaudhry Chiragh Din (NLR 1984 UC 352), Faqir Muhammad Vs. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad (2000 SCMR 1312), Messrs Kadir Motors (Regd.), Rawalpindi Vs. Messrs National Motors Ltd., Karachi and 3 others (1992 SCMR 1174), Abdul Qayyum Khan Vs. Government of Punjab, Local Government and Rural Development Department through Secretary and another (PLD 2003 SC 536) and Federation of Pakistan through Secretary-General, Ministry of Defence and another Vs. Sqn. Ldr. (R) Muhstaq Ali Tahirkheli and another (PLD 2003 SC 930). 5. Mr. Rassal Hassan Syed, learned amicus contended that in Section 31(1) of the Act the words “the matter” precede the word “reference” and therefore the place of the arbitration proceedings is not Civil Appeal No.417-L of 2009 -:4:- relevant and what matters is that the cause of action occurred at Toba Tek Singh and the “matter” which is the subject of the reference relates to Toba Tek Singh, therefore it is the Courts there which will have jurisdiction on the basis of the cause of action arising there but Section 31(1) of the Act requires that the application to make an Award the Rule of the Court be filed where the suit in respect of the dispute or the subject matter of the reference may have been filed and in this regard the courts at Lahore do have jurisdiction as the principal office of the appellant was located at Lahore. He relied on Province of the Punjab through Secretary to the Government of Punjab, Communication and Works Department and 2 others Vs. Messrs Unique Traders through Najam Maqsood, Government Contractor (MLD 2007 Lah 531), Messrs Lilley International (Pvt) Ltd. Vs. Messrs National Highway Authority (PLD 2012 Sindh 301), Messrs Bakhtawar Singh Balkrishan Vs. Union of India and others (1989 MLD 1277) (Supreme Court of India judgment), Madhao Deshpande Vs. Madhav Dharmadhikaree (1989 MLD 2389) (Supreme Court of India judgment), Messrs Trade Masters (Pvt.) Ltd. through Chief Executive Vs. Messrs Shel Pakistan Ltd. through Chief Executive (2010 CLD 670) and Ghulam Abbas Vs. Trustees of the Port of Karachi (PLD 1987 SC 393). 6. Ms. Ayesha Hamid, learned amicus argued that Section 31(1) of the Act is subject to the provisions of the Act which means that the definition of a Court given in Section 2(c) of the Act is to be read into the substantive provisions of Section 31(1) which sets out which Court is to exercise jurisdiction in respect of an application to file an award in Court; the plain reading of Section 2(c) ibid requires an exercise of imagination whereby it should be considered which Court would exercise jurisdiction in the absence of an arbitration agreement. Civil Appeal No.417-L of 2009 -:5:- According to her the Courts at Lahore would have jurisdiction on account of Section 20 CPC which is predicated on the residence or place of work of the defendants and on the place of occurrence of the cause of action. The Act is a special law governing arbitration and therefore it carves away a portion of the original jurisdiction of the courts of plenary jurisdiction with respect to arbitration/the subject matter of the Act. Admittedly, the provisions of the special law will override and prevail over those of the general law, but only where there is a conflict between the provisions thereof. In case there is no conflict, then the provisions of the CPC will be applicable to the proceedings under the Act in terms of Section 41 thereof. She argued that when the government participates in commercial activities it is to be treated at par with other private commercial enterprises and Section 20(a) and (b) CPC will apply thereto. She relied on Hitachi Limited (supra), Lilley International (supra), Harbans Singh Vs. Union of India (AIR 1961 Calcutta 659), M. A. Jalil Vs. Group Capt. (Retd.) Salah-ud-Din Khan (1983 CLC 1685), Mian Fazal Muhammad Nizam-ud-Din Baig & Co. Vs. The Province of West Pakistan and others (PLD 1969 Lah 453), Bakhtawar Singh (supra), Province of Sind through the Secretary, Education Department, Karachi and 2 others Vs. Ghulam Rasul and 35 others (1976 SCMR 297). 7. Heard. There are a plethora of judgments that the Act is an exhaustive and complete codification of the law governing arbitration. Three modes have been prescribed by the Act for resorting to arbitration: (1) without the intervention of the Court (Chapter II of the Act) (2) with the intervention of the Court where no suit is pending (see Section 20) (3) during the pendency of a suit (see Sections 21 to 24). In the first category, the parties to a civil dispute are free to enter into an Civil Appeal No.417-L of 2009 -:6:- arbitration agreement and without any recourse to the Court may refer the matter to the arbitrator. However the Court has certain powers which are exercised under the provisions of the Act, e.g. Sections 5, 8, 11, 12 and 33 etc. These powers can be exercised by the Court in certain circumstances even before a reference has been made to arbitration or during the pendency thereof, while Sections 14 to 19 forming part of Chapter II deal with post arbitration i.e. when the award has been passed by the Arbitrator. The Court in the context of the above proceeding shall be the one which has been defined in Section 2(c) of the Act. For the second mode of arbitration too, it shall be the same Court as envisaged by Section 2(c) ibid. However, it may be mentioned here that according to Sub-section (5) of Section 20, after reference has been made to the Arbitrator by the Court, arbitration shall proceed in accordance with and shall be governed by the other provisions of the Act as far as they can be made applicable. The third kind of arbitration is covered by Chapter IV (Sections 21 to 24) and from the clear language of these provisions reference to arbitration can be made when a civil suit is pending before the Court. Section 25 of the Act enables the application of other provisions of the Act (like sub-Section (5) of Section 20) to this mode of arbitration and also provides for the authority of the Court to supersede arbitration under Section 19 of the Act and to proceed with the suit. In this category there is no ambiguity that it is the Court where the suit is/was pending and which has referred the matter to Arbitrator that shall have exclusive jurisdiction to deal with and decide all the issues which arising between the parties within the scope of the Act and no other Court. Civil Appeal No.417-L of 2009 -:7:- 8. In order to elucidate in which Court the proceedings under Chapters II and III or the miscellaneous provisions of the Act should initially be initiated, if for example the case falls within the purview of Sections 11, 12, 13 and 33 and/or if a Court has already taken cognizance and passed some order in these proceedings; where should the subsequent proceeding be filed such as, an application for seeking extension of time for pronouncing the Award or an application for an Award being made Rule of the Court, etc.? In this context Sections 2(c) and 31(1) of the Act and Section 20 CPC are relevant. Section 2(c) reads as under:- “2(c). “Court” means a Civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under section 21, include a Small Cause Court.” The above definition implies the following:- i) It must be a Civil Court; ii) It must have the jurisdiction to entertain a suit with respect to the subject matter of the reference. In other words it shall be the Court in which a civil suit could be initiated by the plaintiff for the enforcement of any of his right(s) and/or for the redressal of his grievance(s). Thus for the purposes of determining the jurisdiction of the Court where a civil suit should lie the provisions of Sections 16 to 20 CPC are relevant (note: the relevant section shall be discussed in proceeding part of this opinion). The other relevant provision, i.e. Section 31(1), prescribes as under:- Civil Appeal No.417-L of 2009 -:8:- “31. Jurisdiction.--(1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates.” According to the predominant view of the superior Courts regarding the nature and object of this section, it is not an enabling provision, rather one which identifies and defines the jurisdiction of the Court in which an Award should be filed. The object of this section is to clothe a single Court with jurisdiction in the matter so as to avoid conflict of jurisdiction which may arise between different Courts so that all the matters pertaining to arbitration, once having been initiated and dealt with by one Court, should subsequently continue to be determined by the same Court. The third relevant provision is Section 20 CPC which reads as follows:- “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.417-L of 2009 -: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.” 9. It is settled law that in the absence of an arbitration agreement inter se the parties, the dispute regarding the rights and obligations that arise out of the contract including payment(s) or amount(s) due under the contract would have been liable to be adjudicated at the first instance in a Civil Court competent to entertain a suit and jurisdiction would in those circumstances be governed by the provisions of Sections 15 to 20 CPC. The question which requires to be settled is in which manner are Sections 2(c) and 31(1) of the Act to be interpreted in order to determine which Court would take cognizance of an application to make an arbitral Award a Rule of Court and whether Section 20 CPC would be applicable in its entirety in the process of such determination. The further related question which emerged during the course of hearing of the appeal was whether the “government” is exempted from the purview of Section 20(a) and (b) CPC. Before we proceed to answer the above questions let us examine the case law referred by the learned counsel and amici curiae. 10. As regards the case law referred to by learned counsel for the appellant, Ravi Glass Mills (supra) elaborates the doctrine of forum non-conveniens which means the power of a Court to decline Civil Appeal No.417-L of 2009 -:10:- jurisdiction when the convenience of the parties and the ends of justice would be better served if actions were brought and tried before another forum. This doctrine is not applicable to the facts and circumstances of the present case as it is not the case of either party that the Civil Courts at Lahore amounted to a forum of non-conveniens. Reliance on Nalanda Ceramic (supra) is misplaced for the reason that the facts in that particular case were different and this is founded upon the question where the cause of action has arisen and Section 20(a) and (b) CPC was not a moot point. The case of Hitachi Limited (supra) does not advance the case of the appellant for the reason that the judgment considers whether and in what manner the provisions of private and public international law may affect the jurisdiction of Courts in Pakistan where either the arbitration proceedings take place outside Pakistan and/or where one of the parties to the dispute referred to arbitration is not resident in Pakistan. 11. Adverting to the case law referred by learned counsel for respondent, Muhstaq Ali Tahirkheli (supra) does not advance the respondent’s case for the reason that the issue of jurisdiction was decided on the basis of where the cause of action arose. Similarly, the cases of Abdul Qayyum Khan (supra), Faqir Muhammad (supra), Kadir Motors (supra) and Habib & Sons Ltd. (supra) are patently distinguishable on their own facts and the question of law herein involved was not an issue in those matters therefore a detailed analysis of these dicta is not required. 12. Mr. Rassal Hassan Syed, amicus referred to Unique Traders (supra) in which the point in issue was whether the Civil Courts at Lahore or Jhelum would have jurisdiction with respect to an application under Section 17 of the Act arising out of arbitration. The Civil Appeal No.417-L of 2009 -:11:- finding of the Court was that as the property which was the subject matter of the dispute was located at Jhelum, the agreement was executed at Jhelum, and the alleged breaches occurred at Jhelum therefore the Courts at Jhelum would have jurisdiction. The argument in favour of the exercise of jurisdiction by the Civil Courts at Lahore on account of the fact that the part of the arbitration proceedings were conducted at Lahore was rejected. This judgment is distinguishable for the reason that a close reading of the same discloses that at no point was jurisdiction for the Civil Courts at Lahore claimed on account of the fact that it was either the place of residence or place of work of the defendant(s). In Trade Masters (supra), the point in issue was whether the parties, through in agreement, could confer exclusive jurisdiction on one Court in preference to another and it was held, inter alia, that the parties can validly agree to confer territorial jurisdiction to one out of two or more Courts which otherwise had/have jurisdiction and that such an agreement would be valid and enforceable. The question of electing to submit to the jurisdiction of one Court in preference to another is not at issue in the instant appeal. Ghulam Abbas’s case (supra) is not relevant to the facts and circumstances of the present appeal. In the case of Madhao Deshpande (supra) the point in issue was which of two Courts within the territorial jurisdiction of which the properties which formed the subject matter of the dispute referred to arbitration were situated, would exercise jurisdiction for the purposes of making an arbitral Award the Rule of the Court. This is not at issue in the instant appeal. Civil Appeal No.417-L of 2009 -:12:- The cases of Lilley International (supra) and Bakhtawar Singh (supra) were referred by both learned amicus and will be referred to later in this opinion. 13. The case law referred by the learned amicus Ms. Ayesha Hamid shall be discussed and reflected in our opinion. 14. It is to be noted that Section 20 CPC confers jurisdiction on a Court in two ways. Firstly, on the basis of where a defendant(s) resides, carries on business or works for gain within its local limits. Secondly on the basis of where the cause of action wholly or in part arose within its local limits. Jurisdiction means the authority to decide. The concept of jurisdiction of a Court encompasses (i) territorial jurisdiction, (ii) pecuniary jurisdiction and (iii) subject matter jurisdiction. The concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court. Shorn of all extraneous ‘frills’, this is the essence of jurisdiction. A Court is to decide matters when persons relating thereto are within its reach. This basic jurisdiction is then regulated by defining the limits of that ‘reach’ by setting pecuniary limits, or by assigning different ‘subjects’ within one territory to different Courts, for example, by assigning banking and environmental matters to different Courts within one territory. In R. Viswanathan and others Vs. Rukn-ul-Mulk Syed Abdul Wajid since deceased and others (AIR 1963 SC 1) it was inter alia held “an action in personam lies normally where the defendant is personally within the jurisdiction or submits to the jurisdiction or though outside the jurisdiction may be reached by an order of the Court”1. This principle resonates in a judgment of the U.S. Supreme Court, Dennis Burnham Vs. Superior Court of California, Country of Marin [110 S. Ct. 2105 (1990)] 1 Hitachi Limited case (supra), p.1638. Civil Appeal No.417-L of 2009 -:13:- wherein it was held “Historically the jurisdiction of Courts to render judgment in personam is grounded on their de facto power over the defendant’s person”.2 This concept was further developed in the case of Lulu B. McGee Vs. International Life Insurance Company (2 L ed 2nd 233) where the U.S. Supreme Court initially accepted and then abandoned ‘consent’, ‘doing business’ and ‘presence’ as the standard for measuring extent of said judicial power over corporations and instead the Court decided that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’”3. 15. Section 41 of the Act provides as under:- “Procedure and Powers of Court.--Subject to the provisions of this Act and of rules made thereunder-- (a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals under this Act, and (b) …………………………………………………………. Provided that…” Section 41 ibid makes the provisions of the CPC applicable to the proceedings in respect of arbitration before the Court. 16. As the question arises on what basis are Courts to exercise jurisdiction in terms of Sections 2(c) and 31(1) of the Act, it is instructive to consider the case of M. A. Jalil (supra) wherein it was held:- 2 Ibid, p.1639. 3 Ibid, p.1640. Civil Appeal No.417-L of 2009 -:14:- “…section 31 of the Act deals with the jurisdiction of the Court. It provides that all matters relating to the reference should be made before the same Court in which the first application in connection with the arbitration matter was made and that it will be the said Court which alone be competent to decide all questions in relation to that particular arbitration. It also provides for the Court where an award is to be filed. By reading section 31 with the definition of the term ‘Court’ given in section 2(c) of the Act, it is plain that the award is to be filed in that Court which will have jurisdiction to decide the question forming the reference if the same had been the subject matter of the suit. Thus, to determine the question whether the Court before which the applications under the provisions of Arbitration Act, 1940, for instance under sections 31, 32 and 44, are filed, has jurisdiction to entertain them or not, one should first of all ascertain what the questions are which form the subject-matter of the reference to arbitration. Then one is to ask, supposing these questions had arisen in a suit which is the Court which would have jurisdiction to entertain the suit? That would be the Court having jurisdiction under the Arbitration Act also.” (Emphasis supplied) Further:- “Moreover, in view of the provisions of section 14 read with section 31 of the Arbitration Act, it is reasonable to construe that the award is to be filed in that Court which will have the jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit”. Civil Appeal No.417-L of 2009 -:15:- 17. The relevant facts of Lilley International’s case (supra) are that a construction contract with respect to the Hyderabad-Hala Highway was executed in Islamabad between NHA and a contractor, where the NHA head office was situated. A dispute arose which was referred to arbitration. The Arbitrator entered upon the reference in Karachi, with the consent of the parties, and made the Award at Karachi which he filed in the Sindh High Court, Karachi. Meanwhile NHA filed objections in respect of the Award before the Civil Court at Islamabad (which was subsequently transferred to the Islamabad High Court). The judgment holds that for the purposes of determining which Court is to assume jurisdiction with respect to the Award it needs to be determined which Court, in the absence of an arbitration agreement, would have jurisdiction over the subject matter of the reference if instead, a civil suit was to be filed. Further, it held that the place where arbitration is held or where the Award is made is irrelevant and the courts at such place will not assume jurisdiction on account thereof. 18. It is settled law that in terms of Section 20 CPC different Courts may assume jurisdiction on the basis of the defendant’s place of business or residence and/or where the cause of action wholly or partly arises. Section 2(c) read with Section 31(1) of the Act requires that we suspend the existence of the arbitration agreement to consider which Court(s) may have jurisdiction with respect to the “subject matter of the reference” if a civil suit were to be filed in respect thereof. The subject matter of a reference cannot be limited to the physical construction of the road at Toba Tek Singh as contended by the appellants. The subject matter of the reference is an inclusive term which would cover the physical road constructed at Toba Tek Singh, the contract executed at Toba Tek Singh, the arising of all the disputes regarding the violation Civil Appeal No.417-L of 2009 -:16:- and enforcement of the terms and conditions of the contract, and the rights emerging and based thereupon, including payment of/deduction from the final bill of the respondent. In these circumstances, in the absence of an arbitration agreement, the respondent could have filed a civil suit at Toba Tek Singh on the basis that the cause of action accrued therein. Could the respondent have filed a civil suit at the Civil Courts at Lahore (on the basis that the head office of the Highways Department was situated at Lahore)? In Union of India and another Vs. Sri Ladulal Jain (AIR 1963 SC 1681) it was held that the provisions of Section 20 CPC with respect to ‘carries on business’ or ‘personally work for gain’ do apply to the Government. It was observed:- “Running of railways is a business. That is not denied. Private companies and individuals carried on the business of running railways, prior to the State taking them over. The only question then is whether the running of railway ceases to be a business when they are run by Government. There appears to be no good reason to hold that it is so. It is the nature of the activity which defines its character. Running of railways is such an activity which comes within the expression ‘business’. That fact as to who runs it and with what motive cannot affect it”. It was further observed that the profit element was not necessary for carrying on business. 19. In the case of Fazal Muhammad (supra) it was held, inter alia, that:- “It is admitted before us that the words “actually and voluntarily resides” or “personally works of gain.” In (sic) this section are applicable to natural persons and Civil Appeal No.417-L of 2009 -:17:- not to legal entities like a Government. We have only to see if it can be said in the case of the Government that it “carries on businsess” (sic) at its principal office in Pakistan for the purpose of this section”. Fazal Muhammad (supra) cites from the judgment reported as R. J. Wyllie and Co. Vs. Secy. of State (AIR 1930 Lah 818) and held in this connection that the words ‘actually and voluntarily resides’ “refer only to natural persons and not to legal entities such as limited companies and Governments and that ‘business’ in this section meant the commercial business and not the business of Government”. The following passage from Pratap Chandra Biswas Vs. Union of India (AIR 1956 Assam 85) is reproduced in Fazal Muhammad (supra):- “It is difficult to hold that even commercial ventures of the Government assume the colour of its ordinary administrative or Governmental functions. In its commercial undertakings the Government is entering into contracts with the citizen. These contracts are governed by the ordinary law of the land and they are enforceable between the parties. The Government has no privileged position in regard to these contracts nor can it have any privileged position for purposes of clause 12 of the Letters Patent or section 20, C.P.C. unless the law lays down expressly that these provisions or parts of these provisions have no application to business undertakings of the Government”. (Emphasis supplied) However, the case of Fazal Muhammad (supra) relies on an obiter dicta from Pakistan Vs. Waliullah Sufyani (PLD 1965 SC 310), wherein Civil Appeal No.417-L of 2009 -:18:- Kaikaus J held that “…a Government neither resides anywhere nor carries on business nor works for gain”, and concluded that:- “These activities which may be truly commercial in the hands of the private agencies may not necessarily partake of the same character after they are undertaken by the Government in persuit (sic) of its welfare policies. A private person may run a hospital as a business venture. But it may altogether cease to retain that character in the hands of the State running the same for the welfare and service of its people. In our opinion, the dominant, if not the sole object in running a business is to make profits. In contradistinction to this, the immediate and paramount consideration before the Government in providing for these facilities and services, is the welfare of its people. “They have to be operated for use and not for profit,” according to H. J. Laski, in his “Grammer (sic) of Politic”, at p.436. This then is the essential difference in the nature and character of these two activities…From the above discussion it follows that those words in section 20 of the Code have been used in their primary business and natural meanings and connote a business carried on for pecuniary profits and gains by the business and trading houses. These have no application to the case of the Government engaged in commercial activities as a part of its duties for the welfare of its people”. 20. Fazal Muhammad’s case (supra) was challenged in due course before this Court but through the judgment cited at Mian Fazal Muhammad (deceased) through his legal heirs Vs. Province of West Pakistan and others (1975 SCMR 312) this Court declined to decide the questions raised in the leave granting order as, for reasons recorded, the matter had become infructuous and there remained no live issues to be decided. In this view of the matter, we find that there is Civil Appeal No.417-L of 2009 -:19:- no definitive finding by this Court as to whether the Government, when it undertakes commercial activities, is to be treated as a creature apart or at par with other commercial undertakings. 21. In the case cited at Khawaja Ahmad Tariq Rahim Vs. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another (PLD 1992 SC 646) (12 member bench) it was held that Government means:- “…“the whole class or body of office-holders or functionaries considered in the aggregate upon whom devolves, the executive, judicial, legislature and administrative business of the State”… In Tariq Rahim’s case (supra) the following extract from Master Khusrow Amir Khan Niazi Vs. Province of Punjab and 2 others (PLD 1975 Lah 819) was cited:- “…the word “Government” includes in its ordinary connotation, legislative, judicial and executive functions, and the ordinary connotation should be adopted in the absence of any indication to the contrary.” 22. The commercial activities undertaken by a government are not included in the “ordinary connotation” of the word “Government”. Indeed we are not persuaded by the reasoning of the learned High Court in Fazal Muhammad’s case (supra) to the effect that commercial activities are undertaken by Government for welfare purposes and for that reason they are to be treated as part of its functions. The commercial activities do not form a part of the core functions of a government which remain its executive, judicial, legislative and administrative functions. When a government enters into the domain of Civil Appeal No.417-L of 2009 -:20:- business and commerce it cannot be given a premium of its position and must be treated at par with its competitors or near competitors in the private sector. It must be subject to the laws of the land. Its commercial activities must be regulated in the same manner as those of the private sector. It cannot be exempted therefrom simply by the dint of being a “government”. Hence when a government is engaged in the ‘business’ of road building through the vehicle of construction contracts with a private contractor then it cannot be allowed to claim privileges on account of being the government. In these circumstances it would be liable to be treated as a corporation in terms of Explanation II to Section 20 CPC. In the case of Bakhtawar Singh (supra) the Supreme Court of India upheld the decision of the Delhi High Court dismissing an the application of a contractor under Sections 14 and 17 of the Indian Arbitration Act by holding that the phrase ‘actually and voluntarily’ resides, ‘carried on business’ or ‘personally works for gain’ do not apply to legal entities like the Union of India and only to natural persons. But this inapplicability is only in reference to the sovereign functions of the State (as the contract pertained to maintaining armed forces therefore it was considered to be a sovereign activity of the State). When the State carries on commercial activities then Section 20 CPC would apply, as held in Ladulal Jain’s case (supra). We find ourselves in agreement with this subtle but important distinction. The Government in the exercise of its core functions viz, its executive, legislative, judicial and quasi-judicial, and administrative roles exercises sovereign powers. But when it engages in commercial activities it is not exercising sovereign power, rather it is engaging in business/commercial activities and merits no undue advantage over ordinary litigants: it is subject to Section 20 CPC in its entirety. Therefore, the Civil Courts at Toba Tek Singh and Lahore Civil Appeal No.417-L of 2009 -:21:- would have had concurrent jurisdiction with respect to the putative civil suit. Having established the concurrent jurisdiction of the Civil Courts at Toba Tek Singh and Lahore in case a civil suit were to be filed by the respondent, we can now return to the circumstances as they existed inter se the parties i.e. the arbitration agreement was a part of the contract between the appellant and the respondent. A conjunctive reading of Sections 2(c) and 31(1) of the Act would therefore confer jurisdiction, for purposes of filing an application under Sections 14 and 17 of the Act for making an Award a Rule of the Court on both the Civil Courts at Toba Tek Singh and Lahore. Therefore, the Award was competently filed before the Civil Court at Lahore to be made a Rule of Court. 23. During the course of the hearing of the instant appeal we asked the learned counsel for the appellant whether in the absence of an arbitration agreement a civil suit in respect of the dispute inter se the parties could have been filed in the Civil Court at Lahore. He agreed that such a civil suit could indeed have been competently filed at Lahore. In light of the above, this appeal has no merits and is hereby dismissed. In the case of Ghulam Rasul (supra) it was held:- “As to the second ground, if we may say so with due respect we are rather surprised at the objection taken on behalf of the Government. Courts expect the Government to be the noblest of litigants and would not engage in litigation in vain much less against its own employees. In the instant case the matter was covered by express provision of the Constitution and the amount involved was trivial. Any attempt to avoid justice being done on a Civil Appeal No.417-L of 2009 -:22:- technical plea, unless any high principle is involved, should be avoided”. We endorse the aforesaid view: Governments should litigate only where necessary and the might of the State should not be employed to make an ordinary litigant run from pillar to post. In the present and peculiar circumstances of the instant case we are persuaded to direct the appellants to make immediate payment of a sum of Rs.57,534.73/- to the respondent as per the Award dated 1.11.1993. Before parting we appreciate the valuable assistance provided by the learned amici curiae. JUDGE JUDGE Lahore, the 6th September, 2016 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 SAJJAD ALI SHAH CIVIL APPEAL NO. 42-K OF 2016 & H.R.C. NO. 36629-S OF 2018 (On appeal against the judgment dated 19.02.2016 passed by the High Court of Sindh, Hyderabad in R.A. No. 272/2011) Manzoor Hussain and another (In CA 42-K/2016) Application for early hearing filed by Mst. Azra Shamim, respondent No. 2 (In HRC 36629-S/18) … Appellants VERSUS Khalid Aziz and others (In CA 42-K/2016) … Respondents For the Appellants: Mr. Abid S. Zuberi, ASC Mr. K.A. Wahab, AOR For Respondents (1-2): Syed Abdul Waheed, ASC Ms. Lubna Ali d/o Mst. Azra Shamim On Court’s Notice: Mr. Shoukat Bijoro, Mukhtiarkar, Tando Adam Mr. Umer Farooq, Tapedar (They appeared subsequently) Date of Hearing: 07.09.2018 JUDGMENT FAISAL ARAB, J.- The dispute in these proceedings relates to 56 acres and 28 ghuntas of land situated in Deh and Taluqa Tando Adam, District Sanghar. A big part of this land was an evacuee land, which was granted to Shah Azizullah Abbasi and her wife Mst. Tayyeba Khatoon against their claim. He died on 30.05.1992 and was survived by his widow Mst. Tayyeba Khatoon, respondent No. 1 (son) and respondent No. 2 (daughter). On 17.09.2002, Mst. Tayyeba Khatoon also died. To seek transfer of the land in the revenue record in their names respondents No. 1 & 2 approached the Mukhtiarkar but were told that their parents had already sold the property to respondents No. 3 and 4 who thereafter sold the property to the appellants. This led respondents No. 1 and 2 to file a suit before the CIVIL APPEAL NO. 42-K OF 2016 & H.R.C. NO. 36629-S OF 2018 2 Senior Civil Judge, Tando Adam for declaration, permanent injunction, cancellation of documents, possession and mesne profits. The suit was decreed vide judgment dated 30.04.2010. It was held that the appellants have failed to establish that the parents of the respondents No. 1 & 2 have sold the land to respondent No. 3 & 4. The appellants then filed an appeal before the Additional District Judge, Tando Adam, which was allowed vide judgment dated 24.09.2011 and the judgment of the Trial Court was reversed. Aggrieved by such decision, the respondents No. 1 & 2 filed a Revision Application before the High Court, which was allowed, the judgment of the Appellate Court was set aside and that of the Trial Court restored. While allowing the revision application, the learned High Court held that the appellants have failed to prove that the land is question was sold to respondent No. 3 & 4 by the deceased owners; that no document of sale transaction with the deceased was placed on record; no witness of the sale transaction appeared in Court and even the revenue officials, who allegedly attested such entries, were not examined as witnesses. This decision has been challenged in this appeal. 2. Learned counsel for the appellants inter alia submitted that the judgment of the High Court is entirely based on misreading and non-reading of evidence as there was no material to hold that the revenue record was tampered. It was also argued that the suit filed by the respondents was barred by time. 3. Learned counsel for respondent No. 1 & 2 in rebuttal contended that it was for the appellants to prove that the sale transactions had taken place between their parents and respondents No. 3 & 4 but they failed as neither any document as to payment of sale consideration was produced nor the witnesses of sale transactions CIVIL APPEAL NO. 42-K OF 2016 & H.R.C. NO. 36629-S OF 2018 3 or the officials before whom the alleged sale took place were examined by the appellants and that the entire claim of the appellants was solely based on the revenue entries, which are fraudulent. 4. Apart from examining the record, we out of abandoned caution summoned the revenue record and upon examining it found that Shah Azizullah sold 3-39 acres of land bearing survey No. 483/3, through registered sale deed dated 25.05.1987 to one Abdul Sattar which is not subject matter of present proceedings and yet we are surprised to note that the disputed sale transactions made in 1986 and 1987 are based merely on oral statements purportedly made by Shah Azizullah and her wife before the revenue authorities and allegedly witnessed by persons namely Furqan son of Gul Muhammad Mirani, Noor Muhammad Sheikh son of Ladhu Khan Sheikh, Sher Muhammad son of Babu Khan Bhatti and Muhammad Yaqoob son of Qaiser Junejo none of whom are from the side of the parents of respondents No. 1 & 2. Additionally, the disputed statements neither contains their CNIC numbers nor their addresses, only their purported thumb impressions, which show that they were also illiterate. Although the CNIC numbers would have helped in confirming that these witnesses actually affixed their thumb impressions on the revenue record but due to the absence of the CNIC numbers, it could not be verified from NADRA’s database. In any case, as none of the witnesses of the disputed statements were examined in Court, it is sufficient to hold that the transaction of sale has not been proved. Additionally, from the examination of the register of village Forms VII, the page that contains one of the two disputed transfer entries is numbered as ‘58’. The font of the page number ‘58’ is quite bigger than the page numbers on the remaining pages of the same register; that the imprint of page number ‘58’ is also much darker CIVIL APPEAL NO. 42-K OF 2016 & H.R.C. NO. 36629-S OF 2018 4 than the imprint of the rest of the page numbers of the same register. We may mention here that when pages of a register are numbered with a numbering machine, it is not possible that the size of numbers on pages would be different. Even the impression of ink on a particular page of a register would be the same in comparison to previous and subsequent pages. Either the impression would be light or darker but in the present case the impression on page No. ‘58’ is much pronounced i.e. it is darker than the impression of page numbers on the earlier and subsequent pages. This page also appears to have been subsequently inserted in the register as it is taped from the spine. All this further leads us to draw inference that page number ‘58’ was not part of the same register but has been subsequently inserted with the intention to show a back dated transaction in order to defeat the plea of limitation in case the matter is taken to Court. 5. With regard to the disputed sale transaction of 20-34 acres allegedly entered into with Mst. Tayyeba Khatoon, it was pleaded that she being resident of Karachi came to Tando Adam with her relative to record her oral statement for transferring the land. Interestingly, relative was not made a witness in the purported statement. Then the alleged witnesses of the disputed statement were also not examined in court. Their CNIC numbers too have not been recorded nor have their addresses been given. Even the CNIC number of Mst. Tayyeba Khatoon is not mentioned in the statement. This second sale transaction also could not be proved. Let a copy of this judgment be sent to the Member, Board of Revenue so that appropriate disciplinary action shall be taken against such officials of the revenue department who have manipulated the relevant revenue record. In case any of them has retired, criminal action may be initiated. CIVIL APPEAL NO. 42-K OF 2016 & H.R.C. NO. 36629-S OF 2018 5 6. In view of what has been stated above, we find no exception to the conclusions drawn by the learned Single Judge of the High Court in its well reasoned judgment, therefore, we do not find any merit in this appeal, which is accordingly dismissed with no order as to costs. H.R.C. NO. 36629-S OF 2018 7. Since, judgment is being rendered on merits in this appeal the above referred HRC for early hearing of the said appeal has become infructuous and is disposed of accordingly. JUDGE JUDGE JUDGE Announced on 22.11.2018 in Islamabad. Approved For Reporting Khurram

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Guizar Ahmed, CJ Mr. Justice Faisal Arab Mr. Justice Ijaz ul Ahsan J) CIVIL PETITION NO.852 OF 2018, CMA NO.5668 OF 2020 IN C.A. NO.421 OF 2018, CMA NO.5669 OF 2020 IN C.A. NO.421 OF 2018, CMA NO.955 OF 2017 IN C.A. NO.421 OF 2018, CMA NO.956 OF 2017 IN C.A. NO.422 OF 2018 AND CMA NO.957 OF 2017 IN C.A. NO.423 OF 2018 (Against the judgments dated 24.11.2016, 3.1.2018, passed by the Islamabad High Court, Islamabad, High Court of Sindh, Karachi, in I.C.As. No.292 to 294 of 2016, C.P. No.3134 of 2015 and C.P. No. 1837 of 2014, respectively) CA. 421/2018 Privatization Commission through its Secretary Vs. Aftab Hussain and others CA. 422/2018 Privatization Commission through its Secretary Vs. Ch. Siraj Abbas and others CA.42312018 Privatization Commission through its Secretary Vs. Ch. Siraj Abbas and others CA. 1911/2019 Chairman and others (Officer & Non-officers)' Pakistan Petroleum Limited Officers Association and others Vs. Federation of Pakistan through Ministry of Finance Revenue and others CP.85212018 Muhammad At-if Akhtar and others Vs Federation of Pakistan through Ministry of Petroleum and Natural Resources, Islamabad and others CMA.566812020 in Privatization Commission through its Secretary CA. 421/201 8 Vs. Aftab Hussain and others CAM. 566912018 in Privatization Commission through its Secretary CA.42112018 Vs. Aftab Hussain and others CMA. 95512017 in Privatization Commission through its Secretary CA.42112018 Vs. Aftab Hussain and others CMA. 956/2017 in Privatization Commission through its Secretary CA .422/2018 Vs. Cit. Siraj Abbas and others CMA.95712017 in Privatization Commission through its Secretary CA.42312018 Vs. Ch. Siraj Abbas and others For the Appellant(s) Mr. Sohail Mehmood, (in CAs.421 to 423 of Addl. Attorney General for 2018) and Pakistan LAs42I of 2018, etc. For Respondents (in CA. 19-K of 2019 as Federation) For Respondents No.1 to 239 ,(in CA.421/2018, Respondents No.1 to 32 (in CA.422/2018) and For Respondents No.1 to 17 (in CA.423/2018) Ch. Akhtar Au, AOR along Mr. Ikram-ul-Haque Qureshi, Sr.Legal Counsel head of Privatization Commission of Pakistan. Mr. Abdul Rahim Bhatti, ASC Syed Rifaqat Hussain Shah, AOR For OGDCL Mr. Khurram Mumtaz Hashmi, (in CAs.421 to 423/2018) ASC For Applicant (s) (in CMAs.5668 & 5669/2018) For the Appellant (s) (in CA. 19-K/2019 Syed Asghar Hussain Sabzwari, Sr. ASC Mr. Mehmood A. Sheikh, AOR Mr. Mazhar Ali B. Chohan, AOR/ASC (via video link from Karachi) For the Petitioner (s) Mr. Salahuddin Ahmed, ASC (in CP.852/20 18 For Respondent(s) : N. R. H (in CP.852/2018) H: For Respondent (PPL) Mr. Muhammad Akif Khan, Sr. Legal Counsel Date of Hearing 22.10.2020 ORDER GULZAR ARMED, CJ.- In Civil Petitions No. 382 to 384 of 2017, leave to appeal was granted vide order dated 10.01.2018, which is as follows: - "In order to consider inter alia (1) whether the Cabinet's decision dated 05.08.2009 while approving the Benazir Employees Stock Option Scheme (BESOS) is in violation of Article 154 of the Constitution of Islamic Republic of Pakistan, 1973 (the constitution); (ii) whether the benefits given to the employees under the BESOS were not part of the Terms and Conditions of their employment and therefore, the same could not be enforced under the CAs.421 of 2018, etc. - E law; (iii) what is the effect of the judgment dated 03.01.2018 passed in Constitution Petition No.1837/2014 by the learned High Court of Sindh whereby it declared the said decision of the Cabinet to be violative of the Constitution. Leave is granted in these petitions." 2. The respondents in Civil Appeals No.421-423 of 2018 filed writ petitions in the Islamabad High Court, Islamabad (hereinafter called 'the Islamabad High Court'), which were disposed of by a learned Single Judge of that Court vide judgment dated 29.04.2016, in the following terms:- 11. It has already been held that pursuant to issuance of the "Unit Certificates" rights were accrued in favour of the petitioner. Admittedly, their cases have been processed and sent to the Privatization Commission so that the funds could be released. This Court has been informed that the implementation of the Scheme is being considered by the Ministry of Finance. There is no cavil to the proposition that policies formulated and even implemented by the Federal Government can be revamped, considered or altered provided the rights which have come into existence remain protected. It would, therefore, be just and proper to direct as follows: i) The ministry of Finance while considering the implementation of the Scheme shall take into consideration the rights which have accrued in favour of the petitioners. ii) The federal Government shall ensure that the rights of the petitioners remain protected and to their extent the benefits under the Scheme are not denied in case it is decided to revamp, alter or wind up the scheme. iii) The Federal Government shall take a decision to the extent of the rights of the petitioners, preferably within ninety days from the date of receipt of this order." This judgment of the learned Single Judge was challenged by filing of three Intra Court Appeals (WAs) and a learned Division Bench CAs.421 of 2018, etc. - - ,of the Islamabad High Court, vide impugned judgment dated 24.11.2016, dismissed all the three ICAs. The appellants in Civil Appeal No. 19-K of 2019 and the petitioners in Civil Petition No.852 of 2018 filed two constitution petitions in the High Court of Sindh, Karachi (hereinafter called "the High Court of Sindh), which were dismissed by a learned Division Bench of that Court vide impugned judgment dated 03.01.2018. 3. The short facts of the matter are that the respondents in 'Civil Appeals No.421-223 of 2018 were employees of Oil and Gas Development Corporation Limited (OGDCL), while the appellants in Civil Appeal No. 19-K of 2019 and Petitioners in Civil Petition No.852 of 2018 were employees of Pakistan Petroleum Limited (PPL), Both OGDCL and PPL are entities of the Federal Government of Pakistan. The Federal Cabinet approved a policy in the name of Benazir Employees Stock Option Scheme (hereinafter called 'the Scheme').! The Scheme, inter alia, provides as under: - "THAT THE SALIENT FEATURES OF BENAZIR EMPLOYEES STOCK OPTION SCHEME (BESOS) BESOS AS APPROVED BY THE CABINET ON 5TH AUGUST 2009 ARE AS FOLLOWS:- 1. Empowerment of Employees of SOEs/other GoP shareholding through transfer of twelve percent (12%) of the GoP shareholding and a seat on the Board. 2. All permanent employees and contractual Employees (with minimum service of live years) are eligible for the BESOS and can only exist on retirement or otherwise easing to be Employee of the SOE. H 3. Twelve percent (12%) of the GoP shareholding to be transferred for free. II 4. SOEs to create a Trust for BESOS with token cash. The board of Trustees to consist of Government Nominees and Employees representatives. CAs.421 of 2018, etc. -5- 5 The Shares of respective SOE to be transferred to the Trust. Trust to assign units to Employees in proportion to their entitlement on the basis of length of service through Unit Certificate. 7 Unit Certificates are not saleable, however, these can be pledged or hypothecated. 8, Employees to surrender the Unit Certificates to Trust on retirement or otherwise ceasing to be an Employee. 9. Trust to make payment for surrendered Unit. 10. Surrendered Units to be returned by Trust to the Federal Government. 11. The GoP will guarantee the buyback of the !1 surrendered units on the following basis:- a. The market value of the listed companies. b. Break-up value at historical cost based on the last audited financial statements excluding re-valuation reserves for the unlisted and private limited companies. C. On net-worth based on the last audited financial statements excluding re-valuation reserves for SOEs established under Special Acts and Ordinance till such time they are corporatized. 12. Employees representative on the Board to be nominated by GoP through Line Ministry/Holding Corporation on the recommendation of Trust. Such representative to be a Charted Accountant or a Corporate Lawyer o, an eminent professional having minimum professional having professional experience of 15 years or a Senior Government official not below the status of a Joint Secretary. 13. Trusts are entitled to receive dividends, if any from the date of applicability of the BESOS. 14 Funding armaments:- 50 % of the dividends to be transferred to central ' I revolving fund for annual payout and 50% to be distributed amongst the employees. This will result into an annual payout of Rs.1,670/- billion which will be funded by GoP. 15. A central revolving fund out of the future dividends to be established in Privatization Commission for payments against surrendered Unit Certificates. If C4s.421 02018. etc. - 6- 16. The BESOS to be implemented by the Privatization Commission in coordination with the Line Ministry /holding corporation/ respective SOEs. 17. Corporation of the SOEs established under Special Acct/Ordinance by the Privatization Commission in-coordination with the Line Ministries." 4. Pursuant to this Scheme, the OGDCL Employees Empowerment Trust (hereinafter called 'the Trust) as well as PPL Employees Empowerment Trust were executed and 12% shares of OGDCL and PPL in the shape of Unites Certificates were allocated and distributed to their employees. It seems that as many as 130 retired/ deceased employees of OGDCL benefited from this scheme while in PPL about 2693 employees benefited from this scheme. The scheme having huge financial implications on the funds of the Federal Government, could not be continued and its payment was stopped. The respondents in Civil Appeal No.421-423/ 18 so also the appellants in Civil Appeal No.19-K/2019 and the petitioners in Civil Petition No.852 / 2018 had filed petitions for seeking direction for making payment to them under the scheme. S. We have heard the learned counsel for the parties at (length and have also gone through the record of the case. Leave was• granted to consider three questions, reproduced above, which shall be taken up one by one. The first question reads as under: - (i) Whether the Cabinet decision dated 05.08.2009 while approving the Benazir Employees Stock Option Scheme (BESOS) is in violation of Article 154 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) 6. The main controversy is that whether the Scheme, which was launched in furtherance of a cabinet's decision to transfer to the CAs.421 of 2018, etc. -7.- employees, through the means of trust deeds, 12% shares of Government of Pakistan in State Owned Enterprises ("SOEs") and other Government of Pakistan Shareholdings, was lawfully prepared. In this regard, learned counsel for the appellants, at the outset, contended that the very issuance of the Scheme was illegal, in that, its purpose was to benefit the selected number of employees of the SOEs 'and further that no consideration whatsoever was provided in the Scheme for entitling the employees of the SOEs to the benefit of the Scheme. Further, the Scheme itself was a political stunt at the State expense with no benefit whatsoever to any of the SUEs, rather the Scheme became a huge burden on the public exchequer and could not be allowed to be continued being contrary to the Constitution and was even against the Rules of Business, under which the Scheme is said to have been made. 7. First of all we shall consider the Scheme of the Constitution of the Islamic Republic of Pakistan ("the Constitution") whereby it envisaged arrangement for the exercise of executive authority in the Federation. Article 97 of the Constitution lays down I that the executive authority of the Federation is coextensive with th&! Parliament's power of making laws. However, there is a qualifying' phrase 'subject to the Constitution' at the beginning of Article 97 ibid. I It clearly provides that the extent of the executive authority of the Federation is not absolute rather circumscribed by other Constitutional provisions. The executive authority of the Federation, to be exercised by the Federal Government/ Federal Cabinet, is subordinated to the Constitutional division of powers among different state organs. Reliance may be made to the case of Messrs Mustafd Impex, Karachi and others vs. The Government of Pakistan through CAs.421 of 2018. etc. -8- Secretarq Finance. Islamabad and others (PLD 2016 Supreme Court 1808), wherein it was held as under: - "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 scheme 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 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." 8. In this background, it needs to be determined as to what is the nature of the Scheme, and whether Federal Cabinet was competent to independently take a decision about it. Apparently, the emerged from a decision taken by the cabinet to empower the employees of SOEs and other Government of Pakistan Shareholdings through transfer of shares and representation on the Board. A substantial portion of government holding in SOEs and other Government of Pakistan Shareholdings i.e. 12% shares was to be transferred for free. Thus, huge amount of public money was involved in the matter. The scheme was not limited to one or two government enterprises but was designed generally for all the SOEs and other 'Government of Pakistan Shareholdings. It is evident that the cabinet's decision to launch the Scheme was not merely related to the internal management or day to day working of an SOE or Government of Pakistan Shareholding, rather, it was a major decision taken to provide financial benefit to the employees of SUEs out of the CAs.421 o(2018. etc. ME Government of Pakistan Shareholdings. In fact, it was an extensive measure affecting dozens of SOEs/ Government of Pakistan Shareholdings and entailing financial implications for the state, which was done within the realm of policy formulation. It needs to be seen whether the Federal Cabinet was competent to take a policy decision about launching of the Scheme or whether, in view of the qualifying phrase of Article 97 ibid, its authority was restricted in the matter. 9. The relations between the Federation and the Provinces are managed in terms of Chapter 3 of Part V of the Constitution. One of the modes provided therein is the Council of Common Interests ,("CC!"). Article 154 of the Constitution provides the functions and rules of procedure of the CCI. Clause (1) thereof provides that CCI "shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List ("FLL") and shall exercise supervision and control over related institutions." Entry No.3 of Part II of FLL, inter alia, deals with the institutions, establishments, bodies and corporations administered or managed by the Federal Government, and undertakings, projects and schemes of such institutions, ' establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation. The said entry reads as under: - "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, industries, projects and undertakings L1s.421 of 2018, etc. - 10- owned wholly or partially by the Federation or by a corporation set up by the Federation." 10. From the above, it is clear that in terms of Article 154(1) of the Constitution read with Entry No.3 of Part II of FLL, CCI has authority to formulate and regulate policies in relation to matters regarding institutions, establishments, bodies and corporations administered or managed by the Federal Government, and all undertakings, projects and schemes of such institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation. However, under Clause (6) of Article 154 of the Constitution Majlis-e-shoora (Parliament) in joint may from time to time by resolution issue directions through the Federal Government to the CCI, generally or in a particular matter, to take action as Majlis-e-shoora (Parliament) may deem just and proper and such directions shall be binding on the Council. Under Ht Clause (7) thereof, if the Federal Government or a Provincial Government is dissatisfied with a decision of CCI, it may refer the matter to Majlis-e-,Shoora (Parliament) in a joint sitting, whose decision in this behalf shall be final. ii. It is to be noted that the word 'schemes' is used in Entry No.3 of Part II of FLL. Thus, it appears that formulation and regulation of policies in relation to all schemes of institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation falls in the domain of CCI. In view of the above-referred Constitutional scheme, it follows that the decision of launching of the Scheme needed to be discussed in CCI. -- _ CAs42I 012018, etc. -11 12. CCI is a separate body apart from Federal Government. The Constitution has curtailed the executive authority of Federal Government in relation to matters in Part II of FLL and handed it over to CCI. The matter of authority of Federal Government and CCI qua Part II of FLL has come up before this Court in a number of cases. It has been held by this Court in Federation of Pakistan throu gh the Secretary. Ministry of Finance, Government of Pakistan, Islamabad etc. vs. United Sugar Mills Ltd. Karachi (PLD 1977 Supreme Court 397) as under: - "Again in one significant respect the federal executive authority has been abridged under the Constitution and has been entrusted to a newly created institution called "the Council of Common Interests". It is a body quite apart from the Federal executive. (See Articles 153-156). The administration of matters falling in / Part II of the Federal Legislative List (Railways, mineral oil, natural gas etc.) and item 34 of the Concurrent List (electricity) are entrusted to the Council of Common Interests." The matters referred to in Part II of FLL are required to be placed before CCI for formulating and regulating policies. It has authoritatively been held by this Court in Messrs Gadoon Textile Mills and 814 others vs. WAPDA and others 11997 SCMR 641) as under: - / "29 We are inclined to hold that the matters referred to in Part II of the Federal Legislative List and Item 34 of the Concurrent Legislative List (electricity) are to be brought before C.C.I. for formulating and regulating policies..... 13. The role of CCI was under consideration before this Court in Wattan Partu through President vs. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 CAs.421 of 2018, etc. - 12- Supreme Court 697). The matter had arisen out of privatization of 'Pakistan Steel Mills Corporation. The impugned judgment of the High Court of Sindh had held that "the provisions of Article 154 are mandatory and the functions of the Cabinet under the Privatization Ordinance, 2000 ought to be performed by the Council of Common Interest". A 9-Member Bench of this Court upheld the view of the High Court of Sindh and also approved the earlier view taken in Gadoon Textile Mills' case (supra) with reference to functioning of CCI under (Articles 153 & 154 of the Constitution, which is as follows: - "35......Therefore the view taken by this Court in the case of Messrs Gadoon Textile Mills ibid is respectfully approved with reference to functioning of C.C.I. under Articles 153 & 154 of the Constitution. As a consequence whereof the view taken by the Sindh High Court in the impugned judgment is upheld." 14. In the case of Pakistan Medical and Dental Council through , President and 3 others vs. Muhammad Fahad Malik and 10 others (2018 SCMR 1956) while considering the role of CCI viz, power of Parliament, this Court held as under: - "9. ......In order to create inter-provincial harmony, CCI has been created under Article 153 of the Constitution which is appointed by the President and includes, the Prime Minister who shall be the Chairman of the Council, the Chief Ministers of the Provinces and three members from the Federal Government to be nominated by the Prime Minister from time to time. According to Article 153(4) of the Constitution, CCI is responsible to Parliament and is required to submit an Annual Report to both Houses (of Parliament). Article 154(6) of the Constitution provides that Parliament may, from time to time, by resolution, issue directions through the Federal CAs.421 of 2018. etc. - Li - Government to CCI generally or in a particular matter to take action as Parliament may deem just and proper and such directions shall be binding on CCI. Furthermore, as per Article 154(7) of the / Constitution, if the Federal or a Provincial Government is dissatisfied with a decision of CCI, it may refer the matter to Parliament in a joint sitting whose decision in this regard shall be final. Thus, the foregoing provision of the Constitution clearly indicates that CCI is subservient, and not superior to Parliament. 10. Parliament on the other hand, under Article 70 of the Constitution, has been given absolute authority to make laws with respect to the matters enumerated in the Federal Legislative List. From a plain reading of the said Article, it is abundantly clear that no constitutional restriction or constraint has been imposed upon the power and authority of Parliament to legislate with respect to the matters enumerated in the Federal Legislative List. Article 70 ibid is an independent Article and neither subject to nor subservient to any other provision of the Constitution. However, CCI does not have unfettered power and is responsible to Parliament. As per Article 154(1) of the Constitution, CCI has been given power to formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and to exercise supervision and control over related institutions. Therefore, it is clear from this provision that CCI has no role in the legislative process with respect to the matters enumerated in the Federal Legislative List, rather it is restricted to formulation and regulation of policies in relation to the said matters, and that too contained only in Part II of such List. Once policies are finalized, CCI cannot interfere in the legislative process, nor can any legislation be struck down for the reason that CCI was not involved in the relevant legislative process. Additionally, CCI U CAs.421 of 2018, etc. P1 can exercise supervision and control over the related if institutions but not over Parliament, which according to the scheme of the Constitution is supreme and all the other institutions have to function whilst remaining within their constitutional domain. 15. It is, thus, apparent that CCI holds a significant position in the Constitutional structure. Its role is not limited to deliberations only. Rather, it is endowed with important functions of formulating and regulating polices in relation to the matters detailed in Part II of FLL of the Constitution, The Constitutional provisions relating to the functions of CCI are mandatory in nature and, no other person, body or authority can perform the functions of CCI. However, the Parliament, in joint sitting, may by resolution issue directions through ,the Federal Government to the CCI, to take action as the Parliament may deem just and proper and such directions shall be binding on CCI. If the Federal Government or a Provincial Government is dissatisfied with a decision of CCI, it may refer the matter to Parliament, in a joint sitting, whose decision in this behalf shall be final. I 16 In view of the above, irrespective of the objective of the Scheme, we are of the considered view that the matter of transfer of I 12% shares of Government of Pakistan in dozens of SOEs and Government of Pakistan Shareholdings without any policy input by 1 CCI, definitely fell outside the ambit of the authority of the Federal $ Cabinet. We, therefore, hold that the Federal Cabinet was not competent to take decision dated 05.08.2009 approving the Scheme and the same is declared to be in violation of Article 154 of the Constitution. CAs.421 of 2018. etc. -1 U 17. Now we shall consider the second question formulated in the leave granting order, which reads as under: (ii) Whether the benefits given to the employees under the BESOS were not part of the terms and conditions of their employment and therefore, the same could not be enforced under the law The grievance of the employees relates to their claims emanating 'from unit certificates issued to them as a consequence of transfer of 12% shares of Government of Pakistan in OGDCL and PPL. Leave was initially granted to consider whether the benefits given to the employees under the Scheme were not part of the terms and conditions of their employment and, therefore, the same could not be enforced under the law. However, our determination on question No.(i), that the Federal Cabinet was not competent to take a policy decision of approving the Scheme relating to SOEs and other Government of IJ Pakistan Shareholdings, decides the fate of the employees of OGDCL and PPL. As a consequence, question No.(ii) becomes academic because when the main Scheme has been declared to be ultra vires, ii any benefit arising out of it would be illegal and not protected. 18, The next question formulated in the leave granting order reads as under: (iii) What is the effect of the judgment dated 03.01.2018 passed in Constitution Petition No.183712014 by the learned High Court of Slndh whereby it declared the said decision of the Cabinet to be violative of the Constitution. In this regard it is to be noted that leave was granted vide order dated 10.01.2018 in Civil Petitions No. 382 to 384 of 2017 preferred by the Privatization Commission against the judgment of learned Islamabad High Court passed in ICAs No. 292 to 294 of 2016 when Bench-I Islamabad 22. 10.2020 APPROVED FOR REPORTING abbani/ CAs.421 of 2018, etc. -16- judgment dated 03.01.2018 passed in Constitution Petition No. 1837 of 2014 by the learned High Court of Sindh had not been assailed before this Court. A question was, therefore, framed to consider the effect of judgment dated 03.01.2018 passed by the learned High Court of Sindh. Subsequently, the judgment of the learned High Court of Sindh was also impugned before this Court through Civil Petition No. 521-K of 2018 and leave was granted vide order dated 12.04.2019. Another Civil Petition No. 852 of 2018 challenging the judgment dated 03.01.2018 of the learned High Court of Sindh was also preferred before this Court. All these matters were clubbed and heard together. 19. In view of our discussion above, where the very Scheme has been found to be against Article 154 of the Constitution, we set aside the judgment dated 24.11.2016 passed by the learned Islamabad High Court in ICAs No. 292 to 294 of 2016 and uphold the judgment 'dated 03.01.2018 passed by the learned High Court of Sindh in Constitution Petition No. 1837 of 2014. 20. Above are the reasons of our short order dated 22.10.2020, which is as follows: - "We have heard the learned counsel for the parties at length and have also gone through the record of the cases. For reasons to be recorded later, Civil Appeals No.42 1 to 423 of 2018 are allowed and the impugned judgment is set aside, while Civil Appeal No. 19-K of / 2019 and Civil Petition No.852 of 2018 are dismissed. All the pending Civil Misc. Applications are disposed of."

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{'id': 'C.A.421_2018.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE KHILJI ARIF HUSSAIN CRIMINAL APPEAL NO. 424 OF 2015 (on appeal from the judgment of the High Court of Balochistan, Quetta dated 20.08.2015 passed in Crl. Misc. Quashment No.42 of 2010) Ali Muhammad & others …Appellants VERSUS Syed Bibi and others …Respondents For the Appellant: Mr. Zulfiqar Ahmed Bhutta, ASC. For the State: Mr. Ayaz Khan Swati, Addl. AG, Balochistan. Date of Hearing: 22.02.2016. JUDGMENT Anwar Zaheer Jamali, CJ.— Through this appeal by leave of the Court, the appellants have invoked jurisdiction of this Court against the judgment dated 20.08.2015 in Criminal Miscellaneous Quashment No.42 of 2010, passed by learned Division Bench of the High Court of Balochistan, Quetta, whereby quashment petition of Respondent No.1 under Section 561-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as “Cr.P.C.”) against the order dated 15.07.2010 passed by Sessions Judge Pishin as Justice of Peace on an application under Section 22-A Cr.P.C. was accepted; consequently, order dated 15.07.2010 was set aside with direction to Respondent No.2 to register the FIR against the appellants for causing murder of Hafiz Muhammad Jan. Cr.A 424/2015 -2- 2. Briefly stated relevant facts of the case are that Respondent No.1, Syed Bibi wife of Khatak, had moved an application under Section 22-A Cr.P.C. for registration of FIR against the appellants with the averments that she was a widow, residing in Kuchlak with her son, Hafiz Muhammad Jan, who was the only earning member of her family. During an exchange of fire between levies and some unknown persons, her son was hit by a bullet on his leg, whereupon people gathered on the spot and began protesting. The levies started aerial firing due to which the unknown persons fled away from the scene. Thereafter, the levies took her injured son with them and she found out the next day that her son had succumbed to the injuries and his dead body was lying in the Civil Hospital Quetta. 3. Regarding this incident, an FIR was earlier lodged with misleading and incorrect statement of facts, therefore, she filed an application under Section 22-A Cr.P.C. before the Justice of Peace/Sessions Judge Pishin with the following assertions:- “2. That her deceased son Haifz Muhammad Jan alongwith her nephew namely Abdul Wali have left the house to go to their relatives living in Killi Nilli, Bostan after offering Asar prayer at about 06:00 p.m., when on Kuchlack road there was a cross firing between levies personnel with some unknown persons, therefore, number of people were gathered nearby, and his son and nephew also parked their motorcycle and were standing with other people, when from the levies side a bullet came which hit Hafiz Muhammad Jan on his leg, meanwhile other party has made their escape good and her nephew Abdul Wali and their other tribes man gather on the spot, have protested for injuring Hafiz Muhammad Jan, while the assailants on quite opposite site of the people, where the deceased was standing, which turned into scuffle on the spot with levies and other people, the levies personnel were provoked and were shouting that their Risaldar has been injured and assailants who escaped were relative of Hafiz Muhammad Jan, therefore, they will not spare him on saying so, they have started aerial firing to disburse the public and took Hafiz Muhammad Jan in injured condition and thrown him into their pickup on which Abdul Wali rushed towards them and protested for Cr.A 424/2015 -3- cruel and inhuman attitude with an injured person levies personnel already provoked have started beating Abdul Wali and also took him and boarded him into vehicle, while at that time levies personnel namely (1)Ali Muhammad s/o Habibullah, Aaffadar levies Bostan (2)Feroz Jumadar levies Bostan, (3) Yousaf (4) Muhammad Mir (5) Mohd Amin s/o Sagzai Khasadar levies (6) Mohd Sadiq s/o Dad Khan (7) Anwar (8) Abdul Hameed s/o Abdul Rasheed, all levies personnel have been identified on the spot. 3. That on the fateful night the mother of deceased went to levies police station, where she had been informed that her injured son and nephew both have been sent to Pishin, thus, on said night the widow of an advanced age had thricely travel between Kuchlak Bostan and Pishin, and finally she was told by levies personnels in Civil Hospital Pishin that her son has been succumbed to his injuries and his dead body is transmitted to the Quetta Hospital, on next morning the mother of deceased reached to Civil Hospital at 6:00 a.m. morning and on her quarries the staff in casualty department told her that some dead body has been brought but same could not been handed to her without permission of levis Bostan, the whole day an old lady was sitting in front of morgue causality, meanwhile her few relatives have also reached to hospital and started protesting and demanded the dead body, when police personnel at the spot have informed the levies line Queta at about 11:30 a.m. the Naib Tehsildar came, in initially creating unnecessary hurdles under the garb of interrogation, but after confirming from his high officials had agreed to handover the dead body…” 4. This application was, however, dismissed by the learned Sessions Judge Pishin vide his order dated 15.07.2010. Respondent No.1 then filed C.P. 513/2010 under Section 561-A Cr.P.C. before High Court of Balochistan, which was heard, converted into Criminal Misc. Quashment No.42 of 2010, and allowed vide impugned judgment dated 20.08.2015; thereby directing the concerned official (Naib Tehsildar Bostan) to get the FIR of the incident registered, inter alia, for the following reasons: “14. Considering the facts and the attending circumstances of the instant case, two distinct and opposite versions have come on record, wherein manner of the occurrence, place of occurrence and other details are not only different, but are also opposite to each other. Therefore, interest of justice as well as fair investigation demands that a separate FIR on the basis Cr.A 424/2015 -4- of application of the petitioner should be recorded and investigated upon, so that both the versions may be placed before the Court who will then be in a position to determine and adjudicate upon as to which of the version is wholly or partly correct and which of the accused persons are guilty and liable to conviction. 15. In the referred case of ‘Mohammad Azam’ it has been held that where a different, opposite or a cross version is put forth by the complainant which discloses commission of cognizable offence, second FIR is not barred In the case of ‘Humayun Khan’ it has been held that recording of second FIR depends upon the facts of each case and the matter is to be seen in the context of totality of the circumstances and allegations” 5. We have heard arguments of the learned ASC for the appellants. He contended that indeed there is no specific prohibition under the provisions of Cr.P.C. which precludes registration of another FIR with respect to the same incident; nevertheless, depending upon the facts and circumstances of each case, such practice has been deprecated particularly when the proceedings in a criminal case arising out of earlier FIR have reached at an advanced stage; however, this important legal aspect has not been duly taken into consideration by the High Court in its impugned judgment. He, however, could not refer to any case law in support of his argument that registration of another FIR is unwarranted by any specific provision of law. 6. The learned Additional Advocate General Balochistan in his submissions did not oppose findings of the High Court of Balochistan in the impugned judgment. He referred to before us the judgments in the cases of Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556) and Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297), which lay down a general principle in this regard as under: “no definite rule could be laid down barring the registration of another F.I.R. when a different version of the same occurrence is given by an aggrieved party. Cr.A 424/2015 -5- Moreover, any direction to the police to record another F.I.R. would depend on the facts and circumstances of each case, however, refusal to record/register a genuine version of the same occurrence is unwarranted in law.” 7. In another earlier case Kaura v. The State and others (1983 SCMR 436) while dismissing the CPLA, the Court had suggested the aggrieved party to move the High Court for review of its order regarding registration of another FIR with the observation that the police was not only competent but also duty bound to unearth the true facts and trace the real culprits while conducting investigation of the crime. This judgment was taken into notice in the case of Mst. Anwar Begum (supra) but not commented upon, while in the other case of Wajid Ali Khan Durani (supra) similar contention of the learned counsel was repelled as being misconceived. It was further held that in the circumstances discussed, the learned High Court correctly appreciated the view expressed in several other cases of the superior Courts for giving direction to register another FIR. 8. We have considered submissions of the learned ASC for the appellants on short controversy involved in the matter relating to registration of another FIR. In the instant case, perusal of contents of the earlier FIR lodged at the instance of Ali Muhammad Defedar Levies on 09.06.2010 and the contents of other FIR lodged by Respondent No.1 on 27.08.2015, in terms of the impugned judgment, reveals two entirely different and conflicting stories about the actual occurrence. It is, thus, obvious that in case prosecution leads its evidence on the basis of contents of earlier FIR and the investigation made on that basis, then from no stretch of imagination the grievance of Respondent No.1, attributing criminal liability of whole occurrence to the complainant and his party (“the appellants” herein), could be considered or adjudicated Cr.A 424/2015 -6- upon by the Court. In such circumstances, considering the allegations of Respondent No.1 about mala fide of the complainant in the earlier FIR so as to exonerate himself from the liability of Qatl-i-amd of her son, followed by distorted and collusive investigation, the impugned judgment of the High Court directing registration of another FIR seems fully justified and in accordance with law, wherein no specific bar or prohibition is provided in this regard. The two cases referred to by the learned Additional Advocate General Balochistan in support of the impugned judgment also fully support this view. 9. The whole gambit of controversy in hand revolves around the import and application of Section 154 of Cr.P.C. hence for ready reference it will be useful to reproduce the same as under: “154. Information in cognizable cases.—Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced in writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person given it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.” 10. As could be seen from the plain reading of above reproduced provision of law, the requirement of Section 154 Cr.P.C. is to enter every information of commission of a cognizable offence, whether given orally or in writing to the officer-in-charge of the police station, which shall then be reduced into writing and signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Provincial Government in this behalf. Meaning thereby, that it is not a legal requirement for provider of such information to canvass the whole scene of occurrence of a cognizable offence giving description and details of accused, details of weapons used by them, their specific role, motive behind the occurrence, and the names of eye witnesses etc. But it is a matter of common experience that usually the entries made in Section 154 Cr.P.C. book, as per practice, contain invariably all such details so much so that in the ordinary parlance/sense it is considered as the gist of the prosecution case against the accused. In such state of affairs, if a collusive, mala fide or concocted FIR, registered at the instance of some individual with some ulterior motive, is taken as sacrosanct, it is likely to divert the whole course of investigation in a wrong direction and spoil the entire prosecution case on that premise. The Court while considering the crucial point of registration of another FIR cannot remain oblivious of these ground realities so as to non-suit Cr.A 424/2015 -7- the aggrieved party from agitating his grievance in an honest manner, or ensure regulating proper investigation of a crime in the right direction, or apprehend the real culprits and brought them before the Court of law for justice. 11. Though our criminal legal system proceeds on the presumption of honest, God fearing and fair police officers, impartial and honest investigation system, but this is far from reality in the society we live in. In such circumstances when the Courts feel that due to mala fide, dishonest, colourful and motivated acts or omissions, entire investigation of the crime has been mislead or it is going to be misled and on that account the case of the prosecution is likely to fail, then they are not denuded of their powers to order recording of another FIR disclosing a different version to check such nefarious design meant to save the real culprits vis-a-vis misleading the investigation/prosecution, at any appropriate stage of the proceedings. However, where need be, such powers are to be exercised with extreme care and caution and not in a routine manner so as to merely fulfill the wish of an individual who, as per his whims, is not satisfied either with the contents of earlier FIR or the direction of investigation based thereon or wants registration of another FIR with some ulterior motive. It is more so important in the circumstances when the procedure of direct complaint under Section 200 Cr.P.C. is also provided to meet such eventualities. However, it may be clarified here that there may be circumstances where registration of another FIR will be the only proper course as adopting the alternate course provided in Section 200 Cr.P.C. may not be equally efficacious and effective for the aggrieved person. The case law on the subject, which has been referred to above, lend support to the view that provisions of Section 154 Cr.P.C. are to be read in a pragmatic, holistic and realistic manner in order to ensure that its true spirit and object is achieved and it is not abused at the hands of Cr.A 424/2015 -8- individuals or police, who may be adamant to make mockery of this system. It is for these reasons that no definite principle can be laid down barring the registration of another FIR. 12. It is unfortunate to note that in the instant case due to one- sided version disclosed in earlier FIR No.17/2010, the investigating agency never bothered to look into the crime from another angle as narrated in the other FIR dated 27.08.2015, which means that as per assertions of Respondent No.1, the alleged culprits could have otherwise escaped from their criminal liability successfully at the very initial stage without even being charged for the offence on the basis of misleading contents of earlier FIR. The short and long of the above discussion is that the impugned judgment of the Balochistan High Court warrants no interference. 13. In view of the above, this appeal was dismissed vide short order of even date, which reads as under: “We have heard arguments of the learned ASC as well as learned Additional Advocate General Balochistan. For reasons to follow separately, this appeal is dismissed.” Chief Justice Judge Judge Judge Judge ISLAMABAD. 22nd February, 2016. Mudassar/   “Approved for reporting.”

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{'id': 'C.A.424_2015.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 NOs. 427 & 428 OF 2009 (On appeal against the judgment dated 27.1.2009 passed by the High Court of Sindh, Karachi in Special Customs Reference Applications No.348 and 349 of 2007) Collector of Customs (In both cases) … Appellant VERSUS M/s Best Way Cement (In CA 427/2009) M/s Maple Leaf Cement Factory (In CA 428/2009) …Respondents For the Appellants: Raja Muhammad Iqbal, ASC (In both cases) For the Respondents: Mr. Salman Akram Raja, ASC (In both cases) Date of Hearing: 27.04.2016 JUDGMENT FAISAL ARAB, J.- The respondent companies of both the connected appeals are cement manufacturing enterprises. The respondent company of Civil Appeal No.427 of 2009 imported sixteen units of Volvo FM 400 Trucks. Seven of such trucks were imported vide IGM No.1151/2006, Index No.20 and Goods Declaration No.196467 dated 24.06.2006 and the remaining nine trucks were imported vide IGM No.1151/2006, Index No.21 and Goods Declaration No.196469 dated 24.06.2006. Similarly, the respondent company of Civil Appeal No.428 of 2009 imported two Volvo FM 400 Trucks vide IGM No.1151/2006, Index No.19 and Goods Declaration No.196468 dated 24.06.2006. All eighteen trucks were shipped to CIVIL APPEAL NOs. 427/2009 & 428/2009 2 Karachi port on S.S. ‘Iron Butterfly’. Upon arrival of the ship both the respondent companies claimed exemption from duty in excess of 5% in terms of Serial No.21 of SRO 575(I)/2006 dated 5.6.2006 and 0% sales tax in terms of SRO 530(I)/2005 dated 6.6.2005 by declaring that the imported trucks fall within the ambit of plant as provided in SRO 575(I)/2006 dated 5.6.2006. The entire basis for treating the trucks to be part of the plant of their respective cement factories was that the imported trucks were Off-Highway trucks imported for their utilization in the industrial process of their respective cement factories, hence they be regarded as part and parcel of their cement manufacturing activity. Upon physical examination of the imported trucks, the Custom Examination Staff found the imported vehicles to be Volvo FM 400 trucks which were not Off-Highway dump trucks but simply On-Highway trucks. After disagreeing with their claim all eighteen trucks were classified under PCT Heading 8704.2290 which attracted 30% Ad Volerum customs duty and 15% Sales Tax. 2. Having been denied the claim of exemption under the above referred two SROs, the respondent companies challenged the decisions of the Appraisement Collectorate before the Collector Appeals, who concurred with the decisions of the Appraisement Collectorate and dismissed their respective appeals vide orders dated 14.11.2006. The respondent companies then challenged the appellate orders before the Customs and Sales Tax Appellate Tribunal in Customs Appeals No. K-01 and K-32/2007 which allowed their appeals through a common judgment dated 12.04.2007 after following the decision of Sindh High Court in the case of D.G. Khan Cement Limited Vs. Deputy Collector of Customs (2003 PTD 986) and CIVIL APPEAL NOs. 427/2009 & 428/2009 3 directed that excess duties and charges recovered from the respondent companies be refunded. The Collectorate of Customs Appraisement was not satisfied with the tribunal’s decisions and challenged the same in the High Court of Sindh in two separate appeals bearing Special Customs Appeals No. 348 and 349 of 2007. The High Court dismissed both the appeals vide impugned judgments dated 27.01.2009, also relying on the decision that was rendered in the case of D.G. Khan Cement Limited supra. Dissatisfied with the common judgments rendered in both the appeals, the appellants filed petition for leave to appeal in CPLAs No. 289-K/2009 and 290- K/2009 in this Court. Both the petitions after grant of leave were converted into present appeals. 3. In the cement industry, Off-Highway trucks are used at the quarries where the predominant raw-material in the cement production ‘limestone’ is won by either extraction or blasting and then hauled on Off-Highway dump trucks to the place where the second stage in the cement manufacturing activity i.e. crushing of the raw-material takes place. In a decision of this Court rendered on 25.05.2016 in Civil Appeal No. 1291 of 2005 in the case of Collector of Customs Vs. D.G. Khan Cement Company Limited heard by us alongwith the present appeals, a question arose as to whether the use of Off-Highway dump trucks 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 the Off-Highway dump trucks in their utilization remain mobile as against other machinery and equipment of the plant which directly or indirectly remains fastened to the earth. It was on account of the specific design and CIVIL APPEAL NOs. 427/2009 & 428/2009 4 utility of Off-Highway Dump Trucks in the industrial process of cement production that we broadened the meaning of the term ‘plant’ mentioned in SRO 484(I)/92 dated 14.05.1992 bringing the Off- Highway dump trucks within its ambit and thus answered the question in the affirmative. In deciding so, we did not approve the judgment of the High Court of Sindh rendered in the case of D.G. Khan Cement Limited Vs. Deputy Collector of Customs (2003 PTD 986) as it was based on an entirely different reasoning. The judgment of this Court in the case of Collector of Customs Vs. D.G. Khan Cement Company Limited rendered by us on 25.05.2016 in Civil Appeal No. 1291/2005 was based on following reasoning:- 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 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. CIVIL APPEAL NOs. 427/2009 & 428/2009 5 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 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 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 (crushing, blending, heating, cooling, clinkering and milling) ends with CIVIL APPEAL NOs. 427/2009 & 428/2009 6 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. 4. In the present case, however, all eighteen trucks imported by the respondent companies are Volvo FM 400 trucks. Volvo is a world renowned truck manufacturing company. It manufactures many kinds of trucks, which include both Off-Highway and On-Highway trucks. Volvo FM 400 trucks that were imported by the respondent companies being On-Highway trucks are designed for long distance highway transportation. These trucks can mount container on its chassis for loading goods. As On-Highway truck is meant for long hauls, it also has a bunk in its cabin for its use as driver’s sleeping area. In contrast to such utility, the Off-Highway dump truck, as decided by us in the case of Collector of Customs Vs. D.G. Khan Cement Company Limited is specifically designed for use in difficult terrains where the activities of mining, quarrying or construction of big buildings are carried out. Purely on account of the specific design and utility of Off-Highway dump trucks in the industrial process of cement production that the same were brought within the ambit of plant. On the other hand, Volvo FM 400 trucks that were imported by the respondent companies, being On-Highway trucks and not Off-Highway dump trucks, were rightly treated by the Appraisement Collectorate of the Customs as not being a part of the plant of a cement factory. CIVIL APPEAL NOs. 427/2009 & 428/2009 7 5. In view of the above discussion, we hold that the respondent companies were not entitled to claim exemption under SRO 575(I)/2006 dated 5.6.2006 and SRO 530(I)/2005 dated 6.6.2005 on Volvo FM 400 trucks that were imported by them as the same were found to be On-Highway trucks and not Off-Highway dump trucks. The customs authorities shall recover the customs duties and Sales Tax on all eighteen Volvo FM 400 trucks imported by both the respondent companies in terms of PCT Heading 8704.2290. These appeals are allowed in the above terms. JUDGE JUDGE JUDGE Islamabad, the Announced on ______________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED CIVIL APPEAL NO. 427 OF 2013 Moulana Agha Muhammad …. Appellant Versus Returning Officer, NA 261 Pishin cum Ziarat & others …. Respondents For the Appellant Mr. Kamran Murtaza, ASC For the Respondents Nemo For the Applicant Mr. Muhammad Ikram Chaudhry, ASC (in CMA No.3012/13) Date of hearing 31.5.2013 O R D E R In this case petitioner’s nomination papers were rejected for the elections from NA 261 Pishin cum Ziarat vide order dated 7.4.2013 and against the rejection of nomination papers appeal filed by him also failed before the Election Tribunal, Balochistan at Quetta on 17.4.2013. Against both these orders petitioner preferred a Constitution Petition before the High Court of Balochistan, Quetta, which was dismissed on 19.4.2013 through a short order followed by detailed reasons dated 6.5.2013. Against the order of the learned High Court Civil Petition for Leave to Appeal was filed in which leave to CA 427/2013 2 appeal was granted on 23.4.2013. Simultaneously the operation of all the three orders dated 7.4.2013, 17.4.2013 and 19.4.2013 operating against the appellant was suspended. 2. Learned counsel for the appellant stated that appellant has been declared successful and a notification has also been issued. We have pointed out to him that the result of the election shall be subject to the decision of the appeal pending before this Court, therefore, in the interest of justice we restrain the appellant from taking oath of the office of the Member of National Assembly NA 261 Pishin cum Ziarat. However, no sooner the appeal is decided the law shall take its own course. At the request of the learned counsel hearing is adjourned to 12th June, 2013. 3. Mr. Muhammad Ikram Chaudhry, learned ASC has submitted an application (CMA No.3012/2013) for impleadment. Notice of the same be issued to the appellant as well as to the respondents. In the meanwhile notice to the learned Attorney General for Pakistan and the Election Commission be also issued. Chief Justice Judge Judge Islamabad 31.5.2013 (Zulfiqar)

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 441 OF 2021 (Against the judgment dated 22.09.2020 passed by the Peshawar High Court, Abbottabad Bench in Writ Petition No. 830- A/2019) President National Bank of Pakistan and others …Appellant(s) Versus Waqas Ahmed Khan …Respondent(s) For the Appellant(s): Rai Mohammad Nawaz Kharal, ASC Rafaqat Hussain Shah, AOR For the Respondent(s): Nemo Date of Hearing: 16.01.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by leave of the Court, the appellants have called in question the vires of the judgment dated 22.09.2020 passed by the learned Peshawar High Court, Abbottabad Bench whereby the Writ Petition filed by the respondent was allowed and the appellants were directed to allow the respondent to join his duty in pursuance of appointment order dated 24.06.2015. 2. Briefly stated the facts of the matter are that father of the respondent was Manager in the appellant National Bank of Pakistan and died while he was in service of the Bank. The respondent filed Writ Petition No. 52-A/2013 before the Peshawar High Court for his appointment in the National Bank under son-quota. The said Writ Petition was allowed vide judgment dated 10.12.2013 and the appellants were directed to appoint the CIVIL APPEAL NO.441 OF 2021 -: 2 :- respondent on regular basis on any post commensurate to his qualification. This judgment was also upheld by this Court vide order dated 23.02.2015 passed in Civil Petition No. 235/2014. Thereafter, the appellant Bank issued appointment letter dated 24.06.2015 and directed the respondent to join the duty as Cashier within a period of 30 days. However, on coming to know that the respondent was involved in a criminal case registered vide FIR No. 1172/2013 dated 23.11.2013 under Section 302 PPC at Police Station Hawalian, District Abbottabad for committing murder of his wife, he was not allowed to join the duty. Later on, the respondent was acquitted by the learned Trial Court vide judgment dated 02.05.2019 while exercising the powers under Section 265-K Cr.P.C. After his acquittal, he filed Writ Petition No. 830-A/2019 before the Peshawar High Court with a prayer that the appellants may be directed to take charge from him as per appointment order dated 24.06.2015. The learned High Court vide impugned order dated 22.09.2020 accepted the Writ Petition filed by the respondent and directed the appellants to allow the respondent to join his duty in pursuance of the appointment order dated 24.06.2015. Being aggrieved by the impugned order, the appellants filed Civil Petition No. 3527/2020 before this Court wherein leave was granted on 28.04.2021 and the present appeal has arisen thereafter. 3. At the very outset, learned counsel for the appellants contended that at the time when the respondent was offered job in the appellant Bank, he was involved in a criminal case but he concealed this fact. Contends that the respondent had not approached the learned High Court with clean hands and had misstated the facts, therefore, he could not have been given the relief sought for. Contends that appointment of the respondent under the son quota is a policy matter, as such, the writ petition was not maintainable before the High Court especially keeping in view the criminal background of the respondent. Lastly contends that acquittal under Section 265-K Cr.P.C. is not an acquittal stricto sensu, as such, the impugned judgment is based on wrong presumption of law, therefore, the same may be set at naught. CIVIL APPEAL NO.441 OF 2021 -: 3 :- 4. Although notice has been served on the respondent and he is represented by a counsel yet neither the respondent nor his counsel is in attendance. In this view of the matter, we are inclined to proceed with the matter on merits. 5. We have heard learned counsel for the appellants and have perused the record with his able assistance. There is no denial to this fact that doctrine of legitimate expectation connotes that a person may have a reasonable expectation of being treated in a certain way by administrative authorities owing to some uniform practice or an explicit promise made by the concerned authority. The legitimate expectation ascends in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of government of a public authority. When such a legitimate expectation is obliterated, it affords locus standi to challenge the administrative action before the court of law. However, it is for the Court to decide as to whether the expectation is legitimate or not. Said doctrine is applied as a tool to watch over the action of administrative authorities and in essence imposes on all authorities to act fair and square in all matters encompassing legitimate expectation. Reliance is placed on Uzma Manzoor Vs. Vice Chancellor Khushal Khan Khattak University, Karak (2022 SCMR 694). In the present case, the respondent in the earlier round of litigation had approached the learned High Court with a view to appoint him under the son quota. However, he concealed the factum of his being involved in a criminal case. No doubt, the Constitutional courts being guardians of the Constitution have the power to judicially review the administrative/executive actions and the conduct of the public authorities but the same shall be on the touchstone of fairness, reasonableness and proportionality. We are not oblivious of the fact that although the respondent was involved in a criminal case of murder of his wife and was acquitted subsequently pursuant to proceedings carried out under Section 265-K Cr.P.C. However, it is settled law that even if the allegations leveled in the FIR are admitted to be false, even then without recording of evidence, it cannot be said that there was no probability of CIVIL APPEAL NO.441 OF 2021 -: 4 :- conviction of the accused. In order to ascertain the genuineness of the allegations, the Trial Court ought to have allowed the prosecution to lead evidence. Even otherwise, this Court in Model Customs Collectorate, islamabd Vs. Aamir Mumtaz Qureshi (2022 SCMR 1861) and State Vs. Raja Abdul Rehman (2005 SCMR 1544) has categorically held that in appellate or revisional proceedings, the same sanctity cannot be accorded to acquittal at intermediately stage such as under Section 249-A or 265-K Cr.P.C. as available for those recorded and based on full-fledged trial after recording of evidence. The respondent was offered the job of cashier in the Bank but when the Bank came to know that he has a criminal background, the Bank did not allow him to join the duty. The post of cashier is considered to be very important in a Bank. It is the cashier who collects and disburses cash. It is for this reason that every Bank wants their cashier to be of such a person, that no one can point a finger on his conduct. We are, therefore, of the view that while not allowing the respondent to join the duty, the Bank was well within its domain and acted naturally. The learned High Court ought to have taken into consideration the above fact but it failed to do so. 6. For what has been discussed above, this appeal is allowed, the impugned judgment of the learned Peshawar High Court is set aside. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 16th of January, 2023 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present Mr. Justice Umar Ata Bandial Mr. Justice Manzoor Ahmad Malik CIVIL APPEAL NO. 446 OF 2012 (On appeal from the judgment dated 16.03.2012 passed by Lahore High Court, Rawalpindi Bench in C.R.324/2003) Ghulam Abbas & others … … Appellants. Versus Mohammad Shafi (decd) thr. LRs & others … Respondents. For the appellants : Mr. Gulzarin Kiani, Sr. ASC. Ch. Akhtar Ali, AOR. For the respondents : Mr. Muhammad Amir Butt, ASC. Syed Rifaqat Hussain Shah, AOR. Date of hearing : 20.04.2016. JUDGMENT UMAR ATA BANDIAL, J. – The impugned judgment dated 16.03.2012 by the learned Lahore High Court, Rawalpindi Bench reverses the Appellate judgment by the learned Additional District Judge dated 17.03.2003 to uphold the judgment of the learned Trial Court dated 17.05.2001. The appellants/plaintiffs’ suit was dismissed by the learned Trial Court as being barred under Order XXIII Rule 1 CPC and Section 3 of the Limitation Act, 1908. As such, the learned High Court disapproved the learned Appellate Court’s view to remand the case for allowing the parties to bring evidence C.A.446 of 2012 2 about the terms of an oral compromise claimed between the predecessors of the parties which led to the unconditional withdrawal of an earlier suit filed by the appellants’ predecessor for the same relief. 2. The facts constituting the background of the present case are that one Feroze owned property in village Bhoon, Tehsil Kalar Kahar, District Chakwal. He had two wives; one named Mst.Bibi and the other named Mst.Sardaran. Mst.Bibi had two sons, namely, Muhammad Nawaz and Faqir Muhammad. Mst. Sardaran had one son, Muhammad Shafi, and four daughters. When Feroze died before partition, his property was distributed equally amongst his three afore-named male heirs under customary law. Faqir Muhammad died issueless in the year 1950 and was succeeded by two heirs, his real brother Muhammad Nawaz and his mother Mst.Bibi. However, his mutation of inheritance No.1147 dated 21.03.1951 was recorded in favour of the said two heirs and also his consanguine brother and four sisters (“impugned mutation”). 3. On 03.01.1957 both Muhammad Nawaz and his mother Mst.Bibi filed a suit challenging the said mutation for being illegal. Notices were issued to the defendants Muhammad Shafi and his four sisters for 30.01.1957. The notices were not served on the defendants who are predecessor of the present respondents, for 30.01.1957; none were in attendance. On that date, however, Muhammad Nawaz got his statement recorded. He stated that a C.A.446 of 2012 3 compromise had been arrived with the defendants. Therefore he prayed for withdrawal of his suit without the permission of the Court for filing a fresh suit. Accordingly, the learned Trial Court passed an order on 30.01.1957 dismissing the said suit as withdrawn. Thereafter, the impugned mutation No.1147 dated 21.03.1951 was neither cancelled nor modified. Muhammad Nawaz did not challenge that mutation until his death in the year 1987. 4. The appellants are the heirs of Muhammad Nawaz. They filed a suit on 12.06.2000 for annulment of the impugned mutation; however, their plaint did not mention the earlier suit filed by Muhammad Nawaz. The appellants’ suit claims the same relief of cancellation of the impugned mutation as prayed in the earlier suit because: in the presence of the real brother Muhammad Nawaz and mother Mst. Bibi of Faqir Muhammad deceased his consanguine siblings, Muhammad Shafi and his four sisters are excluded from being his heirs. The respondents/defendants filed their written statement objecting to the maintainability of the said suit under Order XXIII Rule 1 CPC. The basis of that objection is the Court’s order dated 30.01.1957 which unconditionally dismisses as withdrawn the earlier suit for the same relief filed by the appellants’ predecessor, Muhammad Nawaz against the predecessors of the respondents. In response to the objection, the appellants applied for amendment of their pleadings which was allowed both by the learned Trial Court and the learned Appellate Court. C.A.446 of 2012 4 5. A new paragraph 6A was accordingly incorporated by the appellants in their plaint. This paragraph explains that the predecessors of the respondents had conceded the claim of Muhammad Nawaz, predecessor of the appellants, and had renounced any entitlement in the legacy of Faqir Muhammad deceased. Therefore, they handed over to Muhammad Nawaz possession of the land taken by them from such legacy. The possession of the returned land had thereafter remained with the appellants/plaintiffs. The amended written statement filed by the respondents denied paragraph 6A of the plaint and claimed that Muhammad Nawaz predecessor of the appellants had withdrawn his suit unilaterally after receipt of adequate compensation. 6. In the background of the foregoing pleas of the parties, a preliminary issue was framed by the learned Trial Court to the effect: “Whether the suit is hit by the provisions of Order XXIII Rule 1 CPC and the suit is not maintainable?” The learned Trial Court vide judgment dated 17.05.2001 concluded that the bar under the said provision of law applied to the suit filed by the appellant in the year 2000. This suit was also held to be time barred for having been filed 43 years after the cause of action admittedly accrued in favour of the appellants’ predecessor. Vide judgment dated 17.03.2003, the learned Appellate Court remanded the case to the learned Trial Court by observing that it was proper to grant an opportunity to the parties for recording their evidence on C.A.446 of 2012 5 the plea of compromise taken by the appellants. In exercise of Revisional jurisdiction the learned High Court on 16.03.2012 reversed the appellate judgment and reaffirmed the view taken by the learned Trial Court in its judgment dated 17.05.2001. Hence, this appeal. 7. The learned counsel for the appellants has submitted that by mentioning compensation the amended written statement by the respondents impliedly admits the compromise averred by the plaintiffs in their plaint; that a compromise is also mentioned in the statement of Muhammad Nawaz, predecessor of the appellants, recorded by the learned trial Court on 30.01.1957 due to which his suit was dismissed as withdrawn. The respective stands taken by the parties showed a dispute between them about the terms of the compromise. It is contended that the appellants had a right to lead evidence for proving such terms, which has wrongly been denied by the impugned judgment. In any event, the learned High Court ought to have confined itself to whether recording of evidence was necessary for deciding the preliminary issue about the effect of Order XXIII Rule 1 CPC. It was wrong for the learned High Court to decide the said preliminary objection and to dismiss the appellants’ suit. Reliance has been placed on Mir Alam Shah vs. Adam Khan (2004 CLC 1100), Mohsin Khan vs. Ahmad Ali (PLD 2004 Lahore 1), Subha Jayan vs. Meenakshy Kumaran (AIR 2004 Kerala 39), C.A.446 of 2012 6 Kaluvaroya vs. Ganesa (AIR 1969 Madras 248) and Muhammad Shafique vs. Muhammad Rafique (2012 YLR 2801). 8. The learned counsel appearing for the respondents submits that the order dated 30.01.1957 passed by the learned Trial Court shows unconditional withdrawal of the suit filed by the appellants’ predecessor which tantamounts to abandonment of the claim by the plaintiff/ predecessor of the appellants. Secondly, he submits that even if the compromise claimed in paragraph 6A of the amended plaint is presumed, it is an established fact that such compromise was not implemented through cancellation/ modification of the impugned mutation No.1147 dated 21.03.1951 and the transfer of title of the corresponding land in favour of Muhammad Nawaz, the predecessor of the appellants. For 30 years until his death the said Muhammad Nawaz was satisfied with the impugned mutation remaining in the field. The compromise terms alleged in paragraph 6A of the amended plaint cannot survive to the extent that these conflict with the conduct of Muhammad Nawaz. Accordingly, no right can vest in the appellants to now claim relief conflicting with the impugned mutation. He also argued that, in any case, the right available to Muhammad Nawaz was for enforcement of the compromise terms. A suit for such a claim is time barred. 9. After hearing the learned counsel for the parties and having carefully perused the record, if seems useful to first read the provisions of Order XXIII Rule 1 CPC: “1.Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit the plaintiff may, as against C.A.446 of 2012 7 all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied— (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as a Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.” 10. Keeping the foregoing legal provision in view, there are some established factual points of the case that may be noted first. By the order dated 30.01.1957 Muhammad Nawaz withdrew his suit unconditionally without seeking permission to file a fresh suit. An oral compromise between Muhammad Nawaz and the defendants was cited by the former as the basis of the withdrawal of his suit but neither the terms of the compromise were stated before or recorded by the learned Trial Court nor was any defendant examined before the Trial Court to state or admit the terms of any compromise. The impugned mutation No.1147 dated 21.03.1951 remained in existence notwithstanding the compromise. Muhammad Nawaz did not file any proceedings to enforce the terms of his compromise. In other words, the impugned mutation and the unconditional withdrawal of C.A.446 of 2012 8 the suit satisfied the oral compromise and Muhammad Nawaz lived with it till his death in the year 1987. 11. The amended plaint filed by the appellants claimed that in the oral compromise Muhammad Shafi and his four sisters accepted the impropriety of the impugned mutation No.1147 dated 21.03.1951; that they also returned possession of the land inherited by them from the legacy of Faqir Muhammad deceased to Muhammad Nawaz. Even if those statements of fact are assumed to be correct, it may be observed firstly, that merely holding the possession of land cannot confer its title through prescription. [Ref: Maqbool Ahmad vs. Hakoomat-e-Pakistan (1991 SCMR 2063)]. Secondly, the inaction and acquiescence of Muhammad Nawaz to challenge the impugned mutation No.1147 dated 21.03.1951 for 30 years is evidence that it complied with his compromise. Thirdly, in the year 2000, when the appellants’ suit was filed, neither of the parties to the oral compromise survived to prove its terms. At best the appellants could bring hearsay evidence and that too after a delay of 43 years. In the said circumstances, it is a futile argument by the learned counsel for the appellants to ask for grant of an opportunity to the parties to lead evidence about the terms of the oral compromise. These facts establish that the withdrawal of the earlier suit by Muhammad Nawaz was unconditional or that the impugned mutation did not infringe any terms of the compromise claimed by him with the predecessor of the respondents. In the C.A.446 of 2012 9 circumstances, the later suit filed by the appellants on the same cause of action is barred under Order XXIII Rule 1(3) CPC. Reliance is placed upon Ghulam Rasool vs. Nusrat Rasool (PLD 2008 SC 146), Shahid Mehmood vs. Afzal Mehmood (2011 SCMR 551) and Muhammad Yar vs. Muhammad Amin (2013 SCMR 464). 12. Be that as it may, there is another important principle of law laid down by this Court which is applicable to the facts of the present case. An heir, who is directly affected by a wrongfully recorded mutation of inheritance, fails to challenge such mutation for a considerable length of time until his death, thereby deprives his heirs of locus standi to dispute such mutation on the ground of his estoppel, abandonment of claim/cause of action. Reference in this regard is made to Abdul Haq vs. Surraya Begum (2002 SCMR 1330), Kala Khan vs. Rab Nawaz (2004 SCMR 517) and Muhammad Rustam vs. Makhan Jan (2013 SCMR 299). The appellants’ suit is not maintainable under that principle as well. 13. The argument of the learned counsel for the appellants that the aforementioned case law on locus standi is distinguishable on the facts of the present case because Muhammad Nawaz had not acquiesced to the impugned mutation but had once challenged the same does not carry weight. The forbearance by Muhammad Nawaz to dispute the impugned mutation on the basis of his oral compromise either constitutes the satisfaction of his claim or the abandonment to his grievance and cause of action. In either case, the result deprives the C.A.446 of 2012 10 appellants of their locus standi to assert and allege the forgone claim or entitlement. Finally, the judgments of the learned Trial Court and the learned Revisional Court were required to and have given their findings on the preliminary issue framed in the case. The avoidance by the learned Appellate Court to give its finding on that issue without giving reasons misdirects the proceedings. A short question of law is involved for which the requisite material was available on record for the learned High Court to decide the same in order to nip the appellants’ still born claim in the bud. Accordingly, we consider that the impugned Revisional and Trial Court judgments have arrived at the right conclusion that the suit filed by the appellants is barred by law. For the foregoing reasons, we do not find any merit in this appeal; as such the same is dismissed. No order as to costs. J. J. Islamabad, 20.04.2016. Irshad Hussain /* 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 TARIQ PERVEZ CIVIL APPEAL NO.448 OF 2014 (Against the judgment dated 5.3.2014 of the Election Tribunal, Sukkur passed in E.P.No.342/2013) Muhammad Ibrahim Jatoi …Appellant(s) VERSUS Aftab Shaban Mirani etc. …Respondent(s) For the appellant(s): Mr. Muhammad Akram Sheikh, Sr. ASC For respondent No.1: Sardar Muhammad Latif Khan Khosa, Sr. ASC Mr. M. S. Khattak, AOR For other respondents: Ex-parte Date of hearing: 04.01.2016 … ORDER MIAN SAQIB NISAR, J.- This appeal under Section 67(3) of the Representation of People Act, 1976 (Act) assails the judgment dated 5.3.2014 passed by the learned Election Tribunal, Sukkur, whereby the Tribunal had accepted the election petition of the respondent. 2. The brief facts of the case are:- the appellant and respondent No.1 (respondent) contested for the National Assembly seat NA-202 Shikarpur-I in the general elections conducted on 11.5.2013. The appellant, who was declared a returned candidate by the Election Commission of Pakistan (ECP) vide notification dated 25.5.2013, obtained 54,633 votes whereas the respondent (runner up) secured 53,381 votes, with the differential between the two being 1,252 votes. The respondent challenged the election of the appellant primarily on the Civil Appeal No.448 of 2014 -: 2 :- grounds that the appellant secured his election by resorting to corrupt and illegal practices, and that a large number of bogus votes were got cast by him. In view of the divergent pleadings of the parties the following issues were framed:- “1. Whether the petition is not maintainable in terms of S. 54 and 55 of Representation of People Act, 1976? 2. Whether Respondent No.1 Returned Candidate committed illegal and corrupt practices in the election process by way of coercive methods, manipulating bogus votes, stuffing the ballot boxes with bogus ballot papers? 3. Whether the Returning Officer and other election staff had acted in violation of provisions of the Representation of Peoples Act, 1976? 4. Whether the Respondent No.1 stuff the bogus votes using all foul means and the ballot papers bears bogus thumb impressions on counter-foils and such report is called from NADRA authorities by referring thumb impressions on the counter-foils, Pictorial Electoral List? 5. Whether free, fair and transparent election is not held in the constituency NA-202 Shikarpur-I? 6. What should the order be?” The parties led their evidence and after conclusion of the trial the learned Tribunal declared the result of 21 polling stations (it is not necessary to give the number of each polling station) declaring the appellant as the returned candidate as void and ordered re-polling of the said 21 polling stations. It may be pertinent to mention here that during the course of proceedings, the respondent moved an application seeking verification of the counterfoils of the said 21 polling stations and the learned Civil Appeal No.448 of 2014 -: 3 :- Tribunal through order dated 20.8.2013 allowed such material to be examined by NADRA. The NADRA team upon examination submitted a report to the learned Tribunal (which shall be analyzed later), however it is on the basis of such report that the election was directed to be re- conducted in the said 21 polling stations. In this regard it may be mentioned that as the appellant in his appeal against the impugned judgment could not get the interim relief and the election to the 21 polling stations were held in the meantime per the learned Tribunal’s judgment and now on account of the result emerging due to re-election in these polling stations the respondent has been declared to be the returned candidate by a margin of 233 votes. It may also be stated here that the order dated 20.8.2013 through which the verification of the counterfoils by NADRA was directed, was assailed by the appellant through a constitution petition before the learned High Court of Sindh which has been dismissed vide judgment dated 25.3.2015 and no further challenge was made thereto, thus the order has attained finality. 3. As has been stated earlier the learned Tribunal founded its entire decision on the report of NADRA and thus the true attack made by the learned counsel for the appellant qua the said report is not only about its merits but also vis-à-vis the jurisdiction of NADRA to carry out such verification process under the Act and the National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance). The learned counsel further submitted that the learned Tribunal also had no jurisdiction under the law to seek verification of the material of the 21 polling stations. 4. Be that as it may, as mentioned above this appeal came up for hearing earlier and the appellant had asked for interim relief in the Civil Appeal No.448 of 2014 -: 4 :- form of suspension of the impugned judgment because thereunder the re-election to 21 polling stations was directed to be held but this temporary injunction was refused to the appellant vide order dated 8.4.2014 passed by this Court (we shall analyze the order and the effect thereof in the course of this decision). Learned counsel for the appellant has argued that the election petition filed by the respondent was not verified in accordance with law and it was not supported by a full affidavit as is mandated by the Sindh Chief Court Rules and therefore, such petition was liable to be dismissed summarily as per Section 55 of the Act. It is also submitted that the learned Tribunal has not taken into consideration the oral evidence led by the respondent (election petitioner), thus there was no positive evidence for the purposes of declaring the election as null and void, rather the learned Tribunal has simply relied upon the report of NADRA which according to the learned counsel for the appellant is an invalid report for the following reasons:- a) The absence of the authority of NADRA to either get involved in the process of verification or to provide any expert opinion under the Act; b) There is no mandate under the NADRA Ordinance enabling NADRA to carry out such kind of a function of verification or opining about the validity or otherwise of the counterfoils or to resolve election disputes; c) That NADRA did not have the capacity to render a reliable piece of admissible evidence which is above suspicion and beyond reproach on account of which it can be held that such is an expert evidence so as to be made the basis for annulling the election or resolving a dispute therein; Civil Appeal No.448 of 2014 -: 5 :- d) That the obtaining of ridges and fingerprints on a piece of paper is totally different from the global model of obtaining fingerprints through a modern device such as live scan fingerprinting. Learned counsel also referred to the parliamentary proceedings and submitted that the mere fact of non-verification of 60-65% of votes would not result in the automatic conclusion that the said percentage of votes is bogus. 5. While dealing with the fundamental rights of citizens under Article 17 which includes the right to seek election to Parliament and Provincial Assembly, every effort has to be made to safeguard and guarantee such rights and suspicious material should not be allowed to be made the basis for disenfranchising an elected representative of the people except on very strong and positive evidence. In this respect learned counsel for the appellant submitted that the material on the record in the shape of the NADRA report is not a replacement or substitute for the positive evidence needed in this regard. 6. It has also been submitted that according to the result which has emerged after the by-elections, the position of the 21 polling stations remained the same, in that, the appellant had obtained almost the same number of votes which he acquired in the general elections, whereas the respondent has an improved position but only for the reason that 8000 votes, earlier cast in favour of a candidate of a different party who did not contest the by-elections, came to his kitty. On various propositions learned counsel for the appellant had relied upon the judgments reported as Lala Shakeel-ur-Rehman Vs. Dr. Muhammad Ashraf Chohan (2009 CLC 1302); Abdul Rahim Khoso Civil Appeal No.448 of 2014 -: 6 :- Vs. Mir Hazar Khan Bijrani (2004 CLC 77); Engineer Jameel Ahmad Malik Vs. Ghulam Sarwar Khan and 6 others (2004 CLC 914); Engineer Jameel Ahmad Malik Vs. Shaukat Aziz and 6 others (2007 CLC 1192); Bashir Ahmad Vs. Abdul Wahid (PLD 1995 Lah 98); Muhammad Anwar and others Vs. Mst. Ilyas Begum and others (PLD 2013 SC 255); In the matter of: Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759); Suo Motu Case No.13 of 2009 (PLD 2011 SC 619); A. C. Jose Vs. Sivan Pillai and others (AIR 1984 SC 921); Tanvir Ashraf Vs. Ch. Riasat Ali and 5 others (2004 YLR 659); Mian Ejaz Shafi Vs. Syed Ali Ashraf Shah and 11 others (PLD 1995 SC 43); Ali Hasan @ Jamshaid Vs. The State (2012 SCMR 242); Muhammad Ayub Vs. Iftikhar Ahmad Qureshi, Returning Officer, for Senate Elections 2006 FATA and 9 others (2007 CLC 1673); M. Budda Prasad Vs. Simhadri Satyanarayana Rao and others (1994 SCMR 446); Hari Ram Vs. Hira Singh and others (AIR 1984 SC 396); Chaitanya Kumar Adatiya Vs. Smt. Sushila Dixit and others (AIR 1975 SC 1718); Ram Sewak Yadav Vs. Hussain Kamil Kidwai and others (AIR 1964 SC 1249); Dr. Akhtar Hussain Khan and others Vs. Federation of Pakistan and others (2012 SCMR 455); The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi Vs. Saeed Ahmad Khan and others, and The Secretary, Department of Education, Government of Punjab Vs. M. R. Toosy, Ex-Principal, Government College, Sargodha and others (PLD 1974 SC 151); Hukmat Khan Vs. Sardar Asghar Ali and another (PLD 1958 (W.P.) Lah 962); Asif Nawaz Fatiana Vs. Walayat Shah and others (2007 CLC 610); Sardar Abdul Hafeez Khan Vs. Sardar Muhammad Tahir Khan Loni (1999 SCMR Civil Appeal No.448 of 2014 -: 7 :- 284); Ch. Muhammad Abdullah Vs. Ch. Abdul Wakil and others (PLD 1986 SC 487); Samant N. Balakrishna, etc. Vs. George Fernandez and others etc. (AIR 1969 SC 1201); Maulvi Abdul Ghani and another Vs. Election Tribunal, Balochistan and others (1999 SCMR 1); Mian Shah Jehan Vs. Abdus Subhan Khan and others (1988 CLC 750); Capt. Syed Muhammad Ali Vs. Salim Zia (1999 CLC 1026); Capt. Syed Muhammad Ali Vs. The Returning Officer, P.S. 89, District Courts, Karachi and 11 others (1999 CLC 2039); Col. (Retd.) Syed Mukhtar Hussain Shah Vs. Wasim Sajjad and 30 others (PLD 1986 SC 178); Khan Muhammad Yusuf Khan Khattak Vs. S. M. Ayub and 2 others (PLD 1973 SC 160); Syed Saeed Hassan Vs. Pyar Ali and 7 others (PLD 1976 SC 6); Muhammad Saeed and 4 others Vs. (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others (PLD 1957 SC (Pak.) 91); Syed Abdul Latif Shah Vs. Ali Muhammad Khan and others (2004 MLD 36); Peter John Sahotra Vs. Returning Officer and others (1995 CLC 394); Abdul Raja Razzak Vs. Abdul Hakeem Baloch and 27 others (2014 CLC 574); Bahader Khan Vs. The State and another (2012 PCrLJ 24). 7. On the contrary, learned counsel for the respondent has made reference to an order passed by this Court on 8.4.2014 and has argued that all the points which have been raised by the appellant’s learned counsel have already been attended to and answered against him in the said order. It is also argued that the appellant had himself applied for the verification of votes at 16 polling stations by stating in clear and unequivocal terms that verification from NADRA should be obtained which is very reliable and this was consented to very candidly Civil Appeal No.448 of 2014 -: 8 :- by the respondent, however subsequently the appellant backed out and retreated from this offer, therefore it does not lie with the appellant to raise any objection to the competence and authority of NADRA for verification of the election material. It is also submitted that earlier the interim order through which the verification by NADRA was directed was challenged by the appellant though a constitution petition before the learned High Court which was decided against him and this order had not been challenged further resultantly the appellant is now precluded from challenging that said order by saying that it is against the authority of NADRA (note:- it has been submitted that after the elections at 21 polling stations, the appellant only assailed before the Election Tribunal (perhaps) some illegalities qua 7 polling stations which were found to be very minor but no further challenge was put forth as the appellant did not file any election petition to challenge the outcome of the election after re-polling at these 21 polling stations). 8. Heard. As far as the verification of the petition is concerned, suffice it to say that from the written statement filed by the appellant, there is no serious objection about the verification of the election petition, rather the objection raised was about the annexures to the petition and this also is not one of the grounds set out by the appellant in the present memo of appeal. As regards the argument now raised that the election petition is not supported by a full affidavit as per the requirement of the provisions of the Sindh Chief Court Rules, suffice it to say that when one looks at Section 55 of the Act, the only requirement of law is regarding verification as per the provisions of Order VI Rule 15 of the Code of Civil Procedure, 1908 (CPC) and not vis- à-vis any affidavit required to be given in support of the election petition. Therefore, the argument about a full length affidavit has no substance. As far as the verification of the election petition otherwise is Civil Appeal No.448 of 2014 -: 9 :- concerned, we have examined the document and find that a short affidavit to that effect in support thereof has been given which duly fulfills the requirements of Order VI Rule 15, CPC as has been held in the judgments reported as Sardarzada Zafar Abbas and others Vs. Syed Hassan, Murtaza and others (PLD 2005 SC 600) and Lt. Col. (R) Ghazanfar Abbas Shah Vs. Mehr Khalid Mehmood Sargana etc. (2015 SCMR 1585). As regards the other plea that there is no positive evidence led by the respondent to prove corrupt and illegal practices or other illegalities in the conduct of the election and whatever evidence was led by the respondent was not believed by the learned Tribunal, suffice it to say that regardless of the evidence led by the respondent, the Tribunal for appropriate reasons had sought verification of the election material from NADRA and this order when challenged by the appellant in a constitution petition has been upheld by the learned Sindh High Court and no further challenge was made before this Court. Therefore for all intents and purposes the order has attained finality and it cannot be called into question in an indirect manner as has been now done by the learned counsel. Besides, it may be pointed out that the appellant himself through an application dated 24.8.2013 had sought the verification of the election material for 16 polling stations (maybe for polling stations other than the said 21) and categorically stated that “verification of thumb impressions and CNIC Nos. from NADRA, would bring the credibility the result of election”. Obviously in the above situation the appellant is estopped by his own conduct from saying now that the election material could not be referred to NADRA for examination and verification. 9. As far as the plea that NADRA does not have the requisite mandate under the provisions of the Act or the rules framed Civil Appeal No.448 of 2014 -: 10 :- thereunder, suffice it to say that this in no way takes away the jurisdiction of the learned Tribunal where the laws of the CPC and evidence are duly applicable to seek the assistance and expert opinion from any organization (see Section 64 of the Act). It is an exercise of appropriate authority by the learned Tribunal that verification was sought for. As regards the argument that there is no mandate with NADRA allowing for such verification, it may be mentioned that NADRA is meant for the purpose of registration of citizens of the country and maintaining a database for multiple uses in efficiently and effectively running the affairs of the State and the general public in order to achieve the goals of good governance, public service and minimizing scope for corruption and inefficiency (as per the preamble to the NADRA Ordinance). Furthermore, Section 7(1)(i) of the NADRA Ordinance allows for NADRA to provide the requisite access into the National Data Warehouse (i.e. the central data warehouse based on the data and information from the Citizens Database) to all Government, semi-Government and private institutions in such manner and for such fee as may be prescribed by regulations. The above section can be read with Section 5(4)(h) which allows NADRA to charge a prescribed fee for its services or for provision of any information or report to any Governmental, private entity etc. from its databases, and such services/information to our mind can always be received and resorted to by the Courts and the Tribunals of law and the skill and expertise of NADRA can be taken as an expert opinion in terms of Article 59 of the Qanun-e-Shahadat Order, 1984. Therefore, being the only body vested with the authority by statute to issue NICs, the numbers of which are used as the primary method for identification of voters for the purposes of issuance of ballot papers and to cast their vote at an election, obviously where a question of any Civil Appeal No.448 of 2014 -: 11 :- voter’s identity is involved the process of verification and authentication should be carried out by NADRA. The process adopted by NADRA (which is enunciated by the NADRA report not only in this case, but by similar NADRA reports in numerous cases before this Court) is as follows:- the election material (including the statements of count, used counterfoils and photo electoral rolls) is received from the Election Tribunal which is subsequently scanned and loaded onto a database to preserve such material in electronic form. Such scanning operation is performed using auto-feed high speed scanners at an image quality of 400 dpi. Then the digitization operation takes place whereby the NIC numbers and fingerprints are electronically extracted from the scanned images. Before moving on to the actual verification of thumb impression process, NADRA first sifts the used counterfoils as follows:- (i) invalid CNIC on counterfoils, meaning thereby that such used counterfoils had NIC numbers which were never issued by NADRA, and also includes those counterfoils which contained no NIC number whatsoever; (ii) ‘out of constituency’ votes (but only if NADRA has the constituency mapping of the seat in question with their respective voter entries); (iii) duplicate voters on counterfoils, i.e. one CNIC appeared on more than one used counterfoil; and (iv) used counterfoils without fingerprints. After excluding the aforementioned categories of counterfoils, the remaining counterfoils’ fingerprints are run through the authentication process which is done by an Automated Fingerprint Identification System (AFIS), whereby fingerprints on used counterfoils are matched against the NADRA database of fingerprints. This process entails three results:- (i) fingerprints successfully authenticated, i.e. the fingerprint affixed on a used counterfoil (which contains a valid NIC) matches the fingerprint of the registered voter/citizen held with NADRA in its citizen database; and (ii) fingerprints failing authentication, i.e. the fingerprint Civil Appeal No.448 of 2014 -: 12 :- affixed on the used counterfoil (which contains a valid NIC) did not match the fingerprint of the registered voter/citizen held with NADRA in its citizen database; (iii) cases where there are some residue used counterfoils, i.e. where the fingerprints on used counterfoils (which contains a valid NIC) were of poor quality (for e.g. the ink was smudged, etc.) and thus could not be processed through the AFIS. 10. Besides from the statement of CW-1, a representative of NADRA, it is very much clear that NADRA has the requisite expertise in this behalf. Moreover, NADRA has prepared Standard Operating Procedures (SOPs) to which reference has been made in paragraph 6 of the report upon which the process identified in the report was observed. Obviously befalling such procedure the verification has been made and from the cross-examination of CW-1 conducted by the appellant we are of the considered view that a dent has hardly been made either qua the authority, expertise, skill or even the verification on merits of the report submitted by NADRA. It may also be added here that according to the NADRA report, the following illegalities have been found in the votes:- S. NO Description Count of Votes 1 Votes polled in polling stations whose election material was received by NADRA 16,469 2 Invalid NIC number mentioned on used counterfoils, this also includes such counterfoils that do not have CNIC mentioned over it. 2,283 3 Duplicate voters on used counterfoils 1,098 4 Used counterfoils without fingerprints 35 5 Fingerprints successfully authenticated on used counterfoils and ER 2,320 6 Fingerprints on used counterfoils and ER failing authentication 1,133 7 Fingerprints of bad quality affixed on used counterfoils 9,600 Civil Appeal No.448 of 2014 -: 13 :- From the above, it is sure that excluding 4,549 votes (combined count of votes at serial numbers 2, 3, 4, and 6) which is greater in number than the difference between the total number of votes obtained by the appellant and the respondent, i.e. 1,252 votes, would render the election result as being materially affected, and this is the reason which prevailed with the learned Tribunal for holding of fresh elections at 21 polling stations. We are not impressed with the argument of the learned counsel for the appellant that NADRA does not have any expertise in the matter or does not have the capacity or the mandate or the Election Tribunal had no authority to refer the election material to NADRA for the purposes of the dispute. 11. In view of the foregoing, we find that the learned Tribunal was justified and correct in declaring the result of 21 polling stations declaring the appellant as a returned candidate as void and ordering for re-election in the said 21 polling stations. 12. The above are the detailed reasons for the short order of even date whereby the appellant’s civil appeal was dismissed, which reads as:- “For the reasons to be recorded later, this appeal has no merit and is hereby dismissed.” JUDGE JUDGE JUDGE Islamabad, the 4th January, 2016 Approved For Reporting Waqas Naseer/*

{'id': 'C.A.448_2014.pdf', 'url': ''}

{'id': 'C.A.448_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE QAZI FAIZ ISA MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEAL NO. 45—L OF 2018 (Against the Judgement dated 10.04.2018 passed by the Lahore High Court in Insurance Appeal No. 18/2017 Rana Basit Rice Mills Private Limited…..…………………Appellant VERSUS Shaheen Insurance Company and another ………………………………………..…………………….Respondents For the Petitioner(s): Mr. Liaqat Ali Butt, ASC For the Respondent(s) Date of Hearing: Ch. Amjad Pervaiz, ASC 12.12.2019 JUDGEMENT MUSHIR ALAM, J.— The Appellant a limited liability company has assailed the judgment of Lahore High Court dated 10.04.2018. 2. Facts in brief are that the appellant Rana Basit Rice Mills Private Limited, through its Chief Executive, obtained from the Respondent Insurance Company a fire general policy to the tune of Rs. 150,002,000/- covering its stock of rice, paddy Machinery and building etc. as provided for in the Insurance Policy and detailed in paragraph 2 of the Insurance Petition against comprehensive insurable risk for a period 09.09.2011 to 09.08.2012 against the premium of Rs. 370,000/- 3. On fateful night between 13.06.12 and 14.06.12, a gust thunder storm caused losses to the appellants insurable interest covered under the insurance policy. Loss and damaged to the insurable interests were fully covered by the Insurance Policy. Appellant as required under the law and policy lodged the claim to the tune of Rupees 9,851,760/=. 4. The Respondent-Insurer to assess and evaluate the loss, appointed a surveyor who, after all requisite formalities, assessed and verified the loss to the tune of Rs. 49,57,083/-. The assessed claim was not paid within 90 days as mandated under section 118 of the Insurance CA 45-l/18 -2- Ordinance, 2000. Consequently, the Appellant invoked the jurisdiction of the Insurance Tribunal Punjab, Lahore on 06.12.12 and claimed loss of Rs. 98,51,760/- from the Responder-Insurer. 5. Insurance claim was contested by the Respondent-Insurer. A preliminary objection as to maintainability of Insurance Petition was raised on the ground inter alia that the petition was not filed by the authorized person as no resolution of the Board of Director was available on record. Respondent filed an application under Order VII Rule 11 CPC1 seeking rejection of Insurance Petition. 6. The Appellant, to meet the challenge posed by the Respondent, filed an application under Order VI Rule 17 read with Order VII Rule 18 and section 151 C.P.C, seeking amendment of the Petition to incorporate such fact and permission to place on record copy of Board Resolution authorizing the deponent of the Insurance Petition to file and contest the Insurance Petition for and on behalf of the Appellant. 7. Learned Insurance Tribunal adjudged both the applications collectively. Application filed by the Respondent Insurance company for the Rejection of the Insurance Petition did not found favour and the application for the amendment of Insurance petition and to place the Board Resolution on record, was allowed subject to cost, vide order dated 10.02.2014 in the following terms: “The perusal of the record reveals that the applicant is one of the owners of the firm which is a private one. He has brought on the record the resolution whereby the other partners have authorized him to pursue and file the case. Thus, it is an admitted fact that the case has been filed by one of the owners of the applicant firm and the error in question, is an irregularity. The applicant is an entity, it can sue and can be sued, therefore, the amendment sought for would neither change the complexion of the suit nor shall prejudice any party. The application for the insurance claim cannot be out-rightly dismissed on this ground since the applicant has filed this application to make the necessary rectification in this regard through the amendment sought for, in this application, therefore, in the interest of justice, this application for the amendment is accordingly accepted subject to payment of cost of Rs. 4000/. This order be annexed with the main file. 1 Page 59 of the Paper Book CA 45-l/18 -3- 8. No exception to the order passed by Insurance Tribunal as reproduced above, was taken by the Respondent Insurance company. The Petition progressed on its merits and the issues were framed on 11.09.14. Rana Abdul Basit, the Chief Executive of the Appellant Company appeared as AW-1, he produced the Board Resolution Ex- A1, beside claim documents, surveyor report assessing loss as exhibits No. Ex A-2 to Ex A-4. Examined Rana Muhammad Saleem as AW-2 and Malik Muhammad Saleem as AW-3. 9. Respondent Insurer only examined Ahsan ul Haq, Assistant General Manager Claims as RW-1. Repeated opportunities were availed to produce further evidence, ultimately side was closed on 26.6.2016 but, no other witness in rebuttal was examined. Instead of making final arguments after availing more than five opportunities for final arguments, the Respondents then filed another application under Order XIV, Rule 5 CPC seeking to frame additional issue as to maintainability of Insurance Petition. The learned Tribunal dismissed the application vide order dated 2.11.2016 and fixed the case for final arguments. 10. Learned Insurance Tribunal, on examination of evidence produced allowed the petition filed by the current Applicant vide order dated 22.11.2016 and as against the claim of Rupees 9,851,760/= granted the insurance claim only to the extent of Rs. 49,57,083/- as assessed by the Insurance surveyor along with liquidated damages under s.118 of the Insurance Ordinance. The liquidated damages were to be paid for the during the period for which the failure to make payment continues, from the date of occurrence till the realization of the claim, and was to be calculated at monthly rests at the rate of 5% higher than the prevailing base rate. The Respondents were directed to bear the cost of the case and to make the payment of the insurance claim and liquidated damages within a period of 30 days. 11. Respondent-Insurer filed an appeal before the Lahore High Court, Lahore under S.124(2) of the Insurance Ordinance, 2000 essentially on the grounds inter-alia that the current Appellant could not have filed the insurance petition since a board resolution authorizing the attorney was admittedly not present on the date of filing of the CA 45-l/18 -4- Insurance Petition. Learned Bench of the High Court swayed by the fact that no board resolution was filed when the Insurance Petition was filed by Rana Basit, the Chief Executive of the appellant Rice Mills, accepted the appeal vide order dated 10.04.18. Therefore, the current Appellants are before us under Article 185(2)(d) of the Constitution of Pakistan, 1973. 12. Arguments heard. Record perused with the assistance of learned counsels. 13. The pivotal issue before us that requires careful consideration is legal repercussions of where no Board Resolution is presented authorizing the deponent Rana Abdul Basit, the Chief Executive of the Appellant Company to file and contest the Insurance Petition. First case from our jurisdiction that considered identical issue, as is Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd.2 The issue before this Court was ‘whether the principal special officer/general attorney of the bank was competent to file the suit on behalf of the Plaintiff bank?’. This Court after taking stock of the facts on record held that: “It was apparent from the pleadings that the suit was being instituted by a constituted attorney of a public limited company. He could only do so if he was duly authorized in that behalf and occupied one or other of the offices mentioned in Rule 1 of Order XXIX of the Civil Procedure Code. A copy of the power of attorney had been produced which showed that Muhammad Khan had been empowered in that behalf but the question still remained to be ascertained as to whether those who gave him that power were competent to do so, as the authority was on behalf of a public limited company. For this purpose, a reference to the Articles of Association of the company was certainly necessary, see whether the Directors were competent to delegate such power. It was not necessary to see whether the Directors had in fact approved of the giving of such power-of-attorney to the person who presented the plaint. This was, however, proved by the production of the resolution of the Board of Directors as a matter of abundant caution. The additional evidence was to that extent, therefore, in our opinion, rightly 2 PLD 1966 SC 685 CA 45-l/18 -5- admitted. This was all that was required. It was not necessary to call the Managing Director as the Court calling for the additional evidence itself realized subsequently. Even the production of the resolution could have been dispensed with, as it was not strictly necessary” “Two points, of fundamental importance, require attention. Firstly, the Supreme Court held that an examination of the Articles of Association was necessary in order to ascertain whether the directors were empowered to delegate the power of instituting legal proceedings to someone else. Secondly, and perhaps even more importantly, the Supreme Court observed that it was not necessary to see whether, in fact, the board had actually done so. The production of the resolution passed in this regard was considered to have been only ‘a matter of abundant caution’, and it was expressly noted that it could have been dispensed with ‘as it was not strictly necessary’.”3 (underlined for emphasis) 14. The issue of a power of attorney not validly constituted due to the lack of board resolution was also considered by this Court in Central Bank of India Ltd. v. Taj ud Din Abdur Rauf4 wherein it was ruled that there is no specific requirement of law to prove a resolution passed by the Board of Directors. 15. The rationale provided in Central Bank of India5 and Australasia Bank Ltd6. was aptly summarized in the Sindh High Court decision of Pak Turk v. Turkish Airlines Inc.7, which received the nod of approval by this Court in the case of Rahat and Company, through Syed Naveed Hussain Shah v. Trading Corporation of Pakistan Statutory Corporation,8 as: “Where articles of the Company confer power on a particular person or director to institute legal action and that person or director institutes the suit there can be no additional requirement of a resolution of the Board of directors for the simple reason that such 3 Ibid at 695 4 1992 SCMR 846 5 1992 SCMR 846 6 PLD1966 SC 685 7 2015 CLC 1 8 2020 CLD 872= PLD 2020 SC 366 CA 45-l/18 -6- power is to be exercisable by a real person. However, where the power to institute the suit is conferred upon an artificial person or body e.g. the Board of Directors or a Committee ... the requirement to produce and prove the resolution passed by that artificial person or body cannot be dispensed with since such a person can only take a decision as a body through a resolution passed in a duly convened meeting and not otherwise. The above principles would also become applicable in the case of delegation or sub-delegation of powers i.e. in case the delegator is a real person (when articles confer the powers to institute legal action on a real person) all that would be required would be to scrutinize the articles and then the power of attorney to see whether it has been properly executed and confers the power so claimed. There would be no requirement to produce or prove the resolution from the Board of Directors in this regard.” 16. Furthermore, such defect is not fatal to the institution to the suit by the attorney as it can be cured with ease under the principle provided by the English Court of Appeal decision in Presentaciones Musicales SA v. Secunda and another9, and accepted by this Court in Rahat and Company10 which stated that as: “It is well recognized law that where a solicitor starts proceedings in the name of a plaintiff - be it a company or an individual - without authority, the plaintiff may ratify the act of the solicitor and adopt the proceedings. In that event, in accordance with the ordinary law of principal and agent and the ordinary doctrine of ratification the defect in the proceedings as originally constituted is cured: see Danish Mercantile co Ltd. v Beaumont,11 since approved by the House of Lords. The reason is that by English law ratification relates back to the unauthorised act of the agent which is ratified: if the proceedings are English proceedings, the ratification which cures the original defect, which was a defect under English law, must be a ratification which is valid under English law." 17. Another recent decision by this court in a Al-Noor Sugar Mills Ltd. v. Federation of Pakistan and others12 has also upheld this rule where the Respondent raised the objection that a board resolution 9 [1994] 2 All ER 737 10 PLD 2020 SC 366 11 [1951] 1All ER 925, [1951] Ch 680 12 2018 SCMR 1792 CA 45-l/18 -7- was not as filed when the appeal was filed but presented at a subsequent date. This Court dismissed the objection by reproducing the decisions stated above. 18. In light of the aforementioned debate, the lack of a board resolution authorizing the attorney does not invalidate the institution of the suit so long as the Articles of Association confer upon the person/persons to institute the suit in the company’s behalf. Even otherwise such a defect can always be cured by placing on record a Board Resolution issued even at a subsequent date, which would put the matter to rest. Respondent did not challenge the finding of the Insurance Tribunal before the High Court on merit of the Insurance claim as determined by the learned Tribunal, nor before us. Respondent- insurer throughout laid emphasis on maintainability of the Insurance Petition filed without Board Resolution, which as noted above, was allowed to be placed on record. Respondent was not able to show any prejudice was caused to the Respondent. The claim allowed by the Insurance Tribunal was based on the loss determined by the surveyor of the Respondents. Under the given facts and circumstances of the case, the appeal is allowed. Impugned judgement dated 11.04.2018 passed by the Lahore High Court is set aside and that of the learned Insurance Tribunal dated 22.11.2016 is restored. Judge Judge Judge ANNOUNCED IN Chambers At ISLAMABAD on_24.06.2021_______ Judge “Approved for reporting”

{'id': 'C.A.45-L_2018.pdf', 'url': ''}

{'id': 'C.A.45-L_2018.pdf', 'url': ''}

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.450 OF 2010 (Against the order dated 18.3.2010 of the High Court of Sindh at Karachi passed in C.P.No.D-777/2008) Collector of Customs Appraisement, Collectorate, Customs House, Karachi …Appellant(s) VERSUS M/s Gul Rehman, Proprietor M/s G. Kin Enterprises, Ghazali Street, Nasir Road, Sialkot …Respondent(s) For the appellant(s): Raja Muhammad Iqbal, ASC For the respondent(s): Mr. Azhar Maqbool Shah, ASC Mr. Ahsan Hameed Lilla, ASC Date of hearing: 25.11.2016 … ORDER MIAN SAQIB NISAR, J.- This appeal with the leave of the Court turns on whether the respondent is entitled to the refund of customs duty paid (along with the penalty), when, as per the case of the appellant the respondent was required to prove that the incidence of customs duty had not been passed onto the consumer in terms of the provisions of Section 19A of the Customs Act, 1969 (the Act), which it failed to do. 2. The facts are that the respondent is an importer of fabrics and it made a declaration in the bill of entry that the imported goods were covered by heading 5407.5200, attracting 14% customs duty. The department controverted this declaration and claimed that instead the correct PTC heading would be 5903.1000, on which 25% customs duty was payable. Pursuant to a show-cause notice, an order-in-original dated 3.7.2006 was passed in which the latter heading was held to be applicable Civil Appeal No.450 of 2010 -: 2 :- and the imported consignments were confiscated, an additional penalty was imposed and the respondent was given the option under Section 181 of the Act to redeem the confiscated goods on payment of a fine. In order to get the consignments released the respondent made the requisite payments but simultaneously assailed the order-in-original before the Collector of Customs, Sales Tax & Federal Excise (Appeal) [Collector (Appeals)] who, vide order dated 8.12.2006, accepted the plea of the respondent and determined that the appropriate heading was indeed 5407.5200 and there was no mis- declaration by the respondent. The department has admitted before us today that they did not challenge this order and thus for all intents and purposes it attained finality. Be that as it may, on account of the favourable order of the Collector (Appeals) the respondent sought refund of the amount paid by it on the basis of the order-in-original dated 3.7.2006. The department declined to refund the said amount. Instead, vide another order-in-original dated 5.3.2008 the department held that as the incidence of the duty had been passed onto the consumer by the respondent therefore it was not entitled to any refund in terms of Section 33 and 19A of the Act. This order was successfully assailed by the respondents through a constitutional petition filed before the learned High Court of Sindh, resulting in the impugned judgment. Leave in this case was granted vide order dated 30.6.2010, however it is important to note that in the same order an admission on behalf of the learned counsel for the appellant was recorded in the following terms:- “Raja Muhammad Iqbal, learned ASC for the petitioner contends that the petitioner department has no cavil to the classification of PTC heading made by appellate court of Collector of Customs in its order dated 8.12.2006.” Civil Appeal No.450 of 2010 -: 3 :- The only plea taken at the time of granting leave and which prevailed with this Court was whether the amount paid by the respondent could be refunded according to the mandatory provisions of Section 19A of the Act when the incidence of the duty had been passed onto the end consumer. 3. Learned counsel for the appellant, referring to Section 33 of the Act, argued that the proviso contained therein is clear, which states that, “Provided that no refund shall be allowed under this section if the sanctioning authority is satisfied that incidence of customs duty and other levies has been passed on to the buyer or consumer”. In this context he stated that according to Section 19A of the Act, it was for the importer to prove that the incidence of duty had not been passed onto the consumer, thus, by virtue of this strict liability, the burden was on the respondent to prove the same, in the absence of which it would be presumed that the incidence of duty had been passed onto the consumer. Hence refund was impermissible under the law. 4. Heard. We find that Section 33 of the Act has to be read as a whole in order to appreciate the letter and spirit of its proviso. The said section reads as under:- “33. Refund to be claimed within one year.-(1) No refund of any customs-duties or charges claimed to have been paid or over-paid through inadvertence, error or misconstruction shall be allowed, unless such claim is made within one year of the date of payment: Provided that no refund shall be allowed under this section if the sanctioning authority is satisfied that incidence of customs duty and other levies has been passed on to the buyer or consumer. Civil Appeal No.450 of 2010 -: 4 :- (2) In the case of provisional payments made under section 81, the said period of one year shall be reckoned from the date of the adjustment of duty after its final assessment. (3) In the case where the refund has become due in consequence of any decision or judgment by any appropriate officer of Customs of the Board or the Appellate Tribunal or the Court, the said period of one year shall be reckoned from the date of such decision or judgment, as the case may be.” 5. Thus it is clear from the language of Section 33(1) that refund in terms thereof is to be allowed only where/if customs duty has been paid as a result of some inadvertence, error or misconstruction, which is not the position in the present matter. Right from the beginning the respondent has agitated that the declaration made by it under PTC heading 5407.5200 was correct. There was no inadvertence, error or misconstruction involved in such declaration whereas it has been the stance of the department that this heading was incorrectly attributed to the goods. This issue was conclusively resolved by the Collector (Appeals) vide its order dated 8.12.2006 in favour of the respondent, which, as mentioned earlier, has attained finality. 6. Before proceeding further, we find it pertinent to discuss the purpose and scope of a proviso; in relation to the arguments submitted before us in respect of the proviso to Section 33(1) of the Act. Generally a proviso is an exception to or qualifies the main provision of law to which it is attached.1 Its purpose is to qualify or modify the scope or ambit of the matter dealt with in the main provision, and its effect is restricted to the particular situation specified in the proviso itself.2 Further, it is a settled 1 Per Anwar Zaheer Jamali, J in Dr. Muhammad Anwar Kurd and 2 others Vs. The State through Regional Accountability Bureau, Quetta (2011 SCMR 1560). 2 Interpretation of Statutes (11th Ed.), N. S. Bindra. Civil Appeal No.450 of 2010 -: 5 :- canon of interpretation that a proviso is to be strictly construed3 and that it applies only to the particular provision to which it is appended4. Whilst holding that a proviso is limited to the provision which immediately precedes it, Shafiur Rahman, J, in a four member judgment of this Court reported as K.E.S.C. Progressive Workers’ Union through its Chairman and others Vs. K.E.S.C. Labour Union through its General Secretary and others (1991 SCMR 888) cited with approval, inter alia, the following principles:- “(i) Wilberforce on Statute Law, page 303: "A proviso is of great importance when the Court has to consider what cases come within the enacting part of a section and it is always to be construed with reference to the preceding parts of the clause to which it is appended." (ii) Maxwell on the Interpretation of Statutes. Twelfth Edition by P. St. J. Langan, page 189: "It will, however, generally be found that inconsistencies can be avoided by applying the general rule that the words of a proviso are not to be taken "absolutely in their strict literal sense," but that a proviso is "of necessity ...limited in its operation to the ambit of the section which it qualifies". (v) The Construction of Statutes by Earl T. Crawford, page 605: "As a general rule, however, the operation of a proviso should be confined to that clause or portion of the statute which directly precedes it in the statute".” (Emphasis supplied) 3 Sh. Liaquat Hussain and others Vs. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504). 4 Per Hamoodur Rahman, J in Pramatha Nath Chowdhury and 17 others Vs. (1) Kamir Mondal, (2) Ismail Mondal, (3) Baju Mondal alias Hagura Mondal and (4) Dukha Mondal (PLD 1965 SC 434). Civil Appeal No.450 of 2010 -: 6 :- Therefore the proviso to Section 33 has to be confined to the particular sub- section to which it is attached, i.e. sub-section (1), and if the case does not fall within the purview of such sub-section in that the customs duty was not paid as a result of inadvertence, error or misconstruction then obviously the proviso would not be relevant. Before a proviso can have any application, the section itself must apply. A holistic reading of Section 33 of the Act, particularly the provisions of sub-section (3), clarifies that where a refund becomes due as a result of any decision or judgment passed by a customs officer, Appellate Tribunal etc., the proviso to sub-section (1) would not be applicable because no such proviso is attached to sub-section (3), meaning thereby that the refund has to be made notwithstanding the fact that the incidence of customs duty had been passed onto the customer and therefore Section 19A of the Act would not be attracted. Resultantly we do not find any merit in this appeal which is accordingly dismissed. JUDGE JUDGE JUDGE Bench-I Islamabad, the 25th November, 2016 Approved For Reporting Ghulam Raza/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEAL NO.467 OF 2015 (On appeal from judgment dated 18.2.2015, passed by the Election Tribunal, Rawalpindi in EP No.242/2013/RWP/11/2013) Malik Shakeel Awan … Appellant Versus Sheikh Rasheed Ahmed and 21 others … Respondents For the Appellant : Mr. Muhammad Ilyas Sheikh, ASC Syed Rifaqat Hussain Shah, AOR For Respondent No.1 : Mr. Abdur Rashid Awan, ASC with Mr. M.S. Khattak, AOR Date of Hearing : 20.03.2018 JUDGMENT SH. AZMAT SAEED, J.- This Civil Appeal under Section 67(3) of the Representation of the People Act, 1976 is directed against the judgment dated 18.02.2015 of the Election Tribunal, Rawalpindi, whereby the Election Petition i.e. EP No.242/2013/RWP/11/2013 filed by the present Appellant challenging election of Respondent No.1 has been dismissed. CA.467/2015 2 2. After having read the order authored by my learned brother Qazi Faez Isa, J., I find myself unable to append my signatures of concurrence thereto. It has been suggested that the decision of the instant Appeal be deferred till the questions as raised and enumerated by him are finally adjudicated by the Full Court. Such exercise, if undertaken, is unlikely to be completed before the proposed General Election of 2018. Election disputes both at the stage of scrutiny of the Nomination Papers and subsequently agitated through proceedings before the Election Tribunals, the learned High Courts and this Court are an integral part of the election process both legally and politically. If the course of action as suggested by my learned brother Qazi Faez Isa, J., is followed then all the election disputes which will inevitably crop up before the Returning Officers, Tribunals and the High Courts or this Court would also not be adjudicated upon till the decision of this Appeal as such election disputes too, more often than not revolve around the questions raised. In such circumstances, the very validity of the proposed General Elections of 2018 would become questionable and the acceptance of its result by the participants almost impossible. In fact, the entire CA.467/2015 3 electoral process would be put at risk with repercussions too grave even to be contemplated let alone articulated herein. 3. Even otherwise, the present lis pertains to the validity of a judgment of the Election Tribunal challenged through the instant Appeal under Section 67 (3) of the Representation of the People Act, 1976 (RoPA) while through the question raised a very wide net has been cast encompassing also the jurisdiction of this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 as well as the impact of various provisions relating to qualifications and disqualifications of Members of the Parliament and the Provincial Assemblies. Several of the questions raised obviously do not arise at the lis at hand, while the others have been answered definitively by this Court in its various judgments. 4. In our legal system, law evolves brick by brick and from judgment to judgment. If the judgments pertaining to electoral disputes rendered by this Court are carefully read, objectively understood and the ratio thereof correctly identified, it would be clear and obvious CA.467/2015 4 that principles of law, in this behalf, appear to have been settled and consistently applied to the facts of each individual case. The difference in outcome, if any, is the result of difference in the facts of each case. Such principles of law do not require any further clarification on hypothetical considerations. The confusion, if any, is not in the judgments. 5. This Court, for that matter any court, seized of a lis is required to decide the same rather than to embark upon an academic exercise. We cannot shy away from adjudicating upon the lis that comes before the Court without attempting to ascertain and identify the principles of law as developed through the interpretative process of the previous judgments of this Court and apply the same to the facts of the case. 6. Be that as it may, the primary and elemental question pertaining to electoral disputes, the various jurisdictions which can be invoked for the settlement thereof and the matters relating to qualification and disqualification of the Members of the Parliament and the Provincial Assemblies came up before this Court in the case of Sher Alam Khan v. Abdul Munim and others (Civil Petition No.3131 of 2017) wherein this Court after CA.467/2015 5 examining the law as laid down by this Court, inter alia, in the judgments reported as (1) Muhammad Jibran Nasir and others Vs. The State and others (PLD 2018 SC 351), (2) Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 SC 114), (3) Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SC 189), (4) Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and 9 others (PLD 2017 SC 265), (5) Khawaja Muhammad Asif v. Federation of Pakistan and others (PLD 2014 SC 206), (6) Mian Najeeb-ud-Din Owaisi and another v. Amir Yar Waran and others (PLD 2013 SC 482), (7) Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), (8) Air Marshal (Retd) Muhammad Asghar Khan v. General (Retd) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1), (9) Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089), (10) Muhammad Azhar Siddiqui v. Federation of Pakistan and others (PLD 2012 SC 774), (11) Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad CA.467/2015 6 and others (PLD 2012 SC 132), (12) Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365), (13) Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), (14) Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817), (15) Syed Fakhar Imam v. Chief Election Commission of Pakistan and others (PLD 2008 SC 730), (16) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), (17) Miss Benazir Bhutto v. Federation of Pakistan and others (PLD 1988 SC 416), (18) Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), (19) Muhammad Akram v. DCO, Rahim Yar Khan and others (2017 SCMR 56), (20) Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others (2016 SCMR 998), (21) Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others (2014 SCMR 1858), (22) Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), (23) Muhammad Khan Junejo v. Federation of Pakistan through Secretary, M/o Law Justice and Parliamentary Affairs and others (2013 SCMR 1328), (24) Abdul Ghafoor Lehri v. Returning CA.467/2015 7 Officer, PB-29, Naseerabad-II and others (2013 SCMR 1271), (25) Muddasar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80), (26) Suo Motu Case No. 10 of 2009 (Complaint regarding establishment of Makro-Habib Store on playground) (2010 SCMR 885), and (27) Bartha Ram v. Lala Mehar Lal Bheel and another (1995 SCMR 684), held as under: “27. An overview of the afore-quoted provisions of the Constitution, as interpreted by this Court through its various juridical pronouncements referred to and reproduced herein above leads to an irresistible and irrefutable conclusion that our Constitutional dispensation is erected upon the democratic principle that the authority vest with the people of Pakistan can only be exercised through their chosen representatives. Such authority, including the power of law making and control over the public exchequer is to be conferred upon the chosen representatives by way of trust and the trust can only be reposed upon those who are worthy thereof. 28. In the above context, the qualification and disqualification of persons, entitled to act as the chosen representatives of the people and to act on their behalf as Members of the Majlis- e-Shoora and the Provincial Assemblies are set forth in the Constitution itself, more particularly, in Articles 62 and 63 thereof as well as other sub- Constitutional legislation. An elaborate process and procedure has been prescribed by law to filter out those who are disqualified or not qualified to contest the elections to the Majlis-e-Shoora and the Provincial Assemblies as is apparent CA.467/2015 8 primarily from the provisions of ROPA of 1976. With regard to pre-election disqualification, such process includes objections before the Returning Officer at the time of filing of the Nomination Papers, an application to the ECP under Section 103-A of ROPA of 1976. And subsequently, an Election Petition before the Election Tribunal established under Article 225 of the Constitution. If no objection is raised or challenge thrown or relevant proceedings initiated before the appropriate forum at the appropriate time, the disqualification of a candidate is not cured nor an abscent qualification acquired. 29. Consequently, where a disqualified or unqualified person slips through the cracks sneaks into the Majlis-e-Shoora or the Provincial Assemblies, his presence in the said House can always be challenged through exercise of the Constitutional jurisdiction of this Court under Article 184(3) of the Constitution and before the learned High Court under Article 199 of the Constitution by way of a Writ in the nature of quo warranto. Even where a matter comes before this Court regarding the qualification or disqualification of a Member of the Majlis-e-Shoora or the Provincial Assemblies otherwise by way of proceedings other than under Article 184(3) of the Constitution, this Court not only has the jurisdiction to convert such proceedings to proceedings under Article 184(3) of the Constitution but is bound to do so, as to permit an unqualified or disqualified person to continue to defile and desecrate the Majlis-e-Shoora or the Provincial Assemblies and masqulate as a chosen representative of the people would amount to frustrating the Constitutional provisions. In such an eventuality, if this Court looks other way, it would perhaps constitute a failure to protect and preserve the Constitution. CA.467/2015 9 Thus, we find ourselves unable to decline the prayer of the Petitioner to examine the merits of the case so as to determine on the basis of the material available on record whether Respondent No.1 was qualified or disqualified from being a Member of the Provincial Assembly, KPK. Any refusal on our part to avoid or evade such an exercise would constitutes a departure from the law as laid down by this Court and perhaps would even amount to a betrayal of the Constitution. Hence, we convert these proceedings into Suo Motu proceedings under Article 184(3) of the Constitution.” 7. The questions raised by and large have been answered in the aforesaid judgment, which was challenged in review through Civil Review Petition bearing No.106-P of 2018, which was dismissed vide judgment dated 05.06.2018 by a Bench of this Court of which my learned brother Qazi Faez Isa, J., was also a Member. Perhaps thereby endorsing the law as enunciated in the judgment without the necessity of hearing by a Full Court. In all fairness, it must be mentioned that the review was dismissed after the order was scribed by my learned brother. 8. The observations of Asif Saeed Khan Khosa, J., with regard to the perceived lack of clarity in Article 62(1)(f) of the Constitution in the case reported as Ishaq Khan Khakwani and others v. Mian Muhammad Nawaz Shairf and others (PLD 2015 SC 275) have been quoted CA.467/2015 10 as a foundation for some of the questions posed in the order. Suffice it to say, much water has flowed under the bridge and this aspect of the matter has been dealt with by Asif Saeed Khan Khosa, J., himself in the judgment of this Court reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Miniser of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and 9 others (PLD 2017 SC 265). After reproducing the same observations in his note at page 417, paragraph 116, it was laid down as follows: “116. It may be true that the provisions of Article 62(1)(f) and the likes of them had been inserted in the Constitution through an amendment by an unrepresentative regime of a military ruler but at the same time it is equally true that all the subsequent democratic regimes and popularly elected Parliaments did nothing either to delete such obscure provisions from the Constitution or to define them properly so that any court or tribunal required to apply them may be provided some guidance as to how to interpret and apply them. Be that as it may the fact remains that the said provisions are still very much a part of the Constitution and when they are invoked in a given case the courts and tribunals seized of the matter have no other option but to make some practical sense of them and to apply them as best as can be done. Before application of those provisions to real cases it is imperative to understand as to why such provisions were made a part of the Constitution and where do they stand in the larger design of the Constitution.” CA.467/2015 11 9. The issues pertaining to the interpretation of Article 62(1)(f) of the Constitution has been adjudicated upon in the aforesaid judgment primarily via the majority view which was also reflected in the judgment passed in Civil Petition No.3131 of 2017, where-against a Civil Review Petition, as stated earlier has been dismissed by a Bench of which my learned brother Qazi Faez Isa, J., was a Member. 10. With regard to the exercise of jurisdiction by this Court under Article 184(3) of the Constitution, some hesitation has been noticed due to the absence of provision of appeal against a judgment passed thereunder. A settled principle of interpretation of the Constitution has been enunciated by my learned brother (Qazi Faez Isa, J.) himself in his note in the case reported as District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401) wherein he held as follows: “81.(3)(b) Effect should be given to every word, paragraph, clause and article of the Constitution and redundancy should not be imported thereto.” 11. Thus, we cannot read a right of appeal into the Constitution against a judgment/order passed by this Court under Article 184(3) by adding a provision to the Constitution. We also cannot decline to exercise our CA.467/2015 12 jurisdiction under the said Article i.e. 184(3) merely because no appeal is provided for. Such interpretation would render the said Article redundant and a surplusage which is not permitted while interpreting the Constitution. 12. The question pertaining to the length of time for which a declaration or finding by a Court of Law that the person is not qualified in terms of Section 62(1)(f) of the Constitution shall ensure has also been answered in no uncertain terms by a five member Bench of this Court vide judgment dated 13.04.2018 passed in Civil Appeal No.233 of 2015 titled Sami Ullah Baloch v. Abdul Karim Nosherwani. 13. Where a misstatement or an inaccuracy or concealment is established, the candidate/member would always have the opportunity to offer an explanation. Such explanation may or may not be found acceptable. Such is the ratio of the judgment of this Court rendered in the case reported as Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others (2016 SCMR 733). In the said case, an Election Petition filed before the Election Tribunal. In the proceedings, it stood established that a criminal case registered against the candidate was not CA.467/2015 13 mentioned in his Nomination Papers as required. Such candidate offered an explanation which was accepted by this Court by way of the aforesaid judgment which is incidentally authorized by my learned brother Qazi Faez Isa, J., and I too was a Member of the said Bench. The said view i.e. in case of concealment, discrepancy and misstatement in the Nomination Papers an explanation thereof may be given by the candidate/member, which may or may not be accepted by the court. And only, if such explanation is found tenable no penal consequences would follow. The question of “strict liability” does not arise with regard to misstatements in the Nomination Papers. Such view was also followed in the judgments of this Court reported as Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) and Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SC 189). No departure has been made by this Court in the cases reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and 9 others (PLD 2017 SC 265) and (PLD 2017 SC 692). In the aforesaid case, the concealment of assets in the Nomination Papers filed by CA.467/2015 14 the Respondent in the said proceedings was established through an admission. At no point of time any explanation was offered, in this behalf. Therefore, the question of accepting or rejecting such explanation did not arise. Even in the Review Petition, no explanation was offered. However, an oblique reference in hypothetical term was only made. This aspect of the matter was dealt with and adjudicated upon by this Court in the judgment passed on such review reported as Mian Muhammad Nawaz Sharif and others v. Imran Ahmed Khan Niazi and others (PLD 2018 SC 1). Reference, in this behalf, may be made to para 11 of the said judgment. The relevant portion thereof is reproduced hereunder: “11. The argument that the omission to disclose assets could possibly be unintentional in the circumstances of the case would have been tenable had the petitioner been a novice or a new entrant in business and politics. But where he has been neck deep in business and politics ever since early 80s’ it is unbelievable that he did not understand the simple principle of accounting that his accrued and accumulated salary of six and a half years was his asset and liability of the company he was an employee of. Even otherwise, this argument cannot be given much weight when it has not been pleaded by the petitioner that the omission to mention the asset was accidental, inadvertent or unintentional. …” (emphasis supplied) CA.467/2015 15 Why no explanation was given or attempted to be given will always remain a mystery. 14. The distinction between an offence contemplated by Section 9 sub-section (v) of the NAB Ordinance, 1999 for possession of assets beyond known sources of income and the lack of qualification in terms of Article 62(1)(f) of the Constitution arising from the concealment of assets in the Nomination Papers is rather obvious. The proceedings before the Accountability Court under the NAB ordinance are criminal in nature unlike the proceedings which may result in a declaration that a person is not honest on account of concealing of assets in his Nomination Papers. The fora in which the proceedings are initiated are distinct. The former commence in the Accountability Court while the latter would arise from a Tribunal established under Article 225 of the Constitution in the High Court or in this Court in its Constitutional jurisdiction. The consequences are also distinct and different. A person found guilty of an offence under Section 9 of NAB Ordinance would be convicted for a term of imprisonment and disqualified while in the latter case a person, if elected, would be de-seated and may also be held not to be qualified. CA.467/2015 16 15. However, more critical difference is that while in proceedings under the NAB Ordinance, if it is proved that a person owns property or assets it is for such person to answer the question as from which lawful pecuniary resources such assets were acquired. In the eventuality, it is discovered that an asset or assets have not been mentioned in the Nomination Papers and owned by the candidate or his dependants, the question required to be answered is totally different. He is expected to explain why such assets were not mentioned in the Nomination Papers (not how such assets were acquired). The requirements of the two provisions should not be intermingled. This distinction, in this behalf, was kept in view by this Court while adjudicating upon in the case reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and 9 others (PLD 2017 SC 265). It was established, in fact, admitted, that the assets owned were not mentioned in the Nomination Papers and no explanation, in this behalf, was offered, hence, the provisions of Article 62(1)(f) of the Constitution were held to be attracted. As regard to the source of funds for the CA.467/2015 17 acquisition of assets allegedly held by the Respondents directly or indirectly that matter was referred to proceedings under the NAB Ordinance. 16. The law as laid down by this Court in this behalf i.e. with reference to Article 62(1)(f) of the Constitution is unequivocal consistent and well established. It is the said principles of law which would require to be applied for a fair adjudication of the lis at hand. 17. Adverting now to the facts of the instant case, the main thrust of the contentions of the learned counsel for the Appellant was that Respondent No.1 had deliberately concealed his immovable property i.e. agricultural land in his Nomination Papers. It was his case that Respondent No.1 had declared his holdings to be 983 Kanals 17 Marlas while it has been established on record through cogent evidence that the said Respondent owned 1049 Kanals and 13 Marlas in Village Raman, Tehsil Fateh Jang, District Attock as is evident from Ex.P-1 Goshwara Malkiet pertaining to the ownership of Respondent No.1 in the said Village. Reference, in this behalf, was also made to Ex.P-2. The defence, in this behalf, put forward by the said Respondent was that CA.467/2015 18 there was only an inadvertent discrepancy in the Nomination Papers regarding the land holding as a result of a miscalculation. 18. With the help of the learned counsel, we have examined the evidence produced by the parties. The Nomination Papers filed by Respondent No.1 was brought on record as Ex.P-4. It was tendered into evidence on behalf of the present Appellant and is an admitted document. The said Nomination Papers Ex.P-4 consists of 96 pages. At page 4 against item No.14, the said Respondent has declared his land holding as 968 Kanals and 13 Marlas for the year 2012 and 983 Kanals and 17 Marlas approximately for years 2010-2011. The details of such agricultural land are given at page 79 of the Nomination Papers. With regard to the land holding in Village Raman, the date of purchase of each parcel of land and the quantum thereof has been specified (There is reference to agricultural land claimed to have bought and sold in another village which is not the subject matter of the dispute as raised by the Appellant). The details of the land purchased and the date of such purchase by Respondent No.1 given at page 79 of the Nomination Papers are as follows: CA.467/2015 19 Land Measuring Date of purchase Kanals Marlas 71 05 29.5.1986 128 17 29.5.1986 199 18 03.5.1986 101 18 05.7.1986 427 16 28.02.1996 110 15 29.3.1997 08 04 18.6.1998 33 04 04.10.1999 Total 1081 17 19. A simple mathematical exercise reveals that as per the details provided by Respondent No.1 in his Nomination Papers at page 79, he owns 1081 Kanals and 17 Marlas of land and in the grand total it has been incorrectly mentioned as 983 Kanals and 17 Marlas. This error appears to have crept into the printed Nomination Papers. The miscalculation between the area of agricultural land owned by Respondent No.1 scribed in the printed form and as mentioned item wise in the details at page 79 of the Nomination Papers is self- evident. As per the details, Respondent No.1 has perhaps declared a little more land than as alleged by the CA.467/2015 20 Appellant, thus, it can hardly be accused of concealing any asset especially as a portion of the land appears to be undivided share in various Khasra Numbers as is evident from the documents Ex.P-1 and P-2 produced by the revenue staff who entered the witness box on behalf of the Appellant. In the circumstances, the explanation offered appears to be reasonable and logical. Consequently, the conclusion drawn by the Election Tribunal that there was no concealment of agricultural land in the Nomination Papers filed by Respondent No.1 is based upon a correct and judicious appreciation of the evidence available on the record and in accordance with the law as laid down by this Court. Hence, no exception can be taken to such finding. 20. The Appellant also questioned the property i.e. House No.40, Sector-A, Golf City, Expressway, which respondent claimed to have acquired from Bahria Town. The said property is mentioned the Nomination Papers. The payments made for acquiring the same is also not disputed. Only issue raised by the Appellant is that its correct market value has not been disclosed in the Nomination Papers. In support of such contentions, the learned counsel for the Appellant referred to the CA.467/2015 21 statement of PW-7 an employee of Bahria Town. As noted above, the amount paid by the said Respondent for the said property is not disputed by either the Appellant or PW-7. Such consideration finds mention in the Nomination Papers. PW-7 stated that the other allottees paid a higher price for the similar properties but no document in support of such contention was produced by him. The payments by other purchasers would be a matter of record but the same was concealed from the Election Tribunal by PW-7. Furthermore, no document public or private evidencing any contemporaneous transaction of property in the vicinity disclosing the consideration has been produced in evidence by the Appellant. Nothing from the record of the Sub-Registrar of documents, in this behalf, is available. No person who entered into any such transaction of sale of property in the same area entered the witness box to prove or disprove the value of such property. In this view of the matter, it cannot be held that Respondent No.1 made any misstatement regarding the value of the said property, the ownership of which has been mentioned in the Nomination Papers along with the consideration paid therefor. In the circumstances, the finding by the learned CA.467/2015 22 Election Tribunal that there is no misstatement, in this behalf, with regard to the aforesaid House in the Nomination Papers is borne out from the record. No ground for interference with such findings has been made out by the learned counsel for the Appellant. 21. A half-hearted attempt was made by the learned counsel for the Appellant to dispute the income and sources thereof as mentioned by Respondent No.1 in his Nomination Papers. Such income is reflected in the Income Tax Returns of the said Respondent which are also available on the record and appended with the Nomination Papers as well as for earlier financial years produced by the Appellant himself wherein the source of income is set fourth. The Appellant could not through evidence disprove the declaration made by the Respondent in this behalf. No moveable asset or bank account or source of income other than as disclosed in the Nomination Papers has been proved in evidence by the Appellant. In this view of the matter the learned Election Tribunal rightly held that no material concealment or misstatement, in this behalf, in the Nomination Papers has been proved. CA.467/2015 23 22. Some allegations with regard to the conduct of the election on the day of the election and thereafter were raised before the learned Election Tribunal but not proved and not pressed before us during the course of hearing of this Appeal. 23. In view of the above, no exception can be taken to the findings returned and judgment delivered by the learned Election Tribunal while dismissing the Election Petition filed by the Appellant. Consequently, this Appeal must fail and is dismissed accordingly. Judge Judge ‘APPROVED FOR REPORTING’ Mahtab H. Sheikh/* Announced on ______________ at _______________ Judge IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEAL NO. 467 OF 2015 (On appeal from the judgment dated 18.02.2015 of the Election Tribunal, Rawalpindi passed in EP No.242/2013/RWP/11/2013) Malik Shakeel Awan. … Appellant VERSUS Sheikh Rasheed Ahmed and others. … Respondents For the Appellant : Mr. Muhammad Ilyas Sheikh, ASC. Syed Rifaqat Hussain Shah, AOR. For Respondent No. 1 : Mr. Abdur Rashid Awan, ASC. Mr. M. S. Khattak, AOR. Date of Hearing : March 20, 2018. JUDGMENT Qazi Faez Isa, J. This appeal assails the judgment of the Election Tribunal, Rawalpindi (“the Tribunal”) dated February 18, 2015 whereby the Election Petition filed by the appellant was dismissed. 2. The appellant challenged the election of Sheikh Rasheed Ahmed (respondent No. 1), who won the National Assembly seat from NA-55, Rawalpindi-VI by getting 88,627 votes against the appellant’s 75,306 votes. The elections were held on May 11, 2013. The appellant through his Election Petition assailed the candidature of Sheikh Rasheed Ahmed on a number of grounds, including that he had on solemn affirmation misdeclared his source of income and the bank profit earned by him, suppressed his total agricultural land holding Civil Appeal No. 467 of 2015 2 and misdeclared the value of his house. The other grounds taken in the Election Petition and in this Appeal were not pressed before us. 3. Mr. Muhammad Ilyas Sheikh, the learned counsel representing the appellant, states that the Nomination Form filed by Sheikh Rasheed Ahmed, on the basis of which he contested elections, is dated March 28, 2013 and was submitted to the returning officer on April 2, 2013. The disclosure as required to be made in serial 12, 14 and item 4 of the Nomination Form, the “Statement of Assets and Liabilities” and the document attached thereto titled “Details of Immovable Assets” is contrary to the facts. To understand the learned counsel’s contentions it would be appropriate to reproduce the same: “12. The income tax paid by me during the last three years is given hereunder: Total Income **Source of Income Tax Year Total Income Tax Paid 3134761/- PROFIT/PROPERTY 2010 Rs. 316341/- 3075048/- “ 2011 Rs. 307349/- 2248089/- “ 2012 Rs. 224883/- Note I: Attach copies of income tax returns of the years mentioned above. **If more than one sources of income, attach detail.” “14. The agricultural income tax paid by me during the last three years is given below: Tax Year Land Holding K M Agricultural Income Total Agricultural Income Tax Paid 2010 983-17 (APPROX) -NIL- -NIL- 2011 983-17 “ -NIL- -NIL- 2012 968-13 “ -NIL- -NIL- Note II: Attach copies of agricultural tax returns of the last three years mentioned above.” STATEMENT OF ASSETS AND LIABILITIES ASSETS ASSETS Cost of Assets Remarks 4. IMMOVABLE PROPERTY Open plots, houses, apartments, under construction properties, agricultural property, etc. (attach location, description, built up area and present market value of the house/apartment in which you are presently living). Rs.16,773,500/- DETAILS ATTACHED Civil Appeal No. 467 of 2015 3 DETAILS OF IMMOVABLE ASSETS S.No. ASSETS VALUE 1 D-267, Al-Rashid Market, Sarafa Bazar, Rawalpindi 1,655,500 2 House No. 40, Sector-A, Golf City, Bahria Town 10,200,000 3 Land Village Rama, Tehsil Fateh Jhang, District Attock 3,768,000 4 House, Farm, Shed etc, Fateh Jhang, District Attock 800,000 5 Tractor Trolly etc 350,000 TOTAL 16,773,500 According to the learned counsel, Sheikh Rasheed Ahmed in his Nomination Form disclosed that he owned 968 kanals and 13 marlas of agricultural land in the year 2012, which was a false declaration, as he owned 1081 kanals of land (“the agricultural land”). He also made a false declaration of his House No. 40, situated in Sector-A of Golf City, Bahria Town (“the said house”) by mentioning its value to be ten million and two hundred thousand rupees even though its value at the time of its sale was forty eight million rupees. 4. That with regard to the matter of the discrepancies in the payment of income tax the learned counsel refers to documents, however, from these documents it is difficult to establish the allegation. 5. To support his contention with regard to the agricultural land the learned counsel refers to the Goshwarah Haqeeqat (Exhibit P-1) and Jamabandi (Exhibit P-2) for the years 2008-09 which show the respondent No.1’s agricultural land holding to be 1049 kanals and 13 marlas. These two documents were produced through the witness (PW-8) Basharat Ali, Patwari of Halqa Rama, Tehsil Fateh Jhang, District Attock. PW-8’s predecessor Babar Khan, Patwari, had earlier come to give evidence before the Tribunal and had produced Exhibit Civil Appeal No. 467 of 2015 4 R-1 showing the respondent No. 1’s land holding, but before he could be cross-examined he was transferred. Exhibit R-1 shows respondent No.1’s agricultural land holding in the said halqa to be 1038 kanals and 8 marlas. He submits that even if Exhibit R-1 which respondent No. 1 admits is accepted, then too the respondent No. 1 in his Nomination Form had shown his agricultural land holding to be 968 kanals and 13 marlas whereas admittedly it was 1038 kanal and 19 marlas, therefore, he had not disclosed 70 kanals and 6 marlas of his agricultural land. The learned counsel refers to the affidavit-in- evidence (Exhibit P9) of the appellant, the relevant portion whereof is reproduced hereunder: “Respondent No. 1 owned agricultural land measuring 1049 Kannals 13 Marlas in Mouza Ramma Tehsil Fateh Jang District Attock however as per details attached/appended/mentioned in his nomination papers he declared land measuring 963 Kannals 13 Marlas. In this way he concealed 81 Kannals of land situated in the said Mouza. Respondent No. 1 himself declared his ownership, in his Wealth Statement, in the said Mouza as 1068 Kannals 08 Marlas as on 30-06-12 and land measuring 1083 Kannals 12 Marlas as on 30-06-11 whereas in his nomination papers he concealed his said ownership and declared as 968 Kannals 13 Marlas as on 30-06-12 and 983 Kannals as on 30-06-11.” The learned counsel submits that neither Basharat Ali (PW-1) nor the appellant (PW-8) were cross-examined on their testimony of the agricultural land holding of respondent No. 1 and thereby the fact of nondisclosure of the said agricultural land was deemed to be admitted by respondent No. 1. The learned counsel further states that respondent No. 1 in paragraph 14 of his affidavit-in-evidence (Exhibit R/3) stated that he owned 1081 kanals and 17 marlas of land, therefore, admittedly respondent No. 1 did not disclose 113 kanals and 4 marlas of land. The relevant portion from the affidavit- in-evidence of respondent No. 1 is reproduced hereunder: Civil Appeal No. 467 of 2015 5 “14. The Deponent owned and possessed land measuring 1081 kanals 17 marlas located at Mozia Rama, Tehsil Fateh Jang District Attock. The Deponent never concealed the ownership of the said property either in his returns filed before the tax department or in the nomination papers. Due to miscalculation the area has been shown as 968 kanals 13 marlas. If it is calculated correctly it comes 1081 kanals 17 marlas. The election Petitioner failed to examine the nomination papers seriously and not only stated wrongly in his election petition but also falsely deposed through Exhibit P/9 regarding the said land.” The appellant’s counsel states that in his cross-examination respondent No. 1 also admits that he had not mentioned his entire agricultural land holding in his Nomination Form, the relevant portion whereof is reproduced hereunder: “It is correct that I did not mention my total owned land measuring 1080/1090 Kanals in my nomination papers. Volunteered, that during the counting of measurement of land before the RO [Returning Officer] there was no calculator and for the first time in the nomination papers, the RO desired the exact measurement of land and there might be some mistake occurred in the nomination papers, however, the details of total land was attached. It is incorrect to suggest that my volunteered portion is incorrect, false and afterthought.” That the appellant’s learned counsel submits that in view of the referred to documents, the evidence and the admission of respondent No. 1, it is incontrovertibly established that respondent No. 1 misdeclared his agricultural land holding in the Nomination Form. The learned Presiding Officer of the Tribunal had also come to the conclusion that respondent No. 1 had not disclosed his entire agricultural land, but, according to the learned counsel, the learned Presiding Officer had illegally discounted it by holding, that “the difference in the measurement of agricultural land mentioned in the Civil Appeal No. 467 of 2015 6 documents above by no stretch of imagination amounts to concealment of assets”. 6. That as regards the said house the learned counsel for the appellant states that respondent No. 1 did not purchase the said house for Rs.10,200,000/-, as shown in his Nomination Form, but instead for Rs.48,000,000/-. He refers to the testimony of Sheikh Amjid, General Manager (Operations) of Bahria Town, Rawalpindi (PW-7) who produced the attested copy of “Allotment Certificate” issued by Bahria Town (Pvt.) Limited which shows that Bahria Town (Pvt.) Limited had allotted the said house to respondent No. 1. This witness testified that, “the market value of the said house at the time of booking was Rs.48,000,000/- and now the market value of this house is more than Rs.60,000,000/-”. The learned counsel states that respondent No. 1 however took the plea that he had paid only ten million rupees and its balance price was adjusted by giving 15 kanals and 4 marlas of his agricultural land to Bahria Town (Pvt.) Limited, however, when he was asked whether a sale deed was registered with regard to the said 15 kanals and 4 marlas of agricultural land or whether its transfer was effected by the Revenue authorities by mutation or otherwise, respondent No. 1 stated that, “this was his [Bahria Town (Pvt.) Limited] responsibility to transfer this land and if I am not going to transfer, the allotment of my house shall automatically be cancelled”. But, respondent No. 1 did not produce any document to support his contention that the allotment of his house would be cancelled. In response to the question about the market value of his agricultural land, respondent No. 1 answered that it was Rs.3,768,000/-, and as mentioned in the Nomination Form, therefore, the learned counsel states, that if this value is accepted it Civil Appeal No. 467 of 2015 7 would mean that the said 15 kanals and 4 marlas was worth just a few thousand rupees and shown to be two hundred thousand rupees in his Nomination Form, however, such value was false as the price of the said house was forty eight million rupees, and it is unbelievable that it was purchased for about one fifth of its price. With regard to the said house, the learned Presiding Officer of the Tribunal had held that, “even if there is a difference of price, it cannot be said to be a case of concealment of asset as respondent No. 1 had declared ownership of the said house”. The learned counsel states that the Nomination Form requires both the declaration of the asset as well as its “value” and the learned Presiding Officer could not have discarded one component thereof, and in doing so committed a material illegality. 7. Mr. Ilyas Sheikh, the appellant’s learned counsel, refers to section 12(2)(a) and (f), section 78(3)(d), and section 99(1)(f) of the Representation of the People Act, 1976 (“ROPA”) and Article 62(1)(f) of the Constitution to support his case for the disqualification of respondent No. 1. Reliance was also placed upon the following cases: Muhammad Rizwan Gill v Nadia Aziz (PLD 2010 Supreme Court 828), Shamuna Badshah Qaisarani v Muhammad Dawood (2016 SCMR 1420), Muhammad Ahmad Chatta v Iftikhar Ahmad Cheema (2016 SCMR 763), Muhammad Yousaf Kaselia v Peer Ghulam Mohy-ud-Din Chishti (PLD 2016 Supreme Court 689), Imran Ahmed Khan Niazi v Mian Muhammad Nawaz Sharif (PLD 2017 Supreme Court 265) (“Panama Papers-I”), Imran Ahmed Khan v Muhammad Nawaz Sharif (PLD 2017 Supreme Court 692) (“Panama Papers-II”) and Muhammad Nawaz Sharif v Imran Ahmed Khan Niazi (PLD 2018 Supreme Court 1) (“Panama Papers-III”). The learned counsel states Civil Appeal No. 467 of 2015 8 that the recent judgments of this Court and particularly those in the Panama Papers’ cases hold that the court may look at any material which comes before it and if the material suggests that a candidate has not disclosed all his assets in the Nomination Form he be disqualified and declared not to be honest/ameen in terms of section 99(1)(f) of ROPA and Article 62(1)(f) of the Constitution and thereby attract permanent disqualification. And, the nondisclosure and misdeclaration of assets was not excusable by respondent No. 1 who, as per his own showing, was an old hand in politics having been a member of the National Assembly, “for six times consecutively”. The learned counsel states that the appellant’s case is better than the facts of the Panama Papers’ cases wherein the elected person had denied the receipt of salary, but which was deemed to have become his asset. In the present case respondent No. 1 admits that he had not disclosed all of his agricultural land, and had falsely declared that he had given away 15 kanals and 4 marlas of land as part- payment for the purchase of the said house. The learned counsel concludes by stating that the respondent No. 1 himself was one of the petitioners in the Panama Papers’ cases (Constitution Petition No. 30 of 2016) therefore he cannot expect to be judged by a different standard himself. 8. Mr. Abdur Rashid Awan, the learned counsel representing respondent No. 1, relies upon the impugned judgment of the Tribunal which, according to him, is based on a correct assessment of facts and conforms with the legal principles enunciated by this Court. He states that the Election Petition did not specifically mention the agricultural land which was not disclosed nor the correct value of the said house in paragraph 14 but simply alleged that properties had Civil Appeal No. 467 of 2015 9 been concealed by respondent No. 1 in his statement of assets. The appellant only made these specific allegations in his affidavit-in- evidence, which, according to the learned counsel, was not a part of the pleadings. As regards the agricultural land the learned counsel took two fold pleas, firstly that the document titled “Details of Agricultural Land” provides the complete particulars of the agricultural land but a mistake in calculation was committed in clause 14 of the Nomination Form, and, alternatively, that, if at all nondisclosure is established it was a bona fide mistake and cannot be equated with a misdeclaration entailing disqualification and/or attracting the disqualification contemplated by section 99(1)(f) of the ROPA and/or Article 62(1)(f) of the Constitution. He next states that no advantage would accrue to respondent No. 1 in not disclosing all his agricultural lands nor would he gain an advantage by not showing the real value of the said house. The learned counsel states that judgments in the Panama Papers’ cases are not applicable to appeals filed under section 67(3) of the ROPA because the Panama Papers’ cases arose out of a petition directly filed before this Court under Article 184(3) of the Constitution. 9. We have heard the learned counsel for the parties and with their assistance examined the available record and the referred to cases. 10. The learned counsel for the appellant has not been able to satisfy us with regard to the alleged discrepancies in the payment of income tax and bank profit earned by respondent No. 1. Therefore, it would not be appropriate for us to declare that respondent No. 1 had provided incorrect information regarding his income tax on the basis Civil Appeal No. 467 of 2015 10 of mere inference nor will it be appropriate to enable the appellant to make out his case by recording additional evidence before this Court. 11. That with regard to the agricultural land and the said house Issue No. 9 was framed by the Tribunal: “Whether the respondent No. 1 concealed the facts of his properties in the declaration of assets against the provisions of the Constitution of the Islamic Republic of Pakistan”. As regards the matter of agricultural land there is un- rebutted evidence that respondent No. 1 owned more land than shown by him in his Nomination Form which respondent No. 1 admits to be 113 kanals and 4 marlas or 70 kanals and 6 marlas as per Exhibit R-1 which land was not disclosed by him in his Nomination Form. The document titled “Details of Agricultural Land”, referred to by the learned counsel representing respondent No. 1, also does not help him because therein respondent No. 1’s land holding is shown to be 968 kanals and 13 marlas so the plea of miscalculating is not sustainable. It is however entirely possible that this nondisclosure was an oversight by respondent No. 1 particularly when there appears to be no benefit or advantage accruing to him on account of such nondisclosure. 12. As regards the value of the said house, the General Manager (Operations) of the Bahria Town (Pvt.) Limited had mentioned that at the time of booking the price of the said house was forty eight million rupees, however, admittedly Bahria Town (Pvt.) Limited received a payment of only ten million rupees and, if the respondent No. 1 is to be believed, 15 kanals and 4 marlas of land, as consideration thereof. However, the said 15 kanals and 4 marlas of land admittedly still stands in the name of respondent No. 1; there is no sale deed, sale agreement, exchange deed or any other kind of agreement to support Civil Appeal No. 467 of 2015 11 the story put forward by respondent No. 1. Moreover, neither respondent No.1 nor Bahria Town (Pvt.) Limited informed the Revenue authorities about the purported sale/transfer/exchange of the 15 kanals and 4 marlas of agricultural land despite the fact that respondent No. 1 had acquired the said house in the year 2011, well before the evidence in the case was recorded by the Tribunal. The said Allotment Certificate (Exhibit P-8) does not mention the price of the said house nor that it was issued in part exchange for 15 kanals and 4 marlas of agricultural land. Respondent No. 1’s Nomination Form and Details of Immovable Assets also did not disclose this. There is yet another aspect to consider, Bahria Town (Pvt.) Limited is a corporate entity, and the accounts of every company are required to be audited and submitted to the concerned authorities. If Bahria Town (Pvt.) Limited had actually acquired 15 kanals and 4 marlas of land it needed to be disclosed, but not a single document in this regard was produced nor did the representatives of the company testify that the company had disclosed such land in its official records. However, the Sales Executive and Finance Manager referred to Exhibit R-2 an undated letter written by them, but there is no signature of respondent No. 1 on Exhibit R-2, despite there being a place for the “Buyer: Sheikh Rasheed Ahmed” to sign it. In the absence of respondent No. 1’s signature Bahria Town (Pvt.) Limited would not be able to hold respondent No. 1 to this alleged sale. The question also arises why would a limited liability company act in this unconventional manner and contravene the laws governing it? Whether respondent No. 1 did not have the requisite ‘white money’, that is money duly declared to the income tax authorities, or he was given the said house at almost one-fifth of its price as a political favour, and the part-exchange of agricultural land was just a sham Civil Appeal No. 467 of 2015 12 explanation to conceal the truth, would require us to delve in the realm of conjecture, which we consciously do not want to. We are however clear that there is sufficient evidence on record to establish that respondent No. 1 misdeclared the value of the said house in his Statement of Assets, the correct value of which was not less than forty eight million rupees. 13. That having determined that respondent No. 1, did not disclose all his agricultural land and misdeclared the value of the said house in his Nomination Form the consequences of such nondisclosure and misdeclaration need consideration. If the principle or rule of strict liability is applicable respondent No. 1 will have to be disqualified. But, if the strict liability rule is not applicable then the consequences of the said nondisclosure and misdeclaration need to be explored further. However, in cases where the nondisclosure or misdeclaration gives an illegal advantage to a candidate then such nondisclosure or misdeclaration would terminate his candidature, and if he has been elected to his disqualification and consequent removal. For example, if a person was convicted of an offence under the National Accountability Bureau Ordinance, 1999 (“the NAB Ordinance”) but his Nomination Form did not disclose his conviction or give an earlier date of his conviction to mislead that the ten year period of disqualification (section 15 of the NAB Ordinance) had already expired; such a misdeclaration or nondisclosure would violate the NAB Ordinance as it would enable an unqualified person to participate in the elections. Similarly, a person who isn’t yet 25 years of age, which is the minimum age to contest National Assembly elections (Article 62(1)(b) of the Constitution and section 99(1)(b) of the ROPA), misdeclares his date of birth to falsely show himself to be Civil Appeal No. 467 of 2015 13 25 years of age or older; such a person too merits removal because he was not competent to contest. However, a misdeclaration where, for instance, the candidate who is 26 years old mistakenly mentions his age as 25 years, such misdeclaration did not overcome or disregard a law which prohibited his participation in the elections and therefore it could be categorized as inconsequential. In the case of Sheikh Rasheed Ahmed the misdeclaration made by him 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. 14. There are judgments of this Court which apply the principle or rule of strict liability and hold that any nondisclosure or misdeclaration results in disqualification; Panama Papers-II and III evidently advocate this principle or rule. A member of the National Assembly, who was subsequently elected by a majority of the members of the National Assembly to be the Prime Minister, was disqualified as a member of the National Assembly and, consequently, as the Prime Minister, because he did not disclose the income said to have been earned by him as he had a work permit (Iqama) of Dubai, United Arab Emirates the issuance of which was conditional on the iqama holder being paid a salary, therefore, irrespective of whether he actually received a salary, it was sufficient to constitute his “earnings” and then deemed to have become his asset, the nondisclosure whereof was held by this Court to constitute misdeclaration and, hence, as a consequence he was disqualified in terms that, “he is not honest in terms of section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution”. Even though it was not held by this Court that the candidate suffered from any inherent disqualification and if he had disclosed his said salary/asset he Civil Appeal No. 467 of 2015 14 would have been disqualified. Panama Paper-II and III, therefore, clearly apply the strict liability principle, however, they did not follow other judgments of this Court which held that misdeclaration or nondisclosure would only result in disqualification if the nondisclosure or misdeclaration circumvented a legal disability or disqualification: Muhammad Siddique Baloch v Jehangir Khan Tareen (PLD 2016 Supreme Court 97) and Sheikh Muhammad Akram v Abdul Ghafoor (2016 SCMR 733), which will be discussed in paragraph 18 hereinbelow after discussing the Panama Papers’ cases. 15. In Panama Papers-I the learned Ejaz Afzal Khan, J, had discussed the scope of Article 62 of the Constitution and section 99 of the ROPA with regard to the disclosure and accounting of a candidate’s assets, as under: “A reading of Article 4 of the Constitution would reveal that no person shall be compelled to do that which the law does not require him to do. While a reading of Article 62 and 63 of the Constitution and Section 99 of the ROPA would reveal that none of them requires any member of Parliament to account for his assets or those of his dependents even if they are disproportionate to his known means of income. Section 12(2)(f) of the ROPA requires him to disclose his assets and those of his spouse and dependents and not the means whereby such assets are acquired. Where none of the provisions of the Constitution or the Act dealing with disqualification requires a member of Parliament to account for his assets and those of his dependents, even if they are disproportionate to his known means of income, how could this Court on its own or on a petition of any person under Article 184(3) of the Constitution require him to do that, and declare that he is not honest and ameen if he does not account for such assets.” (at pages 485-6) “… disqualifications envisaged by Article 62(1)(f) and Article 63(2) of the Constitution in view of words used therein have to be dealt with differently. In the former case the Returning Officer or any other fora in the hierarchy would not reject the nomination of a person from being elected as a member of Parliament unless a court of law has given a declaration that he is not sagacious, righteous, non-profligate, honest and ameen. Even the Election Tribunal, unless it itself proceeds to give the requisite declaration on the basis of the material before it, would not disqualify the returned Civil Appeal No. 467 of 2015 15 candidate where no declaration, as mentioned above, has been given by a court of law. The expression “a court of law” has not been defined in Article 62 or any other provision of the Constitution but it essentially means a court of plenary jurisdiction, which has the power to record evidence and give a declaration on the basis of the evidence so recorded.” (at page 490SS) In the same case another learned member of the Bench Sh. Azmat Saeed, J, had held that: “25. In the above backdrop to hold that an MNA, who may (or may not) own an undeclared property yet his explanation for the source of the funds for acquiring such property, though legally irrelevant, is not acceptable, hence, such MNA is disqualified, is a legal absurdity under the laws of the Islamic Republic of Pakistan.” (at page 524) “30. Before the said provisions can be pressed into service, there must be a declaration by Court of law. At the risk of stating the obvious, it may be clarified that the Courts of law are concerned with the matters of law not morality. There can be no manner of doubt that the term “honest” as employed in Article 62(1)(f) refers to legal honesty, an objective concept and not mere moral or ethical honesty, which is subjective. The Courts have never wandered into the realm of morality, in this behalf.” (at page 525) “36. In all the aforesaid cases, the applicability of Article 62(1)(f) of the Constitution was considered. In no case, any person was disqualified under the said Article in the absence of an established and proved breach of a legal obligation or violation of a law. In no case, the question of Article 62(1)(f) was even seriously considered in the absence of at least specific allegations of breach of a legal obligation or violation of law. No judgment of this Court has been cited at the bar where a person has been disqualified under Article 62(1)(f) for being dishonest where such alleged dishonesty did not offend against the law or involve a breach or non-fulfillment of a legal obligation.” (at page 527) “37. Such is the true and obvious import of Article 62(1)(f) of the Constitution, as has been consistently without any exception interpreted and applied by this Court. Article 62(1)(f) of the Constitution cannot be permitted to be used as a tool for political engineering by this Court nor should this Court arrogation unto itself the power to vet candidates on moral grounds, like a Council of Elders as is done in a neighbouring Country. Under our Constitutional dispensation, Pakistan is to be governed by the Representatives chosen by the people and not chosen by any Institution or a few individuals.” (at page 528) Civil Appeal No. 467 of 2015 16 Ijaz ul Ahsan, J, after elaborately and competently setting out the applicable legal provisions stated that only “a Court or Tribunal of competent jurisdiction” could determine whether a candidate had submitted a “statement of assets and liabilities which is found to be false in material particulars,” as under: “In terms of Section 42-A(4) of the RoPA if a member submits the statement of assets and liabilities which is found to be false in material particulars, he may be proceeded against under Section 82 of the RoPA for committing an offence of corrupt practice. If found guilty by a Sessions Judge under Section 94 of the RoPA, such member is punishable with imprisonment for a term which may extend to three years or with fine which may extend to Five Thousand Rupees or with both. In case, it is established in a Court or Tribunal of competent jurisdiction that a candidate has concealed any of the assets required to be disclosed under the statement of assets and liabilities in his Nomination Papers or his Annual Statement of Assets and Liabilities, the same may constitute basis for his disqualification inter alia under the provisions of Articles 62 and/or 63 of the Constitution.” (at page 638) 16. Panama Papers-I had set up a joint investigation team (JIT) to investigate whether respondent No. 1 therein held properties and companies abroad in his own name or through others (benami) and the source of funds utilized for purchase of such properties. In Panama Papers-II after considering the report submitted by the JIT the learned Ejaz Afzal Khan, J, on behalf of the Court determined as under: “It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.” (at page 710) Civil Appeal No. 467 of 2015 17 However the principles enunciated by his lordship in Panama Papers-I were not discussed. Some may contend that the aforesaid observations in Panama Papers-I are at variance with Panama Papers-II and III. 17. Panama Papers-III was a judgment on the review petition filed against the judgment of Panama Papers-II. This judgment too was only authored by the learned Ejaz Afzal Khan, J, who held that: “…we could not have shut our eyes when an asset of the petitioner arising out of IQAMA (work permit) having surfaced during the investigation of the case and admitted by him to be his in no uncertain terms, was not found to have been disclosed in his nomination papers in terms of Section 12(2)(f) of ROPA.” (at page 19) The aforesaid conclusion was arrived at by referring to a number of judgments: Hassan Nawaz v Haji Muhammad Ayub (PLD 2017 Supreme Court 70), Mehmood Akhtar Naqvi v Federation of Pakistan (PLD 2012 Supreme Court 1089), Sadiq Ali Memon v Returning Officer (2013 SCMR 1246). The learned Ejaz Afzal Khan, J, stated that the judgments of this Court cited by the other side were “distinguishable on facts and law”; the said cited judgments included the judgments in Muhammad Siddique Baloch v Jehangir Khan Tareen (PLD 2016 Supreme Court 97) and Sheikh Muhammad Akram v Abdul Ghafoor (2016 SCMR 733). The judgments in the cases Hassan Nawaz and Sadiq Ali Memon, which were relied upon in Panama Papers-III, were cases in which candidates were suffering from an inherent disqualification to contest elections because they were holding the nationality of another country. 18. The cases of Muhammad Siddique Baloch and Sheikh Muhammad Akram were stated in Panama Papers-III to be Civil Appeal No. 467 of 2015 18 “distinguishable” however it was not elaborated how they were distinguishable and why the legal principle enunciated therein was not applicable. The principle enunciated in the case of Muhammad Siddique Baloch is reproduced below: “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…For that reason and the 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.” (at page 119T and U) Another three member Bench of this Court in the case of Sheikh Muhammad Akram which involved a candidate who did not disclose a pending criminal case against him was not disqualified because this nondisclosure did not give the candidate any advantage. The changes made to Article 62(1)(f) of the Constitution pursuant to the Eighteenth Amendment to the Constitution, whereby the declaration in respect of matters contained therein was required to be made by a court of law, was also noted. The relevant portions from the judgment are reproduced hereunder: “…a candidate is not disqualified to contest elections merely because a criminal case is pending against him. Non- disclosure of a pending case can not be equated with the non-disclosure of a criminal case in which a person has been convicted and one which may entail his disqualification. Incidentally, no one objected to the appellant’s candidature when he submitted his nomination papers. If such an objection had been taken, the appellant could have provided the requisite information of the said pending criminal case, as required by paragraph 4 (above) of the Nomination Form and resolved the matter, as the Returning Officer is required to provide the candidate an opportunity to, ‘allow any such defect to be remedied forthwith’ if he deems that such defect is not of a ‘substantial nature’ as per proviso (ii) to subsection (3) of section 14 of the Act. Civil Appeal No. 467 of 2015 19 However, no objection was raised and this defect in the nomination paper was not remedied and the appellant was allowed to contest the elections. The people of the constituency elected the appellant from a field of 21 candidates. Would the electorate, or sufficient number of them to change the result, not have voted for him if they knew about the pendency of the said case?” (at page 743) “The appellant had also not lied to gain a benefit to which he was not otherwise entitled to, i.e. to be able to contest elections, therefore, the disqualification contained in Section 99(1)(d),(e) and (f) of the Act, which were the same as those contained in Article 62(1)(d),(e) and (f) of the Constitution would not be attracted. It may also be observed that the stipulation requiring a candidate to be ‘sagacious, righteous and non-profligate and honest and ameen’ contained in Section 99(1)(f) of the Act was the same as contained in Article 62(1)(f) of the Constitution prior to the Eighteenth Amendment. However, (after the Eighteenth Amendment) the said provision has been changed and to now attract the disqualification there must be a declaration by a court. Article 62(1)(f) now reads as follows: “he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.” (at page 745) “16. The mandate given by the electorate must not be interfered with on hyper-technical grounds. Unfortunately, the Hon’ble Tribunal thought otherwise, as it not only set aside the election of the most popular candidate chosen by the people to represent them, but did so for factors wholly extraneous to the law.” (at page 747) Panama Papers-III also did not discuss the aforequoted principles expounded in Panama Papers-I (paragraph 15 above). 19. After the Panama Papers-II and III the case of Muhammad Hanif Abbasi v Imran Khan Niazi (PLD 2018 Supreme Court 189) was decided by another three member Bench of this Court where the strict liability rule was also not followed: “Arithmetical accuracy in reconciling amounts and events is not required in such a case of misdeclaration of assets. Only a coherent account of the sources of funds, their application and movement should be shown by reference to consistent and reliable evidence, even though it may suffer from gaps…” (at page 284) Civil Appeal No. 467 of 2015 20 20. Once the facts of a case have been ascertained the applicable law is applied to arrive at a decision. However, when the facts are clear but different benches of this Court, comprising of the same number of judges, have taken divergent views the matter needs urgent resolution. Another question which requires determination is whether the matter of nondisclosure or misdeclaration is to be treated differently if the case is heard by the Supreme Court in its appellate jurisdiction (section 67(3) of the ROPA) from a case heard by this Court in its extraordinary original jurisdiction (Article 184(3) of the Constitution). There is yet another matter which needs to considered and conclusively settled. 21. Article 184(3) of the Constitution states that only matters of “public importance with reference to the enforcement of the Fundamental Rights” can be attended to by this Court when exercising powers thereunder. When a question of public importance with reference to the enforcement of the Fundamental Rights arises, this Court (under Article 184(3) of the Constitution) can pass an order of the nature mentioned in Article 199 of the Constitution. However, when a High Court passes an order under Article 199 of the Constitution it can be appealed before this Court (under Article 185 of the Constitution), but when this Court exercises jurisdiction under Article 184(3) of the Constitution the order can not be assailed in appeal. Precedents of this Court have held that the right of appeal is a substantive right and not one of mere procedure (see, Manzoor Ali v United Bank Limited, 2005 SCMR 1785, Muhammad Azhar Siddiqui v Federation of Pakistan, PLD 2012 Supreme Court 774 and Pakistan Defence Officer’s Housing Authority v Jawaid Ahmed, 2013 SCMR Civil Appeal No. 467 of 2015 21 1707). In the case of Pakistan Defence Officer’s Housing Authority a five member Bench of this Court held, that: “The right of appeal is a substantive right…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 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?” (paragraph 57, pages 1746K and 1747L and M) 22. When hearing the review petition in Panama Papers-III this Court was cognizant that no appeal is provided for against an order passed under Article 184(3) of the Constitution. This Court therefore held that greater care and circumspection is required to be exercised: “The argument that much greater care has to be exercised in upholding the order disqualifying the petitioner in terms of section 99(1)(f) of ROPA and Article 62(1)(f) of the Constitution when no appeal lies against it is more of an apprehension as we being conscious of our duties have dealt with this case with much greater care and circumspection in the judgment under review and while hearing and deciding this petition for review.” (at page 23) However, one can as of right file an appeal against a judgment or order which can not be done in a review petition. Moreover, unlike an appeal the parameters of a review petition are circumscribed. The constraints imposed by Order XXVI of the Supreme Court Rules of 1980 govern a review petition and provide that a judgment or order may be set aside only on very limited grounds, such as an error apparent on the face of the record. An appeal however is not bound by these constraints. A review petition is required to be heard by the same judges (as far as practicable) who had passed the judgment/order under review, however, an appeal is never heard by the same judges. Civil Appeal No. 467 of 2015 22 23. In Panama Papers-I Article 62(1)(f) of the Constitution, which provides that an adverse declaration with regard to a person’s sagacity, righteousness, profligacy, honesty and whether or not he/she is ameen, must be declared by a court of law, which was expounded to mean a court of “plenary” or “competent” jurisdiction (paragraph 15 above) which suggests the exclusion of the Supreme Court when exercising its extraordinary original jurisdiction under Article 184(3) of the Constitution. The question therefore arises whether a person can be disqualified under Article 62(1)(f) of the Constitution by this Court in exercise of its jurisdiction under Article 184(3) of the Constitution? Another important matter which requires consideration is whether disqualification under Article 62(1)(f) of the Constitution is for the duration of the assembly, in respect whereof elections are held, or is permanent? The scope of Article 225 of the Constitution, which specifically deals with election disputes, also needs to be considered and whether on the principle of the specific excluding the general this Article excludes resort to Article 184(3) of the constitution in respect of individual election disputes. And, to what extent, if at all, can an election dispute be categorized as a matter of “public importance” and which particular Fundamental Right stands infringed, which needs “enforcement”? It would not be fair to one or other of the contesting parties herein if we decide this case at this stage because in doing so we would be preferring one set of views to another and not on the basis of a clear declaration of law, which is bound to give rise to misgivings. It is therefore all the more necessary that the questions which have arisen be thoroughly examined and answered. Civil Appeal No. 467 of 2015 23 24. When divergent views are expressed by different benches of the same number of judges of this Court the matter needs early resolution and all the more so when, “Any decision of the Supreme 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 other courts of Pakistan” (Article 189 of the Constitution). The applicable test with regard to elections and the qualification-disqualification of candidates is indeterminate and has serious repercussions, which assume criticality in an election year. The terms of the National and the four provincial assemblies will conclude in a few months and general elections will be held. Confusion would result when returning officers throughout the country apply different Supreme Court decisions in accepting or rejecting candidates’ Nomination Forms. And confusion will be further perpetuated when, after the elections have been held, election petitions are filed before election tribunals designated to hear and decide them in the absence of a clear legal pronouncement on the subject. Matters would then come up before this Court in its appellate jurisdiction and possibly too in its extraordinary original jurisdiction under Article 184(3) of the Constitution. Legal uncertainty may undermine the credibility of the electoral process, embitter political adversaries, encourage political commentators and the public to cast uncalled for aspersions on the returning officers, the election tribunals and possibly on this Court as well if the interpretation of the law favourable to a party is not applied. We must make every effort to dispel any impression that different persons are treated differently. Justice must not only be done but be seen to be done too. Every endeavour therefore should be made to resolve the prevailing legal uncertainty. The eligibility of members of Parliament Civil Appeal No. 467 of 2015 24 should be “decided in accordance with one single and definite measure”. 25. We therefore request the Hon’ble Chief Justice to constitute a bench, preferably the Full Court, since every judge of this Court has heard election disputes and acquired invaluable knowledge which will undoubtedly better help to decide the following questions of law, which have arisen in this appeal, and which will also arise in other cases: Q.1. Does every nondisclosure or misdeclaration in the Nomination Form result in the disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election? Q.2. If a petition does not disclose the particular facts, on the basis of which disqualification is sought, can these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the tribunal/court? Q.3. Does Article 225 of the Constitution exclude the application of Article 184(3) of the Constitution to election disputes? Q.4. If the answer to the foregoing question is in the negative, then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the “enforcement” of a Fundamental Right and if so can it be determined under Article 184(3) of the Constitution? Q.5. If the answer to the foregoing question is in the affirmative, are the procedural and evidentiary rules governing election petitions and appeals under the ROPA the same as those governing petitions under Article 184(3) of the Constitution? Civil Appeal No. 467 of 2015 25 Q.6. Does the “court of law” mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184 (3)? Q.7. If a candidate is disqualified on account of nondisclosure or misdeclaration does such disqualification subsist only till the next elections or is it permanent? 26. Some of the aforesaid questions were also formulated by this Court in the case of Ishaq Khan Khakwani v Mian Muhammad Nawaz Sharif (PLD 2015 Supreme Court 275, at pages 283-4) however the case was decided on facts, and the questions remained unanswered. One of the seven learned members of the Bench observed, that: “It is with this in view and in order to avoid controversy as to the meaning of Article 62(1)(f) and 63(1)(g) of the Constitution and the terms ‘honest’ and ‘ameen’ used therein, that the foregoing questions must be adjudicated to provide guidance through precedent. Such precedent can ensure that constitutional questions and challenges as to the qualifications/disqualifications and eligibility of members of Parliament are decided in accordance with one single and definite measure; otherwise there can be vastly divergent and differing approaches which could be taken by various returning officers or election tribunals as per their reading and understanding of the Constitution. This in turn has the potential of leading to and rendering any election controversial bearing in mind that there are 1070 constituencies and if, based on past statistical data, there are on average 10 candidates in each constituency, there will be more than 10,000 aspirants for elected office in the National and Provincial Assemblies who will require scrutiny and evaluation on the touchstone of Articles 62 and 63 of the Constitution. In the last general elections cases did come up where contradictory and inconsistent Civil Appeal No. 467 of 2015 26 decisions were handed down by Returning Officers for want of guidance through precedent.” (at page 291) “4. The question as to which Civil Court will have jurisdiction to make the declaration or conviction envisioned by Articles 62 and 63 will also need to be decided… .” Another distinguished member of the Bench repeated the prescient warning he had issued decades earlier: “…the vague, uncertain, obscure and conflicting terminology used in different provisions of Articles 62 and 63 of the Constitution…is bound to confuse the electorate at large, hound the candidates and their voters, embarrass the Returning Officers at the time of scrutiny of nomination papers, confound the Election Tribunals and become a nightmare for the lawyers and Courts in the years to come.” 27. We are aware that most probably by the time the aforesaid questions are answered the tenure of the present National Assembly would be over. However, the determination of these questions is long overdue and must not be delayed further and should be settled finally. 28. Since the aforesaid questions require interpretation of the Constitution and the ROPA, notices be given to the Attorney-General for Pakistan, the Advocate-Generals of the four provinces and the law officer representing the Islamabad Capital Territory, all of whom should submit in writing their respective answers to the questions and support their answers with reasons. Notices be also issued to the Chief Election Commissioner and the Election Commission of Pakistan. ORDER OF THE BENCH This Civil Appeal i.e. CA No.467/2015 (Malik Shakeel Awan v. Sheikh Rashid Ahmed etc.) is hereby dismissed by a majority of two to one, with Qazi Faez Isa, J’s holding that first the matter be referred to a Bench comprising of the Full Court to decide the questions of law identified and enumerated by him. Judge Judge Judge Announced on ______________ At _______________ Judge

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Tariq Parvez Mr. Justice Ghulam Rabbani CIVIL APPEALS NO.468, 471-474, 632-633, 852-859, 883-892, 899- 901, 950 & 974 OF 2010 (On appeal from the judgment dated 22.12.2009 passed by the High Court of Sindh at Hyderabad in C.P. No.D-707 of 2009; judgment dated 29.10.2009 passed by the Peshawar High Court, Peshawar in W.P. No. 2140 of 2006, 144 & 398 of 2007, 1938 of 2008 and 2190 of 2009; judgment dated 16.03.2010 in C.P.No.D-297 & 299 of 2008; judgment dated 05.05.2010 passed by the Lahore High Court, Multan Bench in W.P. No. 4811, 5325, 5425, 5728 & 5798 of 2006, 551 of 2007 and 6143, 6691 & 9257 of 2009; judgment dated 03.06.2010 passed by the High Court of Sindh, Karachi in C.P. No.D-750 & 751 of 2006, 1695 & 1696 of 2008, 98, 298, 300, 682, 1950 & 1951 of 2009; judgment dated 15.06.2010 passed by the Peshawar High Court in W.P. No. 339 of 2006; order dated 14.06.2010 passed by the Lahore High Court, Lahore in W.P. No. 21202 of 2009; and judgment dated 17.06.2010 passed by the Lahore High Court, Multan Bench in ICA No. 219 of 2009) CIVIL APPEALS NO. 468, 471-474, 632-633, 852-859, 899-901, 950 & 974 of 2010 Pakistan Telecommunication Co. Ltd. through its Chairman … APPELLANT VERSUS Iqbal Nasir & 2 others … RESPONDENTS [CA 468/2010] Fazal Karim & 17 others … RESPONDENTS [CA 471/2010] Naseer Khan & 4 others … RESPONDENTS [CA 472/2010] C.A. 468 of 2010 etc. 2 Muhammad Adnan Pasha & 3 others … RESPONDENTS [CA 473/2010] Muhammad Idrees & another … RESPONDENTS [CA 474/2010] Shakeel Ahmed & another … RESPONDENTS [CA 632/2010] Syed Ahsan Ali & another … RESPONDENTS [CA 633/2010] Hafiz Muhammad Hussain & 21 others … RESPONDENTS [CA 852/2010] Hafiz Muhammad Hussain … RESPONDENT [CA 853/2010] Muhammad Naveed Alam & another … RESPONDENTS [CA 854/2010] Abdul Ghaffar & 5 others … RESPONDENTS [CA 855/2010] Hafiz Muhammad Hussain … RESPONDENTS [CA 856/2010] Muhammad Ikhlaq & 2 others … RESPONDENTS [CA 857/2010] Iram Zahra & another … RESPONDENTS [CA 858/2010] Iram Zahra & 3 others … RESPONDENTS [CA 859/2010] Imtiaz Ali & 39 others … RESPONDENTS [CA 899/2010] Qadeer Ahmed & 3 others … RESPONDENTS [CA 900/2010] Abid Hussain & another … RESPONDENTS [CA 901/2010] Murad Ali Khan & 4 others … RESPONDENTS [CA 950/2010] Irfan Bashir & 23 others … RESPONDENTS [CA 974/2010] C.A. No. 883 of 2010 Manzoor Ali & 25 others … APPELLANTS C.A. 468 of 2010 etc. 3 VERSUS Federation of Pakistan through Secretary Ministry of Information & Technology & Telecommunication, Islamabad & 3 others … RESPONDENTS C.A. No. 884 to 892 of 2010 Muhammad Arif Joya … APPELLANT [CA 884/2010] Allah Rakhio & another … APPELLANTS [CA 885/2010] Abdul Ghafoor & another … APPELLANTS [CA 886/2010] Ghulam Shabbir … APPELLANT [CA 887/2010] Shah Muhammad Rajpur … APPELLANT [CA 888/2010] Syed Muhammad Ally Raza & another … APPELLANTS [CA 889/2010] Mukhtiar Ahmed & 6 others … APPELLANTS [CA 890/2010] Naimat Ullah & 3 others … APPELLANTS [CA 891/2010] Muhammad Rafique & 4 others … APPELLANTS [CA 892/2010] VERSUS General Manager & others … RESPONDENTS For the appellants: Mr. Muhammad Munir Piracha, ASC (in CAs 468,471-474, 632, Mr. Mehmood A. Sheikh, AOR, 633, 853-859, 899-901, with Ms. Zahida Awan, GM (Legal) 950 & 974/2010) Syed Yamin Shah, Manager (HR) For the appellants: Raja M. Ibrahim Satti, Sr. ASC (in CA. 852/2010) For the appellants: Mr. Nazir Ahmed Bhutta, ASC (in CAs 883-892/2010) Mr. Mehmood A. Sheikh. AOR For respondents : Mr. Muhammad Rafique Rajwana, ASC (in CAs.852-859/2010) Mr. M.S. Khattak, AOR C.A. 468 of 2010 etc. 4 For respondents : Mr. Ejaz Faroze, ASC (in CAs.882-892 /2010) For respondents : Mir Afzal Malik, ASC (in CA.899/2010) For respondents : Mr. M.A. Ghani, ASC (in CA.900 /2010) For respondents : Malik Qamar Afzal, ASC (in CAs.471 & 950/2010) For Telecom : Mr. Ishtiaq Haider, ASC Foundation : (in CAs.472-474 & 950/2010) Respondents : M/s Iqbal Nazir, Naqi Butt, Izhar-ud-Din (in-person) Syed Ahsan Ali, Shakeel Ahmed, M. Adnan Pasha Dates of hearing: 4, 22, 24, 29 & 30.11.2010 .-.-. J U D G M E N T Iftikhar Muhammad Chaudhry, CJ –. These appeals, by leave of this Court, are directed against the judgments passed on different dates by the High Court of Sindh at Hyderabad & Karachi, Peshawar High Court at Peshawar & D.I. Khan and Lahore High Court at Multan & Lahore in Constitution/Writ Petitions filed by the respondents/employees of the appellant company “Pakistan Telecommunication Co. Ltd.”, hereinafter referred to as the PTCL, against the termination of their service, and/or denial of the benefit of voluntary separation scheme introduced by the appellant. 2. The facts in C.A. No. 468 of 2010, arising out of judgment dated 22.12.2009 passed by the High Court of Sindh at Hyderabad in C.P. No.D-707 of 2009 are that the PTCL introduced a scheme for its employees known as “Voluntary Separation Scheme” (hereinafter referred to as “VSS”), whereby, apart from other benefits which an C.A. 468 of 2010 etc. 5 employee was entitled to get, he was also entitled to receive early retirement benefits provided he had rendered a minimum of 20 years of service. The petitioners in the said petition [respondents herein] applied for the benefit of VSS, but were denied the same on the ground that they did not possess the requisite qualifying length of service. They wrote a letter to a learned Judge of the High Court of Sindh, Circuit Bench, Hyderabad which was converted into a Constitution Petition and notices were issued to the concerned authorities. The claim of the said respondents was that they had completed 20 years of service from the date of their appointment, but they were wrongly denied the benefit of VSS. On the other hand, the stance of the PTCL was that the respondents/petitioners were appointed on 14.12.1981 & 24.03.1983 respectively, they passed their recruitment examination on 03.08.1987 and completed their training on 30.10.1988 & 02.04.1990 respectively, therefore, their service could only be considered from the date of successful completion of training, and not from the date of their initial appointment. In rebuttal, the respondents referred to the case of one Mrs. Rubina Khadim, Telephone Operator who was granted similar benefits on the basis of date of her appointment and not with reference to the date of completion of training, and submitted that the act of the PTCL was a clear case of discrimination, which warranted interference by the High Court in the exercise of its constitutional jurisdiction. The learned Division Bench of the High Court allowed the Constitution Petition and directed the PTCL to extend the benefit of VSS to the respondents as well. Following the view thus taken, another learned Division Bench of the said High Court at Hyderabad, vide a common judgment dated 16.03.2010 passed in Constitution Petitions No. D-297 & D-299 of C.A. 468 of 2010 etc. 6 2008 granted relief to the petitioners therein and the PTCL was directed to pay to them the balance amount and monthly pension as claimed by them. 3. Aggrieved by the said judgment/order, the PTCL approached this Court by means of Civil Petitions No. 516, 1185 & 1186 of 2010 wherein leave was granted vide separate orders dated 08.07.2010 and 19.07.2010 to consider, inter alia, the contentions that writ in the matter could not be issued to the PTCL as it was not performing functions in connection with the affairs of the Government, and even if it was assumed to be performing such functions, still the subject matter of the impugned judgment was not connected with the affairs of the Government, and further whether the rules framed by the PTCL were statutory or not. 4. Civil Appeal No. 901 of 2010 arises out of the judgment dated 17.06.2010 passed by the Lahore High Court, Multan Bench in ICA No. 219 of 2009, filed by the appellant-employee of the PTCL, Multan Region, who had opted for VSS wherein the cut off date was mentioned as 26.05.2008 but he could not be relieved from service due to some unavoidable reasons and continued till 04.06.2008, therefore, he claimed the pay and benefits up-till 04.06.2008, which were declined by the PTCL authorities. He then approached the Lahore High Court, Multan Bench through Writ Petition No. 4690 of 2008, which was dismissed vide order dated 08.07.2009. Aggrieved by the said order, the respondent challenged the same in ICA No. 219 of 2009, which was allowed by the Division Bench vide order dated 17.06.2010 and the remuneration for the period over and above the cut off date was ordered to be paid to him. C.A. 468 of 2010 etc. 7 5. This Court, vide orders dated 21.09.2010 and 28.09.2010 passed in Civil Petitions No. 1569, 1622-1626, 1742 & 1780 of 2010, and 1678, 1679 & 1694 of 2010 respectively, filed against the above judgments, granted leave to appeal to the PTCL in terms of leave granted in Civil Petitions No. 516 of 2010 and 1185 of 2010. 6. Civil Appeals No. 899 & 900 of 2010 arise out of judgment dated 15.06.2010 passed by a Division Bench of the Peshawar High Court in Writ Petition No. 339 of 2006 and order dated 14.06.2010 passed by a learned Single Judge of the Lahore High Court, Lahore in Writ Petition No. 21202 of 2009 respectively, filed by the petitioners- employees of the PTCL, Peshawar and Lahore Regions seeking a declaration that they were employees of the PTCL from the date of appointment and entitled to the same wages as were being paid to other regular employees of PTCL, and the termination orders made by the PTCL or by the Foundation were void, as also a direction to the PTCL to take them on its strength from the date of appointment and to pay them salary. By the impugned judgment and order, the relief prayed for was granted by the respective High Courts, against which leave was granted by this Court vide order dated 28.09.2010 passed in Civil Petitions No. 1678 & 1679 of 2010. 7. Another set of appeals, namely, Civil Appeals No. 471, 472, 473, 474 & 950 of 2010 arises out of the consolidated judgment dated 29.10.2010 passed by the Peshawar High Court in Writ Petitions No. 2140 of 2006, 144 & 398 of 2007, 1934 of 2008 and 2190 of 2009 filed by the petitioners-employees of the PTCL, Peshawar Region against the termination of their services due to the termination of contract by the PTCL with the Telecom Foundation regarding hiring of services of skilled, semi-skilled and unskilled manpower in that region. C.A. 468 of 2010 etc. 8 It was pleaded that the impugned orders of termination of services were patently mala fide as neither their jobs were abolished nor any charge existed against them, which were also discriminatory and deprived them of the equal treatment before, and equal protection of law, inasmuch as various other similarly placed employees were made permanent and were continuing in service. A learned Division Bench of the Peshawar High Court, following the law laid down by this Court in the judgment reported as PTCL v. Muhammad Zahid (2010 SCMR 253), on a parity of reasoning, allowed the writ petitions and declared the impugned orders to be without jurisdiction, without lawful authority and of no legal effect, besides being discriminatory and ordered the petitioners to be restored on their respective posts with all back benefits due to them under the contract agreement except the monthly salary as they had not practically worked on their posts. 8. This Court, vide order dated 05.07.2010 passed in Civil Petitions No. 2581, 2582, 398 and 612 of 2010 filed against the above judgment, granted leave to appeal to the PTCL to consider, inter alia, the contention that there was no statutory right in favour of the respondents-employees to continue in service despite retrenchment, which aspect was not adverted to by the learned High Court. 9. The next set of appeals, namely, Civil Appeals No. 852 to 859 & 974 of 2010 arises out of the consolidated judgment dated 05.05.2010 passed by the Lahore High Court, Multan Bench in Writ Petitions No. 4811, 5325, 5425, 5728 & 5798 of 2006, 551 of 2007 and 6143, 6691 & 9257 of 2009, all filed by the petitioners-employees of the PTCL, Multan Region against the termination of their services. It was pleaded that in the light of the judgment of this Court reported as Muhammad Zahid (supra), the petitioners were entitled to the same C.A. 468 of 2010 etc. 9 relief, i.e. the regularization of their appointment and grant of same wages as were being paid to the other regular employees of the PTCL. In pursuance of the interim orders passed by the High Court, the petitioners continued to perform their duties. A learned Single Judge of the Lahore High Court, Multan Bench, in the light of the precedent case of Muhammad Zahid (supra) allowed the writ petitions and granted the relief prayed for. 10. Yet another set of appeals, namely, Civil Appeals No. 883 to 892 of 2010 arises out of the consolidated judgment dated 03.06.2010 passed by the High Court of Sindh, Karachi, in Constitution Petitions No. C.P. No.D-750 & 751 of 2006, 1695 & 1696 of 2008 and 98, 298, 300, 682, 1950 & 1951 of 2009, all filed by the petitioners- employees of the PTCL, Karachi Region against the termination of their services. A learned Division Bench, in the light of the law laid down by this Court in the cases of Muhammad Zahid (supra) and PIAC v. Tanweer-ur-Rehman (PLD 2010 SC 676) held that though PTCL was a person amenable to the jurisdiction of the High Court under Article 199(5) of the Constitution, but since PTCL did not have statutory rules, the writ petitions of the employees of PTCL were not maintainable, therefore, the same were dismissed and the petitioners were allowed to seek such remedies as were available to them under the law. Leave against the aforesaid judgment was granted by this Court vide order dated 28.09.2010 passed in Civil Petitions No. 1589 to 1598 of 2010. 11. Mr. Muhammad Munir Piracha, ASC, learned counsel for the appellant PTCL contended that the PTCL was not a person performing functions in connection with the affairs of the Federation within the meaning of Article 199(5) of the Constitution, inasmuch as the Federal Government, on 12.04.2006, entered into an agreement C.A. 468 of 2010 etc. 10 with Etisalat International Pakistan LLC, hereinafter referred to as “the EIP” whereby 1,326,000,000 shares of the PTCL were transferred to the EIP, therefore, the management of the company vested in the EIP. He argued that the PTCL had succeeded the Pakistan Telecommunication Corporation, hereinafter referred to as “the PTC”, which was governed by section 6 of the Pakistan Telecommunication Corporation Act, 1991 [hereinafter referred to as the Act of 1991], therefore, only such functions of the Corporation, which were performed in pursuance of section 6 ibid, could be said to be functions in connection with the affairs of the Federation. The matters dealing with the officers and servants of the PTCL, which vested in the EIP, were not the functions in connection with the affairs of the Federation. The learned counsel maintained that the law laid down in Muhammad Zahid’s case, which was rendered at a time when the controlling share of the concern vested, not with the EIP, but with the Federal Government was required to be revisited/clarified in view of the fact that the controlling shares had subsequently been vested with the EIP. 12. Mr. Muhammad Ibrahim Satti, learned Sr. ASC, also appeared on behalf of the PTCL and submitted that in absence of statutory rules, the employees of the PTCL were governed by the principle of “Master and Servant” and the writ petitions were not competent and the learned High Courts wrongly assumed jurisdiction under Article 199 of the Constitution. He contended that the terms and conditions of service of employees of the PTCL were governed by the contracts of service, according to which they were temporary employees/daily wagers, therefore, they could not claim permanent appointments against the provisions of the contracts, which provided, inter alia, that the employees would not have any right of permanent C.A. 468 of 2010 etc. 11 induction in service. The learned counsel submitted that Muhammad Zahid’s case was wrongly relied upon by the learned High Courts in the instant case, inasmuch as this Court has clarified/modified the judgment in the said case in the subsequent judgment to the effect that the employees who were not governed by statutory rules were debarred to invoke the jurisdiction of the High Court under Article 199 of the Constitution. To substantiate his argument, he referred to Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCMR 1484), which laid down that the employees of only such organizations were entitled to invoke constitutional jurisdiction of the High Court, which were performing functions in connection with the affairs of the Federation and whose services were governed by statutory rules. 13. Mr. M.A. Ghani, ASC for the respondents-employees in C.A. No. 900/2010 argued that the respondents were workmen as defined in section 2 (xxviii) of the Industrial Relations Ordinance, 1969, section 2 (xxx) of the Industrial Relations Ordinance, 2002 and clause (g) of Order 1 of the Schedule to the W.P. (Standing Orders) Ordinance, 1968, the role of Telecom Foundation was only of employment exchange and they were the employees of the PTCL from the date of appointment, regular after 183 days of service and entitled to same wages as were being paid to regular employees of the PTCL as held in Masood v. PIAC [2001 PLC (CS) 41], which formed the basis of Muhammad Zahid’s case (supra). The learned counsel submitted that Masood’s case (supra) was also relied upon in Ikram Bari v. National Bank (2005 SCMR 100). In the latter case, the Bank had terminated the services of daily wages employees on the ground that although the employees were appointed by the Bank, yet their salaries were being C.A. 468 of 2010 etc. 12 paid by the borrowers/loanees. However, the termination orders were set aside by this Court, inter alia, holding as under: - (1) The fact that the wages of the employees were debited to the borrower’s account would make no difference since for all practical purposes and legal consequences they were placed under the administrative control of the Bank; (2) Islamic welfare state is under an obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed as envisaged by Article 2A of the Constitution; and (3) Under Article 38 of the Constitution, State is obliged to secure the well being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees while Article 3 requires the State to ensure elimination of all forms of exploitation, therefore, the approach of the Bank that temporary Godown staff and daily wages employees should be continued to be governed on disgraceful terms and conditions of service for indefinite period could not be countenanced. According to the learned counsel, the other case, which lay at the foundation of Muhammad Zahid’s case was Muhammad Asam v. PTCL [1997 PLC (CS) 1131] wherein it was laid down that whoever completed 183 days including artificial breaks shall be permanent workman. The claim of the PTCL was that the Foundation was the employer whereas the claim of the employees was that as they worked for, at the premises, and under the administrative control, of the PTCL, therefore, they were the employees of the PTCL. The question as to who was the employer, whether PTCL or the Foundation could not be agitated before the Labour Court where a worker could just file a grievance petition against the employer, therefore, the claim and the conduct of the PTCL being in violation of the definition of workman, C.A. 468 of 2010 etc. 13 such a question could only be settled in writ jurisdiction of the High Court. The impugned termination orders were void, therefore, the same were rightly challenged before the High Court in its writ jurisdiction. Reference was made to Nazir Ahmed Panhwar v. Govt. of Sindh [2009 PLC (CS) 161] and Municipal Committee, Arifwala v. Muhammad Ramzan (2005 SCMR 1721) for the proposition that in case of violation of the principles of natural justice, writ petition was competent even in a case involving contractual obligation, and to the case of Sharifan Begum v. Abdul Aziz (PLD 1975 SC 475) for the proposition that in case of violation of Article 25 of the Constitution, resort could only be made to the remedy provided by the Constitution. 14. The learned counsel also submitted that the liability imposed upon the employer under the Industrial & Commercial Employment Standing Order of confirming the employees after 183 days’ service including artificial breaks could not be defeated by contract as held by this Court in Pakistan International Airlines v. Sindh Labour Court No.5 (PLD 1980 SC 323) and Ikram Bari (supra). 15. Mr. Nazir Ahmed Bhutta, ASC for the appellants in C.A. No. 883 to 892 of 2010 submitted that the appellants-employees were actually appointed in Pakistan Telegraph and Telephone Department in the year 1992, the predecessor of the PTC. They were imparted prescribed departmental training/courses, which they successfully completed. On promulgation of the Act of 1991, they were transferred to the PTC on the same terms and conditions as they were entitled in the T&T Department as its employees in the light of the provisions of section 9 of the Act of 1991 and subsequently on promulgation of the Pakistan Telecommunication (Re-organization) Act, 1996 [hereinafter referred to as the Act of 1996], the terms and conditions of the C.A. 468 of 2010 etc. 14 transferred employees were protected under section 35(2) and section 36(1) & (2) of the latter Act. However, suddenly the appellants and their other colleagues were terminated from service. Such termination orders were challenged by some of the employees before the Federal Service Tribunal, which were set aside and the employees reinstated in service with back benefits vide judgment reported as Ch. Muhammad Ashraf v. State Life Insurance [2002 PLC (CS) 948]. The benefit of said judgment was extended to another lot of employees who had not challenged their termination at the initial stage in the light of the law laid down in Hameed Akhtar Niazi v. Secretary, Establishment Division Government of Pakistan (1996 SCMR 1185). Similarly, the High Court of Sindh at Hyderabad vide order dated 28.04.2004 passed in Constitution Petition No. D-283 of 2003 allowed the request of some employees directing the respondents to give equal treatment to the petitioners. The said order was upheld by the Supreme Court vide order dated 26.09.2005 passed in CPLA No. 471-K of 2004. The appellants-employees were denied such benefit and were discriminated, therefore, they approached the High Court by means of Constitution Petition, which was dismissed by the impugned consolidated judgment dated 03.06.2010. The said impugned judgment was in conflict with the judgment dated 04.04.2003 passed by the said High Court in C.P. D-2301 and 2410 of 2001, order dated 16.05.2005, which had already been implemented by the PTCL Management, judgment of that High Court reported as 2007 PLC (CS) 174, reinstatement of employees by the PTCL vide orders dated 20.11.2001 and 06.08.2002, and judgment of the Lahore High Court passed in W.P. No. 1444 of 2001 against which appeal was dismissed by the Supreme Court in Muhammad Zahid’s case. C.A. 468 of 2010 etc. 15 16. The employees-respondents in C.A. No. 468 of 2010 submitted that six Teleprinter Operators of defunct Central Telegraph Office, Hyderabad, Sindh, namely, Allah Bux, Muhammad Akram, Ateequddin, Iqbal Nasir, Muhammad Naqi Butt and Izharuddin Alvi had given their option under VSS and were retired, out of whom first three were granted pensionary benefits whereas the latter three, i.e., respondents No. 1 to 3 in C.A. No. 468 of 2010, were deprived of the pensionary benefits by ignoring the intervening period between appointment and training, though they were appointed after qualifying the recruitment examination, had been regularized by the competent authority from the date of ad hoc appointment, had put in continuous service of 26, 24 and 24 years respectively, were senior to their above mentioned colleagues who were granted the similar benefit, and were qualified to avail the pensionary benefits under the said scheme, having served for more than 20 years. One Mrs. Rubina Khadim was also extended the benefit of VSS counting her service from the date of appointment as against the date of completion of training. They relied upon Muhammad Zahid’s case and prayed for equal treatment. 17. Malik M. Rafique Rajwana, ASC for the respondents No. 1 to 20 in C.A. No. 852 of 2010 raised a preliminary objection that the appeal was not maintainable as the appellant had failed to avail the remedy of intra-Court appeal before a Division Bench of the High Court as provided in section 3(2) of the Law Reforms Ordinance, 1972 and the judgment reported as PIAC v. Samina Masood (PLD 2005 SC 831). He further submitted that the judgment dated 05.05.2010 was not being implemented by the appellants, therefore, the respondents filed contempt petitions in which General Manager PTCL, Islamabad appeared and made a statement that in case no stay order had been C.A. 468 of 2010 etc. 16 granted by the Supreme Court, they would be implementing the judgment dated 23.09.2010. Consequently, they issued letters of implementation/appointment in BPS and the respondents accordingly had joined the PTCL and were posted in different units and were performing their respective duties. Therefore, the appeal had become infructuous. 18. The learned counsel further submitted that W.P. No. 5122 of 2004 was disposed of by the Lahore High Court, Multan Bench after the PTCL had given the assurance/undertaking in the following terms:- “Learned counsel for the respondent, with reference to the comments filed by the respondents, states that apprehension expressed in the writ petition are rather unfounded, inasmuch as the respondents are taking steps to adjust all the daily wages employees, however, number of employees is large and process initiated will take some time. He, however, ensures that no steps will be taken discriminatory regarding the petitioners. 2. In view of the said statement of the learned counsel for the respondents, grievances stand redressed at the moment and the writ petition is accordingly disposed of.” Subsequently, in W.P. No. 5325 filed before the same High Court, the following order was passed: - “Learned counsel contends that the petitioners are old employees and their cases were being actively considered for regularization and in fact an assurance had been given to this Court as well earlier in W.P. No. 5122 of 2004. The contention is that in the garb of the impugned letter (Annex-M), in fact services of the petitioners were sought to be terminated and they were not being allowed to work. Subject to notice for an early date, no interference with the performance of the duties of the petitioners.” C.A. 468 of 2010 etc. 17 The learned counsel submitted that the PTCL having accepted the version of the respondents could not be permitted to blow hot and cold in the same breath and to violate their own undertaking, which had also been implemented. He stated that the PTCL had framed policy/criteria for adjustment/regularization of the daily wages employees converted to Telecom Foundation, namely, age not more than 50 years on 30.06.2005; minimum one month pay drawn as daily wages employee before conversion to Telecom Foundation; and daily wages employees who had entered PTCL up to 31.12.2001. The said policy was duly pleaded by the PTCL in W.P. No. 5325 of 2006 and W.P. No. 6143 of 2009 stating therein that the entire exercise regarding regularization of the said employees was being done in good faith to accommodate the left over daily wages employees. 19. The learned counsel vehemently argued that the respondents were being discriminated in violation of the provisions of Articles 2A, 4 and 25 of the Constitution, as against the other operators performing services permanently with the PTCL or having been regularized in due course as operators etc., in the International Gateway Exchange performing similar functions. The learned counsel submitted that the respondents employed on daily wages were not regularized despite having rendered service for a period of more than two years as contract employees renewed from time to time while various other daily wages employees who were junior to them described in ground (b) of W.P. No. 6143 of 2009 allowed vide order dated 05.05.2010, the subject-matter of C.A. No. 852 of 2010, were regularized. He submitted that the contention of the appellants that the respondents being the employees of the Telecom Foundation, which is an industrial establishment were workmen as defined under C.A. 468 of 2010 etc. 18 the IRO and the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was held not relevant in Muhammad Zahid’s case for the purpose of redressal of grievance of the respondent-employees pertaining to discrimination, which could hardly be dealt with under the labour laws. 20. The learned counsel further submitted that the question of invoking of jurisdiction of High Court under Article 199 of the Constitution by the employees of the PTCL was dealt with at great length in Muhammad Zahid’s case wherein the entire legislative history beginning with Telegraph Act, 1885 up to the Act of 1996 and the relevant case law on the subject were minutely examined and the controversy was set at rest once for all, by inter alia, holding as under:- (1) The Telecommunication undisputedly is the subject which pertains to one of the important affairs of the Federation dischargeable now through the PTCL; hence such entity involved in the same exercise of the sovereign powers, essentially falls within the context of ‘person’ as defined in clause (5) of the Article 199 of the Constitution, therefore, for the above reasons the grievance of the private respondents was amenable to the writ jurisdiction of the High Court. (2) The claim of the appellants that the private respondents are the employees of the Foundation which is an ‘industrial establishment’ and are ‘workmen’ as defined in the relevant provisions of the I.R.O., 2002 and as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in view of the above discussion, relating to the issuance of the writ by the High Court, seems to us not relevant to be dilated upon nor for the redressal of their grievance made in the writ petition which substantially pertains to the contention of C.A. 468 of 2010 etc. 19 discrimination, can hardly be dealt with under the Labour Laws. Undisputedly, the crux of the case of the private respondents has been that they are being discriminated as against the other Operators performing service permanently with the PTCL or having been regularized in due course as Operators in the International Gateway Exchange performing similar functions in the Exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2A, 4, and 25 of the Constitution by depriving them of their emoluments besides all other service benefits etc., described in paragraph No.2 of the writ petition being paid to other Operators performing service in the said Exchange and similarly placed and, therefore, discriminatory treatment has been meted out to the writ petitioners employed on daily wages and not regularized despite having rendered service for a period of more than 2 years as contract employees renewed from time to time mentioned in Para. No.16 (supra), therefore, the impugned judgment is unexceptionable irrespective of the status of the private respondents be that of a ‘worker’ or a ‘civil servant’ or the ‘contact employee’ having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them. 21. We have heard the learned counsel for the parties and have gone through the impugned judgments as also the case-law cited at the bar in support of the respective contentions. 22. The question whether the PTCL was a ‘person’ performing functions in connection with the affairs of the Federation within the contemplation of Article 199(5) of the Constitution was first dilated upon by this Court at great length in Muhammad Zahid’s case in which the plethora of case law was gone into and it was held that the employees of the erstwhile T&T Department transferred to the Corporation [PTC] under the relevant provisions of the Act of 1991 C.A. 468 of 2010 etc. 20 and later on succeeded by the PTCL, discharging their functions and duties in the International Gateway Exchange as Operators were inducted permanently or regularized subsequently under the rules necessarily related to one of the affairs of the Federation within the purview of provisions of Article 199 of the Constitution; hence similar duties and functions in the International Gateway Exchange being discharged by the private respondents as Operators could not be distinguished to say that the same did not relate to the affairs of the Federation though conferred upon the Corporation [PTC], and finally upon the PTCL. It was further held that the Telecommunication undisputedly was the subject which pertained to one of the important affairs of the Federation dischargeable now through the PTCL; hence such entity involved in the same exercise of the sovereign powers, essentially fell within the connotations of the word `person' as defined in clause (5) of the Article 199 of the Constitution; accordingly, the grievance of the private respondents was amenable to the writ jurisdiction of the High Court. However, it was observed that the status of the private respondents, be that of a ‘worker’ or a ‘civil servant’ or a ‘contact employee’ had no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them. 23. It may also be added here that as rightly held by a learned Division Bench of the High Court of Sindh in the judgment impugned in C.A. No. 883 of 2010 that the Federal Government had first sold 12% shares through public subscription and then it sold 26% [all of B class shares] to the EIP and the remaining 62% shares of PTCL were still owned by the Federal Government and as long as the Government owned majority shares in said entity either in its own name, or C.A. 468 of 2010 etc. 21 whether wholly or partially in the name of any other organization or entity controlled by the Government, PTCL was and should continue to be amenable to the jurisdiction of the High Court under Article 199 of the Constitution. In this view of the matter, the argument that the PTCL was not a person within the meaning of Article 199(5) of the Constitution is not tenable. 24. However, this Court, in the case of Principal Cadet Collage Kohat v. Mohammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition. Recently, this Court in Tanweer-ur-Rehman’s case (supra), while dealing with the issue of invoking of jurisdiction of the High Court under Article 199 of the Constitution by the employees of the PIAC, held that although the appellant-Corporation was performing functions in connection with the affairs of the Federation, but since the services of the respondent-employees were governed by the contracts executed by them with the employer, and not by the statutory rules framed under section 30 of the Pakistan International Airlines Corporation Act, 1956 with the prior approval of the Federal Government, therefore, they would be governed by the principle of C.A. 468 of 2010 etc. 22 ‘Master and Servant’. On the question whether in absence of any breach of statutory provision, the employees of appellant-Corporation could maintain an action for reinstatement etc., it was observed that the said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of ‘Master and Servant’ would be applicable and such employees would be entitled to seek remedy permissible before the Court of competent jurisdiction. Similarly, in M.Tufail Hashmi (supra), after discussing the aforesaid two judgments in detail, it was held that the employees of those organizations, which were performing functions in connection with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached the Service Tribunal for redressal of their grievances, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of ‘Master and Servant’. 25. The learned counsel for the respondents though placed on record a copy of the Pakistan Telecommunication Corporation Service C.A. 468 of 2010 etc. 23 Regulations, 1996 framed under section 20 of the Act of 1991, but failed to show whether the said Regulations were duly notified in the official gazette. However, even if such Regulations were duly made, they were not holding the field after the repeal of the Act of 1991 under which the said Regulations were made. Further, as per Regulation 1.02 thereof, the said Regulations would not apply to a person employed on contract or on work-charged basis or who is paid from contingencies. They would be governed by the principle of ‘Master and Servant’. Applying the principles of law enunciated in the above cited judgments to the case in hand, in absence of statutory rules, writ petitions filed by the employees of the PTCL were not maintainable. 26. The argument of the learned counsel that the respondents were the employees of the PTCL from the date of appointment, regular after 183 days of service and entitled to same wages as were being paid to regular employees of the PTCL is untenable. It may be observed that as provided in clause (g) of Order 1 of the Schedule to the W.P. (Standing Orders) Ordinance, 1968, a contract worker is a workman who works on contract basis for a specific period of remuneration to be calculated on piece rate basis, while clause (b) of Order 1 of the Schedule to the W.P. (Standing Orders) Ordinance, 1968, provides that a ‘permanent’ workman is a workman who has been engaged on work of permanent basis likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment, and includes a badli who has C.A. 468 of 2010 etc. 24 been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months. In this view of the matter, an aggrieved person falling within the definition of workman would be well within his rights to seek remedy at the appropriate forum as provided in Order 12 of the Schedule referred to above. However, as held in PIAC v. Sindh Labour Court No.5 (PLD 1980 SC 323), the respondents had been employed, not on permanent basis, but on contract and would be governed by the provisions of the contract of service. The nature of employment of the respondents can be easily understood from a perusal of a contract of service entered by Muhammad Idrees Khan, respondent No. 1 in C.A. No. 474 of 2010 with the Telecom Foundation, which, inter alia, provides as under: - “TELECOM FOUNDATION SHORT TERM CONTRACT Mr. Muhammad Idrees Khan s/o Haji Chamnay Khan is hereby contracted in Telecom Foundation as Cable Guard with effect from _______ at the rate of Rs.153/- per day (Rs.4600/- per month). He is directed to report to A.E. O.F.C. (PTCL) Peshawar for further deployment as and where required by them on the following terms and conditions: - 1. PERIOD OF CONTRACT Service shall be on contract for a period of Eighty Nine (89) days. ……………………………………………………………………………………………………… 9. TERMINATION OF CONTRACT This contract shall be liable to termination any time without notice even on account of ______ political activities, trade unions and due to misconduct and unsatisfactory service. Manager (M&T) Telecom Foundation I, Muhammad Idrees Khan s/o Chamnay Khan resident of Village Bab-e-Jadeed P.O. Taru Jabba Tehsil & District Nowshera, have C.A. 468 of 2010 etc. 25 carefully read the above instructions and agree to the terms and conditions for the employment as Cable Guard on contract basis.” All the employees having entered into contracts of service on the same or similar terms and conditions have no vested right to seek regularization of their employment, which is discretionary with the master. The master is well within his rights to retain or dispense with the services of an employee on the basis of satisfactory or otherwise performance. The contract employees have no right to invoke writ jurisdiction, particularly in the instant case where their services have been terminated on completion of period of contract. Since they fall within the definition of workman, they would be entitled to one month’s notice or salary in lieu thereof, as permissible to them under the rule of master and servant. 27. As to the contention of Mr. Qamar Afzal, ASC that the respondent-employees had been discriminated in terms of Article 25 of the Constitution, suffice it to say that in the light of the law laid down in I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041), reasonable classification is permissible. The private respondents in Muhammad Zahid’s case were already in service whereas the private respondents herein were working with the PTCL either on contract or on daily wages basis, therefore, the rule of ‘Master and Servant’ would be applicable. In this view of the matter, Article 25 is not attracted in the present case. 28. The cases of Engineer Naraindas v. Federation of Pakistan (2002 SCMR 82) and Ikram Bari v. National Bank of Pakistan through President (2005 SCMR 100) stand on a different factual matrix, inasmuch as the services of temporary employees (godown staff, daily wagers, etc.) were terminated whereas in the instant case the C.A. 468 of 2010 etc. 26 employees were working with the PTCL under contracts of service. Even otherwise, the said case had arisen out of a judgment of the Federal Service Tribunal. 29. As to the case of the employees seeking the benefit of VSS, no relief could be granted to them by the High Court in view of the non-maintainability of their writ petitions on the ground that their services were not governed by any statutory rules and even the VSS was not offered under, or in terms of, any statutory provisions. 30. In the light of the above, the case of Muhammad Zahid in which relief was granted on the ground of discrimination irrespective of the status of the employees, be that of a worker, or a civil servant or a contract employee could not be relied upon in the instant case. 31. As regards the objection regarding non-filing of Intra-Court Appeals before filing the petitions for leave to appeal in the instant cases taken by the learned counsel for the respondents-employees, suffice it to say that though a similar view was taken in some of the cases, namely, Imtiaz Ali Malik v. Mst. Surrya Begun (1979 SCMR 22), Pakistan International Airlines Corporation v. Samina Masood (PLD 2005 SC 831) and Accountant General for Pakistan (Revenue) through Auditor-General v. Zia Mohy-ud-Din (PLD 2008 SC 164), but in a number of cases, such as, Mst. Shohrat Bano v. Ismail Dada Adam Soomar (1968 SCMR 574), Punjab Employees Social Security Institution Lahore and others v. Manzoor Hussain Khan (1992 SCMR 441), Province of Punjab through Secretary Excise and Taxation, Government of Punjab v. Sargodha Textile Mills Ltd., Sargodha (PLD 2005 SC 988) and Commissioner of Income Tax v. Messrs Media Network (PLD 2006 SC 787), this Court has held that requiring of filing ICA is a rule of practice for regulating the exercise of discretion which C.A. 468 of 2010 etc. 27 does not oust or abridge the constitutional jurisdiction of this Court and in certain exceptional circumstances this Court can entertain petitions, or as the case may be, direct appeals even where the remedy of ICA under section 3 of the Law Reforms Ordinance, 1973 has not been availed by a party. We may observe that in the first instance no such objection was taken at any earlier stage of the proceedings. Further, some of the appellants-employees have also directly approached this Court against the impugned judgments passed by a learned Single Judge of the High Court. Therefore, it would not be appropriate to examine the question at this stage, in view of the peculiar facts and circumstances of these cases. 32. As far as the non-implementation of the order is concerned, it may be observed that if an order is bad or cannot be implemented, it would make no difference. 33. Writ petitions, which are the subject matter of Civil Appeals No. 883 to 892 of 2010 also suffered from laches, hence the same were not maintainable on that score as well. 34. As a result of the above discussion, the appeals filed by the PTCL are allowed and the judgments/orders impugned therein are set-aside while the appeals filed by the employees are dismissed. CHIEF JUSTICE JUDGE JUDGE Announced on ____ day of December, 2010 At Islamabad. CHIEF JUSTICE APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Jawwad S. Khawaja Mr. Justice Mushir Alam Mr. Justice Dost Muhammad Khan Civil Appeal No.482/2014 (On appeal from the judgment dated 30.9.2013 passed by the High Court of Balochistan, Quetta in C.P.No.265/2012). 1. Mst. Shahista Bibi 2. Abdul Qayyum …Appellants VERSUS 1. The Supdt. Central Jail 2. I.G. (Prisons) Balochistan, Quetta 3. The Secretary, Home & Tribal Affairs Deptt. Govt. of Balochistan, Quetta. …Respondents For the appellants: Malik Asmatullah Kasi, ASC For the respondents: Mr. Iqbal Khattak, APG Date of hearing: 19.9.2014 JUDGMENT Dost Muhammad Khan, J. – Leave to appeal was granted to the appellants namely (i) Mst. Shahista Bibi (widow) of Allah Dad and (ii) Abdul Qayyum son of Allah Dad (Late), presently confined in Central Jail Mach. 2. The order, granting leave dated 24.03.2014, speaks that keeping in view the principles laid down by this Court in the cases of Shah Hussain vs. State (PLD 2009 SC 460) and Hassan v. State (PLD 2013 SC 793), the case of the appellants needs consideration. 3. As the appellants have not questioned their conviction and sentences awarded to them by the trial Court, affirmed by the High Court of Balochistan, Quetta and confirmed by this Court by dismissing their appeal on merits, but in this appeal the appellants have sought the relief of section 35 read with S. 397 Cr.P.C. 4. Relevant but brief facts sufficient for disposal of this appeal are that appellant No.2 was booked in the following crimes, by PS City Quetta:- C.A. 482/14 2 (i) In case FIR No. 16/1987 Quetta U/Ss 3, 4, 5 & 6 of the Explosive Substances Act, 1908 R/W Ss. 120- B/436/307/34 PPC; (ii) In case FIR No.17/1987, U/Ss 3, 4, 5, & 6 of the Explosive Substances Act, 1908 R/W Ss. 436, 302, 307/34 PPC, (iii) In case FIR No. 26/198, U/Ss 4 & 5 of the Explosives Substances Act, and (iv) In case FIR No.27/1987 U/Ss 4 & 5 of the Explosive Substances Act, 1908. In each of the four cases, appellant No.2 was awarded death sentence U/S 3/6 of the Explosive Substances Act, 1908 and U/S 302 PPC, while for the rest of the offences, he was awarded 25 years R.I with fine and 7 years R.I. with fine on four counts. However, the learned Judge of the Special Court did not direct that all the sentences of imprisonment shall run concurrently according to the scheme provided in section 35 Cr.P.C. Now when the death sentences have been commuted to life imprisonment, the same definitely exceed the human life, the average of which is upto 70/75 years at the most in Pakistan. In the first round, this Court also dismissed all the four appeals of appellant No.2, however, the death sentence in case FIR No. 16/1987 and FIR No.17/1987 was altered to life imprisonment by the Government of Pakistan. 5. On December 22, 2005 a letter was addressed to the Registrar of this Court by the Regional Director of Human Rights Commission of Balochistan that the sentences of imprisonment awarded, would never expire in his life time and the matter be brought to the notice of the Hon’ble Chief Justice of Pakistan. 6. After calculation of various sentences of imprisonment per jail record, the release of the appellant was cited as 19.05.2273. However, after hearing the arguments this Court vide order dated October 17, 2011 dismissed CMA No.28(Q) of 2006 along with Human Rights Case No.3078/2006 and Civil Petition No.1393/2010. 7. With considerable vehemence the learned counsel, while relying on the principle laid down in the case of Shah Hussain (ibid) and that of Hassan and others (aforementioned), urged that after spending many years in Death-Cell, the sentence/sentences given to the appellant/appellants were commuted by the C.A. 482/14 3 Government of Pakistan to life imprisonment, therefore, the expectancy of life has become a strong phenomenon to attract the beneficial and fair interpretation of this Court in the above two reported judgments to their case. It is by now well embedded and deeply entrenched universal principle of law that while interpreting the provision of punitive law, Courts are required to strive in search of an interpretation, which prefer the liberty of a person instead of curtailing the same and that too unreasonably and unfairly unless, the statutory law clearly directs otherwise. 8. Besides the provisions of section 35 Cr.P.C. the provisions of section 397 Cr.P.C. altogether provide entirely a different proposition widening the scope of discretion of the Court to direct that sentences of imprisonment or that of life imprisonment awarded at the same trial or at two different trials but successively, shall run concurrently. Once the Legislation has conferred the above discretion in the Court then in hardship cases, Courts are required to seriously take into consideration the same to the benefit of the accused so that to minimize and liquidate the hardship treatment, the accused person is to get and to liquidate the same as far as possible. In a situation like the present one, the Court of law cannot fold up its hands to deny the benefit of the said beneficial provision to an accused person because denial in such a case would amount to a ruthless treatment to him/her and he/she would certainly die while undergoing such long imprisonment in prison. Thus, the benefit conferred upon the appellant/appellants through amnesty given by the Government, if the benefit of directing the sentences to run concurrently is denied to him/them, would brought at naught and ultimately the object of the same would be squarely defeated and that too, under the circumstances when the provision of S. 397 Cr.P.C. confers wide discretion on the Court and unfettered one to extend such benefit to the accused in a case of peculiar nature like the present one. Thus, construing the beneficial provision in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same. C.A. 482/14 4 9. It is also hard and fast principle relating to interpretation of criminal law, which curtails the liberty of a person that it should be construed very strictly and even if two equal interpretations are possible then the favourable to the accused and his liberty must be adopted and preferred upon the contrary one. 10. In the cases of Khan Zaman v. The State (1987 SCMR 1382), Juma Khan v. The State (1986 SCMR 1573) and Muhammad Ittafaq v. The State (1986 SCMR 1627) similar benefit was given to the accused while construing the provision of section 35(2) Cr.P.C. 11. The Peshawar High Court widened this scope on sound reasons in the case of Altaf Hussain v. The State [PLJ 1987 Cr.C (Peshawar)437] extending the same benefit to an accused, who was already undergoing life imprisonment, awarded by the Special Military Court and directed that subsequent sentence of 5 years R.I. awarded by the Judge Special Court Anti-Corruption shall run concurrently with the life imprisonment. 12. In this case, the appellants have already undergone all the sentences, so awarded and according to the calculation chart, provided in the petition, the total period of imprisonment comes to 214 years and the total amount of fine imposed is Rs.17,20000/- or in default thereof to undergo imprisonment for a further period of 11½ years R.I. It was argued at the bar that after getting benefit of section 382-B Cr.P.C and various remissions, granted by the Federal, Provincial Governments and the Jail Authorities, the appellant/appellants have undergone sentence of 42 years 07 month and 21 days on the date, the petition for leave to appeal was instituted and the unexpired portion of sentence yet to undergo by the appellant/appellants comes to 171 years 04 months and 09 days. In our view, surely and without any fear of rebuttal, the above facts make out the case of detestable hardship, which in no circumstances, shall go unnoticed like in the past. Thus, a strong case has been made out to extend the prayed concession to the appellant/appellants. 13. The plea of the learned counsel for the State that previously the review petition of the appellant was dismissed, therefore, it should be construed as a bar to entertain a second review petition being barred by law, is misconceived one. C.A. 482/14 5 We have attended to this plea but it is hardly entertainable being bereft of legal grounds and is based on erroneous reasons of the law and the rules on the subject because the previous review petition was with regard to the commutation of sentence from death to life. Even otherwise, for doing substantial justice in a true sense in hardship cases like the present one, technicality of law and rule shall not operate as an absolute bar in the way of the Court because giving preference to the technicality of law would defeat substantial justice and denial of justice to a person entitled to it, would be worst kind of treatment to be meted out to him and that too by the apex Court of the country. 14. If the sentences are allowed to run consecutively, the appellant/appellants, as earlier discussed, would meet natural death during the imprisonment. This undeniable fact was even not disputed by the learned counsel for the State. The very object, for which the Government of Pakistan commuted the sentences of death to life imprisonment and the benefit so accrued to the accused would be denied to him/them in this way and that concession, thus given, would stand nowhere and may evaporate within no time like air bubbles vanish in the air within a twinkle of an eye. 15. Accordingly, this appeal is allowed and it is directed that all the sentences awarded to the appellant/appellants shall run and shall be deemed to have run concurrently, besides the appellant/appellants shall have also to get the benefit of section 382-B Cr.P.C and all the remissions whether granted by the Federal, Provincial Governments or the Jail Authorities, shall be extended to them. Appeal is allowed. Judge Judge Judge Islamabad, the 19th September, 2014 ‘Nisar’ Approved For Reporting

{'id': 'C.A.482_2014.pdf', 'url': ''}

{'id': 'C.A.482_2014.pdf', 'url': ''}