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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.893 of 2020
(Against the order dated 07.07.2020 passed by the Peshawar High Court,
Bannu Bench in Crl. Misc. BA No.307-B/2020)
Haji Shah Behram
…Petitioner(s)
Versus
The State and others
…Respondent(s)
For the Petitioner(s):
Mian Muhammad Zafar Iqbal, ASC
For the Complainant:
Mr. Salauddin Malik, ASC
For the State:
Mr. Arshad Hussain Yousafzai, ASC
Date of hearing:
03.02.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Impugned herein is
order dated 07.07.2020 by a learned Judge-in-Chamber of the
Peshawar High Court Bannu Bench, admitting respondents to post
arrest bail in a case of murderous assault wherein they were arrayed on
petitioner’s complaint. It is alleged that on the eventful day at 4:30 p.m,
respectively armed with a Kalashnikov and .12 caliber gun, they
targeted the petitioner within the remit of Police Station Gambela,
District Lakki Marwat, in the backdrop of an ongoing feud over the
property; he was medically examined under a police docket same day
when the Medical Officer confirmed receipt of firearm injuries on the
right medial forearm as well as deltoid area with corresponding exits,
designated as Jurh Ghayr Jaifah Badiah. The reasons that weighed with
the High Court to allow the motion are as follows:
“In the instant case, the occurrence had reportedly taken
place at 16:30 hours with a considerable unexplained delay
of three hours. The I.O has recovered only two crime
empties of 7.62 bore from the place of accused/petitioner
Umer Jan, while no empty whatsoever has been recovered
from the place of accused/petitioner Hameedullah who was
attributed firing with DBBL shot gun. All the above noted
facts cast grave doubt on the veracity of prosecution case
Criminal Petition No. 893 of 2020
2
and
needs
further
inquiry
into
the
guilt
of
accused/petitioners. As per medico legal report, the nature
of injury sustained by complainant “Ghayr Jaifah Badiah”
is covered by Section 337 F(ii) which does not fall within the
prohibitory clause of Section-497 Cr.P.C.”
Learned counsel for the petitioner while referring to a string of identical
criminal cases registered against the respondents has primarily argued
that there was no occasion for the High Court to release the
respondents on bail as the statements of the witnesses supported by
medical evidence and investigative conclusions, squarely constituted
“reasonable grounds” within the contemplation of section 497 of the
Code of Criminal Procedure, 1898, standing in impediment to their
release on bail in the absence of any space admitting consideration for
“further inquiry”, a sine qua non, for favourable exercise of discretion;
the bottom line is that the impugned order being nugatory to the settle
norms of exercise of discretion warranted interference. Learned counsel
for the respondents has defended the impugned order on the grounds
that once bail is granted by a competent tribunal, exceptionally strong
grounds are required to recall interim freedom, adding that final
adjudication can always remedy interim release of an offender even if
erroneous in case the prosecution succeeds to drive home the charge at
the end of the day; the impugned order being within the four corners of
law, particularly in the wake of submission of report under section 173
of the Code is not open to exception, concluded the learned counsel.
2.
Heard. Record perused.
3.
Section 497 of the Code of Criminal Procedure, 1898 places
an unambiguous bar on grant of bail to an accused, “………if there
appear reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life or imprisonment
for a term for ten years”: However, subsection 2 thereof provides an
escape route to him if, at any stage of the investigation, inquiry or trial,
it is observed that there are no reasonable grounds for believing that he
had committed a non-bailable offence and instead there were sufficient
grounds for ‘further inquiry’ into his guilt. It is in this clearly
demarcated statutory framework that an accused charged with an
offence punishable with a term of 10 years or above has to make out a
plea for his release on bail.
Criminal cases, invariably resting upon vastly distinguishable
facts, do not admit space for hard and fast rules, empirically applicable
with any degree of unanimity in every situation; in each case culpability
Criminal Petition No. 893 of 2020
3
of an accused is to be assessed, having regard to its own peculiar facts
and circumstances, therefore, determination of “sufficient grounds” in
contradistinction to “further inquiry” has to be essentially assessed, with
a fair degree of objectivity on the basis of evidence collected during the
investigation; wording employed as “there are no reasonable grounds for
believing that the accused has committed a non-bailable offence” is an
expression of higher of import and, thus, cannot be readily construed in
the face of material, prima facie, constituting the offence complained.
“Every hypothetical question which can be imagined would not make it a
case of further inquiry simply for the reason that it can be answered by
the trial subsequently after evaluation of evidence1”. Similarly, “mere
possibility of further inquiry which exists almost in every criminal case, is
no ground for treating the matter as one under subsection 2 of section
497 Cr.P.C.2. It clearly manifests that expression “further inquiry” is a
concept far from being confounded in subjectivity or to be founded upon
denials or parallel stories by the defence; it requires a clear finding
deducible from the record so as to be structured upon a
visible/verifiable void, necessitating a future probe on the basis of
material hitherto unavailable. With the available statement of the
injured supported by the eye witnesses, “who cannot be stamped as
false witnesses at bail stage”3, confirmed by medical evidence. The High
Court has clearly misdirected itself in holding that respondent’s
culpability warranted further inquiry. It cast away the very basis of the
impugned order. Argument that exceptionally strong grounds are
required to cancel bail even if granted erroneously, nonetheless, by a
tribunal competent to extend such relief, does not hold much water
inasmuch as erroneous application of law by itself presents a strong
ground for its annulment. Strict adherence to law is a sine qua non to
ensure predictability of consequences of a criminal act in any civilized
legal system; it is imperative to ensure peace in the society through
means and methods prescribed by law. It discourages criminal
behaviours and at the same time strengthens people’s faith in the rule
of law.
Observation by the High Court that nature of injury as “Jurh
Ghayr Jaifah Badiah” being punishable under section 337 F(ii) brought
1. PLD 1994 SC 65 (Shah Zaman and 2 others Versus The State and another)
2. PLD 1998 SC 621 (Asmatullah Khan v. Bazi Khan and another)
3. 2003 SCMR 68 (Qudrat Bibi Vs. Muhammad Iqbal and another)
Criminal Petition No. 893 of 2020
4
respondents’ case outside the remit of prohibitory clause of section 497
of the Code is also unsustainable, inasmuch as, the language employed
in section 324 of the Code unambiguously provides a punishment that
may extend to ten years imprisonment with a fine; it is in the event of
hurt caused that in addition to the aforesaid an offender shall be liable
to the punishment provided therefor, an amendment, contemplated to
provide monetary compensation to the victim, in accord with the
injunctions of Islam; nature of the injury suffered by the victim and
punishment provided therefor, by itself, do not substitute or override
primary punishment prescribed for murderous assault. Criminal
petition is converted into appeal and allowed; impugned order dated
07.07.2020 is set aside and bail granted to the respondents is
cancelled.
Judge
Judge
Islamabad, the
3rd February, 2021
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.9-Q & 12 of 2021
(Against the judgment dated 21.12.2020 passed by
the High Court of Balochistan in Cr. A. No5 & 80 of
2017)
Ghulam Abbas
(in Cr.P.9-Q/2021)
Naqeebullah
(in Cr.P.12/2021)
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Ewaz Zehri, ASC
Ch. Akhtar Ali, AOR
Mr. M. Riaz Akhtar Tareen, ASC
(in Cr.P.12-Q/2021)
Mr. Tahir Hussain Khan, ASC
(in Cr.P.9-Q/2021)
For the State:
Mr. Walayat Hussain,
Additional Prosecutor General Balochistan
For the Complainant:
Mr. Kamran Murtaza, Sr.ASC
(in both cases)
Date of hearing:
06.04.2021.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Ghulam Abbas
petitioner was tried by a learned Additional Sessions Judge at Quetta for
committing Qatl-i-Amd of Ameer Muhammad, 35/40, a supervisor
employed in a restaurant at 6:15 p.m. on 10.8.2013; Naqeebullah
petitioner, one of the owners of the outlet, was also in the dock for having
screened off incriminatory evidence; they were returned a guilty verdict
vide judgment dated 17.03.2017; the former convicted under clause (b) of
section 302 of the Pakistan Penal Code, 1860 was sentenced to
imprisonment for life with a direction to pay compensation whereas the
latter was convicted under section 201 of the Code ibid; he was sentenced
to 5-years R.I. The incident occurred all of a sudden in the wake of an
altercation that started over a demand of drink by the principal accused.
Criminal Petition Nos.9-Q & 12 of 2021
2
The High Court of Balochistan maintained convictions as well as
sentences recorded thereunder vide impugned judgment 21.12.2020,
being assailed through separate petitions. Bound by a common thread,
these are being decided through this single judgment.
2.
According to the prosecution, the deceased served at the food
outlet while Ghulam Abbas associated as a guard with Naqeebullah
petitioner. On the fateful day, Ghulam Abbas asked the deceased for a
drink who demanded a chit to oblige; former, however, got infuriated and
shot him in the abdomen; he was subdued by the witnesses at the spot
with the weapon, latter taken by Naqeebullah petitioner, who withheld it
throughout. Ocular account furnished by Muhammad Awais (PW-1) and
Muhammad Afzal (PW-2), with an inspiring unanimity, narrated the
graphic details of the episode; they faced embarrassingly lengthy cross-
examination without any setback. Red-handed arrest at the spot
foreclosed all avenues to entertain any hypothesis other than assassin’s
guilt. Naqeebullah, however, attempted hard to wriggle out of the charge
by taking plea of having extended assistance to the deceased in his
gasping moments; according to him, he not only laid information with the
police but also shifted the deceased to the hospital in a bid to save his life;
he pleaded ignorance about the disappearance of weapon, held by the
co-accused. Both the accused appeared as witnesses in disproof of the
charge, an attempt that failed to disturb preponderance of prosecution.
3.
Appraisal of evidence by the courts below, upon our own
independent analysis, has been found by us inconsonance with the
principles of safe administration of criminal justice. It is a broad daylight
affair wherein Ghulam Abbas was apprehended at the spot; he was
employed by Naqeebullah as a guard, who had obviously provided him the
weapon that he used most unwisely, without provocation upon a hapless
worker, earning livelihood for his family; he has already been dealt with
leniency. Criminal Petition No.9-Q of 2021 fails. Leave declined.
Assistance provided to the deceased in his injured condition by
Naqeebullah petitioner does not absolve him from his responsibility to
assist the law, however, at the most can be viewed as a mitigation to
settle quantum of the sentence which having regard to the totality of
circumstances is reduced from 5-years to 3-years R.I, pre-trial period
inclusive. Fine imposed by the Courts below in the sum of Rs.50,000/- is
converted into compensation, to be paid to the legal heirs of the deceased;
default shall follow simple imprisonment for six months. With the above
Criminal Petition Nos.9-Q & 12 of 2021
3
modification, Criminal Petition No.12 of 2021 is converted into appeal
and partly allowed in the above terms.
Judge
Judge
Judge
Islamabad, the
6th April, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 90-K OF 2023
(On appeal against the order dated 28.04.2023 passed
by the High Court of Sindh, Circuit Court Hyderabad in
Criminal Bail Application No. S-362/2023)
Munawar Bibi
… Petitioner
Versus
The State
… Respondents
For the Petitioner:
Mr. Abdul Khursheed Khan, ASC a/w petitioner
in person
(Via video link from Karachi)
For the State:
Mr. Zafar Ahmed Khan, Addl. P.G. Sindh
(Via video link from Karachi)
Date of Hearing:
03.08.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has assailed the order dated 28.04.2023 passed by the learned
Single Judge of the learned High Court of Sindh, Circuit Court Hyderabad,
with a prayer to grant pre-arrest bail in case registered vide Crime No.
62/2023 under Section 379 PPC at Police Station Kazi Ahmed, in the interest
of safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is that she
along with her co-accused committed theft of two tires along with rims of the
tractor trolley of the complainant.
3.
At the very outset, it has been argued by learned counsel for the
petitioner that the petitioner has been falsely roped in this case against the
actual facts and circumstances. Contends that the allegations leveled against
the petitioners are false, frivolous, baseless, concocted and the prosecution
story is not worthy of credit. Contends that there is a delay of more than three
months in lodging the FIR for which no plausible explanation has been put forth
Criminal Petition No. 90-K/2023
2
by the complainant. Contends that the co-accused of the petitioner namely
Muhammad Ali, who was ascribed the similar role, has been granted bail by
the court of competent jurisdiction, therefore, following the rule of
consistency the petitioner also deserves the same treatment to be meted
out.
4.
On the other hand, learned Law Officer opposed the petition by
contending that the petitioner has specifically been nominated in the crime
report with a specific role and she admitted that she is ready and willing to
return all the stolen articles, therefore, she does not deserve any leniency
from this Court.
5.
We have heard learned counsel for the parties at some length
and have perused the available record with their able assistance.
6.
As per the contents of the crime report, the allegation against
the petitioner is that she along with her co-accused committed theft of two
tires along with rims of the tractor trolley of the complainant. Although,
learned High Court noted in the impugned order that the petitioner produced
certain documents in which she admitted before the nekmards (pious men)
that she is ready to return all the theft articles. However, the learned counsel
for the petitioner denied the same and stated that the petitioner is an
illiterate lady and could not understand any document. FIR was lodged after
an inordinate delay of more than three months for which the complainant
did not utter a single word. We have been informed that the co-accused of
the petitioner namely Muhammad Ali, who was ascribed the similar role, has
been granted post-arrest bail by the court of competent jurisdiction. In these
circumstances any order by this Court on any technical ground that the
consideration for pre-arrest bail and post-arrest bail are entirely on different
footing would be only limited upto the arrest of the petitioner because of the
reason that soon after her arrest she would be entitled for the concession of
post-arrest bail on the plea of consistency. Reliance is placed on the cases
reported as Muhammad Ramzan Vs. Zafarullah (1986 SCMR 1380), Kazim Ali
and others Vs. The State and others (2021 SCMR 2086), Muhammad Kashif
Iqbal Vs. The State and another (2022 SCMR 821) and Javed Iqbal Vs. The
Criminal Petition No. 90-K/2023
3
State through Prosecutor General of Punjab and another (2022 SCMR 1424).
The petitioner is a lady of advanced age. The maximum punishment provided
under the statute for the offence under Section 379 PPC is three years and
the same does not fall within the prohibitory clause of Section 497 Cr.P.C. It is
settled law that grant of bail in offences not falling within the prohibitory
clause is a rule and refusal is an exception. Reliance is placed on Tariq Bashir
Vs. The State (PLD 1995 SC 34). This Court in a number of cases has held that
liberty of a person is a precious right which cannot be taken away without
exceptional foundations. No useful purpose would be served by sending the
petitioner behind the bars. It is now established that while granting pre-
arrest bail, the merits of the case can be touched upon by the Court. Reliance
is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji
Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR
1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking into
consideration all the facts and circumstances stated above, we are of the
view that the case of the petitioner squarely falls within the ambit of Section
497(2) Cr.P.C. entitling for further inquiry into her guilt.
7.
For what has been discussed above, we convert this petition
into appeal, allow it, set aside the impugned order and confirm the ad
interim pre-arrest bail granted to the petitioner by this Court vide order
dated 18.07.2023.
JUDGE
JUDGE
Islamabad, the
3rd of August, 2023
Not Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.90-P of 2016
(Against the order dated 21.09.2016 passed by the Peshawar High Court Peshawar
passed in Cr.A. No.404-P/2015)
Asif Khan
…Petitioner(s)
Versus
Sher Shah and others
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Ajmal Khan, AOR
For the State:
Mr. Muhammad Nisar,
Additional Advocate General, KP
Date of hearing:
30.07.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- In the backdrop of an
ongoing feud, Said Muhammad alias Gulalai was shot dead at 10:55
a.m. on 5.9.2005 within the precincts of Police Station Umar Zai
District Charasadda; Ibrahim PW endure the assault with multiple
gunshot. Sher Shah, Tayyab along with their absconding brother Riaz
were arrayed as culprits for the crime; the first two were tried by a
learned Addl. Sessions Judge; they were convicted for homicide as well
as coordinate charges; they were differently sentenced that included
penalty of death as well, vide judgment dated 26.04.2015, overturned
by the High Court vide impugned judgment dated 21.09.2016, vires
whereof, are being assailed on the grounds that there was no occasion
for the High Court to let off the respondents in the face of formidable
evidence establishing their participation in the crime in a daylight affair,
with one of the accused still away from law. It is next argued that
though the complainant subsequently died natural death, nonetheless,
injuries sustained by him during the occurrence stood fully established
to corroborate ocular account by available witnesses. While taking
through the impugned judgment, learned counsel has highlighted some
narrative variations viewed by the High Court as “different versions” to
argue that descriptive differences hardly affected the preponderance of
evidence unmistakably pointed towards the culpability of the assailants
Criminal Petition No. 90-P/2016
2
and, thus, the reasons being artificial, do not present any doubt
regarding the guilt of the respondents, that may be deduced from the
record; the bottom line is that impugned view being subjective and
incompatible with the evidence brought on the record runs counter to
settled principles of administration of criminal justice and, thus,
clamours for intervention by this Court to avoid miscarriage of justice.
Send for the respondents through bailable warrants in the sum of
Rs.200,000/- each, returnable to the Assistant Registrar of this Court
at Peshawar. Station House Officer shall execute the warrants within a
fortnight.
Judge
Judge
Peshawar, the
30th July, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.907 of 2020 and
Civil Petition No.1965 of 2020
(Against the order dated 08.06.2020 passed by the
Lahore
High
Court
Lahore
in
Crl.
Misc.
No.
74081-B/2019 and W.P. No.51049 of 2019)
Mian Haroon Riaz Lucky& another
(In Cr.P. No.907 of 2020 & C.P. No.1965 of 2020)
…Petitioner(s)
Versus
The State, etc.
(In Cr.P. No.907/2020& C.P. 1965/2020)
…Respondent(s)
For the Petitioner(s):
Mr. Abid Saqi, ASC along with
(In both cases)
petitioners.
Ch. Akhtar Ali, AOR
For the State:
Rana Arif Kamal Noon,
Prosecutor General Punjab
Rana Abdul Majeed,
Addl. P.G. Punjab
Mirza Abid Majeed,
Deputy Prosecutor General Punjab
with Ihsan Ullah, DSP
For the Complainant:
In person
(In both cases)
For S.N.G.P.L.:
Ch. Hafeez Ullah Yaqub, ASC
Mr. Ali Rukh Khattak, L.O. SNGPL
On Court Notice:
Mr. Sajid Ilyas Bhatti,
Addl. Attorney General for Pakistan
Date of hearing:
30.09.2019.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Mian Haroon Riaz
Lucky and Mian Salman Riaz, real brothers, petitioners herein, run
Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020
2
an ice factory under the name and style of Sartaj Ice Factory,
within the precincts of Police Station Baghbanpura Lahore. The
factory is powered by natural gas and it is alleged that the owners
have regularly been siphoning off natural gas to the detriment of
public exchequer, facing a number of criminal cases albeit with
impunity. A raiding party, headed by Sharafat Ali, Distribution
Officer, UFG, Sui Northern Gas Pipelines Limited, Lahore Region,
carried out the raid on the premises on 29.5.2019 at 3:00 p.m. to
detect a gas pipeline, stealth underneath the road, connected with
the main supply, surreptitiously linked with the factory across the
road. The operation, during the process, was resisted by the
petitioners, joined by four lawyers to obstruct excavation on the
pretext of an injunctive order; the police were called in, however,
the accused, contumaciously denied access to the police
contingent and locked themselves inside the premises. Despite
fierce resistance, nonetheless, the raiding party succeeded to
secure, vide inventory, the paraphernalia employed for the theft. A
formal case was registered vide FIR No.938 of 2019 under section
462-C of the Pakistan Penal Code, 1860 with Police Station
Baghbanpura, cancellation whereof, was prayed for through Writ
Petition No.51049 of 2019, titled as Mian Haroon Riaz Lucky, etc.
Vs. The Station House Officer, etc. The petitioners inordinately
avoided arrest despite successive dismissals of their pre-arrest bail
petitions, both in the Court of Session as well as by the High
Court.
2.
Learned counsel for the petitioners contends that
registration of the impugned FIR, being abuse of process of law,
calculated for motives, oblique and unjust, cannot legally sustain
after advent of the Gas (Theft, Control and Recovery) Act, 2016
(Act No.XI of 2016) “the Act” that came into force on the 23rd of
March, 2016 much earlier than the alleged date of occurrence i.e.
29.5.2019. It is argued that the Act has introduced a new category
of offences in order to cope with the crimes relating to tampering
with gas pipelines or theft thereof, trial whereof, falls within the
exclusive domain of the Gas Utility Court constituted under section
4 thereof. According to the learned counsel, the new mechanism
left no scope for registration of a First Information Report and
investigative steps, purported to be consequent thereupon in view
Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020
3
of specific bar provided under subsection 2 of section 5 of the Act
that mandatorily required assumption of cognizance of an offence
by a Gas Utility Court only on a complaint made in writing by a
person duly authorized in this behalf by a gas company in respect
whereof the offence was committed. It is next argued that the Act
replaced the procedure for search of any premises suspected as
being used for theft of gas in view of power of search conferred
under section 23 of the Act on an officer or employee of a gas
utility company not below BPS-17, specifically authorized to carry
out the search; he has finally referred to section 31 of the Act to
demonstrate overriding application of the Act. It is argued that
combined reading of above provisions of the Act unmistakably
confirms that the police were divested of the authority either to
register a First Information Report, carry out search or arrest an
accused suspected for the commission of theft of gas and, thus,
the impugned First Information Report is liable to be quashed to
prevent abuse of process of law as well as for being in
contravention of the law currently applicable to the alleged offence.
While arguing Criminal Petition No.907 of 2020, it is submitted
that, be that as it may, the petitioners had long ago leased out the
factory through a duly documented transaction and, thus, were
not responsible for any wrong if done at all by the lessee. Since no
complaint, as contemplated by the Act, has since been filed till
date, the petitioners’ remission into custody would serve no
purpose except to bring disrepute to them, respectable citizens of
stature, concluded the learned counsel. Reliance has been placed
on the cases reported as M.D. Tahir Vs. Federal Government and 12
others(1989 CLC 1369), Sher Ali Baz and another Vs. The
Secretary, Establishment Division and others (PLD 1991 S.C. 143),
Messrs A.M. Industrial Corporation Limited Vs. Aijaz Mehmood and
others (2006 SCMR 47),Muhammad Mohsin Ghuman and others Vs.
Government of Punjab through Home Secretary, Lahore and others,
(2013 SCMR 85),Muhammad Arslan Ahmad Vs. The State (2017
P.Cr.L.J. 434), Muhammad Shah and others Vs. Federal Investment
Agency and others (2017 SCMR 1218),General Manager SNGPL Vs.
Safeer Ullah Khan and others (2018 YLR 1721),Syed Mushahid
Shah & others Vs. Federal Investigation Agency & others (2018
Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020
4
SCMR 1812) and Wajid Khan Vs. The State and others
(2020 P. Cr.L.J. 454).
3.
The learned Additional Attorney General for Pakistan
assisted by the learned Prosecutor General Punjab contested the
motions in a unison. According to the learned Law Officers, the
legislature in its wisdom has introduced a new regime with a view
to effectively prosecute/deal with the cases of theft of a valuable
national resource as well as recovery of outstanding arrears by
setting up tribunals comprising a District & Sessions Judge with
exclusive jurisdiction to follow procedures speedy as well as
expeditious in jurisdictions both civil as well as criminal. Changes
in nomenclatures of offences, constitution of a new tribunal with
exclusive jurisdiction and a special procedure on a fast track, to
take
assumption
of
cognizance,
introduced
by
the
Act,
nonetheless, does not relegate procedural plenary powers vesting
in the police, under the Code of Criminal Procedure 1898 to
register a criminal case, carry out searches and effect arrest of
offenders in order to investigate the case to be placed before the
Gas Utility Court through the procedure provided under the Act.
The learned Law Officers surveyed subsection 4 of section 5 in
conjunction with section 24 of the Act to argue that except in cases
of theft by a domestic consumer, not a case in hand, the provisions
of the Code of Criminal Procedure, 1898 (Act V of 1998) for the
registration of a criminal case, arrest of the accused for the
purpose of investigation, were applicable with full force; the only
rider placed by the Act was requirement of a complaint, in writing by
an authorized person. It is submitted that the new requirement was
for assumption of cognizance by the Court through taking on
board an officer with technical know-how. Introduction of a new
penal regime to cope with the cases of theft of natural gas does not
imply abolition of the crime warranting cancellation of the First
Information Report recorded under the previous provisions of law,
concluded the learned Law Officers. Reliance has been placed on
the cases reported as The State Vs. NH Poori & others (PLD 1959
(W.P.) Karachi 392), Muhammad Nazeer Vs. Fazal-e-Karim & others
PLD 2012 SC 892), Nadil Wali Vs. Sumaya Gul & another
(2020 SCMR 414).
4.
Heard. Record perused.
Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020
5
5.
In the wake of supply/provision of natural gas as a
new source of energy to the domestic and commercial consumers,
the Pakistan Penal Code, 1860 was amended through Criminal
Law (Amendment Act) 2011 (Act XX of 2011) so as to incorporate a
penal regime to cope with cases of theft, pilferage, interference and
tampering, etc. with the distribution system and matters ancillary
therewith, covering wide spectrum of products under the definition
of petroleum. It provided a mechanism for prosecution of offences
set out in the newly inserted chapter i.e. Chapter XVII A. Through
Act No.XI of 2016, the parliament enacted The Gas (Theft, Control
& Recovery) Act 2016 which came into force throughout Pakistan
on 23rd of March, 2016. The new law comprehensively deals with
the cases of theft, tampering with auxiliary or distribution gas
pipelines and with meters thereof including causing wastage or
damage thereto. It sets up a tribunal comprising a District&
Sessions Judge to prosecute both offences as well as claims for
recovery of loss to the public exchequer. A comparative analysis of
changes brought about by the Act clearly illustrates that the new
regime under exclusive jurisdiction solely deals with the cases of
gas with no change in the generic character of the offences earlier
enlisted under the Chapter XVII A of the Pakistan Penal Code,
1860 except that it provided a new mechanism for assumption of
exclusive jurisdiction by the Gas Utility Court to try offences as a
Court of Session under the Code of Criminal Procedure, 1898 (Act
V of 1898), however, it required a complaint, in writing by a person
authorized in this behalf by a Gas Utility Company. The offences
listed above remained cognizable as well as non-bailable with only
immunity extended to a domestic consumer, otherwise liable to be
dealt with in accordance with the provisions of the Code ibid. It is
in the backdrop of above statutory changes, the petitioners sought
annulment of First Information Report on the grounds enumerated
above.
6.
Survey of above regime unmistakably confirms that a
listed offence under the new regime by a commercial consumer,
notwithstanding statutory changes remain a cognizable offence
defined under section 4 (1)(f) of the Code of Criminal Procedure,
1898, as under:
Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020
6
“Cognizable offence”. “Cognizable case.” “cognizable
offence” means an offence for, and cognizable
case” means a case in, which a police-officer,
may, in accordance with the second schedule or
under any law for the time being in force, arrest
without warrant:
As pointed out above, the only concession available under the new
regime is available to a domestic consumer which is not a case
before us, as is amply evident from the contents of First
Information Report, reproduced below:
Similarly, restriction placed by section 23 of the Act ibid is merely
directory in nature, to be followed having regard to the exigencies
of a particular situation, as far as practicable; non-compliance
whereof, cannot be interpreted to have vitiated the process of law
as such a construction cannot be visualized without incurring the
possibility of loss of evidence regarding theft/pilferage of a precious
public resource, a situation never contemplated by the law makers.
Similarly, there is a wide variety of offences both under the
Pakistan Penal Code, 1860 as well as under various special laws
that require prior sanction for prosecution for the purposes of
assumption of cognizance by the trial Court, the requirement does
not stand in impediment to the registration of First Information
Report, arrest of an offender or commencement of investigation
thereof as the clog of sanction transiently relates to the steps
Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020
7
preparatory thereto by the authority designated under the Statute;
in the present case, a procedure to be routed through section 5 (2)
of the Act.
Argument that the petitioners had long before leased out the
premises to a third party and as such were not responsible for any
wrongdoing, if at all, by the lessee is beside the mark. These are
factual controversies which the High Court has rightly declined to
attend. There are no shortcuts in criminal prosecutions and it is
certainly far less than expedient to pre-empt designated tribunals
to exercise jurisdiction so as to try offences on the strength of
evidence brought-forth by the prosecution, the only known method
both to establish the charge as well as to vindicate a defence.
Similarly, while an accused is certainly entitled to a fair trial under
“Due Process of Law”, it is also sovereign attribute of State to carry
out prosecutions through its agencies in accordance with law with
a reasonable opportunity to drive home the charge against the
offenders to maintain/enforce its writ and effectively uphold
majesty of laws within the realm. It is far more important when at
risk is a resource commonly owned by the people. Equality before
law without equal protection thereof is a travesty. We have found
the High Court while declining the request well within the remit of
law consistently expounded by this Court in the cases reported as
Umar Hayat Versus The State (1995 S C M R 1005), Mst. Mehr un
Nisa Versus Zain ul Abidin and 5 others (1995 SCMR 1139) Ahmed
Saeed Versus The State and another (1996 S C M R 186), Miraj
Khan Versus Gul Ahmed and 3 others (2000 S C M R 122),Shah
Jehan
Khetran
Versus
Sh.
Mureed
Hussain
and
others
(2005 S C M R 306), Muhammad Bashir Versus Muhammad
Usman and others (2003 S C M R 1339),Muhammad Yasin Versus
S.S.P. and others(2004 S C M R 868)Muhammad Saleem Bhatti
Versus Syed Safdar Ali Rizvi And 2 Others (2006 S C M R
1957),Industrial Development Bank of Pakistan and others Versus
Mian Asim Fareed and others (2006 C L D 625),Col. Shah Sadiq
versus Muhammad Ashiq and others (2006 S C M R 276), Rafique
Bibi Versus Muhammad Sharif and others (2006 S C M R 512),
Muhammad Mansha Versus Station House Officer, Police Station
City, Chiniot, District Jhang and others (P L D 2006 Supreme
Court 598), Khushi Muhammad Versus Abdul Ghafoor and others,
Criminal Petition No.907 of 2020 &Civil Petition No.1965 of 2020
8
(2006 S C M R 839), Muhammad Younas and others Versus
Mst.
Perveen
alias
Mano
and
others
(2007 S C M R 393),
Muhammad Bashir Versus Station House Officer, Okara Cantt. and
others (P L D 2007 Supreme Court 539), The State Through
Prosecutor General, Punjab, Lahore Versus Sultan Ahmed and
others (P L D 2007 Supreme Court 48), Dr. Ghulam Mustafa
Versus The State and others (2008 S C M R 76), Muaz Ahmad
Versus Haji Muhammad Ramzan and others (2008 S C M R 529),
Ajmeel Khan Versus Abdur Rahim and others(P L D 2009 Supreme
Court 102),Muhammad Aslam (Amir Aslam) and others Versus
District Police Officer, Rawalpindi and others (2009 S C M R
141),Akhlaq Hussain Kayani Versus Zafar Iqbal Kiyani and others
(2010 S C M R 1835),Dr. Sher Afgan Khan Niazi Versus Ali S.
Habib and others (2011 S C M R 1813), Rana Shahid Ahmad
Khan Versus Tanveer Ahmed and others(2011 S C M R 1937),
The State through D.G., A.N.F., Rawalpindi Versus Muhammad
Saleem Khan (2011 S C M R 863), Rizwana Bibi versus The State
and another (2012 S C M R 94)Director-General, Anti-Corruption
Establishment, Lahore and others Versus Muhammad Akram Khan
and others (P L D 2013 SC 401). Civil Petition No.1965 of 2020
fails. Leave declined.
As a natural corollary, Criminal Petition No.907 of 2020
stands dismissed.
Judge
Judge
Judge
Islamabad
30thSeptember,2019
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SARDAR TARIQ MASOOD
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
CRIMINAL PETITION NO. 91-K OF 2020
(On appeal against the judgment dated 12.05.2020
passed by the High Court of Sindh, Karachi in Criminal
Appeal No. 183/2019)
Muhammad Samiullah
… Petitioner
Versus
The State
…Respondent(s)
For the Petitioner:
Mr. Anis Muhammad Shahzad, AOR
For the State:
Mr. Hussain Bux Baloch, Addl. P.G. Sindh
Date of Hearing:
09.02.2022
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was
proceeded against in terms of the case registered vide FIR No.
25/2015 dated 14.07.2015 under Section 409 PPC read with
Section 5(2) of Prevention of Corruption Act-II, 1947 at Police Station
ACE East Zone, Karachi on the allegation that he being incharge of
Laboratory of Regional Education Center, Shah Faisal Colony,
Karachi had misappropriated some of the machinery/equipment.
The learned Trial Court vide its judgment dated 19.03.2019
convicted the petitioner while exercising powers under Section
245(2) Cr.P.C. and sentenced him to suffer rigorous imprisonment for
4 years for the offence under Section 409 PPC. He was also directed
to pay fine of Rs.25000/- or in default whereof to further suffer SI
for 3 months. The petitioner was also convicted under Section 5(2) of
Prevention of Corruption Act, 1947 and was sentenced to 4 years RI
with a fine of Rs.25000/- or in default whereof to further undergo SI
for 3 months. The sentences were ordered to run concurrently with
benefit of Section 382(b) Cr.P.C. In appeal, the learned High Court of
Sindh, maintained the conviction and sentences recorded by the
learned Trial Court.
Criminal Petition No. 91-K/2020
-: 2 :-
3.
After completion of the investigation, report under
Section 173 Cr.P.C. was submitted before the Trial Court. The
prosecution in order to prove its case produced 6 witnesses. In his
statement recorded under Section 342 Cr.P.C the appellant pleaded
his innocence and refuted all the allegations leveled against him.
However, he neither examined himself on oath under Section 340(2)
Cr.P.C nor did he lead any evidence in his defence.
4.
At the very outset, learned counsel for the petitioner
contended that it was an unseen occurrence as nobody has seen the
petitioner while stealing the equipment of the laboratory. Contends
that the prosecution’s case revolves around the alleged admission of
the petitioner by filing an application but the fact is that the
petitioner had never filed any such application. Contends that the
case against the petitioner is highly doubtful and the courts below
have failed to take into consideration that the prosecution has
miserably failed to prove its case against the petitioner beyond any
shadow of doubt and the benefit of the same must be given to the
petitioner. Lastly contends that the judgments passed by the courts
below are result of misreading and non-reading of prosecution
evidence whereby a huge miscarriage of justice has been done.
5.
On the other hand, learned Law Officer has defended
the impugned judgment. He contended that the appellant has been
specifically nominated in the crime report with an allegation of
misappropriation of office equipment and during departmental
inquiry proceedings, he had admitted his guilt and had filed an
application in this regard and sought time to return the equipment,
therefore, he does not deserve any leniency by this Court.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with
their able assistance.
The perusal of record clearly reflects that there is no
direct evidence available on the record, which could connect the
petitioner with the commission of the crime. The prosecution’s case
mainly hinges upon the testimonies of four PWs, who belong to the
Criminal Petition No. 91-K/2020
-: 3 :-
petitioner’s department. The crux of the testimonies of the four PWs
who belonged to the petitioner’s department is that during the
inquiry proceedings the petitioner had confessed his guilt and had
submitted an application seeking time to return the articles.
However, we have noted that a specific question in this regard was
put to the petitioner while recording his statement under Section 342
Cr.P.C. but he categorically denied the filing of any such application
or his signatures on the said application. Perusal of the record
reveals that neither the disputed signatures of the petitioner were
sent to the handwriting expert nor the forensic test of the same was
got done to get them verified in a scientific manner and the Trial
Court of its own compared the admitted signatures of the petitioner
with the disputed signatures on the alleged application filed by him.
There is no cavil that Article 84 of the Qanun-e-Shahadat Order,
1984 empowers the Courts to compare the disputed signatures in
order to ascertain whether the same is that of the person by whom it
purports to have been written or made but in the matters where no
direct evidence is available and the prosecution case exclusively
rests on indirect evidence especially like the present case where the
prosecution’s case is solely based upon the alleged admission of the
petitioner then as an abundant caution the Courts while convicting
an accused must adopt a safest way, which glorifies the true spirit
behind the safe administration of criminal justice, which admittedly
has not been done by the courts below. Even otherwise, it is settled
law that in absence of sufficient evidence available on the record in
the shape of oral or documentary, the evidence of handwriting
expert is always considered to be most unsatisfactory, so weak and
decrepit as scarcely to deserve a place in the system of
jurisprudence and the courts are not to base their findings merely on
expert opinion. Reliance is placed on Rubina Jamshed Vs. UBL
(2005 CLD 50), Abdul Hamid Vs. Deputy Commissioner (1985 SCMR
359), Shabbir Hussain Vs. The State (1968 SCMR 1126) and Anwar
Ahmad Vs. Nafis Bano (2005 SCMR 152). It is also an admitted
position that at the time of registration of the crime report neither the
inventory of the alleged stolen articles nor their description was
given. If the foundation of the prosecution case is false and would
not conform to the doctrine of fairness then the very case of the
Criminal Petition No. 91-K/2020
-: 4 :-
prosecution falls to the ground. In these circumstances, a dent in the
prosecution’s case has been created, benefit of which must be given
to the petitioner. It is a settled law that single circumstance creating
reasonable doubt in a prudent mind about the guilt of accused
makes him entitled to its benefits, not as a matter of grace and
concession but as a matter of right. The conviction must be based on
unimpeachable, trustworthy and reliable evidence. Any doubt
arising in prosecution’s case is to be resolved in favour of the
accused as burden of proof is always on prosecution to prove its
case beyond reasonable shadow of doubt. However, as discussed
above, in the present case the prosecution has failed to prove its
case beyond any reasonable shadow of doubt. Before parting with
the judgment, we may observe that the learned Special Judge, Anti
Corruption/Trial Court while un-necessarily pressing into Section
245(2) Cr.P.C. has convicted the petitioner for the offence under
Section 409 PPC. Chapter XX of the Code of Criminal Procedure
deals with the trial of cases by Magistrate and Section 244 & 245 lie
in this Chapter, which prescribe the procedure for trial of a warrant
case instituted on a complaint. However, as the prosecution has
failed to prove its case, we do not deem it appropriate to go further
into this aspect of the matter.
7.
For what has been discussed above, we convert this
petition into appeal, allow it and set aside the impugned judgment.
The petitioner is acquitted of the charge. He shall be released from
jail forthwith unless detained in any other case.
JUDGE
JUDGE
JUDGE
Islamabad, the
9th of February, 2022
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.916 of 2020
(Against the order dated 9.6.2020 passed by the
Peshawar High Court, D.I. Khan Bench in Cr.M.BC
No.10-D/2020)
Muhammad Waheed
…Petitioner(s)
Versus
The State through AG KPK and another
….Respondent(s)
For the Petitioner(s):
Mr. Muhammad Yousaf Khan, ASC
For the State:
Mr. Anis Muhammad Shahzad (State counsel)
with Haq Nawaz, SI.
Date of hearing:
01.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Muhammad Waheed,
petitioner herein, blamed for attempt to have carnal knowledge with Nemat
Ullah, 7/8, at 12.00 hours on 2.12.2019 within the precincts of Police
Station Daraban, District D.I. Khan, seeks revival of his bail granted by
the Addl. Sessions Judge, subsequently cancelled by a learned Judge-in-
Chamber of the Peshawar High Court, D.I. Khan Bench vide impugned
order dated 9.6.2020.
After the assault, the child was examined same day and the Medical
Officer observed a bleeding anal orifice with abrasions on the knee joint;
whitish material on the clothes were forensically opined as seminal stains.
2.
Learned counsel for the petitioner contends that there was no
occasion for the learned High Court to cancel bail granted by a competent
tribunal; according to him, freedom once granted is seldom re-called more
so in the absence of compelling reasons, conspicuously missing in the
case. Learned Law Officer has faithfully defended the impugned order; he
contends that medical evidence unambiguously suggested commission of
crime of sodomy as the bleeding rectum confirms penetration, sufficient to
constitute the offence and, thus, the investigating officer manifestly ran
into error by viewing the incident as mere attempt, therefore, observations,
2
Criminal Petition No.916 of 2020
though tentative in nature, recorded by the High Court are not open to
exception.
3.
Heard. Record perused.
4.
Certainly it is for the trial Court to finally settle petitioner’s
alleged culpability and the offence made thereunder on the strength of
evidence, nonetheless, available material in the given circumstances
constitutes “reasonable grounds” within the contemplation of section 497
of the Code of Criminal Procedure 1898 so as to bring his case within the
remit of prohibition provided thereunder and, thus, there was no occasion
for the learned Additional Sessions Judge to release him on bail, an error
justifiably rectified by the learned Judge-in-Chamber. On our own
analysis, given extreme tender age of the child, trauma apparently endured
by him, positively confirmed by medical evidence, we do not feel persuaded
to subscribe to the parallel story of denial, structured upon complainant’s
alleged animosity based upon some previous litigation. Plea of juvenility
though addressed at the bar does not find mention in the grounds taken
before us though there is an oblique reference before the Court of Session
albeit with no supporting material. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
1st September, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition Nos.92-K and 100-K of 2021
(Against the order dated 9.3.2021 passed by the High Court of Sindh
at Sukkur in Cr. A. Nos.4 & 79/2015)
Manzoor Ahmed and others
(in Crl. P. No.92-K/2021)
Akbar
(in Crl. P. No.100-K/2021)
…Petitioner(s)
Versus
The State
(in both cases)
…Respondent(s)
For the Petitioner(s):
Raja Jawad Ali Saahar, ASC
(in Cr. P.92-K/2021)
Mr. Ejaz Ahmed Awan, ASC
(in Cr. P.100-K/2021)
For the State:
Mr. Zafar Ahmed Khan,
Addl. Prosecutor General Sindh
(in both cases)
Date of hearing:
12.10.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Mst. Pathani, 16, was
forcibly abducted from her house located within the precincts of Police
Station Khairo Diro District Jamshoro at 11:00 p.m. on 19.3.2012; her
father Hamzo Khan (PW-1) nominated Baqir, Akbar sons of Ghulam
Hussain, Fida Hussain, Aslam son of Akbar Rodani, Ahmad son of
Ghulam Hussain, Manzoor, Ali Muhammad sons of Ahmed, Ilahi
Bukhsh, Taj Muhammad, Dawan Hussain sons of Faiz Muhammad,
Niaz Hussain son of Haji Muhammad as suspects; according to him, the
accused, variously armed, barged into his dwelling house and took
away the prosecutrix within the view of the family members, who upon
resistance were thrashed by the intruders; the injured were medically
Criminal Petition Nos.92-K and 100-K of 2021
2
examined on 20.03.2012. As the investigation progressed, the
prosecutrix was recovered from Baqar’s house, absconding co-accused,
who himself fled from the scene on 24.07.2012; medical examination on
the following day confirmed carnal assault on the prosecutrix with a
pregnancy of nine weeks; in her statement, she blamed Akbar petitioner
(in Cr. P.100-K) alongside Baqar, Fida Hussain and Aslam, absconding
till date, for having repeatedly molested her. Barring the absconders,
the accused were indicted by a learned Addl. Sessions Judge at Sehwan
who returned them a guilty verdict, vide judgment dated 04.01.2014,
detailed as below:
“All the accused
U/s 147/148/149 PPC
3-years with fine of Rs.200/-
each in default 20-days SI
U/s 337-L(ii) PPC
2-years RI with Daman/fine
of Rs.300/- each injured, in
default SI for one month and
also Daman of Rs.500/- to
Sain Bux injured and SI for
one month in default.
U/s 337-A(ii) PPC
1-year RI with fine/Arsh @
5%
i.e.1,07000/-
jointly
payable by all accused to
Mazhar Hussain injured with
further 3-years RI
U/s 363 PPC
5-years
RI
with
fine
of
Rs.10,000/- to be paid to
victim Mst. Pathani and six
months SI in case of default
Akbar, accused
U/s 376(2) PPC
Life imprisonment with fine of
RS.50,000/- to be paid to the
victim or SI for six months in
default of payment
Benefit
of
Section
382-B
Cr.P.C. is extended to all the
accused
all the accused, except Akbar,
were
acquitted
from
the
charge of rape.”
The High Court upheld the convictions as well as sentences
consequent thereupon vide impugned judgment dated 23.06.2021,
being separately assailed by the convicts through captioned captions;
bound by a common thread, these are being decided through this single
judgment.
Raja Jawad Ali Saahar, ASC for Manzoor Ahmed, Ali Muhammad,
Niaz Hussain Illahi Bux, Taj Muhammad, Dawan and Ahmed (in Cr. P.
No.92-K/2021) does not contest convictions and instead prays for
Criminal Petition Nos.92-K and 100-K of 2021
3
reduction of sentence to the period already undergone by them, in view
of the riders provided under subsection 2 of section 337 N of the
Pakistan Penal Code, 1860l; he pledges payment of compensation to the
injured as directed by the learned trial Court. Learned Law Officer is not
averse to the prayer made at the bar, as according to him, the case of
aforesaid convicts, being first offenders, is covered by subsection 2 of
section ibid. Criminal Petition No.92-K of 2021 is dismissed as not
pressed, however, sentences awarded to the petitioners therein are
reduced to the period already undergone by them; upon payment of
compensation, they shall be released forthwith, if not required to be
detained in any other case.
2.
Learned counsel for Muhammad Akbar petitioner contends
that in the absence of a D.N.A. analysis, the petitioner cannot be
saddled with the responsibility of carnal assault merely on solitary
statement of the prosecutrix; adds that the prosecutrix was not
recovered from petitioner’s custody, a circumstance that escaped notice
of the learned courts below; complainant cast a wider net and it would
be unsafe to maintain the conviction with a lifetime incarceration,
concluded the learned counsel. The learned Law Officer contends that
an hapless minor girl callously dragged out from the safety of her home
was jointly molested, a beastly act, medically confirmed with a fetus in
the uterus, the petitioner, being one of the offenders, has already
leniently been visited with the alternate penalty of imprisonment for life;
he has taken us to the statement of the prosecutrix to argue that
petitioner’s guilt is proved to the hilt.
3.
Heard. Record perused.
4.
Five members of the family with stamp of injuries
unanimously blamed the petitioner and co-convicts for having intruded
into the dwelling to abduct the prosecutrix; she was recovered by the
police after almost four months from the house of Baqir co-accused,
still away from law; medical evidence confirmed carnal assault with a
fetus in its aftermath, leaving no space to entertain any hypothesis
other than sexual assault; witnesses in a comfortable unison faced
directionless cross-examination, mostly comprising of suggestions
vehemently denied, without embarrassment; most inspiring is
statement of the prosecutrix, having endured the trauma, she related
graphic details of abduction and subsequent treatment meted out
during her captivity. In a rural neighbourhood, it is hard to believe that
Criminal Petition Nos.92-K and 100-K of 2021
4
a family would join hands to level a false accusation at the cost of a
perennial stigma, that too, without any motive or reason. Even
investigative conclusions do not admit the hypothesis of a false case nor
the learned counsel his persistent denial, notwithstanding, has not
been able to point out any flaw or infirmity in the statements of the
witnesses. In particular, statement of the prosecutrix does not admit a
slightest doubt and as such by itself constitutes formidable evidence to
independently drive home the charge with the support of irrefutable
clinical
evidence,
preponderance
whereof
does
not
require
a
confirmatory D.N.A. profile generation, a facility otherwise scarcely
available way back in the year 2012; appraisal of evidence by the courts
below, being in accord with the principles of safe administration calls
for no interference. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
12th October, 2021
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL, CJ
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
CRL.P.921/2023, CRL.P.938/2023 AND CRL.P.922/2023
1.
Crl.P.921/2023
Imran Ahmad Khan Niazi v. District Election
Commissioner, Islamabad
2.
Crl.P.938/2023
Imran Ahmad Khan Niazi v. District Election
Commissioner, Islamabad and another
3.
Crl.P.922/2023
Imran Ahmad Khan Niazi v. District Election
Commissioner, Islamabad
For the Petitioner(s)
: Sardar Muhammad Latif Khan Khosa,
Sr. ASC
Mr. Gohar Ali Khan, ASC assisted by
Mr. Intazar Hussain, Advocate HC and
Ms. Surain Jehan Khan, Advocate HC
On Court’s call
: Mr. Amjad Pervez, ASC
ECP
: Mr. Khurram Shahzad, Addl. DG Law,
ECP
Mr. Falak Sher, Consultant
Date of Hearing
: 23.08.2023
O R D E R
We have heard the learned counsel for the petitioner
who has read to us from the impugned order of the High Court
dated 03.08.2023 whereby a number of jurisdictional and
maintainability objections were remanded for consideration by
the Trial Court. The proceedings before the Trial Court were
already fixed for hearing on 05.08.2023. The case was called a
number of times but neither the petitioner nor his authorized
representative were present in the court. As a result, the Trial
Court proceeded ex-parte and decided the complaint filed by the
CRL.P.921/2023 etc
2
Election Commission of Pakistan (“ECP”) without hearing the
petitioner on 05.08.2023 convicting him for offences under
Sections 167 and 173 of the Elections Act, 2017 and sentencing
him to 03 years S.I. We are also informed that the petitioner in
his statement recorded under Section 342 Cr.PC on 01.08.2023
had expressed the intention to produce defence witnesses. That
application was turned down by the Trial Court on 02.08.2023
for the reason that the four witnesses mentioned in the list were
not relevant to the controversy in issue.
2.
We asked the learned ASC, who represents the
ECP-Complainant before the Trial Court as well as the High
Court, whether the aforementioned two points are correct. He
has candidly acknowledged the claim made by the learned
counsel for the petitioner to be true. He has also admitted that
notwithstanding the remand order passed by the High Court on
03.08.2023 whereby the jurisdictional and maintainability
objections were returned to the Trial Court, the final judgment of
the Trial Court dated 05.08.2023 failed to decide the same
afresh. Instead the final judgment reaffirms the Trial Court’s
earlier orders dated 05.05.2023 and 08.07.2023 which had
considered these points. However, the same were set aside by
the High Court through order dated 03.08.2023 that is impugned
before us. In this respect, the final judgment of the Trial Court
dated 05.08.2023, prima facie, defies the direction of remand
issued by the High Court by relying on its earlier point of view
that already stands rejected by the High Court.
CRL.P.921/2023 etc
3
3.
These are serious points of law that deserve
consideration but we are told that an appeal against the final
judgment passed by the Trial Court on 05.08.2023 has been filed
before the High Court on 08.08.2023. The petitioner is in jail
since 05.08.2023. Therefore, an application for suspension of
sentence of the petitioner has also been filed before the High
Court which is fixed for hearing tomorrow i.e., 24.08.2023.
Notwithstanding the legal issues highlighted to us and noted
above regarding the jurisdiction of the Trial Court and the
maintainability of the complaint, the procedural propriety of the
trial and compliance with the due process requirements ordained
by the Constitution, we consider that the High Court is the first
Court which should hear and decide such matters. As the
petitioner’s application for suspension of sentence is fixed for
hearing tomorrow, it is appropriate that out of respect for the
High Court we first await its decision.
4.
Mr. Khurram Shahzad, Addl. DG Law has appeared
on behalf of the respondent-ECP and waives notice. These
petitions to come up for hearing at 02:00 PM on 24.08.2023.
Sd/-
Chief Justice
Sd/-
Judge
Sd/-
Judge
Islamabad
23.08.2023
Rashid/*
CRL.P.921/2023 etc
4
Not approved for reporting
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.923 of 2020
(Against the order dated 22.07.2020 passed by the Lahore
High Court Lahore in Crl. Misc. No.28210-B/2020)
Muhammad Ashraf
…Petitioner(s)
Versus
The State & another
….Respondent(s)
For the Petitioner(s):
Mr. Javed Imran Ranjha, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Rana Abdul Majeed,
Addl. Prosecutor General Punjab with M.
Riaz, SI P.S. Civil Lines, M.B. Din.
For the Complainant:
Mr. Khadim Hussain Qaiser, ASC
Date of hearing:
22.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Muhammad Arif, 52, was
shot dead at 2:55 p.m. on 11.12.2019, in front of District Courts, within the
precincts of Police Station Civil Lines Mandi Bahauddin, shortly after
attending court proceedings while awaiting public transport along with Gul
Muhammad, Bashir Ahmed, Tariq Mehmood and Faiz Ahmed, PWs; Tariq
Mehmood, deceased’s real brother lodged the report with the police and
blamed Khawar Riaz, Atif Nawaz, Muhammad Zubair and Khizar Hayat
accompanied by two unknown assailants, with multiple fire shots to the
deceased on the instigation of Riaz Ahmad, Muhammad Ashraf son of
Ghulam Rasool and Armaghan Asim. Past blood feud is cited as motive for
the crime. Autopsy revealed three independent entry wounds while an exiting
projectile re-entered the body again with a corresponding exit. Barring
Muhammad Zubair, attributed a fire shot to Gul Muhammad PW, remainder
of the accused were assigned shots to the deceased. Khizar Hayat co-accused,
assigned a specific shot to the deceased, was exonerated during the course of
investigation and granted pre-arrest, without challenge by the complainant.
The petitioner emerged in the array as one of the unknown assailants;
arrested on 25.01.2020 under section 54 of the Code of Criminal Procedure
1898, he alongside Zishan Wali and Muhammad Iftikhar was identified by the
Criminal Petition No.923 of 2020
2
witnesses in a test identification parade held on 28.01.2020 as a hired
assassin engaged by the co-accused to prosecute their object.
2.
Heard. Record perused.
3.
Be that as it may, the petitioner was not initially named in the
crime report; he has been picked with two others by graduating the number of
unknown assailants to three, who according to the complainant had also
effectively targeted the deceased, medically found to have three entry wounds,
individually assigned to the nominated accused. These circumstances, result
of the test identification parade notwithstanding, nonetheless, squarely bring
petitioner’s case within the remit of subsection 2 of section 497 of the Code
ibid as attribution belatedly assigned to him does not correspond both with
the findings recorded by the Medical Officer as well as the number of unknown
assailants mentioned in the crime report. In this backdrop, his alleged
culpability of being a paid participant in the crime can be best settled after
recording of evidence. Criminal Petition No.923 of 2020 is converted into
appeal and allowed; petitioner/appellant shall be released on bail upon
furnishing bond in the sum of Rs.500,000/- with one surety in the like
amount to the satisfaction of the learned trial Court/duty Judge.
Judge
Judge
Judge
Islamabad, the
22nd September, 2020
Not approved for reporting
Azmat/-
Criminal Petition No.923 of 2020
3
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 927-L OF 2021
(On appeal against the order dated 22.06.2021 passed
by the Lahore High Court, Lahore in Criminal
Miscellaneous No. 31992/B/2021)
Ihtisham Ali Cheema
… Petitioner
VERSUS
The State and another
… Respondents
For the Petitioner:
Mr. Khurram Latif Khan Khosa, ASC a/w
petitioner
For the State:
Mirza Muhammad Usman, DPG
Mr. Muhammad Zahid, SI
Date of Hearing:
21.10.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant
petition under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973, the petitioner has assailed the order dated
22.06.2021 passed by the learned Single Judge of the Lahore High
Court, Lahore, with a prayer to grant pre-arrest bail in case
registered vide FIR No. 228/2021 dated 22.02.2021 under Sections
324/337-D/148/149 PPC at Police Station Sadar, Gujranwala, in
the interest of safe administration of criminal justice.
2.
Briefly stated the allegation against the petitioner is
that he along with co-accused while armed with firearms assaulted
upon the complainant party and the petitioner fired with his pistol,
which landed on the right side of the chest of one Abu Hurera,
brother of the complainant.
3.
Learned counsel for the petitioner contends that the
petitioner has been falsely roped in this case against the actual facts
and circumstances of this case due to connivance of the complainant
Criminal Petition No. 927-L/2021
2
with local police. Contends that the petitioner is innocent and has
nothing to do with the alleged offence as narrated in the FIR.
Contends that the FIR was registered after a delay of 24 hours
which shows that it was registered after deliberation and
consultation. Contends that during the Police investigation, the
petitioner was found empty handed at the place of occurrence and
the role of firing at the chest of the injured was assigned to co-
accused Zain, who has been arrested and the pistol has been
recovered from his possession. Finally contends that the case of the
petitioner falls within the ambit of Section 497(2) Cr.P.C.
4.
On the other hand, learned Deputy Prosecutor General
supported the impugned order declining bail to the petitioner. He
contends that the petitioner has been specifically nominated in the
crime report with a specific role of firing at the chest of brother of the
complainant, therefore, he does not deserve any leniency by this
Court.
5.
We have heard learned counsel for the parties at some
length and have perused the record with their assistance.
It is an admitted position that the petitioner has
assailed the jurisdiction of this Court for the grant of pre-arrest bail,
which is extraordinary in nature. The superior courts of this country
have repeatedly held that the premium of pre-arrest bail is to be
extended sparingly. However, if the facts and circumstances do
warrant that the person seeking such relief is falsely implicated and
there is likelihood of being injustice committed to him, this Court is
under obligation to come for the rescue of innocent person while
granting the said extraordinary relief. In the instant case, there is no
denial to this fact that the case was registered after lapse of 24
hours whereas the distance between the place of occurrence and the
Police Station is hardly four miles on a metal road. The inordinate
delay per se in this particular case is to be evaluated with care and
caution. No doubt the petitioner is assigned the role of causing
firearm injury on the right side of chest of the brother of the
complainant but this aspect has been found false during the course
of investigation, which remained unchallenged. During the course of
investigation, it was further found that in-fact it was co-accused of
the petitioner who fired at the injured and as such he was taken into
Criminal Petition No. 927-L/2021
3
custody and pistol has been recovered from him. During the course
of investigation, it was further found that though the petitioner was
present at the place of occurrence but he was empty handed and no
overt act is ascribed to him. Apart from this it is an admitted fact
that the petitioner was taken to hospital after the lapse of three
hours and still fresh blood was oozing from the wound whereas the
Glasgow Conscious Scale (GCS) was found to be 15/15. All these
aspects when taken into consideration conjointly create doubt in the
genuineness of the prosecution case. It is established principle of
law that the benefit of doubt can even be extended at bail stage. It is
an admitted fact that the parties are resident of the same area,
known to each other and the occurrence has taken place in the
broad day light. As a consequence of all facts and circumstances,
we are of the view that putting the petitioner behind the bars at this
stage perhaps would result into undue incarceration prior to
establishing the guilt of the petitioner, which is to be avoided
because of the reason that the liberty of a person is a precious right,
which has been guaranteed under the Constitution of Islamic
Republic of Pakistan, 1973.
6.
For what has been discussed above, we convert this
petition into appeal, allow it, set aside the impugned order dated
22.06.2021 and confirm the ad interim pre-arrest bail granted to the
petitioner by this Court vide order dated 22.09.2021.
JUDGE
JUDGE
Islamabad, the
21st of October, 2021
Approved For Reporting
Khurram
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1
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�ا � ،ہ� �� ب� ہا�
:�� ِ�ر� ٠٨ �، ٢٠١٦
Crl.P.L.A. No. 927 & 928 of 2016
2
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Crl.P.L.A. No. 927 & 928 of 2016
3
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Crl.P.L.A. No. 927 & 928 of 2016
4
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Crl.P.L.A. No. 927 & 928 of 2016
5
:ٹ� � �ر � � ٹر�ر ��ا �ا�ا روا �� � �ا �� �� �ا�� ود � ��
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�
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�آ م�ا،د٨� ٢٠١٦� (ر� � � ��ا)
�و �ا
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.93-P of 2015
(Against the judgment dated 04.06.2015 passed by the Peshawar
High Court Peshawar in Cr. A. No.657-P/2013)
Mst. Rukhsana
…Petitioner(s)
Versus
Rehmanullah and another
…Respondent(s)
For the Petitioner(s):
Mr. Abdul Fayaz Khan, ASC
Mr. Muhammad Ajmal Khan, AOR
For the Respondent(s): Mr. Muhammad Inaam Yousafzai,
Addl. Advocate General, KPK
Date of hearing:
26.07.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- Muhammad Islam,
30/32 and Muhammad Said Ghani Shah, 25/26, were shot dead at
4:30 p.m. on 2.2.2011 in the backdrop of a previous brawl within the
precincts of Police Station Rustam, District Mardan; incident was
reported by Muhammad Inaam PW 5:30 p.m. straight at the police
station; respondent along with his brother Abid were arrayed as
accused in the backdrop of a previous dispute over the fodder; latter is
still away from law; a learned Additional Sessions Judge at Mardan
convicted the respondent under clause (b) of section 302 of the Pakistan
Penal Code, 1860 and sentenced him to death on two counts with a
direction to pay compensation vide judgment dated 13.12.2013,
overturned by the High Court vide impugned judgment dated 4.6.2015,
vires whereof, are being assailed on a variety of grounds. It is argued
that the deceased, both in their prime youth, were brutally done to
death in broad daylight under unmistakable premeditation within the
view of witnesses who not only established their presence at the scene
but also had no axe to grind against the culprits, one of whom is still
avoiding justice; that each piece of evidence produced by the
Criminal Petition No.93-P/2015
2
prosecution is synchronized with the events within the proximity of time
and space, hardly leaving a room to deliberate a false case or entertain
any hypothesis of substitution. The bottom line is that ocular account
and investigative conclusions squarely constituted “proof beyond doubt”
and, thus, High Court’s disproportionate reliance on the peripheral
issues purporting inconsequential omissions by the Investigating
Officer, witnesses’ inability to point out caliber of weapons with
exactitude and reference to entries in the site plan without their having
been confronted to the witnesses presents adjudication, diametrically
incompatible with the settled norms of appreciation of evidence in
administration of criminal justice and, thus, being artificial tends to
result in miscarriage of justice, clamouring for intervention by this
Court. Contentions merit consideration; leave is granted to reappraise
the entire evidence. Send for the respondent through bailable warrant
in the sum of Rs.200,000/-, returnable to the Assistant Registrar of this
Court at Peshawar. Station House Officer shall execute the warrant
within a fortnight.
Judge
Judge
Peshawar, the
26th July, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Amin-ud-Din Khan
Criminal Petition Nos.955-L and 973-L of 2016
(Against judgment dated 24.06.2016 of the Lahore
High Court Lahore passed in Cr. A. No.70 of 2012
along with M.R. No.101 of 2012)
Safdar Abbas & another
(in Cr.P. No.955-L/2016)
Ghulam Sarwar
(in Cr.P. No.973-L/2016)
…Petitioner(s)
Versus
The State & another
(in Cr.P. No.955-L/2016)
The State & two others
(in Cr.P. No.973-L/2016)
…Respondent(s)
For the Petitioner(s):
Mr. Shahid Azeem, ASC
(in Cr.P. No.955-L/2016)
Mr. Asghar Ali Gill, ASC
(in Cr.P. No.973-L/2016)
For Respondents No.2 & 3:
Mr. Shahid Azeem, ASC
(in Cr.P. No.973-L/2016)
For Respondent No. 2:
Mr. Asghar Ali Gill, ASC
(in Cr.P. No.955-L/2016)
For the State:
Mirza
Abid
Majeed,
Deputy
Prosecutor
General Punjab
Date of hearing:
3.12.2019
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Safdar Abbas and
Akhtar Abbas, petitioners, real brothers inter se, are in receipt of a
guilty verdict, returned by a learned Additional Sessions Judge at
Jhang vide judgment dated 23.12.2011; they were tried, through a
private complaint, alongside four others for committing Qatl-i-Amd of
Muhammad Bukhsh on 5.4.2008 within the precincts of Police Station
18-Hazarvi District Jhang in the backdrop of a motive relating to
divergent claims on a piece of agricultural land; one of the accused,
namely, Mubeen Saghar is still away from law under a perpetual
warrant of arrest; the co-accused were acquitted from the charge while
the petitioners stand convicted under clause (b) of section 302 read
with section 34 of the Pakistan Penal Code, 1860; they were sentenced
Cr.P. No.955-L/2016, Cr. P. 973-L/2016
2
to death, altered into imprisonment for life by a learned Division Bench
of Lahore High Court Lahore vide impugned judgment dated
24.06.2016, vires whereof are being assailed, primarily, on the ground
that evidence disbelieved qua majority of the accused, each identically
placed, cannot be pressed into service, in the absence of independent
corroboration, to sustain the charge vis-à-vis the petitioners, a position
vehemently contested on behalf of the complainant.
2.
Heard. Record perused.
3.
Petitioners’ father, namely, Charagh co-accused is assigned
multiple club blows to Muhammad Bukhsh deceased; same is charge
against Muzaffar co-accused; remainder of the accused, though
assigned no harm to the deceased, nonetheless, are ascribed effective
roles to the PWs; they are closely related being members of the same
clan and in the totality of circumstances given the accusation, their
roles cannot be bifurcated without nullifying the entire case. Motive
cited in the crime report is non-specific; investigative conclusions were
inconsistent with the case set up by the complainant. Recoveries are
inconsequential. Complainant abandoned his case against the
acquitted co-accused after failure of his petition seeking leave to appeal
in the High Court. In this backdrop, no intelligible or objective
distinction can be drawn to hold the petitioners guilty of the charge in
isolation with their co-accused. Prosecution evidence, substantially
found flawed, it would be unsafe to maintain the conviction without
potential risk of error. Criminal Petition No.955-L/2016 is converted
into appeal and allowed, impugned judgment is set aside, the
petitioners/appellants shall be released forthwith, if not required to be
detained in any other case.
As
a
natural
corollary,
complainant
petition
seeking
enhancement is dismissed.
Judge
Judge
Judge
Islamabad
3rd December, 2019
Not approved for reporting
Azmat*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO.957 OF 2021
(Against the order dated 03.08.2021 of the
Lahore High Court, Lahore passed in Crl.
Misc. No. 45363-B/2021)
Muhammad Nasir Shafique
…Petitioner(s)
Versus
The State through Prosecutor General Punjab and another
…Respondent(s)
For the Petitioner(s):
Mr. Asghar Ali Gill, ASC
Syeda B. H. Shah, AOR
For the State:
Mirza Muhammad Usman, D.P.G.
Mr. Muhammad Aslam, S.I.
For Respondent No.2:
In person
Date of Hearing:
23.09.2021
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- This petition under Article
185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has
been filed against the order dated 03.08.2021 passed by the learned
Lahore High Court, Lahore whereby the post-arrest bail was declined to
the petitioner.
2.
As per contents of the crime report bearing FIR No.1258/20
dated 03.10.2020 registered under Sections 489-F PPC at Police Station
Sargodha Road, Faisalabad lodged by Asif Ali it was alleged that the
petitioner borrowed Rs.70,00,000/- from him due to previous
relationship to buy a house from his brothers. The petitioner issued a
cheque to the complainant against the borrowed amount which on
presentation was dishonored resulting into lodging of the aforesaid
crime report.
CRIMINAL PETITION NO.957 OF 2021
-: 2 :-
3.
Learned counsel for the petitioner has vehemently
contended that in fact the story narrated in the crime report is false.
Contends that the amount which is alleged against the petitioner is an
afterthought and as such the petitioner is not liable for the amount
which is alleged against him. Further contends that Panchayat was
convened which ultimately came to the conclusion that only Rs.8000/-
are outstanding towards the petitioner. Lastly, it is contended that
maximum punishment for the offence provided in the statute is 03
years, therefore, the petitioner is entitled for the concession of bail on
this score alone.
4.
On the other land, learned Law Officer along with the
complainant, present in person, contends that he had sold one plot
against the consideration of Rs.62,00,000/- and the rest of the amount
was paid in cash in two installments. Contends that the complainant
has been deprived of huge amount and as such the petitioner does not
deserve any leniency.
5.
We have heard the learned counsel for the petitioner and
gone through the record.
As per the contents of the crime report, the allegation
leveled against the petitioner is of depriving the complainant of huge
amount under the garb of friendship. On the previous date of hearing,
we had specifically asked the complainant about the mode of payment
of the amount to the petitioner, upon which he sought time and the case
was fixed for 23.09.2021. Today, during the course of proceedings, the
complainant categorically stated that the amount paid to the petitioner
was in fact in cash and the same was not paid in lieu of any agreement
or receipt in this regard can be furnished. Apart from this, we are told
that the petitioner is behind the bars for the last 05 months and the
maximum punishment provided under the statute is 03 years. As the
amount was paid in installments which is not satisfactorily disclosed
by the complainant, therefore, we are hesitant to make any observation
in this regard, hence leaving it to be decided by the Trial Court after
recording of evidence. Liberty of a person is a precious right which
cannot be taken away without exceptional foundations. The law is very
liberal especially when it is salutary principle of law that the offences
which do not fall within the prohibitory clause, the grant of bail is a rule
while its refusal is mere an exception. By following the aforesaid
CRIMINAL PETITION NO.957 OF 2021
-: 3 :-
principle and taking into consideration all the facts and circumstances
stated above, we are of the view that the petitioner has made out a
case for the grant of post-arrest bail. Resultantly, this petition is
converted into an appeal and allowed, the impugned order is set aside
and the petitioner is granted post-arrest bail subject to his furnishing
bail bonds in the sum of Rs.10,00,000/- (rupees one million) with one
surety in the like amount to the satisfaction of the learned Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
23rd of September, 2021
Approved for reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No. 958 of 2020
(Against the order dated 14.4.2020 passed
by the Peshawar High Court Peshawar in
Crl. MBA No.106-D/2020)
Muhammad Irfan
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Ch. Muhammad Ayub Arbab Gujar, ASC
For the State:
Raja Inaam Ameen Minhas,
Ch. Ehtisham ul Haq,
Special Prosecutors, ANF
For the co-accused:
Khawaja
Azhar
Rasheed,
ASC
with
Dilshad Khan, co-accused.
Date of hearing:
15.10.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- On a tip off,
Muhammad
Irfan,
petitioner,
accompanied
by
Dilshad
Khan,
co-accused, was intercepted by a contingent of Anti Narcotic Force,
Dera Ismail Khan at 13:00 hours on 17.1.2020; upon search, a
substantial cache of cannabis, weighing 12 kilograms, stealthily
concealed underneath the rear seat of the vehicle, driven by them, was
recovered, a portion whereof, was wrapped around the belly of Dilshad
Khan co-accused. The contraband as well as the vehicle bearing
Registration No.BHH-686/Sindh were secured vide inventories of even
date.
After failure with the learned Special Judge, Muhammad Irfan
petitioner approached the High Court through Crl. MB No.57-D/2020
for his release on bail, declined by a learned Judge-in-Chamber on
27.2.2020. The same learned Judge, however, granted bail to Dilshad
Khan, co-accused in Crl. MBA No.90-D/2020 on 25.3.2020, on the
basis whereof, the present petitioner approached the High Court for his
release on bail on the principle of requirement of consistency,
Criminal Petition No.985 of 2020
2
dismissed by another learned Judge-in-Chamber vide order dated
14.4.2020, impugned before this Court through the titled petition.
Prima facie found by us to have been released on bail for reasons
unsustainable in law, Dilshad Khan, co-accused, was sent for vide
order dated 3.9.2020 to show cause as to why bail granted to him by
the High Court may not be cancelled.
Khawaja Azhar Rasheed, ASC has defended grant of bail to
Dilshad Khan co-accused; citing various judgments of this Court, he
contends that once bail is granted, exceptionally strong grounds, pari
materia with those applicable to interference with acquittal, are
required to rescind the concession; he adds that the concession was
never abused and in the wake of commencement of trial, cancellation
of bail would be a measure far from being expedient. The Court has
traditionally exercised restraint to recall freedom, concluded the
learned counsel.
Ch. Muhammad Ayub Gujjar, ASC, learned counsel for
Muhammad Irfan petitioner has prayed for equal treatment; according
to him, the petitioner being identically placed with his co-accused is
squarely entitled to avail the same concession. “Sauce for the goose is
sauce for the gander”, asserted the learned counsel.
2.
Heard. Record perused.
3.
A different regime, somewhat narrowly jacketed, is applied
to consider the propriety/desirability of cancellation of bail, once
granted by a competent tribunal, on the assumption that apprehended
fallout of interim freedom under an interlocutory arrangement, even
though granted under error, can be indemnified through final
adjudication, however, the benign concept of condonation cannot be
applied, without being unconscionable in cases structured upon
findings inherently anomalous, flawed or mutually destructive and
inconsistent, more so in category of offences with restrictions statutorily
heavier on offender’s release on bail. In the present case, the learned
Judge shortly before releasing Dilshad Khan on bail i.e. 27.2.2020, did
not feel persuaded to allow bail to Muhammad Irfan petitioner on the
following grounds:
“It appears from the record available on file that
huge quantity of Charas was recovered on
pointation of the accused/petitioner from the
motorcar driven by him. The samples of recovered
contraband
were
sent
to
the
FSL
as
per
requirement of law and the report of Chemical
Examiner is in positive. The offence with which the
Criminal Petition No.985 of 2020
3
accused/petitioner has been charged falls within
restrictive clause of Section 497 Cr.P.C.
However, the learned Judge proceeded to grant bail to Dilshad Khan
co-accused even in the absence of his counsel on 25.3.2020 on the
basis of arguments, never addressed at the bar and for reasons
diametrically incompatible recorded in the earlier order. Reference to
the outbreak of Covid-19 Contagion is also beside the mark in view of
decision dated 7-4-2020 by this Court whereby blanket bails granted by
all the High Courts on the ground of prevalence of Pandemic were
cancelled by this Court.
Grant of bail is not an irrevocable charter of freedom; in
appropriate cases, while exercising charitable restraint, nonetheless, it
is a judicial responsibility to rectify situations leading towards
embarrassing anomalies, as is likely to come about in the present case.
Grant of bail to Dilshad Khan co-accused cannot be countenanced
while withholding the concession to the co-accused, equally disentitled
to be released on bail in view of the merits of the case that manifest
interception of both the accused in a vehicle carrying a substantial
quantity of the contraband, craftily concealed and recovered on
disclosures, by both of them, from underneath the seat inside the cabin
as well as wrapped around the body, bringing their case within the
‘Prohibition’ provided under section 51 of the Control of Narcotic
Substances Act, 1997. Failure by the police contingent to register the
case under the Khyber Pakhtunkhwa Control of Narcotic Substances
Act, 2019, an error open to rectification, does not by itself mitigate the
enormity of the crime nor possibly furnish a ground for their release on
bail.
Overwhelming evidence, prima facie pointed, equally upon both
the accused, admits no space to contemplate any distinction and as
such does not allow to countenance the error, therefore, bail granted to
Dilshad Khan vide order dated 25.3.2020 is cancelled; he shall be taken
into custody to face indictment. Concomitantly, Criminal Petition
No.958 of 2020 filed by Muhammad Irfan fails. Leave declined.
Judge
Judge
Islamabad, the
15th October, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.96-K of 2021
(Against the judgment dated .28.06.2021 passed by the High Court of
Sindh in Cr. Bail Application No.S-203 of 2021)
Ghulam Hyder
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mian Taj Muhammad, ASC
Ms. Abida Parveen Channar, AOR
For the State:
Mr. Hussain Khan Baloch,
Addl. Prosecutor General Sindh
Along with Syed Jafar Shah, DSP Tando
Allah Yar, Javed Iqbal, SI and Idrees, SI
Date of hearing:
10.09.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- The petitioner is in
the array of accused in a case of homicide wherein one Niaz Ali was
shot dead during the night of 11th December, 2020 within the precincts
of Police Station B. Section Tando Allah Yar Khan. It is alleged that
during the fateful night, the accused six in number, in the backdrop of
a dispute over water turn, assaulted the deceased; solitary fatal shot is
attributed to Azhar co-accused; remainder of the accused are blamed to
have clutched the deceased whereafter he was hit on his forehead,
bullet exiting from the rear. The petitioner has been declined bail lastly
by the High Court vide impugned order dated 28.6.2021, leave to appeal
wherefrom is being prayed for on the grounds that on stated facts the
accusation called for further probe inasmuch as five persons could not
have held the deceased without risking their own safety in the face of an
incoming shot nor there was any necessity for such a dangerous
exercise when, according to the prosecution itself, the deceased was
allegedly within the reach of the accused targeting him from a short
Criminal Petition No. 96-K of 2021
2
distance. The bottom line is that a wider net is cast to rope the entire
clan in a midnight affair.
2.
Heard. Record perused.
3.
Be that as it may, though named in the crime report
alongside others of the same brotherhood, the petitioner is assigned role
of a facilitator by holding the deceased alongside four others; the
question is as to whether in the facts and circumstances of the case as
alleged by the complainant himself, such facilitation was at all required,
that too, without incurring fatal risk of being unintendedly hit by the
shot in the darkness and as such petitioner’s culpability requires
further probe within the contemplation of subsection 2 of section 497 of
the Code of Criminal Procedure, 1898, paving way for his release on
bail, particularly when his continuous detention is serving no useful
purpose. The petition is converted into appeal and allowed; the
appellant is admitted to bail on his furnishing bond in the sum of
Rs.500,000/- with one surety in the like amount to the satisfaction of
the learned trial Court.
Judge
Judge
Karachi, the
10th September, 2021
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL Al-ISAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAVED MAZAHAR ALl AKBAR NAUVI
CRIMINAL PETITION NO. 963-L OF 2016
(On appeal against the judgment dated 17.052016
passed by the Lahore High Court, Lahore in Criminal
Appeal No, 156/2012 & Murder Reference No.
97/2012)
Ijaz Ahmed
Petitioner
VERSUS
The State etc
Respondents
For the Petitioner:
Mr, Muhammad Tahir Alam Qureshi, ASC
For the State: Mirza Muhammad Usman, DPG
Date of Nearing:
19.04.2022
JUDGMENT
SAYVED MAZAHAR ALt AKBAR NAQV1,k- Petitioner along with co-accused
was tried by the learned Additional Sessions Judge d Ferozwala pursuant to
a case registered vide FIR No. 284 dated 30.05.2009 under Sections
302/392/412 PPC at Police Station Sharaqpur Sharif, District Sheikhupura
for committing robbery and murder of Touqir Ahmad, brother of the
complainant. The learned Trial Court vide its judgment dated 24.01.2012
while convicting both the accused under Section 392 PPC, sentenced them
to imprisonment for seven years and a fine of Rs.10,000/- each. In default
of payment of fine, both the accused were to undergo two months SI. The
learned Trial Court while acquitting the co-accused for the charge of
murder, convicted the petitioner under Section 302(b) PPC and sentenced
him to death. The petitioner was also directed to pay compensation
amounting to Rs100,000/- to the legal heirs of the deceased or in default
whereof to further undergo SI for four months. In appeal, the learned High
CRIMINAL PETITION NO- 963-L OF 2016
Court while maintaining the conviction and sentences recorded against the
petitioner, altered the sentence of death into imprisonment for life.
2. The prosecution story as given in the impugned judgment
reads as under:-
"2. Shabbir Ahmacl complainant (PW.7) through written
application Ex.P.A got registered FIR alleging that he is resident of
Purani Bheni. On 30.05.2009 at about 07:00 PM Hafiz Arshad and
Jahangir Abbas were coming from Mohanwal Band towards their
village Purani Bheni while riding on motorcycle CD-70, when they
reached at Band, two armed persons were standing there, who
stopped Hafiz Arshad Ali and Jahangir Abbas on gun point, snatched
mobile phone and Rs.6000/-, made them to sit in the jungle and
went towards Purani Bheni while riding on the motorcycle of Hafiz
Arshad. Hafiz Arshad was having another mobile phone in his pocket
by which he informed his brother Akhtar All about the occurrence
and told him that he accused persons are coming towards village
while riding on a motorcycle which was snatched by them from him.
On this information Touqir Ahmad Pannun brother of complainant,
Amanat Ali son of Sher Muhammad, and Akhtar son of Akbar Ali,
complainant alongwith many people of the village came out, on
seeing them accused persons started running away while leaving
behind motorcycle. The complainant and the people of the locality
chased them. Both the accused started firing with their respective
weapons. They alongwith other people of locality encircled the
accused persons in Falsa garden of Abdul Wahid, and asked them to
surrender but both the accused made straight firing on Touqir
Abmad, brother of the complainant, the fire made by accused ljaz
Ahmad with his gun 12 bore double barrel hit Touqir Ahmad, brother
of the complainant to his abdomen, who succumbed to the injury at
the spot. They overpowered both the accused who also sustained
injuries during resistance. They snatched gun 12 bore double barrel
from accused ljaz Ahmad, while other accused, whose name
afterward was disclosed as Munawar son of Shah Muhammad, caste
Khokhar, resident of Faridwal, hide his gun 12 bore and snatched
amount in the garden. Accused ljaz Ahmad and Munawar, alongwith
gun 12 bore owned by accused ljaz Ahmad and snatched motorcycle
were handed over to police."
3. After completion of investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. In order to prove its case the
prosecution produced as many as 14 witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted
all the allegations leveled against him. However, he did not make his
statement on oath under Section 340(2) Cr.P.0 in disproof of allegations
CRIMINAL PETITION NO. 963-L OF 2016
3
leveled against him. He firstly opted to produce defence evidence but
afterwards recorded a statement that he is not willing to produce any
evidence in defence.
4.
Learned counsel for the petitioner argued that there are
glaring contradictions and dishonest improvements in the statements of
the prosecution witnesses of the ocular account, which have escaped
notice of the courts below. Contends that the prosecution has miserably
failed to prove its case against the petitioner beyond reasonable doubt,
therefore, there was no justification to convict the petitioner. Contends
that not even a single crime empty was recovered from the crime scene
and as such the recovery of weapon of offence is inconsequential.
Contends that the prosecution story with regard to the recovery of the
allegedly snatched amount from a 'Bagh' and the mobile is unbelievable
and as such no case falling within the ambit of 'robbery' has been made
out. Lastly contends that the impugned judgment is the result of
misreading and non-reading of the evidence available on the record and
the same is not sustainable in the eyes of law.
5.
On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the evidence led by the
prosecution in the shape of ocular version duly supported by medical
evidence and recovery of 12 bore gun along with snatched articles is
sufficient to sustain the conviction of the petitioner, therefore, he does
not deserve any leniency by this Court.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
As per the prosecution story, the occurrence happened in
two episodes. In the first episode, the petitioner along with his co-accused
allegedly snatched motorcycle, cash and mobile phone from Arshad Au
(PW-8) and Jahangir Abbas (PW-9) and fled away. As Arshad Ali was having
another phone in his pocket) he informed his brother about the incident
nd thereafter in the second episode Akhtar All, brother of Arshad Ali,
CRIMINAL PETITION NO, 963-L OF 2016
4
Shabbir Ahmad, complainant (PW-7), Touqir Ahmad and Amanat Ali along
with other villagers intercepted the petitioner while he was proceeding
from Mohanwal Band to village Purani Bheni. When the petitioner saw the
people, he left the motorcycle and tried to escape. When the petitioner
was chased by the complainant and other people and was ultimately
encircled by them, he fired from 12 bore gun, which hit Tauqir Ahmad at
his abdomen, who succumbed to the injury at the spot, With regard to
evidence relating to robbery, we have found that the complainant in his
cross-examination candidly stated that he has not seen the petitioner
snatching motorcycle and other articles from Hafiz Arshad and Jahangir. It
is the prosecution case that during chase, the petitioner concealed the
cash under certain trees of Falsa Garden, which was subsequently
recovered at his instance. However, this seems to be impassible because
when the people were chasing him, it was not possible for the petitioner
to dig a hole and conceal the amount therein. There is nothing in evidence
as to whether the mobile phone, allegedly snatched by the petitioner, was
recovered from him. No identification of said looted articles is established
from the record to meet the legal requirements, hence, it cannot be
considered sufficient to connect the petitioner with the commission of the
crime to the extent of robbery. It is also on record that when the
petitioner was apprehended, he was not on or with motorcycle, therefore,
it can safely be said that recovery of motorcycle cannot be used against
him. We are, therefore, of the opinion that the prosecution could not
produce reliable evidence to sustain conviction of the appellant under
Section 392 PPC.
7. Now coming to the second episode of the prosecution story,
Shabbir Ahmad, complainant (PW-7) got recorded his statement with
respect to the subsequent event, which led to murder of Tauqir at the
hands of the petitioner. This prosecution witness was subjected to lengthy
cross-examination by the defence but nothing favourable to the petitioner
or adverse to the prosecution could be brought on record. He remained
consistent on each and every material point, therefore, it can safely be
concluded that his evidence is reliable, straightforward and confidence
CRIMINAL PETITION NO. 963-1.0; 2016
5
inspiring, It is a settled principle of law that it is the quality of evidence
which is to be considered and not the quantity of evidence. The evidence
of one person, if found confidence inspiring, is sufficient to sustain
conviction. This Court in Niaz ud Din Vs. State (2011 SCMR 725) has
specifically held that "conviction even in a murder case can be based on
the testimony of a single witness, if court is satisfied that he is reliable; it is
the quality of evidence and not the quantity which matters." So far as the
medical evidence is concerned, the same is in line with the prosecution
story. As far as the question that the complainant was brother of the
deceased, therefore, his testimony cannot be believed to sustain
conviction of the petitioner is concerned, it is by now a well established
principle of law that mere relationship of the prosecution witnesses with
the deceased cannot be a ground to discard the testimony of such
witnesses unless previous enmity or ill will is established on the record to
falsely implicate the accused in the case. Learned counsel for the
petitioner could not point out any reason as to why the complainant has
falsely involved the petitioner in the present case and let off the real
culprit, who has committed murder of his real brother especially when he
was apprehended at the spot after a chase of co-villagers. Substitution in
such like cases is a rare phenomenon. The complainant would not prefer
to spare the real culprit who murdered his brother and falsely involve the
petitioner without any rhyme and reason. As we have held the
commission of robbery doubtful due to lack of sufficient evidence,
therefore, we are constrained to hold that the motive part of the
prosecution is not proved. The recovery is also held to be inconsequential
as no empty was recovered from the place of occurrence. So far as the
quantum of punishment is concerned, the learned High Court while taking
into consideration the fact that the petitioner only fired single shot
coupled with the fact that motive has not been proved and the recovery is
inconsequential has rightly taken a lenient view and converted the
sentence of death awarded to the petitioner into imprisonment for life. No
further leniency can be shown to the petitioner.
r W
CRIMINAL PE7TICN NO. 963-i OF 2016
5
8. For what has been discussed above, while maintaining the
conviction and sentence of the petitioner under Section 302(b) PPC along
with compensation amounting to Rs.100,000/- to the legal heirs of the
deceased or in default whereof to further undergo SI for four months, the
conviction and sentence of the appellant under Section 392 PPC is set
aside. This petition is converted into an appeal, partly allowed and the
impugned judgment is modified accordingly
reasons of our short order of even date.
Islamabad, the
19th of April, 2022
Approved For Reporting
I:liiu Idt.11 II
;ovethe detailed
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IN THE SUPREME COURT OF PAKISTAN
(APPELLA TE JURISDICTION)
MR. JUSTICE MAZHAR A LAM KHAN MIANKHEL
MR. JUSTICE SAY Y ED MAZAHAR ALl AKI3AR NAQVI
CRIMINAL PETITION NO. 978 OF 2021
(Against the order dated 15.07.2021 of the Peshawar High Court,
Peshawar passed in Cr.M(BA) No. 748-Al2021)
Fakhar Zaman
Petitioner(s)
Versus
The State through D.A. G. and another
Respondent(s)
For the Petitioner(s):
Mr. Muhammad Nawaz Khan, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Syed Nayyab Hussain Gardezi, DAG
Sycda Pakeeza, 51 FM
For the Complainant(s):
Mr. Muhammad Junaid Alchtar, ASC
Date of Hearing: 17.09.2021
ORDER
SAY Y ED MAZAHAR ALl AKBAR NAQVI, J. This petition under Article
185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has
been filed against the impugned order dated 15.07.2021 passed by the
learned Peshawar High Court, Peshawar whereby the post-arrest bail
of the petitioner was declined.
2. As per the contents of the crime report registered vide FiR
No. 1512021 dated 03.06.2021 under Sections 20121124 of Prevention
of Electronic Crime Act, 2016 and Section 109 PPC at Police Station
Cyber Crime Reporting Center (CCRC) FM, Abbottabad, it is alleged that
the petitioner was instrumental in posting photographs of the
complainant using cellular device and as such caused sexual
harassment to the complainant. During the course of investigation, the
petitioner was taken into custody on 08.06.2021 and as such he is
behind the bars. He applied for post-arrest bail which was declined by
CRIMINAL PETITION NO. 978 OF 2021
-. 2 -
the learned Trial Court. The same relief was also declined to him by the
learned High Court vide impugned order.
3.
At the very outset it has been contended by the learned
counsel for the petitioner that the petitioner has been falsely roped in
this case against the actual facts and circumstances. Contends that
from the bare reading of the accusation against the petitioner, no case
of sexual harassment is made out. Further contends that the petitioner
is behind the bars since more than 03 months and the maximum
punishment under the statute for the offence under which the petitioner
is charged is 05 years. Lastly it is contended that as the offence does
not fall within the prohibitory clause, therefore, the petitioner is entitled
for concession of bait prayed for.
4.
On the other hand, the learned Law Officer, assisted by
the learned counsel for the complainant, has contended that it is a
crime against the society and such like people are not entitled to any
concession. Contends that the lfe of womenfolk is at stake because of
the act of the petitioner. Further contends that the trend of sexual
harassment is at rise in the society, therefore, it has to be curbed with
iron hand.
S. We have heard the learned counsel for the parties and
gone through the record.
There is no denial to this fact that this Court being the
ultimate court of law has to decide the cases keeping in view the
dictates of justice in order to establish safe administration of criminal
justice. No doubt there is allegation of sexual harassment which has
been made on the basis of sharing certain photographs on social media.
The trend of such like activities undeniably is at the verge of rise which
clearly shows concerns towards the downfall of the society, but at the
same time, a duty is cast upon the court to see whether from the facts
and circumstances the case of bail is made out. To resolve this issue,
we undesirably asked the Inve.s tigating officer to show us the material
collected during the course of investigation. We have observed that
there are certain photographs which could be termed as close to nudity
but those are not recognizable. The other photographs are in full attire
without any question of immorality. This aspect persuaded us to grant
post-arrest bail to the petitioner, as he is behind the bars since more
than 03 months and this issue can be resolved by the Trial Court after
CRIMINAL PETITION NO. 978 OF 2021
-:3:-
recording of evidence more authoritatively. As the liberty of a person is
a precious right which has been guaranteed, therefore, we are
persuaded to grant post-arrest bail to the petitioner subject to his
furnishing bail bonds in the sum of Rs.200, 000/- (rupees two hundred
thousand) with two sureties in the like amount to the satisfaction of the
Trial Court. Resultantly, this petition is converted into appeal and
U
allowed and the impugned order is set aside.
JUDGE
Islamabad. the
JUDG
1711, of September, 2021
XX 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 SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 982-L OF 2022
(On appeal against the order dated 20.04.2022
passed by the Lahore High Court, Lahore in Crl.
Misc. No. 20379-B/2022)
Shameem Bibi
… Petitioner
VERSUS
The State etc
… Respondents
For the Petitioner:
Mian Shah Abbas, ASC
(Via video link from Lahore)
For the State:
Mr. Muhammad Jaffer, Addl. P.G.
Mr. Bilal Sulehri, ASP
Mr. Muhammad Yasin, S.I.
For the Respondent (2):
Mr. Muhammad Irshad Ch, ASC
Date of Hearing:
22.09.2022
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the order dated 20.04.2022 passed by
the learned Single Judge of the Lahore High Court, Lahore, with a prayer to
grant post-arrest bail in case registered vide FIR No. 172 dated 02.02.2022
under Sections 394/302/411/109 PPC at Police Station Mangamandi,
Lahore, in the interest of safe administration of criminal justice.
2.
Briefly stated the prosecution story as stated in the crime
report is that on the fateful day and time, two brothers of the complainant
namely Saifullah and Muhammad Nawaz were going towards Sundar
Estate on motorbike. They were intercepted by the two unknown persons,
who on gun point robbed mobile phones and cash amount from his
brothers and thereafter made a fire shot in the head of Saifullah, who
Criminal Petition No. 982-L/2022
2
succumbed to the injuries at the spot. They also made a fire shot on the
leg of the other brother namely Muhammad Nawaz. Subsequently, on the
basis of supplementary statement of the complainant, the petitioner, who
was wife of Saifullah, deceased, was implicated in the case. The allegation
against her is that the whole occurrence was committed by the accused on
her behest and she being in league with him provided him information as
she was allegedly having illicit relations with one accused namely Waqas
Akram.
3.
At the very outset, it has been contended by the learned
counsel for the petitioner that the petitioner has been falsely roped in this
case against the actual facts and circumstances. Contends that except the
bald allegations as contained in the supplementary statement, there is no
material to connect the petitioner with the commission of the crime.
Contends that the Call Data Record (CDR) is not a conclusive piece of
evidence. Contends that during investigation nothing has been recovered
from the petitioner. Contends that the petitioner is a woman of advanced
age and she cannot be incarcerated without any tangible proof against
her.
4.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant has defended the impugned order declining
bail to the petitioner. It has been contended that the petitioner has
specifically been nominated in the supplementary statement for the
commission of the offence, which entails capital punishment. It was lastly
contended that according to the CDR, the petitioner was in contact with
the alleged dacoit, who is charged with the murder of her husband,
therefore, she does not deserve any indulgence by this Court.
5.
We have heard learned counsel for the parties at some
length and have perused the available record.
Admittedly, the petitioner was not named in the crime
report and it was subsequent in time that she was implicated in the case
on the supplementary statement of the complainant dated 03.02.2022.
Criminal Petition No. 982-L/2022
3
The only allegation against the petitioner is that the whole occurrence was
committed by the accused on her abetment. However, no specific date,
time and place where the conspiracy was hatched has been mentioned in
the supplementary statement. Even name and number of witnesses to
that extent is not available on the record. Perusal of Section 107 PPC
reveals that three ingredients are essential to dub any person as
conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii)
intentional aid qua the act or omission for the purpose of completion of
abetment. All the three ingredients of Section 107 PPC are prima facie
missing in this case. We have specifically asked the learned Law Officer
and the learned counsel for the complainant to show us from record any
material, which could prima facie connect the petitioner with the
commission of the crime but except the Call Data Record (CDR), they could
not show us anything. This Court in a number of cases has held that in
absence of any concrete material the Call Data Record is not a conclusive
piece of evidence to ascertain the guilt or otherwise of an accused. On our
query, learned Law Officer admitted that as yet there is no evidence that
the mobile phone belonged to the petitioner and the SIM was in her
name. In these circumstances, the (Call Data Record) CDR in isolation does
not advance the prosecution’s case unless and until some credible
material in this regard has been collected. We have been informed that
challan has already been submitted, which means that the petitioner is no
more required for further investigation. The petitioner is a lady of 50 years
of age, having five children left at home. This Court has time and again
held that liberty of a person is a precious right guaranteed under the
Constitution of Islamic Republic of Pakistan, 1973 and the same cannot be
taken away without exceptional foundations. Keeping in view the peculiar
facts and circumstances of this case, keeping the petitioner behind the
bars for an indefinite period would not be in the interest of justice. In
these circumstances, it is the Trial Court who after recording of evidence
would decide about the guilt or otherwise of the petitioner.
6.
For what has been discussed above, the case of the
petitioner squarely falls within the purview of Section 497(2) Cr.P.C.
Criminal Petition No. 982-L/2022
4
entitling for further inquiry into her guilt. Consequently, we convert this
petition into appeal, allow it and set aside the impugned order dated
20.04.2022. The petitioner is admitted to bail subject to her furnishing bail
bonds in the sum of Rs.100,000/- with one surety in the like amount to the
satisfaction of learned Trial Court. The above are the detailed reasons of
our short order of even date.
JUDGE
JUDGE
Islamabad, the
22nd of September, 2022
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE QAZI MUHAMMAD AMIN AHMAD
Criminal Petition No.989 of 2021
(Against the judgment dated 2.7.2021 passed by the
Peshawar High Court Peshawar in Cr. Misc. (B.A.)
No.422-M/2021)
Ejaz Ahmad and another
…Petitioner(s)
VERSUS
The State and another
…Respondent(s)
For the Petitioner(s):
Mian Abdul Rauf, ASC
For the Respondent(s):
Mr. Shumail Aziz, Addl. A.G. KP with
Ziarat, I.O.
Date of Hearing:
29.09.2021
O R D E R
Qazi Muhammad Amin Ahmed, J.- Mst. Tasleem Bibi is
blamed by the complainant, no other than her father, to have married with
Ejaz Ahmed, co-accused during the subsistence of her first marriage with
one Noorullah; both of them are behind the bars, lastly denied bail by a
learned Judge-in-Chamber of the Peshawar High Court, Mingora Bench
Swat, vide impugned order dated 2.7.2021.
Mian Abdul Rauf, ASC contends that Mst. Tasleem Bibi
vehemently denies her alleged nuptial bond with Noorullah PW and had
competently married with Ejaz Ahmed co-accused of her free will and volition
by exercising discretion vesting in her both under the divine as well as
municipal law; he further contends that the edifice of first marriage is resting
upon an oral Nikah and in the absence of any judicial declaration jactitating
the alleged marriage, it would be inexpedient to detain the couple,
Crl. Petition No.989/2021
particularly when it is serving no useful purpose. The learned Law Officer
has contested the plea.
2.
Heard. Record perused.
3.
Be that as it may, without touching upon the merits of the plea
raised before us, having regard to the peculiar facts and circumstances of
the case, we would prefer to direct that the trial be concluded within a period
of three months; it shall be held in jail premises while enabling the accused
to arrange their representation through a counsel of choice, in the event of
incapacity to arrange a lawyer, the Presiding Officer shall provide them a
counsel at State expense so as to positively conclude the trial within the
stipulated time frame. Disposed of.
JUDGE
JUDGE
JUDGE
ISLAMABAD
29th September, 2021
Ghulam Raza/*
“Not approved for Reporting”
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE FAISAL ARAB
CRIMINAL PETITION NO. 990 OF 2016
(On appeal against the order dated 09.09.2016 passed
by the Peshawar High Court, Peshawar in Cr.M/BA No.
1724-P/2016)
Wajid Ali
… Petitioner
VERSUS
The State and another
…Respondents
For the Petitioner:
Mr. Hussain Ali, ASC
Mir Adam Khan, AOR (Absent)
For the State:
Mr. Zahid Yousaf, ASC for A.G. KPK
Mr. Zahidullah, SI/IO, PS Badabair
Date of Hearing:
07.11.2016
ORDER
FAISAL ARAB, J.- The petitioner is an accused
alongwith his brother Abdul Ghani in FIR No. 967 dated
01.11.2015 registered under Sections 302/324/148/149 PPC at
Police Station Badhber, District Peshawar. In the FIR it has been
reported that on the fateful day when the complainant and his
uncle were busy in repairing the wall of their house, the petitioner
and his brother armed with weapons came and the co-accused
Abdul Ghani instantly fired at his father, who succumbed to his
injuries and died on the spot. It is also stated in the FIR that then
the petitioner also fired at the complainant, who got injured,
whereas his uncle ran from the scene of the crime to save his life.
The petitioner after arrest applied for bail, which plea was rejected
Criminal Petition No. 990/2016
2
by the Trial Court. Petitioner’s bail application before the High
Court also met the same fate. Hence this petition.
2.
Learned counsel for the petitioner argued that insofar
as the petitioner is concerned, the only role attributed to him was
that of causing fire arm injury to the complainant which is
reported to be ‘ghair jaifa’, i.e. not falling within the prohibitory
clause therefore bail ought to have been granted to the petitioner.
3.
Learned counsel for the State, on the other hand,
opposed the grant of bail on the ground that the petitioner along
with his brother came with the common intention to commit
murder and the father of the complainant was fired upon and
killed, therefore, bail was rightly declined to the petitioner. In
support of his case, he placed reliance on the case of Munawar Vs.
State (1981 SCMR 1092). In the cited case bail was declined to co-
accused on the ground that there was common intention evident
on the record.
4.
In
rebuttal,
learned
counsel
for
the
petitioner
submitted that the case cited by the State counsel is not attracted
as from the narration of the incident in the FIR in the present case
it cannot be said that there already existed common intention to
commit murder. He placed reliance on the cases of Muhammad
Irfan Vs. State (2014 SCMR 1347), Faqir Hussain Vs. State (2014
SCMR 1502), Inayat Khan Vs. State (1982 P.Cr.LJ 1000) and
Muhammad Khalid Butt Vs. State (1993 P.Cr.LJ 1491) wherein
there was absence of any material to prima facie establish common
Criminal Petition No. 990/2016
3
and, therefore, it was nature of injury caused by the co-accused
that was made basis for grant of bail.
5.
From the contents of the FIR, it cannot be out-rightly
said that there was a common intention to commit crime. It prima
facie appears that repairing of the common wall was the reason
that provoked the accused. The conclusion that there was common
intention can only be reached after the evidence in the matter
comes on the record. So far as the role of causing injury on the
person of the complainant is concerned, it is admitted position that
the said injury was reported to be ghair jaifa. The petitioner in this
view of the matter cannot be kept behind the bars for an indefinite
period. In the circumstances, the petitioner has made out a case
for post-arrest bail. This petition is therefore converted into appeal
and is allowed and the impugned order is set aside. Petitioner is
admitted to post-arrest bail subject to his furnishing bail bonds in
the sum of Rs.300,000/- with two sureties in the like amount to
the satisfaction of Trial Court.
JUDGE
JUDGE
Islamabad, the
7th of November, 2016
Not Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE SARDAR TARIQ MASOOD
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
CRIMINAL PETITION NO. 994 OF 2020
(On appeal against judgment dated 29.11.2019 passed
by the Peshawar High Court, Peshawar in Criminal
Revision No. 244-P/2019)
The State through Director General FIA, Islamabad
… Petitioner
VERSUS
Alif Rehman
… Respondent
For the Petitioner:
Mr. Sajid Ilyas Bhatti, Addl. Attorney
General
Ch. Akhtar Ali, AOR
Syed Kashif Ali, Inspector FIA, Peshawar
For the Respondent:
Mr. Arshad Hussain Yousafzai, ASC
On Court Notice:
Mr. Awais, in person
Date of Hearing:
15.01.2021
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.-
Criminal M.A. No. 1587/2020: For reasons mentioned in this
application, it is allowed and the delay in filing the Criminal
Petition No. 2078/2020 is condoned.
Criminal Petition No. 994/2020: The petitioner Department has
filed this petition under Article 185(3) of the Constitution of Islamic
Republic of Pakistan, 1973, and has sought indulgence of this
Court while calling in question the legality of the impugned
judgment dated 29.11.2019 passed by the learned Peshawar High
Court, Peshawar, whereby the Criminal Revision filed by the
respondent was allowed.
2.
Briefly stated the facts of the matter are that on a
secret information it was pointed out that the respondent is
involved in foreign currency exchange without having any
permission from the concerned authorities and as such he is liable
Criminal Petition No. 994/2020
2
to be proceeded against in terms of Foreign Exchange Regulation
Act, 1947. In pursuance of the said information, a raid was
conducted and respondent was found in possession of foreign
currency of Kingdom of Saudi Arabia, as such a case FIR No.
36/2019 dated 28.08.2019 was registered under Sections 4/23 of
the Foreign Exchange Regulations Act, 1947 at Police Station
FIA/CBC, Peshawar. It is worth mentioning that during the raid,
Saudi Riyals to the tune of 1,57,500/- and Pakistan currency to
the tune of Rs.42,66,000/-, which was being utilized in lieu of
exchange, was taken into possession by the raiding party. In this
regard, seizure memo was duly prepared by the Investigating
Officer. During the course of proceedings, the accusation against
the respondent was found correct and as such report in terms of
Section 173 Cr.P.C was submitted in the case which is still
pending adjudication before the court of first instance. An
application for superdari of the said amount was moved and the
learned Trial Court vide order dated 19.10.2019 declined to deliver
the Saudi Riyals, however, ordered return of Pakistani currency to
the respondent. The order of the learned Additional Sessions
Judge-VII, Peshawar, was assailed before the High Court through
Criminal Revision, which was allowed vide impugned order dated
29.11.2019. Hence, this petition seeking leave to appeal.
3.
The crux of the arguments advanced by the learned
Additional Attorney General is that the learned High Court has not
taken into consideration that the exchange of currency without
approval of the concerned authority is prohibited in terms of
Foreign Exchange Regulation Act, 1947; that the learned Trial
Court while passing the order dated 19.10.2019 has relied upon
the statement of co-accused Khan Bahadar, which was to the effect
that he has no objection if the currency is returned to the
respondent, and ordered return of Pakistani currency to the
respondent, which was not tenable in law; that the Pakistani
currency was being used as an exchange currency of Saudi Riyals,
which was also seized by the FIA authorities; that the learned
Courts have not assigned any plausible reason while ordering
return of Pakistani as well as Saudi currency to the respondent
and the same are liable to be set aside.
Criminal Petition No. 994/2020
3
4.
On the other hand, learned counsel appearing on
behalf of the respondent tried to controvert the arguments
advanced by the learned Law Officer but could not substantiate
any legal justification.
5.
We have heard learned Law Officer as also learned
counsel for the respondent and have gone through the record.
6.
To evaluate the legality of the order passed by the
learned High Court, it would be imperative to reproduce the
Preamble of the Foreign Exchange Regulation Act, 1947. The same
reads as under:-
“An Act to regulate certain payments, dealings in foreign
exchange and Securities and the import and export of
currency and bullion.
Whereas it is expedient in the economic and financial
interests of Pakistan to provide for the regulation of certain
payments, dealings in foreign exchange and securities and
the import and export of currency and bullion;”
7.
A mechanism has been devised to avail the benefits of
such legislation, which could regulate the exchange of foreign
currency, which otherwise can be beneficial for the economic and
financial interest of the State. However, any deviation while
defeating the mechanism devised would adversely affect the
interest causing hazardous affect and result into financial debacle.
Any person who is citizen of Pakistan is authorized to establish
business of foreign currency notes subject to moving an
application to the State Bank of Pakistan on a prescribed form
after
payment
of
a
prescribed
fee
seeking
permission/authorization. The method is duly mentioned in
Section 3A of the Act, which is reproduced as under:-
“3A. Authorized money changers in foreign exchange.
(1) The State Bank may, on application made to it in this
behalf, and on payment of a fee prescribed by it, from time to
time, authorize any person to deal in foreign currency notes
and coins.
(2) The power conferred under sub-section (1) shall be
exercised
on
the
basis
of
criteria
prescribed,
and
recommendations made, by a committee consisting of such
official and non-official representatives as may be nominated
by the State Bank.
Criminal Petition No. 994/2020
4
(3) An authorization made under this section may be for a
specific period of time, which may be renewed thereafter.
(4) An authorized money changer shall, in all his dealings
under the authorization, comply with such general or special
directions or instructions as the State Bank may, from time to
time, think fit to give including those for supply of data, the
rate and code of conduct in doing business. Failure to comply
with the instructions may lead to suspension of the licence or
other actions as necessary.”
8.
Similarly the exchange companies can be formed. The
procedure is almost the same, which is provided in Section 3AA of
the Act. The same reads as under:-
“3AA. Exchange Companies.—(1) The State Bank may, on
application made to it in this behalf, and on payment of such
fee as it may, from time to time prescribe, authorize any
company to deal in foreign currency notes, coins, postal
notes, money orders, bank drafts, travellers cheques and
transfers.
(2) For the purposes of sub-section (1), the expression
“company” means a company having been formed and
registered under the Companies Ordinance, 1984 (XLVII of
1984) pursuant to no objection certificate issued by the State
Bank in respect thereof to the Securities and Exchange
Commission of Pakistan upon receiving an intimation from
the said Commission that it has received an application for
the formation of the company.
(3) The power conferred under sub-section (1) shall be
exercised on the basis of the eligibility criteria prescribed for
exchange companies by the State Bank.
(4) Exchange Companies shall, in all their dealings, comply
with—
(i)
the terms and conditions of the authorizations
issued to them under sub-section (1); and
(ii)
such
general
or
special
directions
or
instructions as the State Bank may, from time
to time, issue including those set out in the
circulars and foreign exchange manual of the
State Bank.
(5) Failure to comply with any such terms and conditions,
directions or instructions imposed, given or issued may lead
to suspension of authorization or any other action as deemed
necessary by the State Bank.”
9.
A bare reading of aforesaid provisions would show that
there is an ample opportunity to enter into the business of foreign
currency while crossing over the required legal impediments
subject to satisfaction and authorization by the State Bank of
Criminal Petition No. 994/2020
5
Pakistan. However, we have noticed that in the instant case, the
respondent neither sought any permission nor produced any
document during raid or afterwards during investigation. It has
been apprised to us that the report in terms of Section 173 Cr.P.C.
has already been submitted before the Court of competent
jurisdiction and trial of the case is likely to be commenced in near
future. We are in agreement with the learned Additional Attorney
General that the learned High Court has extended artificial
reasoning while passing the impugned judgment and the same is
not supported by the law of the land. As the matter of dealing in
foreign exchange is of grave importance, which is also linked with
the national interest, an amendment has been brought to Section
23 of the Act on 26.02.2020 whereby after the word ‘with’ the word
‘rigorous’ has been inserted in Section 23(1) and the punishment
for the delinquents who contravene or attempt to contravene or
abet the contravention of any of the provision of the Act has been
enhanced from 2 years to 5 years. In view of the facts and
circumstances of the case, we are of the considered view that the
order passed by the learned High Court is totally in disregard of
the facts and law and the same is not sustainable in the eyes of
law. So far as the issue of Pakistani currency is concerned, prima
facie it was being used as an exchange currency for Saudi Riyals,
otherwise, there seems no reason for keeping such a huge amount
in the shop. The matter of handing over the Pakistani currency has
not been challenged before us. However, for doing complete justice,
this Court under Article 187 of the Constitution of Islamic Republic
of Pakistan, 1973, can pass any order or a direction which it
deems appropriate. The framers of the Constitution while inserting
the aforesaid Constitutional provision in-fact had assigned
unfettered powers for a purpose which squarely comes within the
ambit of complete justice stricto sensu. The said Article reads as
under:-
“187. (1)
Subject to clause (2) of Article 175, the
Supreme Court shall have power to issue such directions,
orders or decrees as may be necessary for doing complete
justice in any case or matter pending before it, including an
order for the purpose of securing the attendance of any
person or the discovery or production of any document.
(2)
Any such direction, order or decree shall be
enforceable throughout Pakistan and shall, where it is to be
Criminal Petition No. 994/2020
6
executed in a Province, or a territory or an area not forming
part of a Province but within the jurisdiction of the High
Court of the Province, be executed as if it had been issued
by the High Court of that Province.
(3)
If a question arises as to which High Court shall give
effect to a direction, order or decree of the Supreme Court,
the decision of the Supreme Court on the question shall be
final.”
10.
In such like cases, this Court in exercise of its
inherent jurisdiction under Article 187(1) of the Constitution is
required to do complete justice, which must prevail ignoring
technicalities. This Court in the case of Khalid Iqbal Vs. Mirza
Khan (PLD 2015 SC 50) has categorically held that the power of
this Court to exercise its inherent jurisdiction under Articles 187,
184(3) & 188 of the Constitution is not dependant upon an
application of a party. In the case of Muhammad Zahid Vs.
Muhammad Ali (PLD 2014 SC 488) while relying on earlier
judgments of this Court, it was held by this Court that "the
approach in all these cases leads to one conclusion that this Court in
matter of doing complete justice has not been handicapped by any
technicality nor by a rule of practice.” In the case of Martin Dow
Marker Ltd, Quetta Vs. Asadullah Khan (2020 SCMR 2147) while
relying on the earlier judgments, this Court held as under:-
“This Court under Article 187(1) of the Constitution has
the power to issue such directions, orders or decrees, as
may be necessary for doing complete justice and in
doing so, the Court is also empowered to look at the
changed circumstances of the case as it has appeared
before it and also to mould relief as is just and proper
for meeting the ends of justice. Reference in this regard
is made to the case of Imran Ahmad Khan Niazi v. Mian
Muhammad Nawaz Shlarif, Prime Minister of Pakistan
and 9 others [PLD 2017 SC 265]; Muhammad Zahid v.
Dr. Muhammad Ali [PLD 2014 SC 488]; Dossani Travels
(Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd.
and others [PLD 2014 SC 1]; Mst. Amatul Begum v.
Muhammad Ibrahim. Shaikh [2004 SCMR 1934] and
Imam Bakhsh and 2 others v. Allah Wasaya and 2
others [2002 SCMR 1985].
13. We may note that in exercising the jurisdiction to do
complete justice and to issue directions, orders or
decrees, as may be necessary, this Court is not bound
by any procedural technicality when a glaring fact is
very much established on the record and even stand
admitted. Reference in this regard is made to the case of
Muhammad Shafi v. Muhammad Hussain [2001 SCMR
827]; Gul Usman and 2 others v. Mst. Ahmero and 11
others [2000 SCMR 866] and S.A.M. Wahidi v.
Criminal Petition No. 994/2020
7
Federation of Pakistan through Secretary Finance and
others [1999 SCMR 1904].”
11.
For what has been discussed above, we convert this
petition into appeal, allow it and set aside the impugned judgment
of the learned Peshawar High Court, Peshawar, dated 29.11.2019
as also the order of the learned Trial Court dated 19.10.2019. The
application of the respondent for superdari to the extent of
Pakistani currency, already handed over to the respondent, shall
be deemed to be pending before the learned Trial Court and shall
be decided afresh by a judicious order after affording an
opportunity of hearing to both the parties strictly in the spirit of
the law.
JUDGE
JUDGE
JUDGE
Islamabad, the
15th of January, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Petition No.996 of 2020
(Against the order dated 11.08.2020 of the
Lahore High Court Rawalpindi Bench passed
in Cr. Misc. No.1339-B/2020)
Abid Hussain
…Petitioner(s)
Versus
Tassawar Hussain and another
…Respondent(s)
For the Petitioner(s):
Syed Hamid Ali Bokhari, ASC
For the Respondent(s):
Mr. Haider Mehmood Mirza, ASC
Mr. M. Sharif Janjua, AOR
For the State:
Ch. Sarwar Sindhu,
Addl. Prosecutor General Punjab with
Majid I.O.
Date of hearing:
02.02.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Impugned herein is
order dated 11.08.2020 by a learned Judge-in-Chamber of the Lahore
High Court Rawalpindi Bench Rawalpindi whereby Tasawar Hussain
respondent, one of the accused in a case of murderous assault, blamed
for a straight effective shot on the abdomen of Husnain Riaz PW
confirmed by medical evidence, has been granted bail in anticipation to
his arrest. It is alleged that on the eventful day, in the backdrop of a
dispute over the possession of a residential house, located within the
precincts of Police Station Chontra Rawalpindi, the respondent along
with co-accused, eight in number, differently armed with lethal
weapons, mounted an assault at 6:30 p.m, in consequence whereof,
Husnain Riaz sustained three entry wounds on the frontal part of his
body; his wife Ghazala Bibi, Salma Bibi and Abid Hussain also endured
injuries.
Avoiding arrest through multiple applications, three in number,
the respondent was lastly refused anticipatory bail by a learned
Criminal Petition No. 996 of 2020
2
Additional Sessions Judge on 14.7.2020, however, extended protection
vide the impugned order, premised upon the following reasons:
“It is straightaway observed that though the role of
causing a firearm injury to injured PW has allegedly
been attributed which injury has been declared falling
within the mischief of Section 337-D, PPC yet during the
course of first investigation, he has been declared
innocent by the Investigating Officer. Further, besides
the petitioner, four others accused namely Ejaz
Hussain,
Waseem
Ahmad,
Saleem
Ahmad
and
Khurram Shahzad were also implicated in the crime
report, with role of firing but during the course of
investigation petitioner and co-accused Waseem Ahmad
have been declared innocent, whereas Saleem Ahmad,
having allegation of firearm injury to Mst. Salma Bibi
has been admitted to bail vide order dated 13.11.2019,
passed in Crl. Misc. No.1867-B of 2019. Other co-
accused namely Khurram Shahzad, with the allegation
of causing a firearm injury to Abid injured complainant
has also been granted bail vide order dated 29.01.2020
and admittedly so far no cancellation of bail petition
has
been
filed
by
the
complainant.
More
so,
confirmatory report regarding all the empties secured
from the place of occurrence has been received,
according to which, all have been found fired from the
pistol allegedly recovered on the pointing out of co-
accused. Moreover, importantly close relatives of the
petitioner have been implicated in this case and as such
possibility cannot be ruled out that the petitioner being
one of the elder and real brother of Ejaz Hussain co-
accused has falsely been implicated in this case by
throwing wider net. In such backdrop, case against the
petitioner has become to be one of further inquiry falling
within the ambit of Section 497 (2) Cr.P.C. Liberty of a
person is precious right guaranteed by the Constitution
of Islamic Republic of Pakistan, 1973, which cannot be
taken away until and unless there is cogent reasoning.”
2.
Heard. Record perused.
3.
The impugned view fails to commend approval for reasons
more than one; first that it is a journey, inordinately lengthy, into
forbidden territories as observations recorded by the learned Judge, in
the absence of evidence, yet to be recorded, though presumably
tentative, nonetheless, transcend far beyond the barriers of tentative
assessment; conclusiveness of the impugned findings, being part of a
bail order, though judicial viewed as without any bearing upon the final
Criminal Petition No. 996 of 2020
3
outcome of the case, a business to be best settled by the trial Judge,
nonetheless, tend to have plunged the prosecution into a situation,
embarrassing by all means towards its final destination and, thus,
ought to have been avoided. Reference to the protection of freedom
guaranteed under the Constitution is equally misplaced as the
Constitution pledges freedom to the law abiding citizens; an offender,
alleged to have committed some crime, is subject to a different legal
regime; he is certainly entitled to due process of law and a fair and
speedy trial, however, once taken in custody, his release is regulated by
the provisions of the Code of Criminal Procedure, 1898 and he must
make out a case within the statutory framework provided thereunder,
therefore, a pre-arrest bail cannot be granted as a substitute for post
arrest bail. Respondent’s previous conduct also escaped notice by the
learned Judge; he had been avoiding process of law ever since
registration of the case as is evident from the record, before the last
dismissal on merits, he twice secured ad-interim bail, each dismissed
on account of his failure to appear before the Court on the date fixed. It
has been held by this Court in the case of Mukhtar Ahmad Vs. The State
& others (2016 SCMR 2064) that such conduct by itself disentitles an
applicant to judicial protection. Though there is an oblique reference to
a lurking mala fide, yet with no substance therein. In a run of the mill
criminal case with four injured unanimously clamouring respondent’s
participation in the occurrence with a half cooked theory of his
innocence, subsequently recalled by the police itself, the mala fide
cannot be readily inferred. Impugned order being inconsistent with the
purposes and considerations for extending judicial protection to the
innocent, exposed to the horrors of abuse of process of law, for motives
oblique and sinister, cannot sustain. Petition is converted into appeal
and allowed. Impugned order dated 11.08.2020 is set aside; pre-arrest
bail granted to the respondent is cancelled.
Judge
Judge
Islamabad, the
2nd February, 2021
Not approved for reporting
Azmat/-
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SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed
Mr. Justice Mushir Alam
Mr. Justice Maqbool Baqar
Criminal Review Petitions No.15 to 18 of 2011
[For review of common Judgment dated 21.04.2011 passed by this Court in
Criminal Appeals No.167 to 170 of 2005]
Mst. Mukhtar Mai d/o Ghulam Farid
Meerwala, Tehsil Jatoi, Muzaffargarh
[in all cases]
…Petitioner(s)
VERSUS
Abdul Khaliq & others
[in Cr.R.P.15&18]
Faiz Muhammad & another
[in Cr.R.P.16]
Muhammad Aslam & others
[in Cr.R.P.17]
…Respondent(s)
For the Petitioner(s)
[in all cases]
: Ch. Aitzaz Ahsan, Sr. ASC
Mr. Gohar Ali Shah, ASC
For the Respondent(s)
[in all cases]
: Malik Muhammad Saleem, ASC
For the State
: Syed Ahmed Raza Gillani, Addl.P.G.
Date of Hearing
: 13.06.2019
J U D G M E N T
GULZAR AHMED, J.— These Criminal Review Petitions have
been filed seeking review of common judgment of this Court dated
21.04.2011 passed in Criminal Appeals No.163 to 171 of 2005 and
SMC No.5 of 2005.
2.
Brief facts of the matter are that FIR No.405 dated
36.06.2002 was got registered by the petitioner with Police Station
Jatoi, District Muzaffargarh under Section 10(4) of the Offence of
Zina (Enforcement of Hudood) Ordinance, 1979 (the Ordinance
1979) read with Section 109 of Pakistan Penal Code, 1860 (PPC).
1-Crl.Review Petitions No.15 to 18 of 2011.doc
- 2 -
Subsequently, Section 19 of the Ordinance 1979 was added along
with Sections 354-A, 217, 119 and 342 PPC so also Section 7 of
the Anti-Terrorism Act, 1997 (ATA). The trial was conducted, on
conclusion whereof the trial Court passed its judgment dated
31.08.2002 on the basis of which, out of 14 accused persons 8
accused were acquitted while the remaining 6 accused were found
guilty and were convicted and sentenced, as noted the said
judgment. However, all the accused were acquitted of the charge
under Section 354-A PPC. Both the complainant as well as the
State filed criminal appeals before the Lahore High Court
challenging judgment of the trial Court. The acquittal appeals
were dismissed by the High Court while the appeals filed by the
convicted accused were accepted except that of the convicted
accused Abdul Khaliq, whose appeal was partly allowed and his
capital punishment was converted into imprisonment for life with
benefit of Section 382-B Cr.P.C. Criminal Appeals were filed
against judgment of the High Court dated 03.03.2005 by the State,
by the Complainant and also by the convicted accused Abdul
Khaliq, while Suo Motu Case No.5 of 2005 was also registered by
this Court. The criminal appeals as well as the SMC were heard
together by a 3-Member Bench of this Court, which through the
judgment under review dismissed the appeals and discharged the
SMC.
3.
The learned Sr. ASC for the petitioner while arguing the
criminal review petitions has made the following formulations:
1)
Whether any, and if so, what kind of corroboration is
required for the testimony of rape victim;
2)
Whether a distinction can be drawn between a victim who
is a virgin and one who is a divorcee in respect of her
credibility in a prosecution for rape;
3)
Whether confessions made in cross-examination will not
adversely affect the defence, particularly in a case wherein
the accused has stated in his statement under section 342
Cr.P.C. that his defence is the same as put in cross-
examination by his counsel;
4)
Whether the Charge under section 354-A PPC which relates
to someone being paraded nude in public can be defended
by the accused by merely stating that the victim was
handed back her clothes;
1-Crl.Review Petitions No.15 to 18 of 2011.doc
- 3 -
5)
What is the effect of misreading and non-reading of
evidence regarding the injuries on the body of the victim;
6)
What is the guilt of the persons forming part of an
Akath/tribal Jirga/Panchayat who sit and join the same,
as a result of which a gang rape is permitted/committed;
7)
How far modern technics like DNA can be insisted upon by
the Court in crimes committed in a far-flung rural area
where it is not easy to have access to these technics.
4.
We have brought to the attention of the learned Sr.
ASC for the petitioner that the formulations made by him, as
reproduced above, are such which require re-appraisal of the
entire evidence and thereafter to take a view different from
the one which has been taken by this Court in the judgment
under review and that such course of action is not
permissible under the law for that while exercising review
jurisdiction the reviewing Court cannot go into the merits of
the case and take altogether a different view, the learned Sr.
ASC for the petitioner frankly conceded that he is aware of
this legal obstruction but insisted that the Court may
examine the above formulations made by him.
5.
We have considered the above formulations and have
also gone through the judgment under review. At the outset,
we may note that all the formulations and submissions of
the learned Sr. ASC, as noted above, appear to be based on
the assumption that this Court is sitting as a court of appeal
over the judgment under review, which jurisdiction obviously
is not vested in this Court under Article 188 of the
Constitution, as the Court hearing review cannot re-appraise
the evidence to come to a conclusion different from the one
adopted by the Court in the judgment under review. All the
1-Crl.Review Petitions No.15 to 18 of 2011.doc
- 4 -
formulations and submissions of the learned Sr. ASC are
based materially on the evidence on record, meaning thereby
that the Court, exercising review jurisdiction, is required to
read the evidence, the very such exercise, in our view, is not
permissible in law while sitting in review jurisdiction. It is
now well settled that the power of review stems from the
possibility of judicial fallibility and is exercised in exceptional
circumstances, in aid of justice, to avoid gross injustice and
in view of the necessity to avoid perpetuating such illegality,
which cannot be allowed to remain on the record. A review
is not synonymous with an appeal and does not include
rehearing of the matter in issue nor will be warranted merely
because the conclusion drawn is wrong or erroneous but is
limited to eventualities where something obvious has been
overlooked or where there is a glaring omission or patent
mistake of fact or law, which is self-evident, manifest and
floating on the surface, materially affecting the outcome of
the adjudicatory process. Reliance in this behalf may be
made to the case reported as Zakaria Ghani & 4 others v.
Muhammad Ikhlaq Memon & 8 others [PLD 2016 SC 229].
6.
The formulations of the learned Sr. ASC do not seem
to attract any of the provisions under which the review
jurisdiction could be exercised by this Court and thus, we
are of the considered view that the present review petitions
are not justifiable and are liable to be dismissed on this
score alone. Needless to observe that the formulations and
1-Crl.Review Petitions No.15 to 18 of 2011.doc
- 5 -
submissions, as they appear, are such which can be raised
and addressed by this Court in an appropriate proceeding in
some other case attracting the same, however, in the instant
case under the review jurisdiction, where this Court has
already
given
its
judgment,
these
formulations
and
submissions cannot be gone into.
7.
Thus, for the above reasons, the criminal review
petitions are dismissed. Consequently, all the criminal
miscellaneous applications filed in these criminal review
petitions are disposed of.
JUDGE
Bench-II
ISLAMABAD
13.06.2019
APPROVED FOR REPORTING
JUDGE
*Hashmi*
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Criminal Review Petition Nos.1 to 6/2016 in
Jail Petition Nos.588 to 593/2013
(On review from the judgment dated 22.10.2015 passed by this
Court in Jail Petition Nos.588 to 593/2013)
Zaid Shah alias Jogi
(in all cases)
…Petitioner(s)
Versus
The State
(in all cases)
…Respondent(s)
For the Petitioner(s):
Mr. Anis M. Shahzad, ASC
(in all cases)
For the State:
Mirza M. Usman, DPG
(in all cases)
Date of hearing:
29.1.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Ziad Shah alias
Jogi, petitioner herein, was tried alongside co-accused in six
different cases of abduction for ransom; the cases were registered
at different police stations during the year 2007 and each resulted
into conviction; he was initially sentenced to death in each case,
however, on appeal the death penalty was converted into
imprisonment for life with collateral benefits including concurrent
commutation of coordinate charges in each case, upheld
throughout. After failure of his jail petitions before this Court, the
petitioner addressed his first review petition through jail i.e. Suo
Moto Criminal Review Petition No.90 of 2016 in J.P. Nos.588 to
593 of 2013; barred by time, it was dismissed even on merits on
12.5.2016; he once again attempted through a counsel for the
review of earlier judgments through Review Petition Nos.1 to 6 of
2016 and it was for the first time, as late as on 16.1.2019 that
concurrent commutation of sentences in all the cases was prayed
Criminal Review Petition Nos.1 to 6/2016 in
Jail Petition Nos.588 to 593/2013
2
through a second review at the bar in the absence of any such
plea, specifically taken in the memorandums of the review
petitions. Bound by a common thread, the titled review petitions
are being decided through this single judgment.
2.
Heard.
3.
It is by now well settled that a petitioner cannot
maintain a second review petition as authoritatively held by this
Court in the cases of Khalid Iqbal & 2 others Vs. Mirza Khan &
others (PLD 2015 S.C. 50) as well as Moin ud Din & others Vs. The
State & others (PLD 2019 S.C. 749). Even otherwise, learned
counsel for the petitioner appointed at State expense, despite his
strenuous effort, has not been able to point out any error apparent
in the judgment rendered by this Court in different jail petitions
preferred by the convict. We have thoughtfully attended the
prayer/argument, raised for the first time, seeking concurrent
commutation of petitioner’s sentences, canvassed primarily on the
ground that he would never be able to serve out the consecutive
sentences in his expected life span, however, found the plea far
from being persuasive for more than one reason. First that it was
never pleaded before the Court either in jail petitions or in the
memo of first review petition and, thus, in the face of formidable
bar, the petitioner cannot be allowed to agitate the randomly taken
up plea at the end of the day. Having regard to the facts and
circumstances of the cases wherein the petitioner was returned
guilty verdicts, we have otherwise found it far from expedient to
entertain the plea on the touchstone of expectancy of life.
Discretion available with the Court under Sections 35 and 397 of
the Code of Criminal Procedure, 1898 has to be exercised with
judicial circumspection and caution to strike a balance in order to
avoid miscarriage of justice; every request for concurrent
commutation is not to be granted in isolation to the facts and
circumstances whereunder the crime is committed. In the present
case, in a short span of time, the petitioner committed abduction
for ransom in no less than six cases; when arrested, he was found
guilty in each. Appellate scrutiny both by the High Court as well as
this Court confirmed his guilt; heinously shocking, the enormity of
his conduct cannot be lost sight of merely on the ground that he
would not be able to foot the bill during his life time. Sufferings
endured by the victims and their families cannot be consolidated
Criminal Review Petition Nos.1 to 6/2016 in
Jail Petition Nos.588 to 593/2013
3
into a concessionary package for the petitioner without being
callously indifferent to the victims; it would also seriously
undermine the criminal justice system, already functioning under
raised eyebrows. Review petitions fail. Dismissed.
Judge
Judge
Judge
Islamabad, the
29th January, 2020
Not approved for reporting
Ghulam Raza/-
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IN THE SUPREME COURT OF PAKISTAN
(REVIEW/ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN
CRIMINAL REVIEW PETITION NO. 207 OF 2016 IN CRIMINAL
ORIGINAL PETITION NO. 89 OF 2011, CRIMINAL ORIGINAL
PETITION NO. 62 OF 2016 IN CRIMINAL ORIGINAL PETITION
NO. 89 OF 2011, CRIMINAL M.A. NO. 1758 OF 2016 IN
CRIMINAL ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL
M.A. NO. 86 OF 2017 IN CRIMINAL ORIGINAL PETITION NO.
62 OF 2016, CRIMINAL M.A. NO. 87 OF 2017 IN CRIMINAL
ORIGINAL PETITION NO. 62 OF 2016, CRIMINAL M.A. NO. 404
OF 2017 IN CRIMINAL ORIGINAL PETITION NO. 62 OF 2016,
CRIMINAL ORIGINAL PETITION NO. 22 OF 2017 IN CRIMINAL
ORIGINAL PETITION NO. 89 OF 2011, CRIMINAL ORIGINAL
PETITION NO. 69 OF 2017 IN CRIMINAL ORIGINAL PETITION
NO. 89 OF 2011 AND CRIMINAL M.A. NO. 1521 OF 2016 IN
CRIMINAL ORIGINAL PETITION NO. 62 OF 2016
(To review and against the alleged contempt of this Court’s judgment dated 12.06.2013
passed in Criminal Original Petition No. 89/2011 etc)
Sr. No.
Parties’ names
Case No.
1.
Hamid
Saeed
etc
Vs.
Government
of
Sindh
through Chief Secretary and
others
Cr. RP 207/2016 in
Cr.O.P. 89/2011
2.
Khalid Mehmood etc Vs. Syed
Tahir Shahbaz and others
Cr.O.P. 62/2016
3.
Impleadment application on
behalf of Shah Nawaz and
others
Cr.M.A. 1758/2016
4.
Application
of
joinder
by
Iqbal Ahmed Khan
Cr.M.A. 86/2017 in
Cr.O.P. 62/2016
5.
Application
of
joinder
by
Muhammad Asad
Cr.M.A. 87/2017 in
Cr.O.P. 62/2016
6.
Application for impleadment
of applicant namely Abdur
Rauf
Qureshi,
DSP/CPO,
National
Highways
and
Motorway Police
Cr.M.A.
404/2017
in Cr.O.P. 62/2016
7.
Rizwan
Ahmed
Qazi
and
others Vs. Shaukat Hayat
and another
Cr.O.P. 22/2017 in
Cr.O.P. 89/2011
CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016,
CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017,
CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL
PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016
2
8.
Syed Khurram Abbas Vs.
Syed
Tahir
Shahbaz
and
others
Cr.O.P. 69/2017 in
Cr.O.P. 89/2011
9.
Khalid Mehmood and others
Vs. Syed Tahir Shahbaz and
others
Cr.M.A. 1521/2016
in Cr.O.P. 62/2016
For the Petitioners:
Raja Muhammad Ibrahim Satti, Sr. ASC
(In Cr.R.P. 207/2016)
Mrs. Misbah Gulnar Sharif, ASC
(In Cr.O.P. 62/2016 & Cr.MA 1521/2016)
Rai Muhammad Nawaz Khan Kharal, ASC
(In Cr.O.P. 22/2017)
Mian Mehmood Hussain, ASC
(In Cr.O.P. 69/2017)
Ch. Imran Hassan Ali, ASC
(In Cr.MA 1758/2016)
In person
(In Cr.MAs 86, 87, 1016 & 1027/2018)
For the Respondent:
Ch. Amir Rehman, Addl. Att. General
Mr. M.S. Khattak, AOR
Raja Riffat Mukhtar, DIG, HQ, NH&MP
Mr. Muhammad Iqbal Ahmed, DSP Legal,
NH&MP
Date of Hearing:
05.10.2018
JUDGMENT
CRIMINAL REVIEW PETITION NO. 207/2016, CRIMINAL
ORIGINAL PETITION NO. 62/2016, CRIMINAL ORIGINAL
PETITION NO. 22/2017 AND CRIMINAL ORIGINAL PETITION
NO. 69/2017
FAISAL ARAB, J.- Petitioners in Criminal Review
Petition No. 207/2016 were all Sub Inspectors in BPS-14 and were
performing duties in National Highway and Motorway Police
(‘NH&MP’) as Patrolling Officers. Originally they were employees of
different Police departments from all over Pakistan. After the
creation of the National Highway and Motorway Police, they joined
it on deputation/transfer basis. Subsequently, they were absorbed
in the NH&MP. However, in compliance with the judgment of this
CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016,
CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017,
CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL
PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016
3
Court reported in the case of contempt proceedings against Chief
Secretary,
Sindh
etc
(2013
SCMR
1752),
NH&MP
withdrew/cancelled the absorption/induction of the petitioners in
its establishment and repatriated them to their respective parent
departments on the ground that their induction in NH&MP was
without the recommendations of the Departmental Induction
Committee. The petitioners had also approached Islamabad High
Court against the order of NH&MP by filing ICAs wherein stay was
initially granted but subsequently, in the light of the order passed
by this Court in Criminal Original Petition No. 31/2016 dated
10.05.2016, whereby it was observed that the High Court could
not exercise its jurisdiction in relation to the matters pertaining to
the terms and conditions of service of civil servants in view of the
bar contained under Article 212(3) of the Constitution, the said
ICAs were dismissed. Hence, the petitioners have come before us to
review the judgment of this Court passed in Criminal Original
Petition No. 89/2011 etc.
2.
In Criminal Original Petition No. 22/2017, the
petitioners
were
civil
employees
of
different
government
departments. After the inception of NH&MP, they joined it on
deputation/transfer basis. Subsequently, they were absorbed in
the NH&MP, however, in compliance with the judgment of this
Court reported in contempt proceedings against Chief Secretary,
Sindh etc (2013 SCMR 1752), the NH&MP withdrew the
absorption/induction of the petitioners in its establishment and
repatriated them to their parent departments. Hence, they have
filed this contempt petition on the ground that the respondent
Authority has misinterpreted the judgment of this Court as it was
applicable only to the employees of the province of Sindh.
CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016,
CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017,
CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL
PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016
4
3.
The case of the petitioners in Criminal Original
Petitions No. 62/2016 & 69/2017 is that they were directly
appointed employees of NH∓ that most of the officials were
hired from different departments and the petitioners are deprived
of their legitimate right of seniority and that most of the
deputationists lacked the requisite qualification and experience.
According to them this Court in the above said judgment has
cancelled
all
absorptions/appointments
by
transfer
and
deputations but the department has partially implemented the said
judgment. Hence, they pray that contempt of court proceedings be
initiated against the respondent Authority.
4.
So far as the case of the petitioners in Criminal Review
Petition No. 207/2016 is concerned, we have perused the
judgment under review. The respondent Department on the
recommendation of the Departmental Committee has repatriated
the petitioners on the ground that their induction was without the
recommendations of the Departmental Induction Committee,
which to our mind is unexceptionable. No ground for review is
made out. Criminal Review Petition No. 207/2016 is accordingly
dismissed.
5.
So far as the case of the petitioners in Criminal
Original Petition Nos. 62/2016 & 69/2017 that they are regular
employees of NH&MP and the process of absorption of several
employees is illegal and has affected the seniority of regular
employees is concerned, it would be appropriate to refer to our
order dated 16.01.2017 passed in Civil Appeal Nos. 709 to 717 of
2016 etc in which an almost a similar question was raised.
Appellants of those appeals, who were working in different Police
organizations, were initially appointed on deputation basis in
CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016,
CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017,
CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL
PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016
5
NH&MP and were subsequently absorbed. However, a dispute
arose with regard to their seniority which came up to this Court.
With consent of the parties, it was held as under:-
3.
We have called the A.I.G. (HRM), NH&MP, and after
hearing him and with the consent of the learned Counsel for
the parties as well as the learned Additional Attorney General
for Pakistan, intend to dispose of the Appeals in the following
terms:-
“The seniority of the Police Officials in the NH&MP
shall be re-fixed. The deputationists (Police Officials) who
were inducted in NH&MP by extending the benefit of one
step higher than their substantive rank in the parent
department, shall be assigned seniority from the date they
were permanently absorbed in the department by the
notification issued by the competent authority and their
seniority shall be placed at the bottom. The one step
promotion cannot be equated as out of turn promotion in
terms of judgments of this Court reported as Contempt
Proceedings against Chief Secretary Sindh (2013 SCMR
1752) and Ali Azhar Khan Baloch Vs. Province of Sindh
(2015 SCMR 456). In fact the principles which this Court has
enunciated in the case of Ch. Muhammad Akram Vs. The
Registrar, Islamabad High Court, Islamabad (PLD 2016 SC
961), would be attracted in the case in hand where the issue
of the nature was dealt with by this Court. The seniority of
all the Police Officials shall be finalized in the above terms
from the date when they were permanently absorbed in the
department, placing them at the bottom of seniority as
concluded hereinabove.”
6.
The above order is very much clear regarding
inasmuch as the seniority of all deputationists who are
subsequently absorbed and have not been repatriated shall be
placed at the bottom. In view of the above order, Criminal Original
Petition
Nos.
.
Petition
Nos.
Petition
Nos.
CRIMINAL REVIEW PETITION NO. 207 OF 2016, CRIMINAL ORIGINAL PETITION NO. 62 OF 2016,
CRIMINAL M.A. NO. 1758 OF 2016, CRIMINAL M.A. NO. 86 OF 2017, CRIMINAL M.A. NO. 87 OF 2017,
CRIMINAL M.A. NO. 404 OF 2017, CRIMINAL ORIGINAL PETITION NO. 22 OF 2017, CRIMINAL ORIGINAL
PETITION NO. 69 OF 2017 AND CRIMINAL M.A. NO. 1521 OF 2016
6
order of this Court is very much clear and it will include all those
employees also who were originally inducted in NH&MP from BPS-
1 to BPS-7 but later promoted to higher scales. The respondent
Department is directed to strictly follow this principle. So far as the
plea that judgment of this Court passed in Criminal Original
Petition No. 89/2011 etc was only meant for civil servants of the
province of Sindh is concerned, suffice it is to state that in the said
judgment this Court has settled the fate of all employees who were
sent on deputation, therefore, this principle can be uniformly
applied in similar cases as well in rest of the provinces as well.
With the above observations, this contempt petition is disposed of.
CRIMINAL
M.A.
NOs.
1758/2016,
86/2017,
87/2017,
404/2017 & 1521/2016
8.
In view of the order passed in the connected Criminal
Review Petition No. 207/2016, Criminal Original Petition Nos.
62/2016, 22/2017 and 69/2017, these miscellaneous applications
have become infructuous and are disposed of accordingly.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
5th of October, 2018
Not Approved For Reporting
Khurram
| {
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} |
IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa
Mr. Justice Ijaz Ahmed Chaudhry
Mr. Justice Gulzar Ahmed
Criminal Review Petitions No. 8-L and 10-L of 2013
in Criminal Petition No. 896-L of 2012
(Against the judgment dated 03.01.2013 passed by this Court in
Criminal Petition No. 896-L of 2012)
Nazir Ahmed
(in Cr.R.P. No. 8-L of 2013)
Sayyed Mazahar Ali Akbar Naqvi
(in Cr.R.P. No. 10-L of 2013)
…Petitioners
versus
The State, etc.
(in both cases)
… Respondents
For the petitioners:
Mr. Muhammad Ahsan Bhoon, ASC
(in Cr.R.P. No. 8-L of 2013)
Khawaja Haris Ahmed, Sr. ASC
(in Cr.R.P. No. 10-L of 2013)
For the State:
Mr. Ahmad Raza Gillani, Additional
Prosecutor-General, Punjab
(in both cases)
For the complainant:
Ch. Muhammad Riaz Ahmad, ASC
(in both cases)
Date of hearing:
15.01.2014
JUDGMENT
Asif Saeed Khan Khosa, J.: The jurisdiction of this Court,
as is evident from the provisions of Article 189 of the Constitution
of the Islamic Republic of Pakistan, 1973, is not just to decide
questions of law but it also extends to enunciating principles of law
which decisions and principles are binding on all other courts in
the country. The principles of law contemplated by Article 189
include principles regulating the practices in vogue in the field of
2
law and some of such practices and the principles enunciated in
those regards are the subject of the present judgment.
2.
The facts forming the basis for passage of the judgment of
this Court under review admit of no ambiguity and the already
settled principles of practice and propriety applicable thereto pose
no difficulty of comprehension but the judgment under review has
been taken exception to not only by the litigant affected by that
judgment but also by the learned Judge of the Lahore High Court,
Lahore whose order was set aside by this Court through the said
judgment. The matter of a litigant filing a review petition before
this Court is run of the mill but a Judge of a High Court
approaching this Court in person and seeking review of a judgment
of this Court is surely out of the ordinary and it may raise many an
eyebrow in view of the provisions of Article VI of the Code of
Conduct prescribed by the Supreme Judicial Council adherence to
which a Judge of a High Court swears while making oath of his
office. The said Article of the Code of Conduct reads as follows:
“A Judge should endeavour to avoid, as far as possible, being
involved in litigation either on his own behalf or on behalf of
others.”
In this peculiar, and rather disturbing, backdrop we have attended
to different aspects of these review petitions with utmost care and
have decided to restate some of the relevant principles of law and
practice with clarity so that in future no Judge may maintain that
he had difficulty in comprehending or applying the same.
3.
The facts of the case are that one Muhammad Islam
Advocate was murdered and in that respect Muhammad Siddique
complainant (respondent No. 2 herein) had lodged FIR No. 733 at
Police Station Baseerpur, District Okara on 29.10.2008 for
offences under sections 148, 302, 149 and 109, PPC. In the FIR
the complainant had implicated six persons as the culprits
including Nazir Ahmed (petitioner in Criminal Review Petition No.
8-L of 2013) and one Madad Ali and according to the FIR Nazir
3
Ahmed petitioner had caused multiple firearm injuries in the
abdomen of the deceased whereas Madad Ali co-accused had
caused firearm injuries on the chest and other specified parts of
the body of the deceased. During the investigation Nazir Ahmed
petitioner and Madad Ali co-accused were opined by the police to
be innocent and they were not even arrested which prompted the
complainant to file a private complaint in respect of the same
incident and against the same accused persons who had already
been nominated in the FIR. After a full-dressed trial conducted in
the private complaint the learned Additional Sessions Judge,
Depalpur, District Okara found both Nazir Ahmed petitioner and
Madad Ali co-accused guilty of the murder and vide judgment
dated 19.05.2011 he convicted them for an offence under section
302(b), PPC read with section 34, PPC and sentenced them to
imprisonment for life each as Ta’zir besides ordering them to pay a
sum of Rs. 1,00,000/- each to the heirs of the deceased by way of
compensation under section 544-A, Cr.P.C. or in default of
payment thereof to undergo simple imprisonment for six months
each. The benefit under section 382-B, Cr.P.C. was extended to
them. Nazir Ahmed petitioner and Madad Ali co-convict assailed
their convictions and sentences before the Lahore High Court,
Lahore through Criminal Appeal No. 1082 of 2011 jointly filed by
them. During the pendency of that appeal Madad Ali co-convict
filed Criminal Miscellaneous No. 01 of 2011 seeking suspension of
his sentence and release on bail which application was allowed by
a learned Judge-in-Chamber of the Lahore High Court, Lahore
(Sayyed Mazahar Ali Akbar Naqvi, J.) on 23.01.2012 on the
grounds that there was previous enmity between the parties;
Madad Ali was found by the police to be innocent; the complainant
had filed his private complaint with a delay of six months; and the
firearm injuries on some specified parts of the body of the deceased
attributed to Madad Ali in the FIR were non-existent in the Post-
mortem Examination Report pertaining to the deadbody of the
deceased and in his private complaint the complainant had
changed the locale of the injuries allegedly caused by Madad Ali so
4
as to bring them in line with the medical evidence. The operative
part of the order dated 23.01.2012 reads as under:
“6.
There is no denial to this factum that the petitioner is
nominated in the FIR with specific role, however, previous enmity
between the parties is also an admitted fact. During the course of
investigation, the petitioner was found innocent by the police and
as such he was let off. In view of the premium of innocence, the
complainant filed private complaint with the delay of six months,
for which no plausible explanation has been rendered by the
complainant and in the complaint the complainant has changed
his stance qua locale of injuries ascribed to the petitioner. There
is contradiction in the ocular as well as medical ocular account.
Keeping in view the dictum of law laid down in the cases of 1994
SCMR 453 (Muhammad Afzal and another Versus The State),
2006 YLR 1953 (Muhammad Waheed Akhtar Versus The State)
and 2008 MLD 396 (Fayyaz Maqsood and 3 others Versus The
State), this Court is persuaded to accept this petition and
suspend the sentence awarded to the petitioner and admit him to
bail pending disposal of the main appeal subject to his furnishing
bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac only)
with one surety in the like amount to the satisfaction of the
Deputy Registrar (J) of this Court.”
The said order of the Lahore High Court, Lahore was challenged by
Muhammad Siddique complainant before this Court through
Criminal Petition No. 95-L of 2012 which petition was dismissed by
this Court on 14.03.2012 as having been withdrawn. After
suspension of Madad Ali co-convict’s sentence and his admission
to bail Nazir Ahmed petitioner filed Criminal Miscellaneous No. 01
of 2012 before the Lahore High Court, Lahore seeking the same
relief for himself but that application was dismissed by another
learned Judge-in-Chamber of the said Court (Abdus Sattar Asghar,
J.) on 20.02.2012 for non-prosecution. The order dated 20.02.2012
reads as follows:
“Despite repeated calls no one entered appearance on
behalf of the petitioner. Name of learned counsel for the petitioner
appears in the cause list but there is no intimation with regard to
his absence.
2.
Dismissed for non-prosecution.”
Subsequently Nazir Ahmed petitioner made his second attempt for
the same relief through Criminal Miscellaneous No. 02 of 2012
which application was dismissed by Sayyed Mazahar Ali Akbar
Naqvi, J. on 11.04.2012 with the following order:
5
“Learned counsel for the petitioner, after arguing the case at some
length, wishes to withdraw the instant petition. Dismissed as
withdrawn.”
Undeterred by failure of his two earlier applications for suspension
of sentence and release on bail Nazir Ahmed petitioner made his
third attempt for obtaining the same relief through Criminal
Miscellaneous No. 03 of 2012 which was not filed through the
original learned counsel who had filed and represented him in the
earlier two applications but was filed through a different learned
counsel and this time the attempt was crowned with success as
the same learned Judge-in-Chamber of the Lahore High Court,
Lahore who had dismissed the second application of the petitioner
for the same relief suspended his sentence and released him on
bail on 19.11.2012. The operative part of the order dated
19.11.2012 passed by Sayyed Mazahar Ali Akbar Naqvi, J. reads as
follows:
“This is the third petition on the subject. The first one
bearing Crl. Misc. No. 01/2012 was dismissed for non-
prosecution vide order dated20.02.2012, whereas the second
petition bearing Crl. Misc. No. 02/2012 was dismissed as
withdrawn vide order dated 11.04.2012.
----------------------------------------
----------------------------------------
6.
From the perusal of the record it reveals that the
petitioner was nominated in the FIR with specific role but during
the course of investigation, he was found innocent and was let off
by the investigating agency and thereafter, the complainant filed
private complaint after a delay of six months for which no
plausible explanation has been rendered. Moreover, there is
previous enmity between the parties. The role ascribed to the
petitioner is that he while armed with .222 bore Rifle fired two fire
shots, which hit to Muhammad Islaam (deceased), whereas the
role ascribed to the co-accused, Madad Ali, is that he also made
two successive fire shots with his rifle .222 bore, which hit his
chest. Thus, the role ascribed to the petitioner is identical to that
of his co-accused, namely Madad Ali, whose sentence has already
been suspended by this Court vide order dated 23.01.2012,
passed in Crl. Misc. No. 01/2011, filed in Crl. A. No. 1082/2011,
which was assailed before the august Supreme Court of Pakistan
through Criminal Petition No. 98-L of 2012 and the same was
dismissed as withdrawn.
7.
For the foregoing reasons, this Court is persuaded to
accept this petition, suspend the sentence awarded to the
petitioner and admit him to bail pending disposal of the main
appeal subject to his furnishing bail bonds in the sum of Rs.
6
1,00,000/- with one surety in the like amount to the satisfaction
of deputy Registrar (Judicial) of this Court.”
That order passed by the Lahore High Court, Lahore on
19.11.2012 was assailed before this Court by Muhammad Siddique
complainant through Criminal Petition No. 896-L of 2012 which
petition was converted into an appeal and was allowed by this
Court on 03.01.2013, the impugned order was set aside and bail
allowed by the Lahore High Court, Lahore to Nazir Ahmed
petitioner was cancelled. The relevant parts of the judgment
passed by this Court on 03.01.2013 are reproduced below:
“6.
The complainant in his private complaint ascribed
respondent No. 2 the role of causing two injuries on the person of
the deceased Muhammad Islam on his abdominal area and
Madad Ali co-convict made two successive fire shots with his .222
bore rifle which hit the deceased on his chest. Both the aforesaid
accused having been found guilty by the learned trial Court were
convicted
under
section
302(b)
PPC
and
sentenced
to
imprisonment for life. Madad Ali co-convict of respondent No. 2
filed Crl. Misc. 01/2011 in Crl. Appeal No. 1082/2011 for
suspension of his sentence before the learned Lahore High Court,
Lahore which stood allowed on 23.01.2012 whereby his sentence
was suspended. Thereafter, respondent No. 2 moved an
application (Crl. Misc. 01/2012) for suspension of his sentence
which stood dismissed for non-prosecution as is evident from the
certificate given by the learned counsel for respondent No. 2 at
the bottom of Crl. Misc. 03/2012. Thereafter, respondent No. 2
filed Crl. Misc. 02/2012 before the learned Lahore High Court,
Lahore, which stood dismissed as withdrawn but on the same
grounds the third application (Crl. Misc. 03/2012) was allowed by
the learned Lahore High Court, Lahore by totally ignoring the
principles for suspension of sentence and other material available
on record by suspending the sentence of respondent No. 2
through impugned order. The main ground taken by the learned
Judge of the Lahore High Court for suspending the sentence of
respondent No. 2 was rule of consistency having similarity of
roles ascribed to respondent No. 2 as well as Madad Ali co-
convict, as such, the impugned order has been passed in violation
of the law laid down by this Court in the case of “The State
through Advocate General NWFP vs. Zubair and four others” (PLD
1986 Supreme Court 173) wherein it has been held as under:
8. It might be useful to mention here that the
second or the subsequent bail application to the
same Court shall lie only on a fresh ground
namely, a ground which did not exist at the time
when the first application was made. If a ground
was available to the accused at the time when the
first bail application was filed and was not taken or
was not pressed, it cannot be considered as a fresh
ground and made the basis of any subsequent bail
application. We may also point out, with respect to
the learned Judge who dealt with the second bail
application that the mere fact that the learned
Judge who had rejected the first bail application of
7
the respondents with the observation that as far as
the remaining petitioners (the respondents herein)
are concerned no case had been made out for their
release on bail, does not mean that the application
had not been disposed of on merits. It must be
assumed that he had considered all the pleas or
grounds raised by the applicant's counsel before
him and that the same had not found favour with
him.”
In such circumstances it is apparent on the face of record that
the ground of similarity of role and rule of consistency was
available to the petitioner at the time of filing first application for
suspension of sentence but the learned Judge has totally ignored
it. From the tenor of impugned order it appears that the learned
Judge of the Lahore High Court while suspending the sentence of
respondent No. 2 has not exercised discretion in a proper and
judicious manner rather has not at all adverted to the guidelines
laid down in Zubair’s case (supra).
7.
In view of the above, we while converting the instant
petition into an appeal allow the same, set aside the impugned
order dated 19.11.2012 passed by the Lahore High Court, Lahore
in Crl. Misc. 03/2012 in Crl. Appeal No. 1082/2011 and cancel
the bail granted to respondent No. 2.
8.
Before parting with this order we may observe that
discretion exercised by the learned Judge while passing the
impugned order in the instant case has appeared to us to be
somewhat
colourable
because
after
dismissal
of
second
application for suspension of sentence bearing the same ground
the only difference in the respondent’s third application for the
same relief was a different learned counsel for that respondent.
Office is directed to send a copy of this order to the learned Judge
of the Lahore High Court, Lahore for his information.”
Hence, the present review petitions before this Court. Criminal
Review Petition No. 8-L of 2013 has been filed by Nazir Ahmed
petitioner seeking restoration of his bail and Criminal Review
Petition No. 10-L of 2013 has been preferred by Sayyed Mazahar
Ali Akbar Naqvi, Judge, Lahore High Court, Lahore praying for
expunction of some observations concerning him made by this
Court in paragraph No. 8 of the judgment under review.
4.
In support of the review petition filed by Nazir Ahmed
petitioner it has been argued by Mr. Muhammad Ahsan Bhoon,
ASC that keeping in view the facts and circumstances of the case
as well as the rule of consistency the learned Judge-in-Chamber of
the Lahore High Court, Lahore was quite justified in suspending
the sentence of Nazir Ahmed petitioner and in admitting him to
bail during the pendency of his appeal, particularly when the case
8
against the said petitioner for such relief was at par with that of
his co-convict namely Madad Ali who had already been granted the
same relief by the same Court. Mr. Bhoon has also argued that in
entertaining and deciding the relevant application of Nazir Ahmed
petitioner on its merits the learned Judge-in-Chamber of the
Lahore High Court, Lahore had followed the law declared by this
Court in the cases of Muhammad Riaz v. The State (2002 SCMR
184) and Ali Hassan v. The State (2001 SCMR 1047) and, therefore,
the legitimate exercise of jurisdiction and discretion in the matter
by the learned Judge-in-Chamber of the Lahore High Court,
Lahore ought not to have been interfered with by this Court
through the judgment under review. While referring to the case of
Makhdoom Javed Hashmi v. The State (2008 SCMR 165) Mr. Bhoon
has submitted that in an appropriate case this Court may suspend
the sentence of a convict and grant him bail even through exercise
of review jurisdiction of this Court. Mr. Bhoon has lastly
maintained that the contents of paragraph No. 8 of the judgment
under review tend to cast aspersions not only upon the learned
Judge-in-Chamber of the Lahore High Court, Lahore but also upon
him as he was the counsel for Nazir Ahmed petitioner in the said
petitioner’s third application for suspension of sentence and bail
which application was allowed by the Lahore High Court, Lahore.
He, therefore, not only seeks review of the judgment of this Court
under review but also prays for expunction of the relevant
observations made by this Court in that judgment.
5.
Khawaja Haris Ahmad, Sr. ASC appearing for Mr. Justice
Sayyed Mazahar Ali Akbar Naqvi petitioner has submitted that he
only seeks expunction of the remarks made by this Court in
paragraph No. 8 of the judgment under review and that he has
nothing to say regarding the merits or otherwise of Nazir Ahmed
petitioner’s case for suspension of sentence and bail. The main
thrust of his submissions has been that the case of The State
through Advocate-General, N.W.F.P. v. Zubair and 4 others (PLD
1986 SC 173) was not relevant to the case in hand because
nothing had been said in that precedent case about maintainability
9
or otherwise of a subsequent application for bail after dismissal of
an earlier application for bail as having been withdrawn. According
to Mr. Khawaja the only precedent cases relevant to the issue
involved in the present case were the cases of Muhammad Riaz v.
The State (2002 SCMR 184) and Ali Hassan v. The State (2001
SCMR 1047) and the relevant order passed by Sayyed Mazahar Ali
Akbar Naqvi, J. was in accord with the principle laid down in the
said precedent cases. Mr. Khawaja has maintained that till the
passage of the judgment under review different Honourable Judges
of different High Courts of the country had been taking the same
view of the matter as was taken by Sayyed Mazahar Ali Akbar
Naqvi, J. in the order set aside by this Court through the judgment
under review and even Sayyed Mazahar Ali Akbar Naqvi, J. had
taken the same view in seven other orders passed by him in
different cases decided by him in the year 2012. In this respect he
has placed on the record copies of the said seven orders passed by
Sayyed Mazahar Ali Akbar Naqvi, J. and has also referred to the
cases reported as Wajid Ali v. The State (2009 P.Cr.L.J. 275),
Mustaqeem v. The State (2005 P.Cr.L.J. 661), Rasheed Ahmad v.
The State (2007 MLD 1440), Muhammad Mansha v. The State (2006
P.Cr.L.J. 47), Muhammad Asif alias Kala v. The State (2007
P.Cr.L.J. 1292), Muhammad Idrees v. The State (2005 MLD 899),
M. Latif v. The State (1996 MLD 2041) and Akbar Ali v. Jamshaid
Ali and others (2012 P.Cr.L.J. 1301). Mr. Khawaja has gone on to
submit that there was no malice on the part of Mr. Justice Sayyed
Mazahar Ali Akbar Naqvi petitioner in passing the relevant order in
the case of Nazir Ahmed petitioner and the mistake, if any, in the
bona fide order passed by him in the said case could only be
attributed to confusion and lack of proper understanding of the
true import of the principle laid down in the above mentioned
cases of Muhammad Riaz v. The State (2002 SCMR 184) and Ali
Hassan v. The State (2001 SCMR 1047). He has, therefore,
maintained that the remarks or observations made by this Court in
paragraph No. 8 of the judgment under review were uncalled for
and has urged that this Court may order expunction of the same.
In the end Mr. Khawaja has submitted that ordinarily no adverse
10
remark or observation is to be made or recorded in a judgment of a
court without issuing notice to the concerned person or before
affording him an opportunity of being heard in the relevant
connection and in this respect he has placed reliance upon the
cases of Muhammad Punhal v. Abdul Wahid Abbasi and another
(2003 SCMR 1406), In the matter of expunging certain remarks
made by a Magistrate against Additional District and Sessions
Judge, Lyallpur (PLD 1950 Lahore 34), Syed Ali Nawaz Gardezi v.
Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) and Malik Firoz Khan
Noon, Prime Minister’s House, Karachi v. The State (PLD 1958 SC
(Pak.) 333).
6.
The learned counsel for Muhammad Siddique complainant
has maintained that the judgment of this Court under review is a
just and fair judgment besides being a considered judgment and
the same addresses and cures a serious malady creeping into
conducting of criminal cases and, therefore, the same does not call
for a review. Regarding the scope of review jurisdiction he has
referred to the case of Muhammad Riaz v. The State (2011 SCMR
1019). He has complained that despite cancellation of his bail by
this Court Nazir Ahmad petitioner has so far managed to avoid his
arrest although no interim relief has been granted to him by this
Court during the pendency of the captioned review petitions. The
learned Additional Prosecutor-General, Punjab appearing for the
State has supported the learned counsel for the complainant and
has added that these review petitions essentially seek rehearing of
the merits of the case which exercise lies beyond the scope of
review jurisdiction of this Court.
7.
After hearing the learned counsel for the parties and going
through the relevant record with their assistance we find that there
are many issues involved in these review petitions and, thus, in the
background of the facts of this case we have decided to discuss
and resolve these issues one by one in the light of the principles
concomitant thereto laid down by this Court from time to time. We
find that the first issue involved in the review petitions in hand is
11
as to whether the considerations weighing with the learned Judge-
in-Chamber of the Lahore High Court, Lahore for suspending the
sentence of Nazir Ahmed petitioner and for releasing him on bail
during the pendency of his appeal were valid considerations for
grant of the said relief on the merits of the case. We note in this
context that the reasons prevailing with the learned Judge-in-
Chamber of the Lahore High Court, Lahore for suspending the
sentence of Nazir Ahmed petitioner and for admitting him to bail
were that in the Challan case the police had found the petitioner
innocent; the complainant had filed his private complaint after a
delay of six months; there was previous enmity between the
parties; and the sentence of a co-convict of the petitioner namely
Madad Ali, attributed a role identical to that alleged against the
petitioner, had already been suspended and he had been admitted
to bail by the Lahore High Court, Lahore through an order which
had not been interfered with by this Court. The facts and
circumstances of the case, however, show that none of the said
reasons provided a valid or sufficient ground for suspending the
sentence of Nazir Ahmad petitioner and for his admission to bail
during the pendency of his appeal before the Lahore High Court,
Lahore. It ought to have been appreciated by the learned Judge-in-
Chamber of the Lahore High Court, Lahore that any declaration of
innocence of Nazir Ahmad petitioner recorded by the police in the
Challan case was irrelevant as the petitioner’s trial had been
conducted in the complainant’s private complaint and not in the
Challan case and even otherwise opinion of the police regarding
the petitioner’s innocence was inadmissible in evidence being
irrelevant besides such opinion having already paled into further
irrelevance in view of the judicial verdict recorded by the learned
trial court in respect of the petitioner’s guilt. The learned Judge-in-
Chamber of the Lahore High Court, Lahore had also failed to
appreciate that the complainant had filed his private complaint
when the investigating agency had disappointed and frustrated
him on account of its alleged collusion with the accused party and
the reasons for the delay in filing of the private complaint had been
explained by the complainant before the learned trial court which
12
reasons had been accepted by it as justified. Mere existence of
enmity between the parties was hardly a valid ground for
suspending the petitioner’s sentence and for his admission to bail
because the learned trial court had already adjudged the petitioner
guilty of the alleged murder and the existing enmity between the
parties had been found by it to be supporting the motive set up by
the prosecution. Apart from that existence of enmity between the
parties and a possibility of false implication of the petitioner on the
basis of such enmity was a factor which could only be attended to
and appreciated by the learned appellate court after a detailed
assessment of the evidence at the time of hearing of the main
appeal and certainly not at the time of deciding an application
seeking suspension of sentence and release on bail during the
pendency of the appeal. The learned Judge-in-Chamber of the
Lahore High Court, Lahore was also clearly unjustified in holding
that the case of Madad Ali co-convict was “identical” to that of
Nazir Ahmed petitioner and, therefore, in view of Madad Ali’s
admission to bail upon suspension of his sentence Nazir Ahmed
petitioner was also entitled to the same relief. The learned Judge-
in-Chamber of the Lahore High Court, Lahore had committed a
serious error in this respect by not appreciating, or ignoring, the
fact that most of the firearm injuries to the deceased attributed by
the complainant in the FIR to Madad Ali were non-existent in the
Post-mortem Examination Report pertaining to the deadbody of the
deceased and, therefore, in his private complaint the complainant
had changed the locale of the injuries allegedly caused by Madad
Ali to the deceased whereas the complainant had throughout been
quite consistent in his FIR as well as in his private complaint
regarding the firearm injuries caused by Nazir Ahmed petitioner to
the deceased which injuries stood duly reflected in the Post-
mortem Examination Report. In view of this factual position it
could not be urged with any degree of seriousness or held with any
degree of reasonableness that the case of Nazir Ahmad petitioner
was identical to that of Madad Ali co-convict for the purpose of
treating them alike in the matter of suspension of sentence and
release on bail. For all these reasons a conclusion is irresistible
13
and inescapable that the learned Judge-in-Chamber of the Lahore
High Court, Lahore was not justified in suspending the sentence of
Nazir Ahmed petitioner and in admitting him to bail on the merits
of the case and, thus, cancellation of his bail by this Court brought
about through the judgment under review cannot be taken any
legitimate exception to. The learned counsel for Nazir Ahmed
petitioner has remained unable to point out any error patent on
the face of the record justifying review of that decision by this
Court.
8.
The second issue involved in the present review petitions is
as to whether all the grounds prevailing with the learned Judge-in-
Chamber of the Lahore High Court, Lahore for suspending the
sentence of Nazir Ahmed petitioner and for releasing him on bail
during the pendency of his appeal were available to the petitioner
at the time of dismissal of his earlier two applications filed before
the Lahore High Court, Lahore for the same relief and, thus, the
said grounds could not have been agitated or entertained for
granting him the same relief through his third application. It may
be recapitulated that Nazir Ahmed petitioner and Madad Ali co-
convict had been convicted and sentenced by the learned trial
court on 19.05.2011, the sentence of Madad Ali was suspended
and he was released on bail by the Lahore High Court, Lahore on
23.01.2012, the first application filed by Nazir Ahmed petitioner for
the same relief was dismissed for non-prosecution by the Lahore
High Court, Lahore on 20.02.2012, the second application filed by
him for the same relief had been dismissed by the Lahore High
Court, Lahore on 11.04.2012 as having been withdrawn after the
learned counsel for the petitioner had addressed arguments “at
some length” but had remained unable to convince the Court on
the merits of the case and the third application filed by the
petitioner for the same relief was allowed by the Lahore High
Court, Lahore on 19.11.2012. It has already been noted by us
above that the grounds prevailing with the Lahore High Court,
Lahore for suspending the sentence of Nazir Ahmed petitioner and
for releasing him on bail were that in the Challan case the police
14
had found the petitioner innocent; the complainant had filed his
private complaint after a delay of six months; there was previous
enmity between the parties; and the sentence of a co-convict of the
petitioner namely Madad Ali, attributed a role identical to that
alleged against the petitioner, had already been suspended and he
had been admitted to bail by the Lahore High Court, Lahore
through an order which had not been interfered with by this Court.
It is nothing but obvious from the chronological sequence detailed
above that all the said grounds were already available to Nazir
Ahmed petitioner at the time of filing of his first and second
applications for suspension of sentence and release on bail and the
said grounds had in fact been mentioned by him in those
applications and, thus, the said grounds, none of which could be
termed as a fresh ground, could not be taken or urged by him or
on his behalf for the purposes of his third application seeking the
same relief, particularly when the second application filed by him
had been dismissed as having been withdrawn after his learned
counsel had argued the matter “at some length” but had remained
unable to convince none other than Sayyed Mazahar Ali Akbar
Naqvi, J. himself for grant of the desired relief to the petitioner.
9.
In the context of the issue under discussion it may be
pertinent to mention that on a number of occasions this Court has
held that the principles for exercise of jurisdiction under sections
497 and 426, Cr.P.C., one pertaining to grant of bail after arrest at
the stage of trial and the other relating to suspension of sentence
and release on bail at the stage of appeal against conviction, are
essentially the same as the two provisions are analogous, they deal
with a similar relief and they are parts of the same statute. A
reference in this respect may be made to the cases of Maqsood v.
Ali Muhammad and another (1971 SCMR 657), Bashir Ahmad v.
Zulfiqar and another (PLD 1992 SC 463), Muhammad Nabi and 4
others v. The State (2006 SCMR 1225) and Raja Shamshad
Hussain v. Gulraiz Akhtar and others (PLD 2007 SC 564). Over a
passage of time this Court had noticed some mischiefs and
malpractices being practised in the matter of applying for bail and
15
from time to time this Court had enunciated and laid down certain
principles for curbing such mischiefs and malpractices. One of
such mischiefs and malpractices was repeated or successive filing
of applications for bail for the same accused person in the absence
of availability of any fresh ground and another was getting
subsequent applications for bail fixed before a Judge different from
the one who had refused the desired relief on an earlier occasion.
We deem it appropriate to refer here to the leading judgments
handed down by this Court in these regards and the principles of
propriety and practice enunciated in the same. In the case of Farid
v. Ghulam Hassan and others (1968 SCMR 924) this Court had
observed as follows:
“It should also have been a matter of some concern to the learned
Judge that one of his brother Judges had already dealt with the
case and expressed himself strongly against the grant of bail by
the Additional Sessions Judge. Not only the long established
practice of his Court, but also the rule of propriety required that
he should have transferred the application for bail to the first
Judge for disposal. Such a course would have had the merit of
avoiding the possibility of two contradictory orders being passed
in the same case by the High Court. It was urged that the plea of
alibi was not considered by the High Court while cancelling the
bail granted to the respondents, but the plea was neither urged
before the Sessions Judge nor before Mr. Justice Jamil Asghar. It
could not, therefore, be said that a new circumstance was made
to appear which justified the passing of a contradictory order.”
In the case of Gul Nawaz alias Gul Mowaz and 2 others v. The State
(1970 SCMR 667) it had been observed by this Court as under:
“The High Court was in our view also right in holding that
repeated applications for bail on the same facts did not lie in the
High Court.”
This Court had gone a step further in this respect in the case of
Chaudhry Muhammad Khan v. Sanaullah and another (PLD 1971
SC 324) as is evident from the following passages of the judgment
delivered in that case:
“The order passed by the learned Judge allowing bail to the
respondent No. 1 was thus based on misconstruction of the
record and it also suffered from the impropriety pointed out by
this Court in the case of Farid v. Ghulam Hussain and others
(1968 SCMR 924). Dealing with a similar case in which a learned
16
Judge had allowed bail to an accused person who had been
refused bail by another Judge, it was observed by this Court:
"It should also have been a matter of some concern
to the learned Judge that one of his brother Judges
had already dealt with the case and expressed
himself strongly against the grant of bail by the
Additional Sessions Judge. Not only the long
established practice of his Court, but also the rule
of
propriety
required
that
he
should
have
transferred the application for bail to the first
Judge for disposal. Such a course would have had
the merit of avoiding the possibility of two
contradictory orders being passed in the same case
by the High Court. It was urged that the plea of
alibi was not considered by the High Court while
cancelling the bail granted to the respondents, but
the plea was neither urged before the Sessions
Judge nor before Mr. Justice Jamil Asghar. It
could
not,
therefore,
be
said
that
a
new
circumstance was made to appear which justified
the passing of a contradictory order."
We fail to see why the rule laid down in Farid v. Ghulam
Hussain and others which must have been brought to the notice
of the learned Judge was not followed in the present case. We
were told that when interim bail was granted the first Judge was
not available. But having granted interim bail to the respondent
No. I he should have stayed his hand and sent the case back to
the first Judge who had in the first instance refused bail.
We do not want to lay more stress on this point except to
point out to the learned Judge the constitutional duty that 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
is binding on all other Courts in Pakistan and that all Judicial
authorities throughout Pakistan shall act in aid of the Supreme
Court. If these provisions of the Constitution were given due
consideration, we are sure that the second learned Judge would
not have passed the order dated 31st July 1970, which in effect
was tantamount to countermanding the order of the first learned
Judge.
In the circumstances, the order granting bail to the
respondent No. 1 cannot be sustained on any hypothesis. It is
erroneous in law, is based on misconstruction of record and
suffers from the impropriety that another learned Judge having
refused bail it was necessary that the case be sent to him for
passing final orders.
We, accordingly, allow the appeal and set aside the order
dated 31st July 1970 of the High Court granting bail to the
respondent No. 1. He shall surrender to his bail bond forthwith.”
Another ground was broken by this Court in this regard in the case
of Muhammad Khan v. Muhammad Aslam and 3 others (1971
SCMR 789) by holding as follows:
“Since leave was granted this Court has in more than one case
pointed out that as a judgment delivered in a criminal case is not
17
open to review under the Code, it is not proper for a learned
Judge of the High Court to allow bail to an accused person who
has been earlier refused bail by another Judge of the same Court.
It does not mean that once bail is refused by the High Court no
fresh application for bail will lie. If fresh grounds have come into
existence bail may be allowed, but in such a case the rule of
propriety and harmony of the Court requires that the case be
referred to the same learned Judge who had earlier refused bail.”
The case of Saleh Muhammad v. The State and another (1983
SCMR 341) was the next case in line wherein the same principle
was reiterated as under:
“It will be observed that the request of the respondent for bail was
once rejected on merits by the first order of the High Court, dated
14-10-1980 and normally, unless the repeated request was made
on grounds other than those available at the time of the first
application, no fresh application on merits could be entertained
by the High Court.”
Both the mischiefs and malpractices under discussion were
subsequently commented upon by this Court in the case of Khan
Beg v. Sajawal and others (PLD 1984 SC 341) in the following
words:
“That being the legal position, the plea that the challan had not
been filed in the trial Court but is still with the Magistrate could
hardly furnish a fresh ground for re-opening of the bail matter
disposed of on 4-2-1984. Nor could the interval of ten days
between the disposal of the first petition and the filing of the
second, be said to amount to delay in the trial of the case.
Normally a bail petition should be placed before the same Judge
who had dealt with the earlier petition. We are told that the
learned Judge who had dealt with the earlier petition had
returned to Lahore. Even so, the petition could have been sent to
Lahore for hearing by the same learned Judge. The practice of
withdrawing a petition from before one Judge and then making a
fresh petition soon thereafter so that the same be dealt with by
another Judge cannot be approved. We are satisfied that no
proper or fresh ground existed for making or entertaining the
second bail petition. We, therefore, convert this petition into
appeal and allow it. The impugned order granting bail to
respondents 1 to 7 is set aside.”
Then came the landmark case of The State through Advocate-
General, N.W.F.P. v. Zubair and 4 others (PLD 1986 SC 173)
wherein this Court dealt with the mischiefs and malpractices
under discussion in some detail and laid down the relevant
principles with exactitude and clarity leaving no room for any
18
mischievous machination. The relevant passages of the judgment
rendered in that case are reproduced below:
“5.
We have heard the learned counsel for the parties at
length and have also gone through the case-law on the subject.
With profound respect to the learned Judges of the High
Court who dealt with second bail application, we notice that a
salutary and well-established principle relating to the hearing of
successive bail applications filed by the accused persons in the
same case (or in the cross-case), has been violated in this case.
As already mentioned the learned Judge who heard the first bail
application declined to hear their subsequent bail application on
the ground that he had already expressed his opinion thereon. No
doubt, on general principle, a Judge having once expressed his
opinion of a lis should, ordinarily, decline to hear the same
matter again directly or collaterally. There are, however,
well-known exceptions to this rule, one of which is hearing of a
review application where ever this power is given by statute. The
other is the general practice which has been established by series
of judgments delivered by this Court as well as by the High
Courts during the last about 20 years, namely, that when a bail
application of one or more accused is heard by a learned Single
Judge of the High Court, it is he alone who should also hear all
the subsequent bail applications filed by the same or other
accused in the same case, or the cross-case. The following
authorities may be referred to in this connection:-
(1) Farid v. Ghulam Hussain 1968 SCMR 924.
(2) Muhammad Khan v. Sanaullah PLD 1971 SC 324,
(3) Muhammad Khan v. Muhammad Aslam 1971 SCMR 789.
(4) Khan Beg v. Sajawal PLD 1984 SC 341.
(5) Muhammad Adam v. The State 1968 P.Cr.L.J. 152.
(6) The State v. Muhammad Yousaf 1979 P.Cr.L.J. 665.
(7) Ghulam Hussain v. Karim Bakhsh NLR 1980 Criminal 248.
6.
It is held in some of these judgments that if a Judge of the
High Court has heard the bail application by an accused person
all subsequent petitions for bail by the same accused or in the
same case should be referred to the same Bench which had
disposed of the earlier petition.
7.
Another principle enunciated in some of the rulings is that
it is the duty of the counsel to mention in a bail application filed
by him the fact of having filed an earlier bail application, also
stating the result thereof. Failure on the part of the counsel to do
so would, in fact, amount to professional misconduct because the
concealment of the fact of the dismissal of the earlier bail
application of the accused or the co-accused and getting a
subsequent bail application decided by another Judge of the
same Court may result in conflicting judgments and disharmony
to the Court. It was held in the case of Farid v. Ghulam Hussain
(1968 SCMR 924) that where one Judge of the High Court has
expressed himself against the grant of bail, another learned Judge
of the same High Court in accordance with the long established
practice and rule of propriety, when moved for bail of an accused
or his co-accused in the same case should transfer such bail
application for disposal to the same Judge who had already dealt
with the matter earlier in order to avoid contradictory order. The
latest ruling on the subject is Khan Beg v. Sajawal (PLD 1984 SC
341) where, apart from holding that all subsequent bail
applications in the same case should be placed before the same
19
learned Judge who had dealt with the earlier bail application, this
Court also disapproved the practice of withdrawing a petition
from one Judge and then making a fresh bail application, soon
thereafter, so that same may be dealt with by another Judge.
The aforementioned principles enunciated by these
judgments are based on the salutary principles, inasmuch as the
practice of filing successive bail applications in the same case by
the same person or his co-accused and getting it fixed before a
different Judge, is not only likely to result in conflicting
judgments but also tends to encourage malpractice by the
accused persons and to bring the judicial system into disrepute,
because in the event of a conflicting order being given by another
learned Judge in a subsequent application, an impression,
though false, may be created that the second order was based on
extraneous considerations. It is mainly to avoid this that this
Court has emphasized, over and over again, that subsequent bail
application must be placed for disposal before the same learned
Judge who had dealt with the first bail application and also that
the counsel must disclose the fact of having filed a previous
application and to state the result thereof. It is regrettable that
this salutary rule was overlooked by the learned Judges who dealt
with the second bail application in the present case.
8.
It might be useful to mention here that the second or the
subsequent bail application to the same Court shall lie only on a
fresh ground namely, a ground which did not exist at the time
when the first application was made. If a ground was available to
the accused at the time when the first bail application was filed
and was not taken or was not pressed, it cannot be considered as
a fresh ground and made the basis of any subsequent bail
application. We may also point out, with respect to the learned
Judge, who dealt with the second bail application that the mere
fact that the learned Judge who had rejected the first bail
application of the respondents with the observation that as far as
the remaining petitioners (the respondents herein) are concerned
no case had been made out for their release on bail, does not
mean that the application had not been disposed of on merits. It
must be assumed that he had considered all the pleas or grounds
raised by the applicant's counsel before him and that the same
had not found favour with him. It may be pointed out, with great
respect, that the notion that each contention raised before the
Court in a bail application must be dealt with separately or
repelled by recording elaborate reasoning is totally misconceived.
We are of the view that in the present case the learned Judge who
dealt with the second bail application had in fact embarked on a
review of the order of the learned Judge who had earlier
dismissed the first bail application.”
Subsequently some clarifications were made in this regard by this
Court in the case of In re: To revisit “The State v. Zubair” [PLD 1986
SC 173 (PLD 2002 SC 1 and 2002 SCMR 171) in the following
terms:
“6.
In the light of the observations made, the case-law referred
to in order dated 24.09.2001, the submissions made by the
learned Attorney-General for Pakistan, the stance taken at the
Bar by the learned Advocates-General/Additional Advocates-
General and the reproduced reports of the Registrars of the
20
Federal Shariat Court and the High Courts, there can be no
dispute with the proposition that there is a pressing need to
lessen the intensity of the ratio in Zubair (supra) vis-à-vis the
forum for disposal of second or subsequent bail applications.
Resultantly, the interim order dated 24.09.2001 is confirmed with
the following modifications/clarifications:
(1)
Constitution of the Benches is the exclusive
function of the Chief Justice.
(2)
Ordinarily, subsequent bail application by
the same accused or in the same case must be
placed for disposal before the same Single
Judge/Division Bench of the High Court which had
dealt with the first bail application.
(3)
If the learned Single Judge who had dealt
with the first bail application is not available and
departure from (2) above is unavoidable, the
learned Chief Justice concerned may refer the
second or subsequent bail application to another
learned Single Judge at the Principal Seat or
Permanent Benches/Circuit Benches, as the case
may be.
(4)
Where the first bail application is heard and
disposed of by a Division Bench which is not
available either at the Principal Seat or the
Permanent Benches/Circuit Benches at the time of
filing of the second or subsequent bail application
then such bail application shall be heard by a
Division Bench of which one of the Judges was a
Member of the Division Bench which dealt with the
first bail application. If none of the Members of the
Division
Bench
which
heard
the
first
bail
application is available, the learned Chief Justice
concerned
may
assign
the
subsequent
bail
application to any appropriate Division Bench at
the
Principal
Seat
or
the
Permanent
Benches/Circuit Benches, as the case may be.
(5)
Subsequent bail applications shall be filed,
heard and disposed of at the Principal Seat or the
Permanent Benches/Circuit Benches, as the case
may be, where the first bail application was filed
and finally disposed of. In the event of non-
availability of the learned Single Judge or the
learned Member/s of the Division Bench, who had
dealt with the earlier bail applications, the office at
the Principal Seat shall obtain appropriate orders
from the learned Chief Justice and the office at the
Permanent Benches/Circuit Benches shall obtain
appropriate orders from the learned Chief Justice
through fax or on telephone for fixation of
subsequent
bail
application
before
other
appropriate Benches, in the interest of expeditious
and inexpensive dispensation of justice in bail
matters.
(6)
Subsequent bail application shall not be
entertained unless accompanied by copies of
earlier bail applications and copies of orders
thereon.”
21
The above mentioned principles of practice and propriety laid down
by this Court from time to time have consistently been followed by
the courts in the country ever since. A later case in the same
thread was the case of Ali Sheharyar v. The State (2008 SCMR
1448).
10.
The echo or resonance of the principles of propriety and
practice enunciated by this Court in the above mentioned cases
was also heard in India and in the case of Shahzad Hasan Khan v.
Ishtiaq Hasan Khan and another (AIR 1987 SC 1613) the Supreme
Court of India had observed as follows:
“Long standing convention and judicial discipline required that
respondent's bail application should have been placed before
Justice Kamleshwar Nath who had passed earlier orders, who
was available as Vacation Judge. The convention that subsequent
bail application should be placed before the same Judge who may
have passed earlier orders has its roots in principle. It prevents
abuse of process of court in as much as an impression is not
created that a litigant is shunning or selecting a court depending
on whether the court is to his liking or not, and is encouraged to
file successive applications without any new factor having
cropped up. If successive bail applications on the same subject
are permitted to be disposed of by different judges there would be
conflicting orders and a litigant would be pestering every judge till
he gets an order to his liking resulting in the creditability of the
court and the confidence of the other side being put in issue and
there would be wastage of courts' time. Judicial discipline
requires that such matter must be placed before the same judge,
if he is available for orders. Since Justice Kamleshwar Nath was
sitting in Court on June 23, 1986 the respondent's bail
application should have been placed before him for orders.
Justice D. S. Bajpai should have respected his own order dated
June 3, 1986 and that order ought not to have been recalled,
without the confidence of the parties in the judicial process being
rudely shaken.”
Later on in the case of State of Maharashtra v. Captain Buddhikota
Subha Rao (1990 PSC 797) the Supreme Court of India had made
somewhat similar observations in the following words:
“In the present case the successive bail applications preferred by
the respondent were rejected on merits having regard to the
gravity of the offence alleged to have been committed. One such
application No. 36 of 1989 was rejected by Suresh, J. himself.
Undeterred the respondent went on preferring successive
applications for bail. All such pending bail applications were
rejected by Puranik, J. by a common order on 6th June, 1989.
Unfortunately, Puranik, J. was not aware of the pendency of yet
another bail application No. 995/89 otherwise he would have
22
disposed it of by the very same common order. Before the ink was
dry on Puranik, J.'s order, it was upturned by the impugned
order. It is not as if the court passing the impugned order was not
aware of the decision of Puranik, J., in fact there is a reference to
the same in the impugned order. Could this be done in the
absence of new facts and changed circumstances? What is
important to realize is that in Criminal Application No. 375 of
1989, the respondent had made an identical request as is obvious
from one of the prayers (extracted earlier) made therein. Once
that application was rejected there was no question of granting a
similar prayer. That is virtually overruling the earlier decision
without there being a change in the fact-situation. And, when we
speak of change, we mean a substantial one which has a direct
impact on the earlier decision and not merely cosmetic changes
which are of little or no consequence. Between the two orders
there was a gap of only two days and it is nobody's case that
during these two days drastic changes had taken place
necessitating the release of the respondent on bail. Judicial
discipline, propriety and comity demanded that the impugned
order should not have been passed reversing all earlier orders
including the one rendered by Puranik, J. only a couple of days
before, in the absence of any substantial change in the fact-
situation. In such cases it is necessary to act with restraint and
circumspection so that the process of the Court is not abused by
a litigant and an impression does not gain ground that the
litigant has either successfully avoided one Judge or selected
another to secure an order which had hitherto eluded him. In
such a situation the proper course, we think, is to direct that the
matter be placed before the same learned Judge who disposed of
the earlier applications. Such a practice or convention would
prevent abuse of the process of court inasmuch as it will prevent
an impression being created that a litigant is avoiding or selecting
a court to secure an order to his liking. Such a practice would
also discourage the filing of successive bail applications without
change of circumstances. Such a practice if adopted would be
conducive to judicial discipline and would also save the Court's
time as a Judge familiar with the facts would be able to dispose of
the subsequent application with despatch. It will also result in
consistency. In this view that we take we are fortified by the
observations of this Court in paragraph 5 of the judgment in
Shahzad Hasan Khan v. Ishtiaq Hasan Khan [1987] 2 SCC 684.
For the above reasons we are of the view that there was no
justification for passing the impugned order in the absence of a
substantial change in the fact-situation. That is what prompted
Shetty, J. to describe the impugned order as 'a bit out of the
ordinary'. Judicial restraint demands that we say no more.”
11.
The discussion made above shows that for suspending the
sentence of Nazir Ahmed petitioner and admitting him to bail
during the pendency of his appeal on the basis of the grounds
which could not have been urged or entertained through his third
application for the same relief the learned Judge-in-Chamber of the
Lahore High Court, Lahore had failed to follow or had chosen to
disregard or trump the well-established principles enunciated by
this Court governing successive applications for bail which
principles were binding on him by virtue of the provisions of Article
23
189 of the Constitution. In this view of the matter cancellation of
Nazir Ahmed petitioner’s bail by this Court through the judgment
under review hardly warrants any reconsideration or review.
12.
Through his review petition and also through Criminal
Miscellaneous Application No. 23 of 2014 filed in his review
petition Mr. Justice Sayyed Mazahar Ali Akbar Naqvi petitioner
has, however, maintained that the principles governing successive
applications for bail enunciated in the precedent cases referred to
above were not applicable to a situation where an earlier
application for bail had been dismissed as having been withdrawn
and in such a situation a subsequent application for bail could be
entertained and decided on its merits even on the basis of the
same grounds which were available and had been urged before
dismissal of the earlier application as having been withdrawn. In
view of such stance having been taken before us the third issue
relevant to the present review petitions is as to whether dismissal
of Nazir Ahmed petitioner’s second application for suspension of
sentence and release on bail by the learned Judge-in-Chamber of
the Lahore High Court, Lahore as having been withdrawn after his
learned counsel had unsuccessfully addressed arguments in
support of that application foreclosed any possibility of obtaining a
favourable order in that regard from the same Court through the
petitioner’s third application when the third application was based
upon the same facts and grounds which were available and urged
at the time of decision of his second application. In other words,
the question is as to whether for the purposes of a subsequent
application for bail on the basis of the same facts and grounds
dismissal of an earlier application for bail as having been
withdrawn after addressing arguments and failing to convince the
court has the same legal effect and consequence as dismissal of
such application on the merits or not. Such a question came up for
consideration before this Court, probably for the first time, in the
case of Muhammad Riaz v. The State (2002 SCMR 184) decided on
18.01.2001 and it was observed in that case as follows:
24
“The other vital issue was about the scope of the second bail
application and the observations of this Court have been
reproduced supra. In the instant case, the earlier bail application
Criminal Miscellaneous No. 4101-B-2000 was disposed of by a
learned Division Bench of the Lahore High Court comprising Mr.
Justice Khalil-ur-Rehman Ramday and Mr. Justice Dr. Munir
Ahmad Mughal and the order passed therein dated 24-7-2000
reads as under:--
“Having argued the matter at some length, prays
for permission to withdraw this petition. Dismissed
as withdrawn."
(Sd.)
Judges.”
A bare reading of the above order clearly shows that
decision on merit was not at all pressed and the counsel in his
own wisdom or on the instructions of his client desired to
withdraw the first bail application. In such-like cases it cannot be
said that the case had been decided on merits, nor it can be
asserted that certain grounds were raised but were repelled or
had found favour with the learned Judges as the case may be.
----------------------------------------
----------------------------------------
The extract from Zubair's case reproduced in the preceding
paragraph of this judgment shows that the case had been heard
at length and all grounds which were available were pressed
because the first bail application was rejected with the
observation that: "As far as rest of the petitioners are concerned,
no case has been made out for their release on bail". It was
further held that it did not mean that the application had not
been disposed of on merits and further that it must be assumed
that the learned Judge had considered all the pleas or grounds
raised by applicant's counsel before him and that the same had
not found favour with him. It was further laid down that notion
that each contention raised before the Court in a bail application
must be dealt with separately or repelled by recording elaborate
reason was totally misconceived.
We are therefore, of the view that withdrawal of a bail
application would not mean that its disposal was on merits or the
ground had been taken into consideration, therefore, in our view
there is no bar in moving a second bail application after
withdrawal of the first one but inevitably the second bail
application should be heard by the same Judge or the Judges
who had allowed the withdrawal of the first application. In the
present case, the first bail application was allowed to be
withdrawn by a learned Division Bench of the Lahore High Court
consisting of Mr. Justice Khalil-ur-Rehman Ramday and Mr.
Justice Munir Ahmad Mughal but the judgment impugned was
delivered
by
a
different
Bench
comprising
Mr.
Justice
Khalil-ur-Rehman
Ramday
and
Mr.
Justice
Zafar
Pasha
Chaudhry. On the touchstone and criteria laid down in Zubair's
case in our view the second bail application ought to have been
heard by the same learned Bench who had permitted the
withdrawal of the earlier bail application.
For the foregoing reasons, we hold that withdrawal of an
application simpliciter does not mean that the same was dealt
with on merits or on the grounds pressed. However, the situation
would be different if the earlier bail application was decided on
merits and in such case while deciding the subsequent bail
application, of course, the ground which was not urged although
25
the same was available would not constitute a fresh ground
justifying the filing of second bail application. Secondly, propriety
requires that the bail application dismissed in terms or order
impugned be heard by the same learned Bench who had earlier
allowed the withdrawal of the first bail application. In this view of
the matter, we allow this appeal and remand this case to the
learned Lahore High Court for re-hearing of the bail application
by the same learned Bench who had permitted to withdraw the
first application in terms of order dated 24-7-2000.”
13.
The case of Muhammad Riaz (supra) was followed by the case
of Ali Hassan v. The State (2001 SCMR 1047) decided on
01.03.2001 wherein the said issue had been dealt with by this
Court in the following manner:
“5.
We have carefully examined the respective contentions as
agitated on behalf of the parties. We have gone through the
impugned judgment. The controversy revolves around the
interpretation of the dictum as laid down in Zubair's case (supra)
which has already been interpreted/clarified recently by this
Court in Criminal Appeal No. 458 of 2000 (Muhammad Riaz v.
The
State)
and
relevant
portion
whereof
is
reproduced
hereinbelow:--
----------------------------------------
----------------------------------------
6.
It transpires from the scrutiny of record that Criminal
Miscellaneous Appeal No. 4130-B and Criminal Miscellaneous
Appeal No. 1803-M of 1999 were not pressed and withdrawn
which makes it abundant clear that the same were not disposed
of on merits and in view of the interpretation/clarification of
Zubair's case (supra) as mentioned hereinabove, Criminal
Miscellaneous Appeal No. 75-B of 2000 is not hit by the dictum
laid down in Zubair's case (supra). In such view of the matter the
appeal is accepted and the impugned order is set aside and case
is remanded back to learned Lahore High Court and Criminal
Miscellaneous Appeal No. 75-B of 2000 shall be treated as
pending and decided in accordance with law and merits after
affording proper opportunity of hearing to all concerned.”
14.
We have gone through the judgments delivered in the cases
of Muhammad Riaz and Ali Hassan (supra) quite minutely. The
case of Ali Hassan had proceeded simply on the basis of what had
been held earlier on in the case of Muhammad Riaz and, therefore,
it is important to understand as to what was the ratio decidendi of
the case of Muhammad Riaz. We find that what was held in the
judgment delivered in that case was as under:
(i)
In Zubair’s case the earlier application for bail
had been dismissed on the merits of the case whereas
26
in the case of Muhammad Riaz the earlier application
for bail had been dismissed as having been withdrawn.
(ii)
Dismissal of an application for bail as having
been withdrawn “simpliciter” is not to be equated with
a dismissal on the merits.
(iii)
Withdrawal
of
an
application
for
bail
“simpliciter” does not preclude or debar “moving” of
another application for bail.
(iv)
If the earlier application for bail had been
decided on the merits then a subsequent application
for bail can be “moved” only on the basis of grounds
which were not existing or available till the decision of
the earlier application.
(v)
In a case of withdrawal of an earlier application
for bail and also in a case of its decision on the merits
a subsequent application for bail is to be fixed before
and heard by the same Judge(s) who had dealt with
the earlier application.
We have particularly noticed, and we observe so with profound
respect, that in the said judgment no specific comment had been
made on as to what constituted withdrawal “simpliciter” and on as
to whether there was any difference between withdrawal
“simpliciter” and withdrawal after addressing arguments and
failing to convince the court on the merits. An indication is,
however, available in the said judgment as to what was deemed to
be withdrawal “simpliciter” and in this respect the following
observation made in the judgment may be referred to:
“We are therefore, of the view that withdrawal of a bail application
would not mean that its disposal was on merits or the ground
had been taken into consideration, therefore, in our view there is
no bar in moving a second bail application after withdrawal of the
first one”
(underlining has been supplied for emphasis)
The said observation made in the judgment indicates that filing a
subsequent application for bail on the same grounds was held to
be permissible where withdrawal of the earlier application was not
preceded by consideration of the grounds for bail on their merits.
Such understanding of that judgment is fortified by a later
observation made in that judgment which reads as under:
27
“For the foregoing reasons, we hold that withdrawal of an
application simpliciter does not mean that the same was dealt
with on merits or on the grounds pressed.”
(underlining has been supplied for emphasis)
The above mentioned observations made in that judgment throw
some light on what was meant in that judgment by withdrawal
“simpliciter” but, with great reverence for the Honourable Judges
deciding the said case, we find that exposition of that issue in the
said judgment was not the finest example of judicial clarity. We
note that on the one hand withdrawal of an application for bail
after arguing the matter at some length was held to be withdrawal
“simpliciter” and not constituting a bar against filing of another
application for the same relief on the basis of the same facts and
grounds but on the other hand the above mentioned observations
were made which declared that withdrawal “simpliciter” did “not
mean that” the application for bail had been “dealt with on merits
or on the grounds pressed”. The said observations tended to hold
that in a case wherein withdrawal of an application for bail had
come about after the grounds for bail had been “pressed” and
“dealt with” was not a case of withdrawal “simpliciter”. After a very
careful analysis of what had been held and what had been
observed in that judgment and after a cautious and judicious
examination and scrutiny of the issue involved we understand that
what is reasonably discernable or deducible is that if an
application for bail was withdrawn without addressing any
argument on the merits of the case then another application for
bail on the basis of the same facts and grounds can be filed but if
the “merits” and the “grounds pressed” had been “dealt with” by
the court before allowing withdrawal of an application for bail or,
in other words, an application for bail was withdrawn after
addressing arguments on the merits of the case but failing to
convince the court then a fresh application can be filed and
entertained only on the basis of grounds which were not existing or
available till disposition of the earlier application for the same
28
relief. This was the understanding and the premise upon which the
judgment under review in the present case had proceeded.
15.
It may not be out of place to mention here that the judgment
under review in the present case has already been approvingly
referred to and in fact followed by a different 3-member Bench of
this Court in the case of Amir Masih v. The State and another (2013
SCMR 1059 & 1524) decided on 03.05.2013 and it had been
observed in that case as under:
“5.
Learned High Court has dismissed the bail application of
the petitioner on the ground that earlier application filed by him
was dismissed as withdrawn vide order dated 5.12.2012. In the
case of The State through Advocate-General, N.W.F.P. v. Zubair and
4 others (PLD 1986 SC 173) it was held by this Court that the
grounds which were available at the time of withdrawal of the
earlier application shall be deemed to have been considered and
dealt with and the second application can only be filed on the
fresh ground. The relevant portion is reproduced as under:--
“8.
It might be useful to mention here that the
second or the subsequent bail application to the
same Court shall lie only on a fresh ground, namely,
a ground which did not exist at the time when the
first application was made. If a ground was
available to the accused at the time when the first
bail application was filed and was not taken or was
not pressed, it cannot be considered as a fresh and
made the basis of any subsequent bail application.
We may also point out, with respect to the learned
Judge, who dealt with the second bail application
that the mere fact that the learned Judge who had
rejected the first bail application of the respondents
with the observation that as far as the remaining
petitioners (the respondents herein) are concerned
no case had been made out for their release on bail,
does not mean that the application had not been
disposed of on merits. It must be assumed that he
had considered all the pleas or grounds raised by
the applicant’s counsel before him and that the
same had not found favour with him. It may be
pointed out, with great respect that the notion that
each contention raised before the Court in a bail
application must be dealt with separately or
repelled by recording elaborate reasoning, is totally
misconceived. We are of the view that in the
present, case the learned Judge who dealt with the
second bail application had, in fact embarked on a
review of the order of the learned Judge who had
earlier dismissed the first bail application.
6.
As far as the case-law cited by the learned counsel for the
petitioner in (i) Ali Hassan v. The State (2001 SCMR 1047) and (ii)
Muhammad Riaz v. The State (2002 SCMR 184) is, concerned, the
latest case which has been disposed of on this point is
29
Muhammad Siddique v. The State (Criminal Petition No. 896-L of
2012) wherein it has been held by this Court that if earlier
application is dismissed as withdrawn, the second application
can only be filed on any fresh ground and not on the same
grounds which were available at the time of the disposal of the
earlier application. Relevant portion from the said judgment is
reproduced herein below:--
“In such circumstances it is apparent on the face of
record that the ground of similarity of role and rule
of consistency was available to the petitioner at the
time of filing first application for suspension of
sentence but the learned Judge has totally ignored
it. From the tenor of impugned order it appears that
the learned Judge of the Lahore High Court while
suspending the sentence of respondent No. 2 has
not exercised discretion in a proper and judicious
manner rather has not at all adverted to the
guidelines laid down in Zubair’s case (supra).”
Thus the latest view of this Court is to be followed and the
learned High Court has rightly dismissed the application which
could only be entertained on the fresh grounds, hence, this
petition being without merits is, hereby, dismissed and leave is
refused.”
The judgment under review has also been referred to with approval
by another 3-member Bench of this Court in the case of
Muhammad Naveed v. The State and another (Criminal Petition No.
324-L of 2013 decided on 03.05.2013) in the following terms:
“Even this Court in a recent judgment passed in Criminal Petition
No. 896-L of 2012 titled Muhammad Siddique v. The State has
held that even if the application is dismissed as withdrawn,
subsequent application is not entertainable until and unless any
fresh ground is urged.”
16.
We have also noticed that the understanding of the
meanings of withdrawal “simpliciter” propounded above already
stands expressed and iterated by this Court in the case of Rizwan
Ali v. The State, etc. (Criminal Petition No. 658-L of 2013 decided
on 16.07.2013) as follows:
“We have heard the learned counsel for the petitioner, the learned
Additional Prosecutor-General, Punjab appearing for the State
and Saleem Akhtar complainant in person and have gone through
the record of this case with their assistance. It has been agreed
between the learned counsel for the petitioner, the learned
Additional Prosecutor-General, Punjab and the complainant
appearing in person that the principle laid down by this Court in
the case of Muhammad Siddique v. The State (Criminal Petition
No. 896-L of 2012) and in the case of Amir Masih v. The State and
30
another (2013 SCMR 1059) has not been correctly applied by the
learned Judge-in-Chamber of the Lahore High Court, Multan
Bench, Multan to the facts of the present case vis-à-vis the
present petitioner namely Rizwan Ali. On the basis of such
consensus all of them have requested that this petition may be
converted into an appeal and the same may be allowed, the
impugned order passed by the Lahore High Court, Multan Bench,
Multan on 19.06.2013 may be set aside and the matter of the
petitioner’s bail may be remanded to the Lahore High Court,
Multan Bench, Multan for its decision afresh on the merits of the
case. In the peculiar circumstances of the case we have found the
consensus between the parties to be justified because the merits
of the petitioner’s case for bail had never been attended to by the
Lahore High Court, Multan Bench, Multan in the orders passed
by it in all the three successive applications filed by the petitioner
for the said relief and every time such application was allowed to
be withdrawn the withdrawal so sought and allowed was nothing
but withdrawal simpliciter. This petition is, therefore, converted
into an appeal and the same is allowed, the impugned order
passed by the Lahore High Court, Multan Bench, Multan on
19.06.2013 is set aside, Criminal Miscellaneous No. 2084-B of
2013 shall be deemed to be pending before the said Court and the
same shall be decided afresh after attending to the merits of the
petitioner’s case for bail.”
(underlining has been supplied for emphasis)
In the said case of Rizwan Ali all the earlier applications for bail
filed by an accused person had been dismissed by the Lahore High
Court, Multan Bench, Multan as having been withdrawn without
any argument having been addressed or heard on the merits of the
case and, therefore, this Court had treated the earlier withdrawals
as withdrawal “simpliciter”. The approach adopted in that case was
expressly followed by this Court in the later case of Umar Hayat v.
The State, etc. (Criminal Petition No. 786-L of 2013 decided on
31.07.2013) as under:
“The situation in the present case is almost identical to that in
the case of Rizwan Ali v. The State, etc. (Criminal Petition No. 658-
L of 2013 decided on 16.07.2013) and, thus, we are minded to
pass an order in the present petition similar to that passed in the
case of Rizwan Ali (supra) and the learned counsel for the parties
have also agreed on that course to be adopted. This petition is,
therefore, converted into an appeal and the same is allowed, the
impugned order passed by the Lahore High Court, Lahore on
02.07.2013 in Criminal Miscellaneous No. 3987-B of 2013 is set
aside, the said criminal miscellaneous petition shall be deemed to
be pending before the said Court and the same shall be decided
afresh after attending to the merits of the petitioner’s case for
bail.”
17.
With great regard and respect for the Honourable Judges of
this Court deciding the cases of Muhammad Riaz and Ali Hassan
31
(supra) we have observed that it had never been considered in the
judgments passed in the said cases that if a Judge had allowed a
counsel to withdraw an application for bail after the counsel had
addressed arguments on the merits of the case and had remained
unable to convince the court in that regard then even if such
withdrawal of the application for bail is to be deemed as
withdrawal “simpliciter” still on the basis of the same set of facts
and on the basis of the same grounds urged through a subsequent
application for bail the Judge concerned cannot take a view and
reach a conclusion different from that taken or reached by him in
the earlier round and that if the Judge concerned takes a different
view and reaches a different conclusion in the subsequent round
then he may inevitably invite many allegations including those of
inconsistency or extraneous influence which may impinge upon his
competence or integrity. This aspect of the issue had specifically
been adverted to by this Court in the landmark case of The State
through Advocate-General, N.W.F.P. v. Zubair and 4 others (PLD
1986 SC 173) referred to by us earlier on in this judgment. It had
been observed by this Court in that case that permitting such a
course to be adopted may open doors for conflicting judgments and
encouraging malpractices which may bring the judicial system into
disrepute by creating an impression that the subsequent
favourable orders were based upon extraneous considerations. It
had also been observed in that case that a subsequent favourable
order in the same case on the basis of the same set of facts may be
perceived as reviewing an earlier unfavourable order which may
not be permissible in law. To us even a possibility of creating an
impression in respect of extraneous considerations may speak
volumes against permitting such a course to be adopted. We may
add that the case in hand itself is a case in point as the learned
Judge-in-Chamber of the Lahore High Court, Lahore had
dismissed Nazir Ahmed petitioner’s second application for
suspension of sentence and release on bail as having been
withdrawn after the learned counsel for the petitioner had
addressed arguments on the merits but had failed to convince the
leaned Judge-in-Chamber for grant of the desired relief but
32
through his third application filed through a different learned
counsel for the same relief and based upon the same facts and
grounds the desired relief had been extended to Nazir Ahmed
petitioner
by
the
same
learned
Judge-in-Chamber.
Such
inconsistency of approach adopted by the learned Judge-in-
Chamber had prompted, nay compelled, this Court to record some
observations in the judgment under review concerning the conduct
of the learned Judge-in-Chamber expunction of which observations
is sought by him through one of the review petitions under
consideration. We may add that we have particularly noticed with
interest that in the cases of Muhammad Riaz and Ali Hassan
(supra) it had only been observed by this Court that after
withdrawal “simpliciter” of an earlier application for bail another
application for the same relief can be “moved” but it had never
been observed therein that the same Judge can be inconsistent
and can take a different view or reach a conclusion different from
the one reached by him on the same set of facts and on the same
grounds in the earlier round.
18.
This brings us to the last issue as to whether the
observations made by this Court in the judgment under review
concerning the conduct of Sayyed Mazahar Ali Akbar Naqvi, J.
were justified in the circumstances of the case. We may observe at
the outset that it is quite unpleasant to discuss the conduct of a
Judge of the superior judiciary through a judgment but we are
compelled to undertake such an exercise in this case because it is
none other than a Judge of a High Court himself who has formally
approached this Court and has insisted that we may comment
upon some comments already made by this Court about his
conduct.
19.
It
may
be
clarified
straightaway
that
Nazir
Ahmed
petitioner’s bail had been cancelled by this Court because the facts
of the case did not justify suspension of his sentence and release
on bail during the pendency of his appeal and the law had not
been correctly applied to his case by the Lahore High Court,
33
Lahore. A bare perusal of paragraph No. 8 of the judgment under
review shows, and shows quite clearly, that the observations made
therein regarding the learned Judge had not been made with
reference to his wrong decision on the law and facts of the case but
the observations were based squarely upon his inconsistency in
the matter which inconsistency, unfortunately, created an
impression regarding an extraneous consideration coming into
play. For facility of reference the said paragraph of the judgment
under review is reproduced below:
“8.
Before parting with this order we may observe that
discretion exercised by the learned Judge while passing the
impugned order in the instant case has appeared to us to be
somewhat
colourable
because
after
dismissal
of
second
application for suspension of sentence bearing the same ground
the only difference in the respondent’s third application for the
same relief was a different learned counsel for that respondent.”
In this view of the matter the stance of the learned Judge and his
learned counsel before us that the learned Judge had entertained
and decided the third application for suspension of sentence and
release on bail filed by Nazir Ahmed petitioner in the light of the
law declared by this Court in the cases of Muhammad Riaz and Ali
Hassan (supra) has appeared to us to be a stance which completely
misses the point in issue. The issue fairly and squarely was
inconsistency creating an impression of extraneous consideration
and not correct application of the law or otherwise.
20.
We note that in the case of Noraz Akbar v. The State and
another (2011 P.Cr.L.J. 852) decided by Sayyed Mazahar Ali Akbar
Naqvi, J. on 29.11.2010 it had been held by him as under:
“4.
At the outset learned counsel for the petitioner when
questioned that what is fresh ground available with the petitioner
as his earlier such bail application already stands dismissed,
learned counsel states that the earlier bail application was not
dismissed on merits and the instant application is to be
considered as his first bail petition. To substantiate his version,
learned counsel for the petitioner has placed reliance on
Muhammad Riaz v. The State (2002 SCMR 184).
----------------------------------------
----------------------------------------
7.
Firstly I dilate upon the question that whether the instant
34
bail petition being second petition on the subject, can be given
weight in absence of any fresh ground, which is pre-requisite for
filing such petition. There is no cavil to this proposition that there
is no fresh ground available with the petitioner and the grounds
taken herein were already available with the petitioner at the time
of filing of first bail petition. Therefore, the same is not
maintainable in view of ratio decidendi of august Supreme Court
of Pakistan in the case of Gul Nawaz alias Gul Mowaz and 2
others v. The State (1970 SCMR 667) wherein Mr. Justice
Hamoodur Rahman, the then Hon'ble Chief Justice, being author
of the order had held as under;
"The High Court was in our view also right in
holding that repeated applications for bail on the
same facts did not lie in the High Court."
8.
Now question arises that whether the instant petition can
be termed as second bail petition or the first one. Having much
regard for the case law cited by learned counsel for the petitioner,
I may submit here that bare perusal of the order dated 4-11-
2010, passed in Criminal Miscellaneous No. 11712-B of 2010,
whereby the petitioner's earlier bail petition was dismissed,
reflects that after arguing the case at some length, learned
counsel for the petitioner requested to withdraw the petition,
which in the interest of justice was allowed. Had the petitioner
very good case, learned counsel for the petitioner might have not
withdrawn the same after arguing at some length.”
(underlining has been supplied for emphasis)
It is quite noticeable that the case of Muhammad Riaz (supra) had
been taken notice of by Sayyed Mazahar Ali Akbar Naqvi, J. in the
said order dated 29.11.2010 but still while dealing with the
subsequent application for bail he had refused to take a view or
reach a conclusion different from that taken or reached by him in
the earlier round because the facts of the case and the grounds for
bail had not undergone any change. The said order further shows
that according to the reported, and therefore considered, view of
Sayyed Mazahar Ali Akbar Naqvi, J. dismissal of an earlier
application for bail as having been withdrawn after arguments had
been addressed in support of such application at some length
clearly indicated that the Judge concerned did not feel persuaded
to grant bail on the facts disclosed and the grounds urged and,
thus, the counsel for the accused person requested for withdrawal
of the application which request was acceded to by the Judge. As
the facts of that reported case had not undergone any material
change and no fresh ground had become available to the accused
person in that case for his subsequent application for bail,
therefore, Sayyed Mazahar Ali Akbar Naqvi, J. did not want to be
35
inconsistent in the matter in that case. It is unfortunate that in the
present case the same learned Judge had decided to proceed
otherwise and that had allowed many an eyebrow to be raised.
21.
Another aspect of this matter, equally disturbing, is that if
the facts of the case and the grounds available to Nazir Ahmed
petitioner for suspension of his sentence and release on bail during
the pendency of his appeal were the same at the time of applying
for such relief through his second and third applications then if
such facts and grounds were valid and sufficient for granting the
desired relief on the third occasion then the said relief ought not to
have been denied to him by the same learned Judge on the second
occasion. This implies that either a due relief was denied to the
said petitioner on the second occasion or an undue relief was
extended to him on the third occasion. In this backdrop engaging
the services of a different learned counsel by Nazir Ahmed
petitioner for his third attempt for the same relief on the same
facts and grounds and the said learned counsel’s crowning with
success in that attempt was a matter which ostensibly provided
fodder to an impression about an extraneous consideration coming
into play and the same seemingly reflected adversely upon the
learned Judge’s conduct. The principles of consistency and
propriety demanded that if the facts and the grounds were the
same and they were valid and sufficient for granting the desired
relief then the learned Judge ought to have allowed Nazir Ahmed
petitioner’s second application and if the said relief was not due on
the same facts and grounds then the learned Judge ought to have
been consistent and he should have dismissed the third
application as well. In these peculiar circumstances of the case
this Court could reasonably entertain an impression that the
exercise of discretion in the matter by the learned Judge was
“somewhat colourable”.
22.
There is yet another aspect of this matter which is also quite
disconcerting. Through Criminal Miscellaneous Application No. 23
of 2014 filed by him in his review petition Mr. Justice Sayyed
36
Mazahar Ali Akbar Naqvi petitioner has himself brought on the
record of this case copies of seven other orders passed by him
wherein after dismissing the earlier applications for bail filed by
some accused persons as having been withdrawn after having
heard the arguments of the accused persons’ learned counsel at
some length on the merits of the case he had allowed bail to the
same accused persons through their subsequent applications for
the same relief filed on the basis of the same facts and grounds
within a few weeks or months of dismissal of the earlier
applications. This surely reflects or depicts a conscious pattern
being followed by the learned Judge which is a pattern which
cannot be approved. It shows that in the first round the learned
Judge refuses the desired relief to an accused person but in the
second round the same facts and grounds are found to be valid
and sufficient for the same relief. Unfortunately the said pattern
also fits into the facts and circumstances of the present case. We
must admit that we are at a loss to understand why such a pattern
is being followed by the learned Judge and what can be the factual
or legal justification for adopting such a pattern.
23.
It is important to mention here that in the judgment under
review this Court had been particularly careful and had
deliberately stopped short of naming therein the learned Judge-in-
Chamber of the Lahore High Court, Lahore or the learned counsel
for Nazir Ahmed petitioner appearing before the said Court in
connection with that petitioner’s third application for suspension
of sentence and release on bail and the judgment under review had
not even been approved for reporting. All that care had been taken
by this Court only to save the learned Judge-in-Chamber and the
concerned learned counsel from any embarrassment that may be
caused to them by naming them in the judgment. In that backdrop
there was hardly any occasion for issuing notice to the learned
Judge-in-Chamber or the learned counsel before recording the
observations made in paragraph No. 8 of the judgment under
review because that would have ensured their embarrassment
which this Court deliberately wanted to avoid. Apart from that we
37
have heard the learned counsel for Mr. Justice Sayyed Mazahar Ali
Akbar Naqvi petitioner and Mr. Bhoon at some length in
connection with the present review petitions and such subsequent
hearing neutralizes the effects of any previous omission in hearing
them.
24.
For what has been discussed above both the captioned
review petitions are dismissed. Nazir Ahmed petitioner may be
arrested forthwith and be lodged in the jail from which he had
been released so as to serve the sentence passed against him by
the learned trial court. He may, however, approach the Lahore
High Court, Lahore for any relief if and when any ground for such
relief accrues to him under the law.
25.
Before parting with this judgment we would like to, for the
benefit of all concerned, restate the principles of propriety and
practice enunciated by this Court thus far regarding filing,
entertaining and deciding applications for bail, cancellation of bail
or suspension of sentence and release on bail during the pendency
of an appeal in criminal cases and would expect all the courts
below to scrupulously and meticulously adhere to and follow the
same. The said principles, as enunciated in the precedent cases
referred to above and some others, are as follows:
(Note: A reference here to an application for bail may be
read as a reference to all applications for bail,
cancellation of bail or suspension of sentence and
release on bail during the pendency of an appeal in the
same criminal case or its cross-case filed by the same
accused person, any other accused person, the State or
the complainant party.)
(i)
At the bottom of every application for bail it is
obligatory to attach a certificate regarding non-filing of
any such application before the same court previously
and, in case of a repeated or successive application, a
certificate disclosing filing of any such application
previously by the same accused person, any other
accused person, the State or the complainant party
before the same court in the same criminal case or its
cross-case and such certificate must also disclose the
38
number of the previous application, the date of its
decision and the name of the Judge dealing with and
deciding the same. No subsequent bail application is
to be entertained unless the same is accompanied by
copies of the earlier bail applications and copies of the
orders passed thereon.
(ii)
All repeated or successive applications for bail
must be fixed for hearing before and heard and
decided by the same Judge(s) who had dealt with and
decided any earlier application for bail unless the
Judge or one or some of the Judges dealing with and
deciding the earlier application(s) is/are not available
at
the
relevant
station
of
posting/Principal
Seat/Bench.
(iii)
Dismissal of an application for bail after
attending to the merits of the case amounts to
rejection of all the grounds available or in existence till
the time of such dismissal whether such grounds were
actually taken or urged or not and whether such
grounds were expressly dealt with in the order of
dismissal or not.
(iv)
In case of dismissal of an earlier application for
bail on the merits of the case a subsequent application
for the same relief can be filed and entertained only if
it is based upon a fresh ground, i.e. a ground which
was not available or in existence at the time of decision
of the earlier application.
(v)
Withdrawal simpliciter of an earlier application
for bail before addressing or hearing of any argument
on the merits of the case does not preclude filing of a
subsequent application for the same relief before the
same court and its decision by such court on the
merits of the case. In all cases of withdrawal of such
an application the court must faithfully record in its
order as to whether withdrawal of the application had
been requested and allowed after addressing and
hearing of some or all the arguments on the merits of
the case or withdrawal of the application had been
requested and allowed before addressing and hearing
of any argument on the merits of the case.
(vi)
In a case of withdrawal of an earlier application
for bail after addressing and hearing of some or all the
arguments on the merits of the case no subsequent
application for the same relief can be filed before or
entertained by the same court unless such subsequent
application is based upon a fresh ground, i.e. a ground
which was not available or in existence at the time of
disposition of the earlier application.
39
26.
The Office is directed to send a copy of this judgment to the
Registrars of all the High Courts in the country who are directed to
ensure that every Judge and Magistrate dealing with criminal
cases within the jurisdiction of each High Court receives a copy of
this judgment and complies with the principles of practice and
propriety enunciated or recapitulated herein.
Judge
Judge
Judge
Announced in open Court at Islamabad on 22.01.2014
Judge
Islamabad
22.01.2014
Approved for reporting.
Arif
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam, Chairman
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Dr. Muhammad Al-Ghazali, Ad-hoc Member-I
Dr. Muhammad Khalid Masud, Ad-hoc Member-II
Criminal Shariat Appeal No.12 of 2017
(On appeal against the judgment dated
22.11.2014 passed by the Federal Shariat
Court, Islamabad, in Criminal Appeal No.
8-Q of 2013 and Criminal Murder Reference
No.1/1 of 2013)
Muhammad Hayat
Wakeel and
Ghous Bakhsh @ Shshdad @ Ahsan
…Appellant(s)
Versus
The State
…Respondent(s)
For the Appellant(s):
Mr. Saghir Ahmed Qadri, ASC
For the Complainant:
Nemo
For the State:
Syed Baqir Shah, ASC/State Counsel
Date of hearing:
01.12.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Through leave of
the Court impugned herein is Federal Shariat Court’s judgment dated
22.11.2014, whereby appellants’ conviction and sentences awarded by
the learned trial Court vide judgment dated 10.02.2013 were upheld;
they were tried for committing Qatl-i-Amd of Muhammad Siddique,
Liaqat Ali and Abdul Jabbar during a robbery on 23.11.2010 at 8:30
p.m. within the precincts of Police Station Bhag District Kachhi,
Balochistan. First Information Report was recorded at 8:45 p.m. on the
application of Muhammad Salah-ud-Din (PW-1). According to the
complainant, his son Muhammad Siddique and grandson Liaqat Ali,
employed respectively in Levies and Police, accompanied by Abdul
Jabbar Jaboja, riding on a motorbike, were on way to Goth, followed on
Criminal Shariat Appeal No.12 of 2017
2
another motorbike by Asad Khan and Abdul Razzaq PWs, were fired
upon by three unknown armed assailants who decamped the scene
latter along with the official weapons and the motorbike. Liaqat Ali and
Abdul Jabbar Jaboja breathed their last at the spot whereas
Muhammad Siddique succumbed to the injuries later. Witnesses
viewed the occurrence in motorbikes’ headlamps light. Abdul Jabbar
deceased was noted with three entry wounds whereas Muhammad
Siddique and Liaqat Ali with two entry wounds each alongwith
corresponding exits. As the investigation progressed, the appellants
were arrested on 28.12.2010; they were later put to a test identification
parade wherein Abdul Razzq (PW-3) and Ahad Khan (PW-4) correctly
identified them as the culprits. Pursuant to disclosures, the appellants
led to the recovery of Kalashnikovs respectively used by them during
the occurrence; these were forensically found wedded with the casings
secured from the spot. Snatched official gun was recovered as well. The
appellants claimed trial, pursuant whereto, prosecution produced as
many as nine witnesses; of them Abdul Razzaq (PW-3) and Ahad Khan
(PW-4) furnished ocular account, prosecution’s mainstay. The trial
concluded in appellants’ conviction under clause (b) of section 302 as
well as section 392 of the Pakistan Penal Code, 1860; they were
sentenced to death with a direction to pay compensation in the sum of
Rs.200,000/- on each count though erroneously mentioned as fine; on
the charge of robbery, the appellants were sentenced to 10-years RI
with fine of Rs.50,000/- each.
2.
Mr. Saghir Ahmed Qadri, ASC, contends that the
assailants, admittedly strangers to the witnesses, were not named in
the crime report and as such appellants’ induction in the array on the
basis of a momentary glimpse/observation by the witnesses in the
darkness of night with a source of light manifestly deficient, the
possibility of mistaken identity is looming large on the horizon; he also
highlighted witnesses’ inability to assign specific roles with vehemence
to argue that prosecution’s failure on the said count drastically
diminished evidentiary value of the exercise, otherwise carried out in
the police station. To visit the appellants with ultimate and irreversible
corporeal punishment on the basis of evidence inherently deficient and
flawed would be potentially unsafe, concluded the learned counsel; he
has
alternately
prayed
for
alteration
of
death
penalty
into
imprisonment for life on the ground that in the face of joint
Criminal Shariat Appeal No.12 of 2017
3
indiscriminate firing, the appellants could not be individually saddled
with specific shots, sustained by the each deceased, an ambiguity that
can be viewed as extenuating in circumstances. The learned Law
Officer has faithfully defended the impugned judgment.
3.
Heard. Record perused.
4.
There was no previous bad blood; the deceased on way were
unsuspectingly surprised in a sudden encounter at 8:30 p.m. in the
month of November; complainant presented written application,
converted into First Information Report at 8:45 p.m. at the Police
Station located at a distance of 3/4 kilometers from the venue.
Muhammad Siddique, in injured condition, was medically examined
under a police docket at 9:30 p.m, soon whereafter autopsies
commenced. There is a remarkable promptitude with none blamed by
name.
This
circumstance
by
itself
conclusively
established
prosecution’s bona fides in recourse to law. The appellants were put to
test identification parade under magisterial supervision on the same
day, shortly after their arrest, wherein the witnesses correctly identified
them as the ones who targeted the deceased during the robbery.
During the process, each witness distinctly pointed each appellant for
having targeted the deceased; their identification by the witnesses,
without loss of time, rules out possibility of manipulation. Argument
that police station was not an appropriate place for the holding test
identification parade is entirely beside the mark inasmuch as the law
does not designate any specific place to undertake the exercise; on the
contrary, Rule 26.32 of the Police Rules, 1934, inter alia, provides as
under:
(a) “The proceedings shall be conducted in the
presence of a magistrate or gazetted police
officer, or, if the case is of great urgency and
no such officer is available, in the presence of
two or more respectable witnesses not
interested in the case, who should be asked to
satisfy themselves that the identification has
been conducted under conditions precluding
collusion.
(b) Arrangement shall be made, whether the
proceedings are being held inside jail or
elsewhere, to ensure that the identifying
witnesses shall be kept separate from each
other and at such a distance from the place of
identification and shall render it impossible for
them to see the suspects or any of the persons
concerned in the proceedings, until they are
called up to make their identification.”
(c) …….”
Criminal Shariat Appeal No.12 of 2017
4
A combined reading of above Rules with Article 22 of the Qanun-i-
Shahdat Order, 1984, does not restrict the prosecution to necessarily
undertake the exercise of test identification parade within the jail
precincts. Prosecution of offences and administration of justice are not
dogmatic rituals to be followed relentlessly in disregard to the exigencies
of situations, seldom identical or ideal. All that ‘due process of law’
requires is a transparent investigation and fair trial, in accord with
statutory safeguards, available to an accused to effectively conduct his
defence without being handicapped or embarrassed. In the absence of
any statutory restriction to the contrary, the objection does not hold
water. On factual plane, learned counsel has not been able to point out
even obliquely any collusion, conspiracy or consideration impelling the
witnesses to hurriedly swap innocent proxies to the dismay of
devastated families, enduring abiding trauma. Reference to omission of
assailants’ features in the crime report as a ground to discard the test
identification parade is equally inconsequential; Part C of the Lahore
High Court Rules and Orders Volume-III (adopted by the High Court of
Balochistan) does not stipulate any such condition. In the natural
course of events, in an extreme crisis situation, encountered all of a
sudden, even by a prudent onlooker with average nerves, it would be
rather unrealistic to expect meticulously comprehensive recollection of
minute details of the episode or photographic description of awe-
inspiring events or the assailants. The pleaded requirement is callously
artificial and, thus, broad identification of the assailants, in the absence
of any apparent malice or motive to substitute them with the actual
offenders, is sufficient to qualify the requirement of Article 22 of the
Order ibid. Darkness possibly impeding identity of the assailants,
argued at length, fails to impress us as headlamps of three motorbikes,
recovered during investigation, generated sufficient light to enable the
witnesses to capture broad facial features of the assailants,
encountered at close blank. Three Kalashnikovs, recovered upon
appellants’ disclosure, were forensically found wedded with the casings
secured from the spot barring six with points of dissimilarity, a minor
discrepancy insufficient to tremor the structure of the case resting upon
sound foundations of ocular account through sources unimpeachable
and free from taints. On an overall analysis of prosecution evidence, the
only possible hypothesis is that of appellants’ guilt.
Criminal Shariat Appeal No.12 of 2017
5
Alternate plea of commutation of death penalty into imprisonment
for life on the ground that simultaneous multiple fire shots by the
assailants left no space to possibly determine fatalities distinctly,
a circumstance according to the learned counsel, by itself calling for
alternate punishment of imprisonment for life, fails to commend
approval inasmuch as the totality of circumstances does not admit any
space to divisibly draw any such benign distinction within the realm of
human wisdom when all the three assailants in a petty criminal pursuit
ruthlessly targeted the deceased in cold blood. Scales are in balance
and the wage settled by the courts below being conscionable in
circumstances merits no interference. Criminal Shariat Appeal fails.
Dismissed.
Chairman
Member
Member
Member
Member
Islamabad, the
1st December, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam, Chairman
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Dr. Muhammad Al-Ghazali, Ad-hoc Member-I
Dr. Muhammad Khalid Masud, Ad-hoc Member-II
Criminal Shariat Appeal No.16 of 2017
(On appeal against the judgment dated
03.05.2013 passed by the Federal Shariat
Court, Islamabad, in Jail Criminal Appeal
No.28/I of 2012)
Muhammad Hanif
…Appellant(s)
Versus
The State
…Respondent(s)
For the Appellant(s):
Mr. Ansar Mehmood Mirza, ASC
For the State:
Ch. M. Sarwar Sidhu,
Addl. Prosecutor General Punjab.
For the Complainant:
Muhammad Zafar, witness.
Date of hearing:
01.12.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Ziarat Be Jan, 60, was
spotted lying dead on a cot inside her home by her sister-in-law
Zubaida Bibi (PW-1) and Safeena Bibi (PW-12), residents next door; as
they approached the deceased, the appellant was seen, hurriedly
leaving the room; the witnesses were joined by Zafar Iqbal (PW-2),
Muhammad Sheezan and Muhammad Ayyaz who attempted to
intercept the appellant albeit with no success; the deceased was lying
without her loincloth with multiple injuries on her face with blood
coming out of the nostrils as well as the mouth; the legs were
disentangled with constriction; she was suspected to have been done to
death with some blunt weapon. The deceased was survived by five
sons, statedly married. Looked down in the neighbourhood, the
appellant was arrayed as suspect. Autopsy was conducted at 11:00
Criminal Shariat Appeal No.16 of 2017
2
p.m; fracture of hyoid bone suggested asphyxial death; blood was
visible in the nasal, oral and vaginal cavities; walls, ribs, cartilages and
trachea were fractured; upon dissection, the medical officer noted a
bruise 5 x 3 cm on the parietal bone; skull contained intracranial
bleeding with rigor mortis found in developing stage; vaginal swabs did
not carry seminal stains; death was estimated to have occurred
immediately within preceding twelve hours. Inventory from the spot
included bloodstained hammer (P-1), ligature (P-2) and pillow cover
(P-4). The appellant was arrested on 01.5.2006; indicted for homicide
as well as carnal assault, he claimed trial on 30.10.2007 that resulted
into acquittal on latter charge whereas on the former, convicted under
clause (b) of section 302 of the Pakistan Penal Code, 1860, he was
sentenced to imprisonment for life, maintained by the Federal Shariat
Court vide impugned judgment dated 03.05.2013, being assailed
through leave of the Court
2.
Learned counsel for the appellant contends that after
prosecution’s failure on the charge of rape, the very foundation of its
case against the appellant is raised to the ground; that hapless lonely
widow appears to have been done to death for reasons that remain a
mystery as there is far more than what meets the eye requiring a
scapegoat conveniently found in the appellant who certainly could not
escape the witnesses in a small rural neighbourhood; the bottom line is
that petitioner’s nomination is calculated to hush up the tragedy. The
learned Law Officer faithfully defended the impugned judgment.
3.
Heard. Record perused.
4.
The deceased was survived by five sons, each married with
a family, ranging 40 years to 19 years in age, admittedly residing in the
same household; it is surprising that none, except the deceased, from
such a sizable clan was present on the fateful day; their absence
clamours for explanation and in retrospect spells out a scenario
diametrically incompatible with the story set up in the crime report.
Prosecution’s bid to frame the appellant as a suspect in the crime on
his questionable credentials is hit by Article 68 of the Qanun-e-
Shahadat Order, 1984 and as such by itself does not advance its case.
Allegation that the appellant forcibly committed rape upon the
deceased stands negated by medical evidence leaving no apparent
motive for him in the field to take on the deceased. Magnitude of
violence, essentially reflecting a time intensive assault with obvious
Criminal Shariat Appeal No.16 of 2017
3
resistance by an able bodied village-hardened woman could not have
gone unnoticed by the residents of the houses located nearby.
Constricted legs reflecting onslaught of rigor mortis negates the
hypothesis of witnesses’ arrival within the timeframe, suggested in the
crime report. An assailant actuated by carnal designs is not expected
to bring a hammer with him to accomplish the task; web of
circumstances, each mindboggling, heavily intrigue upon the integrity
of prosecution case, unmistakably found fraught with doubts,
deducible from its own record, benefit whereof, cannot be withheld.
Criminal Shariat Appeal No.16 of 2017 is allowed; impugned judgment
is set aside; the appellant is acquitted of the charge and shall be
released forthwith if not required to be detained in any other case.
Chairman
Member
Member
Member
Member
Islamabad, the
1st December, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam, Chairman
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Dr. Muhammad Al-Ghazali, Ad-hoc Member-I
Dr. Muhammad Khalid Masud, Ad-hoc Member-II
Criminal Shariat Appeal No.23 of 2017
(On appeal against the judgment dated
20.09.2011 passed by the Federal Shariat
Court, Lahore, in Jail Criminal Appeal
No.282/I
of
2004,
Criminal
Appeal
No.342/L of 2004 and Criminal Murder
Reference No.17/1 of 2004)
i.
Qaisar Mehmood
ii.
Muhammad Shaban
…Appellant(s)
Versus
The State
…Respondent(s)
For the Appellant(s):
Mr. Anis Muhammad Shahzad, ASC
For the State:
Ch. M. Sarwar Sidhu,
Addl. Prosecutor General Punjab.
Date of hearing:
02.12.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Hafeez Ullah (PW-3),
a street vendor, was in his usual business pursuit at 5:00 p.m. on
13.5.2003, near Qazafi Park located within remit of Police Station City
Muridke; his daughter Ramsha, 3 ½, was playing nearby, the
appellants emerged at the scene and after cuddling the child
affectionately took her inside the nearby factory where they worked;
the unsuspecting father did not view child’s departure with any
concern or alarm, however, as the child did not return after lapse of
considerable time, he along with Muhammad Tufail and Muhammad
Asif PWs approached the appellants who informed them that she had
already left after a brief stay with them; overnight search yielded no
results; in the morning both the witnesses saw the appellants once
again while coming out of the factory with a gunny bag thrown by them
Criminal Shariat Appeal No.23 of 2017
2
near complainant’s home; it carried corpse of the child with massive
marks of violence all over the body, confirmed by autopsy; these
included a ligature mark around the neck and a bloodstained swollen
vulva; vaginal parts were massively damaged with freshly torn bleeding
hymen; fourchette was torn with a tear on right labia minora
measuring 0.7 x 0.5 x 0.5 c.m; rectum was noted with an anal tear
measuring 1.5 cm x 1 cm around the anus, going deep into the body.
Severe hemorrhagic shock coupled by asphyxia led to the cardio
respiratory failure as a collective consequence of injuries, inflicted
within preceding 24 hours; forensic analysis of the swabs secured
during autopsy established seminal stains; the Medical Officer
confirmed sexual assault beyond child’s endurance. The appellants,
after cleansing their breasts, one by one, before Muhammad Ismail
(PW-11), escaping outrage in the neighbourhood, saved themselves by
surrendering before the police on 14.5.2003; both of them were
medically found potent; seizures, pursuant to their disclosures as well
as during spot inspection, comprise string (P-1), bloodstained chaddar
(P-2), bloodstained shoe (P-3) and gunny bag (P-4) alongside
bloodstained earth, secured vide inventories; upon indictment they
claimed trial. Prosecution produced as many as 13 witnesses to drive
home the charge; confronted therewith, the appellants shifted the
blame onto one Ansar, maternal cousin of factory’s owner as being the
culprit, saved through good offices of Ishtiaq Ahmed, a sub-inspector
at the same police station; they also produced Muhammad Sharif,
milkman (DW-1) and Muhammad Aslam (DW-2) in their defence. The
learned trial Judge, vide judgment dated 28.09.2004, returned both
the appellants a guilty verdict; they were convicted and sentenced as
under:
Under Section 364-A PPC
Imprisonment for life, each.
Under Section 302(b) PPC &
Section 10(4) of the Offence of
Zina (Enforcement of Hudood)
Ordinance, 1979
Death on both counts with a
direction to pay Diyat in the sum
of Rs.150,000/- each to the legal
heirs of the deceased,
The Federal Shariat Court upheld the convictions and sentences, albeit
conversion of Diyat into compensation within the contemplation of
section 544-A of the Code of Criminal Procedure 1898, vide judgment
dated 20.09.2011, being assailed through leave of the Court.
2.
Learned counsel for the appellants contends that the
appellants are victims of a misplaced and misconceived suspicion,
Criminal Shariat Appeal No.23 of 2017
3
orchestrated by Ishtiaq Ahmad sub-inspector to save the neck of one
Ansar, a relative of the factory owner, who in fact had molested the
child and since the appellants worked in the same premises, they were
swapped as scapegoats; that extrajudicial confession narrated by
Muhammad Ismail (PW-11), being joint in nature, is liable to be
excluded from consideration leaving the last seen evidence furnished
by Hafeez Ullah (PW-3), Muhammad Asif (PW-4) and Muhammad Tufail
(PW-5) in a lurch. One weak piece of evidence cannot corroborate
another weak piece of evidence and, thus, it would be unsafe to
maintain
the
conviction
with
ultimate
irreversible
corporeal
punishment, concluded the learned counsel. The learned Law Officer
has
faithfully
defended
the
impugned
judgment;
highlighting
abhorrently shocking nature of the crime inflicted upon a child of
extreme tender age, he has referred to various pieces of evidence led by
the prosecution to argue that prosecution produced straightforward
evidence, available under the circumstances, inexorably pointed upon
appellants’ culpability, situated within the proximity of time and space,
with no animosity or grudge with the complainant or the witnesses,
admitting no space to entertain any hypothesis other than their guilt;
he has prayed for dismissal of the appeal.
3.
Heard. Record perused.
4.
Prosecution has relied upon a chain of circumstances
comprising child’s departure in appellants’ company, heading towards
the factory, seen again while disposing of the corpse concealed in a
gunny bag (P-4); their confession shortly before arrest and subsequent
recoveries of incriminatory bloodstained articles from their residential
room
in
the
factory;
these
uninterrupted
continuing
links,
synchronized in a chain of circumstances, emerging in quick
succession, are tallied by findings, recorded in the autopsy report that
unambiguously confirmed a beastly carnal assault within the
durations compatible with the incidence of events related by the
witnesses; seizure of blood, string (P-1), Chaddar (P-2) and shoe
(P-3), each with stains of blood, from inside the room occupied by the
appellants, duly depicted in site plan (Ex.PW-13/6), establish beyond
an iota of doubt that the child was molested to death in the room
located in the factory where both the appellants admittedly worked for
good; they were strangers neither to the complainant nor to the child
and, thus, in a position to lure the latter without raising any suspicion,
Criminal Shariat Appeal No.23 of 2017
4
in a neighbouhood where children are vulnerably exposed. The
appellants were identified, with the child before her death and at the
time of disposal of the corpse, by the witnesses having no apparent
motive either to falsely implicate them or swap them as suggested with
one Ansar, a relative of the factory owner, as such substitution could
not be manipulated in the small interregnum. Given the horrific
magnitude of brutality inflicted upon the poor soul with entire locality
in a state of shocking grief, appellants’ selection as scapegoats from the
multitude of people by a police officer, without much substance or
status, is a story that may not find a buyer. The incident immediately
went viral with senior police officers being on board and, thus, it is
rather difficult to assume that a sub-inspector of the police would be in
a position to divert the course of investigation so as to let off the actual
offenders by roping the innocent. Similarly, the argument, articulated
at length, to assail the evidence of last seen and extrajudicial
confession being inherently weak and, thus, liable to be excluded is
entirely beside the mark. There are no empirical parameters to
characterize reliability of a particular piece of evidence, either as strong
or weak, for the purpose of prosecution of offenders, as the victims
seldom fall prey to their tormentors under ideal conditions and thus, it
would be rather naïve to expect choice evidence to meet standard of
proof, thus, in a given situation the Court is required to assess
integrity of available evidence so as to consider its adequacy in a given
situation
having
regard
to
the
universal
principles
of
safe
administration of criminal justice; for the said purpose, direct evidence
furnished even by the injured witnesses, apparently with no axe to
grind, can be dismissed, if otherwise found lacking the ring of truth;
likewise, applying the same principle, the Court may rely upon the
evidence of last seen, without a demur, if found free from any taint,
constituting a reliable link between the offender and the victim within
the proximity of time and space. In the present case, appellants’
employment as well as residence in the factory situated next to the
complainant’s outlet is a common ground; both of them were seen
while taking the child by her father as well as witnesses who are
resident of the locality. The family immediately after child’s
disappearance set out in her search and approached the appellants in
the first place; they jointly pleaded ignorance while they owed an
explanation; it is on the following day that they are seen while
Criminal Shariat Appeal No.23 of 2017
5
disposing of the corpse for the obvious reasons that it was simply not
possible for them to hide it inside the factory, frequented by other
workers. Duration of violence endured by the child is compatible with
the noted timeframe of assault, death and autopsy; she being a child of
extreme tender age could not survive merciless carnal assault and her
cavities, both rectal as well as vaginal, with a freshly torn hymen, were
noticed by the medical officer as profusely bleeding. In this backdrop,
the evidence of last seen against the appellants, in itself, admits no
space to entertain any hypothesis other than appellants’ guilt.
Appellants’ confession shortly before their arrest, in circumstances
reflects, a desperate conduct to ward off the consequences of intense
rage that gripped the neighbourhood. Investigative conclusions are
consistent with appellants’ culpability; witnesses produced by them, in
retrospect
aggravated
their
predicament.
In
the
totality
of
circumstances established through various pieces of available evidence
constitute a chain of circumstances with no missing link between the
child and her assassins and, thus, the Courts below rightly served her
justice though without possibility of any temporal recompense for most
agonizing horror she experienced in disbelief. We discovered from the
record that Qaisar Mehmood convict was a minor at the time of
commission of crime, therefore, penalty of death inflicted upon him on
both counts is reduced to imprisonment for life with concurrent
commutation, benefits of pre-trial period inclusive. Convictions and
sentences of Muhammad Shaban are maintained. With the above
modification qua Qaisar Mehmood, the appeal is partly allowed,
however, the same is dismissed vis-à-vis Muhammad Shaban convict.
Chairman
Member
Member
Member
Member
Islamabad, the
2nd December, 2020
Not approved for reporting
Azmat/-
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE DOST MUHAMMAD KHAN
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE DR. MUHAMMAD AL-GHAZALI, HM-I
MR. JUSTICE DR. MUHAMMAD KHALID MASUD, HM-II
Criminal Appeal No.07(S)/2011
a/w Criminal Shariat Appeal No.26/2009
(On appeal from the judgment dated 15.7.2008
passed by the Federal Shariat Court, Islamabad
in Jail. Crl.A.No.195/I/2003 and
Crl.MR.No.16/I/2003)
Imran @ dully
……Appellant in Crl.Sh.A.No.07/2011
Farzand Ali
……Appellant in Crl.Sh.A.No.26/2009
Versus
The State
……Respondent in Crl.Sh.A.No.07/2011
Imran @ Dulli etc
……Respondents in
Crl.Sh.A.No.26/2009
For the appellants:
Mr. Muhammad Ilyas Siddiqi, ASC
(In Crl.Sh.A. 26/09)
Mr. Arshad Ali Ch, ASC
(In Crl.Sh. A.07/11)
For the State:
Ch. Zubair Ahmed Farooq,
Addl.PG.Pb.
Date of hearing:
29.10.2014
JUDGMENT
Dost Muhammad Khan, M.— This Criminal Appeal (Sh)
alongwith Criminal Appeal No.26(S)/2009 has arisen in the
following background:-
Allegedly on 10.06.2002 Ms. Zunaira age 9
years, daughter of the complainant went out of the
house to purchase french cookies from a nearby
Cr.Sh.A7/11
Crl.Sh.A.26/11
2
shop. However, she did not return, which caused
alarm in the mind of the complainant, thus, he went
out along with Muhammad Riaz (PW-9) and one
Muhammad Saleem (not produced) in search of her.
Repeated
announcements
were
made
through
loudspeaker in the area about disappearance of the
girl but no body responded nor any clue about her
could be found. It was on 11.06.2002 that the
complainant again started search along with the
same two persons and at 0800 hrs. they discovered
her dead body lying naked in the deserted compound
of Haji Muhammad Akram in street No.13, Mohalla
Rashidabad. The two companions were left behind at
the spot, while the complainant reported the matter
to PS Jhang Bazar, Faisalabad at 10:20 am, charging
unknown culprits for her kidnapping and then killing
her.
(ii)
During
the
course
of
investigation
on
18.06.2002 the statements of Muhammad Siddique
(not produced) and Amjad Ali were recorded
alongwith the supplementary statement of the
complainant. Both deposed that they had seen the
deceased girl in the company of the appellant Imran
on 10.06.2002 at about 8:00 pm, who was holding
hand of the girl, however, they did not take it much
abnormal to inquire from him (appellant) as to why
and where he was taking the deceased girl.
(iii)
On account of the charge laid at the door of
the appellant Imran, he was arrested on 26.06.2002.
During police custody, he confessed before the
investigating officer that he abducted the deceased
girl, committed rape upon her and then killed her
and threw away her dead body. He also led the
police party to his house where blood stained sheet
(Chadar) was recovered having been pointed out by
him. The same was sent to the Chemical Examiner,
Cr.Sh.A7/11
Crl.Sh.A.26/11
3
who returned his opinion that it was human blood,
without conducting the test of grouping with the rest
of the articles, having blood stains. On 28.06.2002
Local General Councilor Ghulam Abbas (PW-10) and
some other locals appeared before the investigating
officer. The Councilor claimed that the appellant in
the company of his father confessed before him that
he was involved in the crime and requested for
effecting compromise with the father of the deceased
girl. However, he was of a little help to the appellant
because in the previous local bodies elections the
appellant and his relatives were supporters of the
rival candidate. Anyhow, he promised to make effort
in this regard.
(iv)
On the other hand, the dead body was
examined by lady doctor Farah Rauf (PW-5). On
external examination, she found a blue-printed
trouser tied around her neck, both legs were tied
with white colour cloth, above the ankles. The shirt
and trouser of the deceased were stained with blood.
She also found ant-bites all over the body including
the face. Her tongue was slightly protruded, which
was bitten by teeth on its tip. The lady doctor found
a single brownish ligature mark on the neck of the
deceased, size 1.5x13 cm. from left to right. Swabs
were taken for detection of semen and its analysis by
the Chemical Examiner including grouping. Posterior
vaginal walls were found torn upto the rectal wall
including the anal sphincter. Hymen was found torn
and vagina was found bruised. Clotted blood was
found in the trachea. According to her opinion, the
death
was
due
to
asphyxia,
caused
through
strangulation and that sexual assault was probably
made on her.
2.
At the conclusion of the investigation, charge
sheet was filed in the Court and the trial Judge at the
Cr.Sh.A7/11
Crl.Sh.A.26/11
4
conclusion of the trial awarded death sentence to the
appellant
u/s
302(b)
PPC
with
compensation
of
Rs.50,000/- u/s 544-A Cr.P.C.; he was further convicted
and sentenced to 14 years R.I. u/s 364-A PPC; 7 years R.I.
+fine of Rs.5,000/- or six months S.I. in default of
payment of fine; and 10 years R.I.+ fine of Rs.10,000/-
u/s 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 or six months S.I. in default of payment
of fine.
3.
On appeal the learned Federal Shariat Court
also found the appellant guilty of the charges, however, his
conviction u/s 10(2) of the Offence of Zina (Enforcement of
Hudood) Ordinance, 1979, recorded by the trial Court was
altered to one u/s 10(3) of the Ordinance, while his
conviction u/s 201 PPC was quashed. The rest of the
convictions and sentences recorded by the trial Court were
maintained except the death sentence, which was reduced
to life imprisonment u/s 302(b) PPC.
4.
We have heard the learned ASCs for the
appellant in both the appeals, the learned Additional
Prosecutor, Punjab and have carefully gone through the
entire record with an extra degree of care and caution and
our findings are as follows:-
The entire edifice/structure of the prosecution
case
is
founded
on
the
following
pieces
of
circumstantial evidence:-
(i)
The last seen evidence given by PW
Amjad Ali and Muhammad Siddique
(not produced);
Cr.Sh.A7/11
Crl.Sh.A.26/11
5
(ii)
The recovery of blood stained spread
sheet (chadar) having been pointed
out by the appellant;
(iii)
The extra judicial confession made on
20.06.2006
before
one
Ghulam
Abbas, the local councilor of the Union
Council of Halqa No.268, in presence
of his father and Mubeen Arshad (PW-
11);
AND
(iv)
The confirmatory medical evidence
with regard to the rape committed
upon the deceased girl and then
causing
her
death
through
strangulation and also the Chemical
Examiner’s report to some extent.
In reply to question number 10 put to him u/s
342 Cr.P.C., the appellant stated that some time
before his arrest by the local police as suspect, PW
Ghulam Abbas (Councilor) extorted money from his
parents, he was released by the police on the same
day being innocent. However, he quarreled with
Ghulam Abbas (PW), when the latter refused to
return the money and threatened him of dire
consequences and why he became witness against
him in the case.
(a)
First we will take up the last seen evidence
provided by the above two witnesses. Both are
related to the complainant and are frequent visitors
to his residence, also sharing occasions of joys and
mourning but they kept mum for more than a week.
At the trial, to cover up the delay in giving last seen
evidence, they introduced an amazing and intriguing
story of having gone to Islamabad and stayed there
for about seven days, returned home on 17.06.2002
at night. They came to know about the incident on
Cr.Sh.A7/11
Crl.Sh.A.26/11
6
their return, however, they went to the complainant
the following morning and told him that they had
seen the deceased in the company of the appellant
on 10.06.2002. Amjad Ali admitted that he is not on
good terms with the appellant. He claimed that he
along with Muhammad Siddique was proceeding to
the house of one Javed at the relevant time when
they saw the deceased in the company of the
appellant, however, the said Javed was neither cited
as a witness nor produced at the trial to corroborate
their claim of visit to his house at evening time on
10.06.2002. His evidence was very crucial to support
their version but he was withheld for no good
reason. Again no fare ticket of transport/ travel or
any other document about stay in a hotel or at any
other place at Islamabad for such a long period was
produced. They did no business at Islamabad. This is
a big question mark, for which they had no plausible
answer, thus the evidentiary worth of their evidence
has diminished almost to zero. Thus, their delayed
statement to police has rendered them false
witnesses. It has also not been established through
reliable evidence that at what time the girl was
ravished and done to death. The distance of the
place where the deceased was seen with the
appellant and wherefrom her dead body was
recovered has remained unexplained, thus, the
element of close proximity of time and place being a
fundamental
and
mandatory
requirements
for
accepting last seen evidence are absolutely missing.
Again, it was also not their case that it was their
routine of passing through the same street regularly,
hence, they can also be held to be chance witnesses.
This fat shall give a fatal blow to their testimony.
Such defective, inadequate and unreliable evidence
so given is suggestive of creating a suspicious
appearance leading one to an inference that crude
Cr.Sh.A7/11
Crl.Sh.A.26/11
7
attempts have been made to lead the Court of law to
a wrong conclusion.
(b)
The legal worth of the extra judicial confession
too is almost equal to naught, keeping in view the
natural course of events, human behaviour, conduct
and probabilities, in ordinary course.
(c)
Ghulam Abbas (Councilor) in no uncertain
words has confessed that he was not on good terms
with the appellant as in the preceding local bodies
elections, appellant and his family were supporters of
his rival candidate, therefore, if at all the appellant
was involved in the crime and was in need of such
help then, the appropriate person was the rival
candidate/his family and not Ghulam Abbas (PW).
The so called venture by the appellant to get the
help of Ghulam Abbas was fraught with risks. Only a
blind would perceive such proposition as true.
Ghulam Abbas(PW) as was expected of him, instead
of taking a single step or making any effort towards
the settlement/compromise or to help him readily
became a witness against the appellant without
taking any little pause and stop. This conduct and
attitude by itself is sufficient for discarding his
testimony.
(d)
Needless
to
remark
that
extra
judicial
confession has never been considered sufficient for
recording conviction on a capital charge unless it is
strongly corroborated by tangible evidence coming
from unimpeachable source therefore, in our view,
this piece of evidence is entirely insufficient to carry
conviction on such a charge, more so, when it is
badly tainted one and appears to be the job of the
investigating officers who normally indulge in such
like police chicanery.
Cr.Sh.A7/11
Crl.Sh.A.26/11
8
(e) The
recovery
of
spread
sheet
(Chadar)
allegedly blood stained at the instance of the
appellant is also unbelievable because according to
the prosecution the tragedy commenced and was
consummated within the compound of uninhabited
house and even the last seen evidence, which we
have discarded does not suggest that the appellant
was carrying the said chadar/sheet when they
allegedly saw him in the company of the deceased.
No
earthly
reason
existed
for
keeping
this
incriminating article by the appellant in his house for
days more so, when the blood thereon could be
easily washed away. It appears to us of having been
planted and fabricated piece of evidence. The same
squarely deserves to be rejected.
(f)
The opinion of the lady doctor is only
confirmatory which does not tell the name of the
culprit but just confirms the cause of death and
sexual assault, made on the deceased girl. Once the
recovery of spread sheet (chadar) is disbelieved then
Chemical Examiner’s report is also rendered of no
intrinsic worth.
(g)
In view of the above sketchy and shaky
evidence leaving behind much to be debated upon
and when fabrication of the same cannot be ruled
out altogether, then by applying the universal
principle, it is a case of no evidence which cannot
stand the test laid down in the cases of Fazal Elahi v.
The Crown (PLD 1953 FC 214), Muhammad Fayyaz
v. The State (PLD 1984 SC 455), MD Nazir Hossain
Sarkar v. The State (1969 SCMR 388) and Mst.
Sairan v. The State(PLD 1970 SC 56) and the entire
structure of the case crumbled down to the ground.
(h)
In the case of Fazal Elahi Khan Hon’ble Mr.
Justice Abdul Rasheed, Chief Justice, while speaking
Cr.Sh.A7/11
Crl.Sh.A.26/11
9
for the Full Bench consisting of Mr. Justice A.S.M.
Akram and Justice A.R. Cornelius (late) laid down
principle of extra ordinary caution for guidance of the
courts to be followed while recording conviction on
the basis of circumstantial evidence. The relevant
para is reproduced below:-
“In cases which like the present rest entirely on
circumstantial evidence, it is of the utmost importance
that such a circumstance should be ascertained with
minute care, before, any conclusion or inference adverse
to the accused person is drawn.
In the ordinary case, this Court is content to
accept findings of fact reached in the High Court. The
present
case,
however,
rests
on
nothing
but
circumstantial evidence, i.e. evidence relating directly to
a number of minor facts, which facts, the prosecution
regarded as sufficient, in the total absence of direct
evidence, to sustain an inference that Fazal Elahi
murdered Jamal Din. It may be conceded that “a
concurrence
of
well-authenticated
circumstance
composes a stronger ground of assurance than positive
testimony,
unconfirmed
by
circumstances,
usually
affords” (Paley). Nevertheless, where the direct evidence
relates only to minor facts, and consequently, the case
rests wholly on circumstantial evidence, it is necessary
to remember that ‘processes of inference and deduction
are essentially involved, frequently of a delicate and
perplexing, character, liable to numerous causes of
fallacy” (Wills on Circumstantial Evidence). This danger
points the need for caution in accepting proof regarding
any one of the purpose of drawing inferences therefrom.
A mere concurrence of circumstances, some or all of
which are supported by defective or inadequate
evidence, is apt to create specious appearance, which is
calculated to lead to fallacious inference. Hence the
necessity of accepting, as the basis of inferences, only
such circumstances as are “well-authenticated.”
Where there are indications of design, in the
preparation of a case resting on circumstantial evidence,
the Court should be on its guard against the possibility
of being deliberately misled into false inference.”
Cr.Sh.A7/11
Crl.Sh.A.26/11
10
5.
By now, it is a consistent view that when any
case rests entirely on circumstantial evidence then, each
piece of evidence collected must provide all links making
out one straight chain where on one end its noose fit in the
neck of the accused and the other end touches the dead
body. Any link missing from the chain would disconnect
and break the whole chain to connect the one with the
other and in that event conviction cannot be safely
recorded and that too on a capital charge. As was held in
the case of Fazal Elahi (ibid) and in view of the changed
social norms and standard of ethics of the society, to which
the witnesses belong and also the questionable credibility
of the investigating agency and its incompetency to
professionally investigate such blind crimes, by now, the
Courts have to exercise more and more cautions before
accepting and resting its opinion of being guilty on a
circumstantial
evidence
collected
apparently
in
a
dishonest, dubious and rough manner.
6.
Therefore, we are left with no option but to
adopt the same care and caution, keeping in view the
peculiar facts and circumstances of this case, which cannot
be put apart from the one, cited above.
7.
With all respects to the Bench of the learned
Federal Shariat Court, these precautions and judicial care
so required, was not observed and view of the trial Judge
with regard to the guilt of the appellant was endorsed by
it. Thus, the approach to the evidence in the case was not
in accord with the principle since lon well settled.
Cr.Sh.A7/11
Crl.Sh.A.26/11
11
8.
Accordingly, while extending benefit of doubt
to the appellant, this appeal is allowed and the appellant
Imran @ Dully is acquitted of all the charges, leveled
against him by setting aside his conviction and all
sentences awarded to him. He be set free forthwith if not
required in any other case.
9.
In view of our above findings, Criminal Shariat
Appeal No.26(S)/09 titled Farzand Ali v. Imran @ Dulli etc.
has become infructous and is dismissed.
Chairman
Member
Member
Member
Member
Announced on 13.11.2014 at Islamabad
Member
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam, Chairman
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Dr. Muhammad Al-Ghazali, Ad-hoc Member-I
Dr. Muhammad Khalid Masud, Ad-hoc Member-II
Criminal Shariat Appeal Nos.9 & 19/2017 and
Jail Shariat Petition No.02/2020
(Against the judgment dated 17.02.2015 passed by the Federal Shariat
Court Islamabad in Jail Cr. Appeal Nos.15 to 19-I of 2014 along with
Cr. Rev. No.2/Q/2014)
Muhammad Siddique
(Criminal Shariat Appeal No.9/2017)
Jamshaid
(Criminal Shariat Appeal No.19/2017)
Saif Ullah
(Jail Shariat Petition No.02/2020)
…Appellant/Petitioner(s)
Versus
The State
(in all cases)
…Respondent(s)
For the Appellant/
Syed Rifaqat Hussain Shah,ASC/AOR
Petitioner(s):
(in all cases)
For the Respondent(s):
Syed Baqir Shah, ASC/Standing counsel
Date of hearing:
03.12.2020.
ORDER
Qazi Muhammad Amin Ahmed, J:- Bakhat Bahadar, 50,
was found lying dead in the bushes nearby his poultry farm located
within the remit of Police Station Vandar, District Lasbela; the corpse
was tied with ropes and plastic pipe; poultry flock comprising 5000
birds along with Saif Ullah and Jamshed, employed as attendants at
the farm, were missing from the scene; they were named as suspects in
the crime report, laid by deceased’s brother Akhtar Zeb (PW-1). As the
investigation progressed, Muhammad Siddique, Nadim Ahmed and Ata
Muhammad were apprehended for being privies to the crime; they were
indicted before a learned Additional Sessions Judge at Lasbela for
committing Qatl-i-Amd of the deceased during the course of Haraba;
they claimed trial that resulted into their convictions under section 396
read with section 34 of the Pakistan Penal Code, 1860 vide judgment
dated 13.11.2013 whereunder Saifullah and Muhammad Siddique
Criminal Shariat Appeal Nos.9 & 19/2017 and
Jail Shariat Petition No.02/2020
2
were sentenced to imprisonment for life while Jamshed, Nadim Ahmed
and Atta Muhammad to rigorous imprisonment for 10 years. The
Federal Shariat Court vide impugned judgment dated 17.02.2015
maintained the convictions, however, enhanced sentence of Jamshed
appellant to imprisonment for life; Nadim Ahmed and Atta Muhammad
convicts are off the scene for having served out their sentences. Leave
has been granted in Shariat Appeal Nos.9 & 19 of 2019 separately filed
by Muhammad Siddique and Jamshed, convicts clubbed with Jail
Shariat Petition No.2 of 2020 filed by Saifullah; with a common thread,
these are being decided through this single judgment.
2.
Learned counsel for the convicts contends that the accused
have been roped in the case on the basis of a misconceived and
misplaced suspicion, subsequently structured upon various pieces of
fake evidence, contrived belatedly to drive home the charge; that
confession statement Ex.PW-8/C is manifestly bogus, fabricated to
secure convictions in the absence of any tangible or reliable evidence.
Contrarily, the learned Law Officer has faithfully defended the
impugned judgment by arguing that Saifullah and Jamshed convicts
were employed at the poultry farm, their absence from the scene after
the brutal murder of Bakhtar Bahadar deceased is in itself a
circumstance that speaks volumes about their guilt; according to him,
subsequent recoveries and evidence furnished by independent
witnesses regarding transportation of poultry birds at the weighing
station under the supervision of Ata Muhammad accused, confirmed
by Malkat Khan (PW-9), an independent witness, squarely framed the
accused in the web of incriminatory circumstances that include seizure
of sale receipts of the stolen flock from the possession of Nadim Ahmed
whose disclosure led to the arrest of co-accused. Different pieces of
evidence revolving around the confessional statement Ex.PW-8/C by
Jamshed convict successfully drove home charge against all the
accused beyond a shadow of doubt, concluded the learned Law Officer.
3.
Heard. Record perused.
4.
Prosecution case is structured upon various pieces of
circumstantial
evidence
that
prominently
includes
confessional
statement of Jamshed appellant, recorded by a Judicial Magistrate
(PW-8) on 11.04.2011; he was arrested on 7.4.2011 on the day when
the dead body was spotted at the crime scene. Statement of Malkat
Khan (PW-9), taken at its best, at the most possibly proves that Ata
Criminal Shariat Appeal Nos.9 & 19/2017 and
Jail Shariat Petition No.02/2020
3
Muhammad convict accompanied a poultry flock, incapable of being
identified; he confronted the witness with a plea of alibi; according to
him, on the fateful day, he attended a marriage ceremony as far away
as in Karachi on 7.4.2011 and signed the marriage certificate as a
witness on the said date; he himself appeared as a witness in disproof
of charge with the support of two other witnesses to establish his plea.
Saifullah
petitioner
and
Jamshed
appellant
were
surprisingly not confronted with their alleged employment at the
poultry farm, a grievous omission that escaped notice by both the
courts below. According to the prosecution, the stolen flock was sold at
an outlet under the name and style of Al-Habib Agency, though
associated with the investigation, however, none from the outlet was
produced during the trial to prove the sale and instead prosecution
remained content with some computer generated receipts, genesis
whereof is shrouded in mystery.
Prosecution appears to have rested its case on the judicial
confession, retracted by Jamshed appellant at the first available
opportunity. We have gone to the confessional statement (Ex.PW-8/C)
to find it exasperatingly comprehensive as it contains even minutest
details, remotely connected with the incident; spreading over six pages,
it is compendium of the prosecution case that cannot be read without
disquiet. A deponent struggling to cleans his breast so as to ventilate
the remorseful conscience, in the ordinary course of events would
prefer to confine himself to the brevity of his crime instead of catering
prosecution needs to successfully prosecute its case, otherwise placed
in difficult straits. The exercise would essentially require either a
prompter or an acquiescent scribe. The cautions administered to
Jamshed appellant, on a printed form, mention that he was tortured by
police during custody and, thus, in the totality of circumstances, it is
difficult to assume, without potential risk of error that statement
(Ex.PW-8/C) was a voluntary declaration of guilt that too without any
meaningful corroboration. Once found suspect qua its maker, the
confessional statement (Ex.PW-8/C) cannot be even considered vis-à-
vis the co-accused. Fraught with doubts, compounded by inherent
infirmities
cumulatively
fail
to
safely
structure
the
charge.
Consequently, convictions cannot be maintained. Criminal Shariat
Appeals No.9 & 19 of 2019 are allowed; Jail Shariat petition No.2 of
2020 is converted into appeal and is also allowed; impugned judgment
Criminal Shariat Appeal Nos.9 & 19/2017 and
Jail Shariat Petition No.02/2020
4
is set aside; the appellants are acquitted of the charge and have
already been ordered to be released if not required to be detained in
any other case by our short order of even date.
Chairman
Member
Member
Member
Member
Islamabad, the
3rd December, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Jawwad S. Khawaja
Mr. Justice Amir Hani Muslim
Human Rights Case No.42389-P of 2013
(Action taken on news clipping from ‘Daily
Dunya’ dated 4.11.2013 regarding rape on a
deaf and mute lady at Nankana Sahib)
For the Complainant:
Nemo.
On Court’s Notice:
Malik Faisal Rafique, Addl. AG, Pb.
Mr. Irfan Ullah Khan, SP (Ivs.)
Mr. Muhammad Ashraf, DSP, Legal
Mr. Farmaish Ali, SHO, P.S. Nankana Sahib
Date of hearing:
20.11.2013
O R D E R
Iftikhar Muhammad Chaudhry,CJ.- In the instant case proceedings
were initiated on the press clipping published in ‘Daily Dunya’ dated 4th
November, 2013 contents of the same reads as under:-
� � � ر�� م� ،�د�ز ��ا � ن�� ى� ��
�ا � � ف�ا � � � � � سا� و ش� �و� ہ� �� � ن��
ى�وار)ر� �� ( �� � ن�� ى� �� � �� � �� �� � ��6 ،د� ��و ،�د�ز ��ا � دا�ا جرد ��
� � �� د� زا � � � � �ا� ،� � سا� و ش� �و� ہ� �� � ن�� ،ر�� م� ن�� � � � �� � �ا
� � ے� �� ىد� � � � �ز� ہ� ى� �� � سا � �� � قور� � � آ �د �د ��زور ،ىد � ہو روا �� �� � زا
� � �د�ز � م� ہو � � �آ � � � ىزرد �و� � سا � �� ��ر � ��� غ� د� �� � � �� �� �� � � �
�آ10 � � � �ا� � � � � �ز� � � نا � �� روا �� ��ر �� � ��ا � � ں� � � � ے� �� روا ��ا
د�� �4 � � � ند ر� � �� � � � �� �� � د� �ا � روا � �ر � �� � سا ىر� ىر� � � نا � دا�ا
�� � ہ�او �ا روا � آ � � ��او �ا � گ� ہو � � �� ند جرد �� ف� � دا�ا نا روا � � ع�ر � �� � �
� �ا � ل� � � � � قور� � ،� � سا� و ش� ہو � � �� � ےر� سا � �و� � ۔� �او�2 � ا� � ن��
� ىر�� روا �د ل��و� � �آ ىو � �� �ا � ۔� � �او � �ا � �د � م� ےر� ن� �ا � � � روا �اڈ
۔�� � �ا� ف�ا �ا روا �� � �� د� زا � � سا � � � �ا � � � � قور�
HRC-230781-G/2013
2
On having considered the gravity of the incident wherein a deaf and dumb
women mother of three children molested report was called for from the
Inspector General Punjab Police. In response to the order of this Court and
on receipt of the report submitted by Muntazir Mehdi, DPO the following
order was passed on 8.11.2013:-
“An unfortunate incident of gang rape of a deaf and mute lady namely
Mst.Fouzia, mother of three children, by more than two persons took place in
District Nankana Sahib on 9.10.2013. Admittedly, she was running from pillar
to post for redressal of her grievance but nobody listened to her. Consequently,
she went to the Ilaqa Magistrate herself and submitted application praying for
her medical examination. It was for the first time that on 12.10.2013, the
learned Ilaqa Magistrate, ordered for her medical examination from the D.H.Q.
Hospital, which was accordingly conducted and following injuries were
noticed on her person : -
“Two mild tears and very mild redness on vulva means inner
side of wall of labia majora measuring .25 x .5 cm both no
need to stitch just like abrasions. Progress with med.
2.
Perhaps on having smelled by the Police about adverse action being
taken by the Magistrate or some other authority, FIR No.364/13 dated
14.10.2013, under section 376(2) PPC, was registered at Police Station
Nankana Sahib on the application of her brother Muhammad Ibrahim, as the
victim is deaf and mute. However, taking the advantage of same, the
investigation of the case was not conducted honestly, in as much as the
victim’s statement was not recorded. When this matter was reported in
newspaper “Duniya” on 4.11.2013, the same was brought to the notice of one
of us (Justice Iftikhar Muhammad Chaudhry, CJ) by the office for perusal and
report was called from the Inspector General of Police, on 6.11.2013. No report
was submitted by the Inspector General of Police, Punjab, and it seems that
instead of taking prompt action, he handed over the matter to some of his
subordinate. In any case, on account of non-receipt of report on 7.11.2013, the
case was ordered to be fixed in the Court with notice to the Advocate General,
Punjab.
3.
The S.H.O of Police Station City, Nankana Sahib, has appeared and
placed on record a report dated 6.11.2013, signed by the D.P.O Nankana Sahib,
concluding para there-from is reproduced herein below:-
“Having been found sensitive incident, I also visited
the place of occurrence and interrogate the nominated
accused as well as the victim. The victim told through
indicators/beckon that she was sleeping at the roof of the
house and 03 unknown accused persons committed rape with
HRC-230781-G/2013
3
her forcibly while the complainant stated that 06 accused
committed rape with her sister in a room. There is
contradiction in the statements of brother and sister (victim)
and this contradiction makes the story doubtful. It is
pertinent to mention here that accused Muddasar and
Muzzamal are also real paternal nephews of her husband
Nawaz Ahmed and also living in this house so it is very
astonishing thing that 06 accused can commit rape in the
same house.
The complainant also nominated Shahid accused in
his supplementary statement but on the next day i.e. 22-10-
13 the complainant, PWs and victim submitted their written
stamp papers/affidavit in which they have been declared
Shahid Iqbal as innocent. During investigation the
complainant failed to produce the PWs. Only one PW
Suleman came and stated that he did not see the incident.
The victim has also denied to examine her DNA test. During
investigation the incident narrated above by the complainant
is not proved, please.”
4.
We brought to the notice of learned Additional Advocate General,
Punjab, the fact that despite the request of victim, the police did not register the
case and no action was taken and having left with no option, she went to the
Ilaqa Magistrate and on his directions, the victim was medically examined and
report was given, which has been reproduced hereinabove, subsequent thereto
on 14.10.2013, the case was registered knowing well that, prima facie, a
positive report has been given, but the victim was not examined by the police
and on the contrary the District Police Officer, Nankana Sahib, has given a
clean chit to the accused, in as much as at one stage on having taken affidavit
from the brother of the complainant, he has discharged one of the accused
person namely Shahid Iqbal knowing well that no such authority vests in the
police to exonerate any accused on the basis of affidavit. Similarly, there is a
statement of Hafiz Muhammad Suleman, one of the prosecution witnesses,
which corroborates the statement of the victim Mst. Fouzia. It appears that after
registering the case though reluctantly on 14.10.2013, the police did not take
any action, in as much as no proper case diaries were maintained. When we
inquired from the S.H.O Farmaish Ali and Muhammad Ashraf DSP (Legal),
Nankana, present in court, as to whether they made any attempt to record the
statement of the victim by going to her home, they could not show any material
from the case diary.
5.
When the case was taken up in the morning, the learned Additional
Advocate General has stated that some time be given to him to contact the
concerned authorities. After some time, the case was again taken up. He
informs that the matter has been brought into the notice of high ups and they
have promised to take action against the accused. Prima facie, we are of the
opinion that the police has been influenced on account of extraneous reasons,
because no action has been taken either by the police or the high ups, despite
the fact that the matter was brought to their notice. Reliance is placed on the
case of Salman Akram Raja and another vs. Government of Punjab (2013
HRC-230781-G/2013
4
SCMR 203). Therefore, in view of the above, we appoint Mr. Nazir Gajana,
District and Sessions Judge, who was previously posted at Chiniot, to conduct
an inquiry in this case and submit report on 13.11.2013. This order shall be
sent to him through the Registrar of the Lahore High Court, Lahore, during
course of the day. The S.H.O Farmaish Ali, P.S City Nankana Sahib and
Muhammad Ashraf DSP Legal, Nankana, shall appear before Mr. Nazir Gajana
on 11.11.2013 along with the F.I.R, medical examination report and other
relevant record (police file) of the case. They shall also produce the victim and
other P.Ws including Hafiz Muhammad Suleman before him.
In pursuance of the above directions, learned District & Sessions Judge has
submitted a report wherein he has discussed all the aspects of the case and
also pointed out the defects in the investigation particularly about the
conduct of the police the following observations were made:-
“In this latest statement Fauzia Parveen alleged victim expressed
that after last Eid ul Fitar at about 12:00 midnight she was asleep on
the roof of their house along with other family member, her cot was
at the corner. One person of lean stature with muffled face came
upstairs awakened forcibly, threatened her, administered Betal Leaf
containing tablets to her and on taking the same her eyes were
closed. Fauzi Parveen further stated that he took her downstairs by
lifting the other persons one of stout and the second of normal
stature were also present with muffled faces and all the three took her
into the room, closed the door, stripped off Fauzia’s clothes when she
was almost unconscious and the person with lean stature bringing
her downstairs committed rape with here, while the other two had
just touched her body including breasts but did not commit Zina bil
Jabar with her. The alleged victim stated clearly that she could not
tell the names of the culprits. She added that she could not recognize
them on appearance as they were with muffled faces. She clarified to
make the above statement with her free consent and will also with
the fear of Allah Almighty only. She maintained that she had not
pressure whatsoever of her husband, any of his relatives or any of the
policeman.
Brother of the victim approached the police station City Nankana
Sahib on the next day i.e. Saturday for issuance of docket for medical
HRC-230781-G/2013
5
examination of Fauzia Parveen but police did not redress his
grievance and then Fauzia was produced before the Magistrate who
ordered for medical examination and Fauzia Parveen was ultimately
examined medically.
Even in the above sorry state of affairs, the role of police of P.S.
City Nankana Sahib is not enviable. Medical examination Fauzai
Parveen was not got conducted on 12.10.2013 when complainant
approached P.S. City Nankana Shaib. Admitted that complainant
party succeeded to get Fauzia Parveen examined medically on that
very date thorough order of Magistrate but police failed to discharge
its duty about it. Delay in lodging of FIR though mainly attributed
to the conduct of the compliant party but the police of P.S. City
Nankana Sahib was also negligent in this regard. Police did not
record the statement of victim till 8.11.2013 and no valid
justification whatsoever was presented for this negligence and delay
of 17 days after FIR. It is further unfortunate that police showed
slackness and negligence for putting the alleged victim and three
accused to DNA testing. It is further sorrowful that the alleged
accused were made to sit in the P.S. promptly but their formal arrest
was not made and the arrest of Mudassar and Muzammil accused
was recorded to be postponed with much delay. The exoneration of
Shahid accused on the basis of affidavit was another defective of the
police of P.S. City Nankana Sahib. Farmaish Ali Inspector/SHO of
P.S. City and Maqbool Ahmed, SI/I.O are responsible for the above
delinquencies.
I have been shown by DSP Legal Nankana Sahib the order dated
8.11.2013 passed by Mr. Abu Bakar Khuda Bakhsh RPO,
Sheikhupura Region at Lahore transferring the investigation of this
case out of District Nankana Shahib and entrusting the same to Mr.
Irfanullah Khan, SP (Investigation) Sheikhupura. This intervention
of police high-ups was needed much earlier.
In the end it is humbly submitted that though the story of Fauzia
Parveen the alleged victim regarding rape is somewhat doubtful but
Farmaish Ali Inspector/SHO and Maqbool Ahmed SI/I.O. of P.S.
HRC-230781-G/2013
6
City Nankana Sahib committed negligence in dealing with the above
matter as detailed earlier.
Prima facie, it appears that the DPO, Muntazir Mehdi being in supervisory
position did not probe diligently into the inquiry conducted by his juniors
and exonerated the culprits on the ground that there was contradiction in
the statements of the victim and her brother as to number of the accused;
as according to the victim, rape was committed by three accused whereas
her brother (complainant) stated that they were six in numbers. Not only
this, even one Shahid culprit who was prima facie found to be involved
was allowed to go scott free in view of the affidavit which was obtained
from the complainant. The complainant has stated in the Court that he had
given the affidavit under influence. It is to be noted that as per the medical
report the happening of the incident cannot be denied. The opinion of the
medical officer is reproduced as under:-
“Two mild tears and very mild redness on vulva means inner side
of wall of labia majora measuring .25 x .5 cm both no need to stitch
just like abrasions. Progress with med.
2.
Mr. Muntazir Mehdi, DPO appeared in person and offered
explanation pleading innocence but the facts noted hereinabove are
sufficient to conclude that on account of his criminal negligence a poor
lady who is deaf and dumb subjected to criminal act and the police
knowing well about their negligence were trying to cover up their defects.
In this view of the matter, we direct the Inspector General Police, Punjab to
initiate criminal proceedings against all concerned delinquent police
officers/officials including the said Muntazir Mehdi as early as could be
possible. He shall make sure an independent investigation without being
influenced by anyone who is allegedly involved in the case. In the
HRC-230781-G/2013
7
meanwhile, for the purpose of initiating disciplinary proceedings against
the DPO Muntazir Mehdi and other delinquents, the matter shall be
referred to the concerned authority in accordance with law. The petition
stands disposed of in the above terms.
Chief Justice
Judge
Judge
Islamabad
20.11. 2013
M. Azhar Malik
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE MANZOOR AHMAD MALIK
MR. JUSTICE IJAZ UL AHSAN
HUMAN RIGHTS CASE NO.1037-P OF 2018 AND
H.R.M.A.NO.17-G OF 2018
(in the matter of murder of 8 years old minor girl in Kasur)
In attendance:
On Court’s call
Mr. Ashtar Ausaf Ali, AGP
Mr. Shakil ur Rehman, AG Punjab
Ms. Asma Hamid, Addl. AG. Pb.
Mr. Mazhar Sher Awan, Addl. PG Pb.
Dr. Ashraf Tahir, DG Punjab Forensic Science
Agency
Dr. Shahid Masood, Anchor News One
TV Channel
Mr. M. Amin, Father of Zainab
a/w Mr. Aftab Bajwa, ASC
Capt.(R) Arif Nawaz Khan, IGP Pb.
Mr. Abu Bakar, Addl. IGP (Inv.) Pb.
Mr. Muhammad Idrees, DIG/RPO Multan
Convener of JIT
Mr. Abdul Wahab Chaudhry, DIG Legal Pb.
Mr. Saif ul Murtaza, AIG Legal Human
Rights Punjab.
Mr. Imtiaz Ali, DSP Legal Inv. Pb.
Mr. Ahsanullah Chohan, DSP Inv. Pb.
Mr. Shahid Siddique, DSP Legal Inv. Pb.
Mr. Qadeer Ahmed, Inspector Legal Kasur.
Rana M. Ilyas, SP Legal Sheikhupura
Mirza Shahid Baig, DIG Prison
Mian Aamir, Chairman PBCA
Mr. Arif Nizami, Channel 24
Mr. Mujeebur Rehman Shami, Dunya News
Ch. Ghulam Hussain, Channel 24
Mr. Saleem Bukhari, Waqt TV
Mr. Arif Hameed Bhatti, ARY
Mr. Sohail Warraich, GEO TV
Mr. Mazhar Abbas, Geo TV
Mr. Fahad Hussain and
M. Ayaz and Mansoor Ali Khan, Express
Mr. Zia Shahid, CPNE
Mr. I. A. Rehman
Mr. Kamran Khan, Dunya News
Mr. Kashif Abbasi, ARY
Mr. Hamid Mir, GEO TV
Madam Asma Sherazi, Ajj News
HRC 1037-P/18
-: 2 :-
Madam Naseem Zahra, Channel 24
Mr. Aftab Ibal, Express News
Mr. Qayyum Siddiqui, GEO TV
Mr. Imran Waseem., Dunya TV
Date of Hearing: 28.01.2018
ORDER
Learned Additional Advocate General, Punjab states
that the Joint Investigation Team (JIT) constituted for this case, has
arrested one, Imran Ali, who has been remanded to the police
custody for 14 days by the Anti-Terrorism Court Lahore. The head
of JIT present in Court states that the investigation is in the
progress and hopefully the Challan would be submitted before the
Court of competent jurisdiction within a period of two weeks. The
head of JIT is directed to ensure the early conclusion of the
investigation in accordance with law.
2.
Serious apprehensions have been expressed by a
number of persons present in Court regarding security and safety
of Imran Ali, accused. The Inspector General of Police Punjab and
Inspector General of Prisons Punjab were directed on 25.01.2018
to ensure the security and safety of the accused, Imran Ali. The
I.G. Police Punjab once again has given undertaking that he will
personally ensure that no harm is caused to the accused namely
Imran Ali while he is in police custody.
3.
The Inspector General of Police Punjab is also directed
to submit details/profiles of all the police officers/officials, who
remained posted in those Police Stations in whose jurisdiction
such like incidents took place during the last five years.
4.
We have taken note that the Prosecutor General
Punjab is not present in Court. He is directed to remain present in
Court on all subsequent dates of hearing. He is further directed to
HRC 1037-P/18
-: 3 :-
personally supervise the proceedings of the prosecution before the
Trial Court at the time of hearing of the case.
5.
We have been apprised that there are media talks and
press conferences regarding this incident which may effect the fair
investigation and proceedings before the learned Trial Court,
therefore, we direct that all concerned, including the media
houses/anchor persons shall act in a very responsible and
cautious manner while expressing their views/opinions in the print
and electronic media. We also restrain Mr. Muhammad Amin,
father of the victim, his counsel Mr. Aftab Bajwa, learned ASC, the
complainant of the case and all concerned from holding any press
conference, appearing in talks shows or interacting with press or
electronic media with regard to the present incident.
6.
So far the accusations/allegations leveled by Dr.
Shahid Masood are concerned, the learned Additional Advocate
General Punjab present in Court states that the investigation team
has probed into those allegations, particularly the allegations that
the accused, Imran Ali, has 37 bank accounts. In this respect a
report was requisitioned from the State Bank of Pakistan. In its
report dated 27.01.2018 the State Bank of Pakistan has confirmed
that the said accused, Imran Ali, has no bank account except a
mobile account having only Rs.130/- in his credit.
7.
So far as the issue of Dr. Shahid Masood is concerned,
we have patiently heard the media personnel present in Court
namely, Mr. Arif Nizami, Channel 24, Mr. Mujeebur Rehman
Shami, Dunya News TV, Ch. Ghulam Hussain, Channel 24, Mr.
Arif Hameed Bhatti, ARY TV, Mr. Sohail Warraich, Geo News, TV,
Mr. Mazhar Abbas, Geo TV, Mr. Saleem Bukhari, Waqt TV, Mian
HRC 1037-P/18
-: 4 :-
Aamir, Chairman PBCA, Mr. Fahad Hussain and Mansoor Ali
Khan, Express News, Mr. Zia Shahid, Chairman CPNE, Mr. I. A.
Rehman, Columnist, Mr. Kamran Khan, Dunya News TV, Mr.
Kashif Abbasi, ARY TV, Mr. Hamid Mir, GEO TV, Madam Asma
Sherazi, Ajj News, Madam Naseem Zahra, Channel 24, Mr. Aftab
Ibal, Express TV. Dr. Shahid Masood, has been heard twice in
detail and ample opportunity has been afforded to him to explain
his position.
8.
In view of the serious accusations/allegations leveled
by Dr. Shahid Masood in his television show “Live with Dr. Shahid
Masood” telecast on 24.01.2018 on News One TV Channel and his
media talk on 25.01.2018 outside this Court, we consider it
appropriate to constitute the following Inquiry Committee to find
out the truth and determine the veracity in the allegations leveled
by Dr. Shahid Masood:
1. Mr. Bashir Memon, Director General, Federal
Investigation Agency (FIA) (Head of the Committee.)
2. Mr. Anwar Ali, Joint Director, Intelligence Bureau,
Islamabad. (Member)
3. Mr. Asmatullah Junejo. Assistant Inspector General
(Operation Division) Islamabad Police. (Member)
The above Committee may associate any senior officer
of the State Bank of Pakistan for probe into the alleged bank
accounts of the accused, Imran Ali, and associate such other
experts or officer/official that it may consider helpful for the
purpose of conducting its inquiry and probing the issue raised by
HRC 1037-P/18
-: 5 :-
Dr. Shahid Masood in his said programme and the statement given
by him outside the Court premises. The Committee, after recording
the statement of Dr. Shahid Masood, considering the material he
desires to produce in support of his claim during the inquiry and
collecting any other relevant material available from other quarters
shall submit its report within a period of 30 days. The Committee
shall check the veracity of the allegations and give a clear finding
whether those allegations are correct or otherwise.
9.
Mr. Shahid Masood present in Court is directed to
fully cooperate with the Inquiry Committee and appear before the
Committee as and when required by it. The Committee shall have
the power to summon and examine the record/material from any
Government
Department,
Agency,
Authority
etc.
All
such
Departments/Agencies/Authorities/offices/officers of the Federal
and Provincial Governments shall fully cooperate with the Inquiry
Committee. The Committee shall submit its report to the Registrar
of this Court within the period mentioned in para-08 supra.
Re-list.
CHIEF JUSTICE
JUDGE
JUDGE
LAHORE
28th January, 2018.
Mudassar/
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa, ACJ
Mr. Justice Mushir Alam
Mr. Justice Maqbool Baqar
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Sardar Tariq Masood
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Sajjad Ali Shah
Human Rights Case No. 10842-P of 2018
(Regarding registration of second FIR in respect of a police
encounter wherein the petitioner’s son namely Mohsin Ali was
killed at the hands of the local police)
Mst. Sughran Bibi
… Petitioner
versus
The State
… Respondent
In attendance:
Petitioner in person
Mr. Ashtar Ausaf Ali, Attorney-General for
Pakistan
assisted
by
Barrister
Asad
Rahim, Mr. Muhammad Usman Rauf,
Mirza Moiz Baig and Mr. Nousherwan
Niazi, Advocates
Mr.
Qasim
Ali
Chauhan,
Additional
Advocate-General, Punjab
Nemo. on behalf of the Advocate-General,
Sindh
Mr. Zahid Yousaf Qureshi, Additional
Advocate-General, Khyber Pakhtunkhwa
Mr. Ayaz Swati, Additional Advocate-
General, Balochistan
Mr. Tariq Mehmood Jehangiri, Advocate-
General, Islamabad
Human Rights Case No. 10842-P of 2018
2
Mr. Saeedullah Khan, ASC
Mr. Babar Nadeem, Advocate
Mr. Abu Bakar Khuda Bakhsh, Additional
Inspector-General of Police, Punjab
Barrister Salman Safdar, ASC (Amicus
Curiae)
Date of hearing:
09.05.2018
JUDGMENT
Asif Saeed Khan Khosa, ACJ:
If the first information
to the police reporting commission of a cognizable offence under
section 154 of the Code of Criminal Procedure, 1898 is called an
FIR (First Information Report) then through the same logic the
second information to the police in respect of commission of the
same offence ought to be called an SIR and the third information
regarding commission of the same offence may be called a TIR but
there is no provision in the Code of Criminal Procedure for an SIR
or a TIR. For reasons never exhaustively attended to before, parties
to a criminal case other than the party which has already lodged
an FIR about commission of a cognizable offence often insist upon
registration of their own version regarding commission of the same
offence through another FIR and it is argued that the different
version of the same incident advanced by such a party is being
reported to the police for the first time and, therefore, such new
version regarding commission of the same cognizable offence is to
be treated as the first information to the police about that version.
In view of some conflicting judgments of different Courts, including
this Court, on the issue the present Larger Bench has been
constituted so as to put the controversy at rest through an
authoritative pronouncement on the subject. The background in
which this issue has cropped up before this Court through the
present petition is briefly narrated in the following paragraph.
2.
On 21.03.2008, more than a decade ago, one Mohsin Ali had
lost his life through the hands of the police and FIR No. 177 was
Human Rights Case No. 10842-P of 2018
3
lodged by Zulfiqar, SI in respect of the said incident on the same
day at Police Station Shahdara Town, District Lahore for offences
under sections 324, 353 and 186, PPC read with section 34, PPC
and section 13 of the Pakistan Arms Ordinance, 1965. It was
alleged in that FIR that Mohsin Ali and others had launched a
murderous assault upon a police party and in exercise of its right
of private defence the police party had fired back resulting in death
of Mohsin Ali. After completion of the investigation a Challan was
submitted in that case before the Court of Session, Lahore for trial
of the accused persons implicated therein. On 12.01.2010 the
present petitioner namely Mst. Sughran Bibi (mother of Mohsin Ali
deceased) instituted a private complaint in respect of the selfsame
incident alleging that as a matter of fact Mohsin Ali had cold-
bloodedly been murdered by the local police by managing and
staging a fake encounter. On 19.05.2010 a learned Additional
Sessions Judge, Lahore seized of the case summoned 16 accused
persons to face a trial in connection with the said private
complaint. As per the legal norms the private complaint filed by the
petitioner was taken up first for trial and on 18.06.2015 a Charge
was framed against the summoned accused persons and, we have
been informed, no progress has so far been made in that trial of
the complaint case. Now through the present petition filed as a
Human Rights Case under Article 184(3) of the Constitution of the
Islamic Republic of Pakistan, 1973 Mst. Sughran Bibi petitioner
has sought issuance of a direction to the local police to register a
separate FIR containing the different version of the same incident
being advanced by her.
3.
The issue before us, to put it very simply, is as to whether a
separate FIR can be registered for every new version of the same
incident when commission of the relevant cognizable offence
already stands reported to the police and an FIR already stands
registered in that regard or not. An ancillary issue is that if no
separate FIR can be registered for any new version of the same
incident then how can such new version be recorded and
investigated by the police. We have heard elaborate arguments on
Human Rights Case No. 10842-P of 2018
4
these issues and have carefully gone through all the precedent
cases cited before us on the subject.
4.
The emotionally charged and visibly grieved petitioner
appearing in person has passionately submitted that her son
namely Mohsin Ali was cold-bloodedly murdered by the local police
through a managed and staged encounter whereafter an FIR
containing a false story was registered at the local Police Station in
respect of the incident at the instance of a police official depicting
the deceased as the aggressor. She has maintained that in some
ensuing administrative and judicial inquiries the local police were
found to be guilty of a calculated murder but no separate FIR was
registered in that regard at the petitioner’s instance which had led
the petitioner to institute a private complaint in respect of her
allegations and the accused persons in her private complaint have
already been summoned by the trial court to face a trial in the
complaint case. She has lamented and bemoaned that no progress
has been made in that complaint case so far despite a Charge
having been framed by the trial court against the accused persons
about three years ago. In the end she has urged that justice would
be served if a separate FIR is registered in terms of her version of
the relevant incident and the persons being accused by her of the
murder most foul are ordered to be arrested.
5.
The learned Attorney-General for Pakistan has taken us
through different provisions of the Code of Criminal Procedure,
1898 (usually referred to as Cr.P.C.) and the Police Rules, 1934
and has maintained that the statutory scheme of the criminal law
in vogue in the country envisages registration of only one FIR
regarding an incident involving commission of a cognizable offence
and every fresh version of the same incident brought to the notice
of the investigating officer during the investigation of the case is to
be recorded under section 161, Cr.P.C.. He has submitted that the
investigating officer is legally obliged to investigate the case from
every possible angle and to probe into every version of the incident
brought to his notice and then he is to submit his final report in
Human Rights Case No. 10842-P of 2018
5
the matter in terms of the facts found by him and not in terms of
any particular version of the incident advanced by any person. The
learned Attorney-General has referred to the judgments rendered
by this Court in the cases of Jamshed Ahmad v. Muhammad Akram
Khan and another (1975 SCMR 149), Kaura v. The State and others
(1983 SCMR 436), Wajid Ali Khan Durani and others v. Government
of Sindh and others (2001 SCMR 1556), Mst. Anwar Begum v.
Station House Officer, Police Station Kalri West, Karachi and 12
others (PLD 2005 SC 297) and Ali Muhammad and others v. Syed
Bibi and others (PLD 2016 SC 484) which are the only reported
pronouncements of this Court on the issue under consideration
and he has highlighted that not only contradictory views were
expressed in such judgments but all such judgments were also
completely shorn of any meaningful discussion about the issue
with reference to the relevant statutory provisions. He has, thus,
urged that a comprehensive treatment of the issue by this Court is
called for so as to remove the prevailing confusion. The learned
Additional Advocates-General, Punjab, Khyber Pakhtunkhwa and
Balochistan and the learned Advocate-General, Islamabad Capital
Territory have adopted the arguments addressed before the Court
by the learned Attorney-General for Pakistan. Barrister Salman
Safdar, ASC has assisted the Court as an amicus curiae and while
approaching the issue from diverse angles he has maintained that
ordinarily there is to be only one FIR in respect of an incident but
there is no statutory bar against registration of multiple FIRs in
respect of the same occurrence if different versions of the incident
are advanced with different sets of accused persons and such
versions disclose commission of different cognizable offences. He
has also impressed upon the Court as to why people insist upon
registration of separate FIRs qua their own versions of the incident
and as to why the remedy of filing a private complaint is generally
not considered to be an adequate alternate remedy in that regard.
The learned amicus curiae has also extensively referred to the
above mentioned five reported judgments of this Court available in
the field and has respectfully highlighted the deficiencies in those
judgments.
Human Rights Case No. 10842-P of 2018
6
6.
After hearing the petitioner, the learned Law Officers and the
learned amicus curiae, attending to all the statutory provisions
relevant to the legal issue involved and perusing the precedent
cases available on the subject we find that for a proper resolution
of the controversy at hand it is imperative to correctly understand
the scheme of the Code of Criminal Procedure, 1898 and the Police
Rules, 1934 regarding registration of a criminal case through an
FIR and its investigation by the police and also to minutely
examine all the precedent cases available on the subject. In the
following paragraphs we undertake such an exercise to develop
and elucidate such understanding of the scheme.
7.
As regards the precedent cases available on the subject there
appears to be an utter confusion prevailing in the field and
different Courts have in the past been taking different positions on
the issue of registration of multiple FIRs in respect of commission
of the same offence through different versions advanced in respect
of the same occurrence. In the first category of the precedent cases
it has been declared quite categorically that there is to be only one
FIR in respect of an occurrence wherein a cognizable offence has
been committed and any other version of the same incident
advanced by any person during the investigation of the case is to
be recorded under section 161, Cr.P.C. The following cases decided
by different High Courts fall in this category of cases:
Mansur Ali and 2 others v. The State
(1970 P.Cr.L.J. 287)
“Another thing to be pointed out here is that there cannot be two
first information reports in a case. It appears that the learned
Additional Sessions Judge has used both the reports as first
information reports in this case and marked them as Exhs. 1 and
3. Section 154, Cr.P.C. contemplates only one first information
report and only one such report can go into evidence in a case.
Law never permits two first information reports to be admitted in
evidence …”
Kaura v. The State
(NLR 1979 Criminal 3)
“It is quite obvious from the above that the primary purpose of
the F.I.R. is to inform about the commission of a cognizable
Human Rights Case No. 10842-P of 2018
7
offence which a police officer is empowered to investigate under
Section 156 Cr.P.C. … All other informations with regard to that
occurrence coming out later in point of time have to be taken
down as statements of those persons before the police under
section 161 Cr.P.C. … The order to register a second F.I.R. in that
situation, was not justified in law, even if there was a concession
made on the part of the State.”
Qazi Rehmat Ullah, General Secretary, Jamat-e-Islami,
Rawalpindi v. Dr. Ghulam Hussain, Former Federal
Minister for Railways and 13 others
(1979 P.Cr.L.J. Note 36)
Law does not require recording of as many reports as versions of
same occurrence by different persons – Police Officer not to prefer
one over another or to prefer one giving more complete picture –
Priority to be considered in point of time and not in elaborateness
of report or its being correct.
Ghulam Siddique v. Station House Officer, Saddar, Dera
Ghazi Khan and 8 others
(PLD 1979 Lahore 263)
“It is quite obvious that the primary purpose of the F.I.R. is to
inform about the commission of a cognizable offence, which a
Police Office is empowered to investigate under section 156,
Cr.P.C. The Police Officer receiving that information may question
the informant to find out his source of information about the
names of the offenders and the witnesses and whether the
informant himself was an eye-witness as laid down in rule
21.1(4). All other informations with regard to that occurrence
coming out later in point of time have to be taken down as
statements of those persons before the police under section 161,
Cr.P.C. The version given by Ghulam Siddiq, therefore, should
have been considered as a statement under section 161, Cr.P.C.
only. The order to register a second F.I.R. in that situation, was
not justified in law, even if there was a concession made on the
part of the State.”
Muhammad Aslam v. Station House Officer, Police
Station Mamun Kanjan, Faisalabad
(PLD 1980 Lahore 116)
“It will be seen that distinction is to be drawn between a version
being given for purpose of defence only and a version being given
by way of a grievance. In the former category, the accused and the
offences are ordinarily the same and information in amplification
of that recorded earlier is being conveyed. In the latter category of
cases separate offences are disclosed and even the persons
complained against may be different. The distinction is material
for whilst in the former case the registration of an F.I.R. is
required by law, in the latter it need not be recorded as an F.I.R.
but as observed in Ghulam Siddique's case may be recorded as a
statement under section 161 of the Cr.P.C.”
Mushtaq Ahmad v. The S.H.O., Police Station, Munawan
(1984 P.Cr.L.J. 1454)
“When a case has been registered in respect of an occurrence, no
second case can be registered giving a counter-version thereof by
the accused persons.
Human Rights Case No. 10842-P of 2018
8
It is by now clearly established law that no direction can be
issued for registration of a case when a F.I.R. has already been
registered in respect of the occurrence for giving counter-version
of the other side.”
Wali Muhammad and 4 others v. The State and another
(1985 P.Cr.L.J. 1342)
“It is true that in respect of one and the same occurrence, only
one F.I.R. should be recorded and that where the accused
persons set up a counter version, the same should be investigated
by the police on the case file of the same F.I.R. and not by
recording any subsequent F.I.R. It is also true that where a
counter version is set up by the accused, the police should find
out the truth and submit the challan only in respect of the
version found true by them and not submit both the versions to
the Court for trial.”
Hafiz Haji Muhammad v. The Superintendent of Police
Dera Ghazi Khan and others
(1986 P.Cr.L.J. 2167)
“Since a criminal case stands already registered against the
petitioner, he seems to overawe the police and others by getting a
case registered against them so that proper investigation may not
be carried out. He has an alternate remedy of filing a private
complaint. He may pursue the same.”
Ghulam Mustafa v. S.H.O. and others
(KLR 1987 Cr.C. 134)
“In these circumstances I am not inclined to exercise discretion in
favour of the petitioner when according to his own showing a case
stands already registered in respect of the afore-said vehicle at
Police Station Sharqpur. If the petitioner has any claim to the
vehicle in question he may approach the Investigating Officer who
can take into consideration his version as well.”
Muhammad Younas v. Senior Superintendent of Police,
Faisalabad and others
(1987 P.Cr.L.J. 1464)
“It is contended that the complainant-party was guilty of
aggression and had caused fire-arm and other injuries to
Muhammad Younas and Khushnood and despite the fact that
their medico-legal reports were produced before the Investigating
Officer with the request of registering a counter-case he has
refused to do so. It is further stated that the Investigating Officer
has even refused to receive the medico-legal certificates or to
record their statements.
In the above circumstances, S.S.P. Faisalabad is directed to issue
necessary orders to the S.H.O. Police Station Dijkot for carrying
out the investigation faithfully and to record the statements of the
aforementioned persons and the petitioner without any addition
or omission and also to receive their medico-legal certificates. He
is also directed to proceed strictly in accordance with law and
place the correct version before the Court.”
Rahmat Ullah v. Station House Officer and others
(1987 P.Cr.L.J. 2197(2))
Human Rights Case No. 10842-P of 2018
9
“I do not feel inclined to direct S.H.O. to register the case for the
reasons that the challan in case of murder against Munawar Ali
and others, having been sent up the case is at trial stage and the
prosecution evidence has partly been recorded; that the S.H.O.
has stated that Rehmat Ullah was examined by the police and on
his own showing he had not seen the occurrence; that Munawar
Ali, the victim of murderous assault has neither approached the
police for the registration of the counter-case nor has he moved
any petition before this Court for direction to the S.H.O. to
register the case and that adequate alternative remedy of
complaint was/is available to the petitioner.”
Sharifan Bibi v. M. Ilyas etc.
(KLR 1987 Cr.C. 739)
“In view of the circumstances aforementioned and particularly the
fact that the challan in the case under section 302/34 P.P.C has
already been submitted in Court and that an alternative remedy
of filing a private complaint is available to the petitioner I am not
inclined to issue the direction prayed for by her.”
Muhammad Azim v. The S.H.O. Police Station Abbas
Nagar and 4 others
(1988 P.Cr.L.J. 41)
“Conversely, in Kaura v. The State and others 1983 SCMR 436 it
has been held that when a case has been registered in respect of
previous occurrence, then the registration of a fresh case is not
called for notwithstanding divergent version contained therein
and the Police is not only competent but also duty bound to
unearth true facts and trace real culprit. This principle
enunciated in the said ruling was followed in Mushtaq Ahmad v.
The S.H.O., Police Station, Munawan 1984 PCr.LJ 1454 and Wali
Muhammad and 4 others v. The State and others 1985 PCr.LJ
1342. The facts of this case are peculiar. The petitioner and
others have been challaned in the case registered by Muhammad
Sadiq and prosecution evidence has been summoned on 27-9-
1987. The counter-version stated by Muhammad Azeem has
already been investigated by the Police and in the circumstances
a second F.I.R. shall not serve any useful purpose. The private
complaint is efficacious remedy for Muhammad Azeem, if he so
likes. I, therefore, decline to issue a direction for the registration
of second F.I.R. regarding the counter version put forth by
Muhammad Azeem and dismiss this writ petition.”
Malik Muhammad Anwar Khan v. The State and 4
others
(1988 P.Cr.L.J. 986)
“In the circumstances discussed above, I do not feel persuaded to
interfere in the matter at this stage but would direct the police to
carry out the investigation faithfully, record statements of the
petitioner and the injured persons and to receive their medico-
legal certificates. They are further directed to proceed strictly in
accordance with law and place correct version before the Court by
bringing to book all those who are found to have participated in
the occurrence. If the petitioner feels dissatisfied with the role of
the police he may resort to an appropriate remedy in the Court of
competent jurisdiction in accordance with law by filing a
complaint which by no means is less efficacious remedy than the
registration of case with the police.”
Human Rights Case No. 10842-P of 2018
10
Ch. Zafaryab v. Mian Bashir Ahmad, S.H.O./Inspector
Police Station Shalimar Lahore, etc.
(NLR 1990 U.C. 38)
“The learned counsel, however, submits that the version of the
first informant is false and the counter version of the petitioner
represents the true and correct factual position. This counter
version has however, not been placed before the police as
according to the SHO the petitioner did not join the investigation.
… Let the petitioner appear and place his version before the
Superintendent of Police who shall give it due consideration in
accordance with law.”
Yousif v. The State
(NLR 1990 U.C. 149)
“In these provisions, once the investigating machinery is set in
motion after registration of FIR, there is no room for filing of
second FIR but the investigation can continue without hindrance
even if in the result of the investigation culprits are found to be
different persons who are not mentioned in FIR.”
“In the instant case therefore we hold that there was no need or
justification for the Investigating Officer to file himself as a
complainant of second FIR because even without doing so he was
quite competent under the law to continue the investigation and
arrest persons against whom there was material to connect them
with the offence regardless of the fact whether they were named
in FIR as accused persons or not.”
Sadiq Masih v. S.H.O. and others
(1994 P.Cr.L.J. 295)
“It is now well-settled that when an F.I.R. stands already
registered regarding an incident, no direction for registering
second F.I.R. based on cross-version put forth by other side can
be issued because it is not so provided in law, as has been held
by a Division Bench of this Court in Mushtaq Ahmad's case 1984
PCr.LJ 1454.”
Arif Khan v. Additional Sessions Judge, Kabirwala
District Khanewal and 2 others
(2006 P.Cr.L.J. 1937)
“The only point in this case which requires determination is
whether in presence of first F.I.R., second F.I.R. can be registered
or not.”
“Rule 24.1 of the Police Rules, 1934, deals with the recording of
the first information relating to an offence, whether cognizable or
non-cognizable. It is provided therein that every such information
shall be recorded in writing, by the officer incharge of the police
station. The Police Officer thus, is obliged to record in writing
every information relating the commission of any offence. The
only distinction made here is that the information disclosing
commission of a cognizable offence is to be recorded in the First
Information Report Register as well as station diary under Rule
24.1(2) while the information with regard to non-cognizable
offence is to be recorded in the station diary only under Rule
24.3. The information given by respondent No.3 in the shape of
cross-version disclosed a commission of non-cognizable offence,
Human Rights Case No. 10842-P of 2018
11
as such it should have been considered as a statement under
section 161, Cr.P.C. the order to register a second F.I.R. in that
situation was not justified in law.”
“…plea was to be investigated and recording of cross-version, if
any, was the proper answer rather than registering a separate
F.I.R.”
“In view of the above circumstances, I am of the view that the
learned Additional Sessions Judge was not justified in giving
direction to respondent No. 2 to record F.I.R. as it was a case of
cross-version which was ordered to be recorded.”
Syed Wahid Bux Shah alias Chacho Shah and another
v. The State
(2011 MLD 64)
“Admittedly first F.I.R. No. 21 of 2008 was registered by brother of
deceased Ghulam Qadir and that F.I.R. was fully investigated and
challan was submitted in the Court of law, which is pending
adjudication. … In existence of first F.I.R. which was lodged by
the brother of deceased Ghulam Qadir second F.I.R. by his cousin
cannot be considered as true. In the above circumstances, the
impugned order, dated 20-11-2009, passed by learned Civil
Judge and Judicial Magistrate, Thull, is set aside. The
proceedings arisen out of Crime No. 184 of 2009, of Police Station
Thull are also hereby quashed.”
8.
The second category of the precedent cases comprises of
those cases decided by different High Courts wherein it has been
held that after registration of an FIR a new version of the same
incident depicting a different story and a different set of accused
persons can be recorded through a separate FIR and the following
cases fall in this category:
Sawant v. S.H.O., Police Station Saddar, Kasur and
another
(PLD 1975 Lahore 733)
“The basic question of law involved in this case is whether the
police can refuse to register a case on the basis of the counter
version given on behalf of the accused party on the ground that
they consider that version to be false.”
“In my view, the correct legal procedure for the police should have
been to record the F.I.R. containing the counter version and to
have investigated it. If they found that the evidence adduced by
the petitioner did not sustain the charge they could have
submitted a report to the Magistrate for cancellation of the case.”
Akram Ali Shah v. Station House Officer, Police Station
Kotwali, Kasur and 2 others
(PLD 1979 Lahore 320)
Human Rights Case No. 10842-P of 2018
12
“It cannot be laid down as a proposition of law that if one F.I.R.
pertaining to a particular occurrence has been registered then
another F.I.R. containing the counter-version of the same
occurrence cannot or ought not to be registered.”
“On the other hand, however, if the accused of a particular case
have a counter version by way of a grievance, then unless a
formal F.I.R. containing that grievance exists, the accused of the
counter case could get away without any punishment therefore in
a situation of the latter type the existence of a counter F.I.R.
would appear to be equitable, as a private complaint is
erroneously not given the due importance. This view is consistent
with the practice established over centuries of submitting challan
in cross-cases in a Court of law.”
Mirza v. The S.H.O.
(1982 P.Cr.L.J, 171)
“The learned counsel for the petitioner contends that according to
petitioner's version the members of the opposite party have
committed cognizable offences, therefore, the respondent was
under a statutory obligation to register the case. On the other
hand, the learned counsel for the respondent S.H.O. vehemently
argues that as the same occurrence has been reported through
F.I.R. No. 185 dated 10th August, 1981 there is no question of
recording another F.I.R. and the investigating agency can be
directed to take down the petitioner's version during the
investigation. … In the circumstances, I accept this petition and
direct the respondent S.H.O. to receive a written complaint from
the petitioner and act in accordance with section 154 Cr.P.C.”
Abdul Ghani v. S.H.O., P.S. Saddar, Sheikhupura and
others
(1983 P.Cr.L.J. 2172)
“It may well be that the occurrence reported about is the same
but then there are two cross-versions of the occurrence and not
two different versions of the same occurrence. The version on the
basis of which the F.I.R. has already been registered is distinct ....
whereas the version given by the petitioner is totally on a different
premises ….”
“In the context of the above position it appears that the
respondent is under statutory obligation to register the case and
proceed with the investigation in accordance with law.”
Muhammad Ibrahim v. S.H.O. Police Station Mansehra
and another
(1983 Law Notes (Peshawar) 686)
““In the circumstances we are of the view that the SHO
(respondent no.1) has failed in his duty by not registering and
investigating the counter version of the case given in the report of
the petitioner.”
Halim Sarwar v. S.H.O., Police Station Headmarala and
2 others
(PLJ 1984 Cr.C. (Lahore) 369)
“Even if an FIR has been registered on the basis of one sided
version, registration of a second FIR showing a different grievance
Human Rights Case No. 10842-P of 2018
13
could not be refused by the Police Officer in proper performance
of his legal duty under Section 154 Cr.P.C.”
Fateh Sher v. S.H.O etc.
(1984 Law Notes (Lahore) 1169)
“No doubt, it was held in the aforementioned cases reported as
PLD 1979 Lahore 320, PLD 1980 Lahore 116 and 1982 P.Cr.L.J.
171 that if the accused of a particular case have counter-version
by way of a grievance and the counter-version discloses
commission of cognizable offence, it is the duty of the Station
House Officer to register a counter FIR and in case of his failure
to do so, he can be commanded by this Court to perform his
statutory obligation. However, there is no dearth of case-law on
the point that so far as this Court is concerned, it is not
necessary that in each and every case, where there is an omission
to perform a statutory duty, a direction must issue. Facts and
circumstances of each case have to be taken into account and it
has also to be seen if filing of a private complaint, in the
circumstances of the case, is not as adequate or efficacious a
remedy as the registration of a case.”
Karim Bibi v. Station House Officer, Police Station
Rajana (Faisalabad) and others
(1985 P.Cr.L.J. 213)
[The investigating officer] “did not take down the counter-version
nor made any investigation on that line despite the same having
been brought to his notice in the form of various applications.”
“… it is enough that the version of Mst. Karim Bibi was not taken
down and in that respect the A.S.I. did not perform his statutory
duty under section 154 of the Code of Criminal Procedure. His
failure to do so was illegal. Consequently the petition is accepted
and it is directed that let an F.I.R. be registered on the statement
of Mst. Karim Bibi.”
Ghulam Hussain v. Siraj-ul-Haq and others
(1987 P.Cr.L.J. 1214)
“As regards the last contention, the petitioner has made allegation
in the report against police and army personnels. The incident is
admitted and F.I.R. has also been registered. There is no bar of
recording a second F.I.R. of the same incident giving counter-
version of the incident.”
Mst. Rehmi etc. v. S.H.O. Basirpur etc.
(KLR 1987 Cr.C. 442)
“From the above observations, it would be quite clear that
informations can be laid one after the other, to be recorded as
F.I.Rs. if these disclose separate cognizable offences, the second
or later not being the mere amplification of the first but the
disclosure of other criminal activities. Recording of a second F.I.R.
or a direction to that effect therefore depends upon the
circumstances of each case. Counter cases are often recorded and
tried. No hard and fast rules or principles can be laid down as to
when a second FIR can or should be recorded. The matter has to
be seen in the context of the totality of the circumstances and the
allegations. … But if a new case is made out or allegations of a
cognizable case are levelled showing a genuine grievance, then
Human Rights Case No. 10842-P of 2018
14
the aggrieved party is entitled to have his case registered and
investigation made.”
“Therefore, it cannot be said that the learned Single Judge fell in
error in directing the registration of a case on the motion of the
side who had lost a life simply because the other side who had
suffered an injury on a finger had succeeded to get a FIR recorded
earlier.”
Manzoor Hussain (Chaeywala) v. Station House Officer,
etc.
(NLR 1989 Cr.L.J. 39)
“… learned counsel appearing for the petitioner, has vehemently
urged that the mere fact that an FIR has already been registered
does not debar the petitioner to lodge the second FIR in respect of
the same offence and that it is the statutory duty of the officials
respondents to record the same. … There cannot be any cavil with
proposition of law laid down in the above cited cases …”
Abdul Rehman v. S.H.O. Police Station Karianwala,
Tehsil and District Gujrat and another
(1989 Law Notes (Lahore) 885)
“The law enjoins upon the police to register the counter version
and to proceed with the investigation in accordance with law. The
respondent S.H.O. is directed to register a case on the basis of the
counter version and to proceed with the investigation according to
law.”
Mrs. Ghanwa Bhutto and another v. Government of
Sindh and another
(PLD 1997 Karachi 119)
“Reference to the case-law, therefore, indicates that there is no
hard and fast rule that a second F.I.R. cannot be registered in
respect of a different version given by an aggrieved party of the
same occurrence. If information is subsequently given to a police
officer, which discloses a different offence, also cognizable by the
police, then unless it is a mere amplification of the first version, it
must be recorded by the police. Therefore, direction to the police
to record a second F.I.R. would depend upon the circumstances
of each case. If true facts in respect of an occurrence are not
reflected by the first F.I.R., then refusal to record a genuine
version of the same occurrence would not be justified. The
question has, therefore, to be examined in the light of the
circumstances of a particular case.”
Muhammad Ishaque v. S.P. Jaffarabad and another
(PLJ 1998 Quetta 1)
“The conclusion of the above discussion would be that the police
was under bounded duty to have registered the counter-version of
the petitioner through a separate F.I.R. Then, it was duty of the
SSP to conduct impartial and honest investigation through an
independent police officer of the second version as directed by Mr.
Justice Javed Iqbal. I, therefore, agree with his conclusions.”
Mst. Razia Sultana alias Gogi Butt v. Deputy Inspector-
General of Police and others
(1999 P.Cr.L.J. 694)
Human Rights Case No. 10842-P of 2018
15
“I would express that the case-law is not bereft of the judicial
decisions to the effect that in the presence of the registration of a
criminal case the order for the registration of the 2nd F.I.R. about
the same occurrence can be passed by the High Court …
However, in the circumstances of this matter when case F.I.R. No.
442, dated 8-9-1998 registered at Police Station Nawan Kot under
section 436, Pakistan Penal Code is under investigation wherein
the version of the petitioner can be recorded thereof, there is no
legal and factual necessity to pass the order in the matter. … I
declare that there is no legal justification to pass the order for the
registration of the 2nd First Information Report as required and
desired by Mst. Razia Sultana alias Gogi Butt petitioner.”
Ahmad Yar v. Station House Officer, Shah Kot, District
Sahiwal and 8 others
(2007 P.Cr.L.J. 1352)
“As held by the Honourable Supreme Court of Pakistan in the
case Mst. Anwar Begum v. Station House Officer, Police Station
Kalri West Karachi and 12 others PLD 2005 SC 297 and Mrs.
Ghanwa Bhutto and another v. Government of Sindh and another
PLD 1997 Kar. 119, also relied upon by the learned Single Judge
in the impugned order, there is no embargo with regard to
registration of second F.I.R. in respect of different version given
by the aggrieved party of the same occurrence and the only
impediment is that second F.I.R. should not contain the facts for
the mere amplification of the first version.”
Muhammad Azam v. Inspector-General of Police,
Islamabad and 2 others
(PLD 2008 Lahore 103)
“Similarly, it has been repeatedly held by superior Courts of the
country that where a different, opposite or a cross version is put
forth by the complainant which discloses commission of
cognizable offence, second F.I.R. is not barred. In this regard,
reference may be made to PLD 1978 Lahore 187 and Miss
Ghanwa Bhuttoo and others vs. Government of Sindh and others,
PLD 1997 Karachi 119.”
Mst. Allah Rakhi v. D.P.O. Gujranwala and 5 others
(2009 MLD 99)
“Insofar as the registration of the second F.I.R. is concerned, by
now, it has been settled that there is no bar against the
registration of second F.I.R. regarding the same occurrence,
rather, in the case of Mrs. Ghanwa Bhutto (supra), the order of
registration of third of F.I.R. was passed by Hon'ble Karachi High
Court, which was upheld by the Hon'ble Supreme Court in the
case of Wajid Ali Durani and another (supra).”
9.
The third category of the precedent cases is where different
High Courts have clarified that a separate FIR is to be registered if
the new version being advanced pertains to a different occurrence
or discloses commission of a different cognizable offence. The
following cases fall in this category of cases:
Human Rights Case No. 10842-P of 2018
16
Muhammad Rafique v. Ahmad Yar and another
(NLR 1982 Criminal 638)
“In the present case, however, the earlier F.I.R. … relates
altogether to a different incident and transaction …. The F.I.R.
sought to be lodged … was not a counter version … and it
therefore, cannot be said that Ahmad Yar as an accused in the
earlier case was trying to give his own version in respect of the
same incident or transaction.”
“In the present case, the learned Single Judge has exercised his
discretion [by ordering registration of second F.I.R.] which he
undoubtedly possessed and nothing has been shown … to
warrant interference in the Intra Court Appeal.”
Allah Ditta and 3 others v. The S.H.O., P.S. Basirpur,
District Okara and 3 others
(PLD 1987 Lahore 300)
“From the above observations, it would be quite clear that
informations can be laid one after the other, to be recorded as
F.I.Rs. if these disclose separate cognisable offences, the second
or later not being the mere amplification of the first but the
disclosure of other criminal activities. Recording of a second F.I.R.
or a direction to that effect, therefore, depends upon the
circumstances of each case. Counter cases are often recorded and
tried. No hard and fast rules or principles can be laid down as to
when a second FIR can or should be recorded. The matter has to
be seen in the context of the totality of the circumstances and the
allegations. … But if a new case is made out or allegations of a
cognizable case are levelled showing a genuine grievance, then
the aggrieved party is entitled to have his case registered and
investigation made.”
Pervez Akhtar v. The State
(1989 P.Cr.L.J. 2199)
“In this view of the matter, being bound by the principle laid
down by this Court in Akram Shah's case PLD 1979 Lah. 320,
Muhammad Aslam's case PLD 1979 Lah. 907, Malik Muhammad
Aslam's case PLD 1981 Lah.138, Mirza's case 1982 PCr.LJ 171
and Abdul Ghani's case 1983 PCr.LJ 2172, 1 do not see any
illegality in the registration of the second F.I.R. at the instance of
Fazal Din. Since the two versions contained in the two F.I.Rs. are
different versions of two different occurrences and not two
versions of the same occurrence and recoveries have to be made
from the five accused, I would not like to interfere in this matter.”
Firdous Barkat Ali v. The State
(1990 P.Cr.L.J. 967)
“The second First Information Report which was filed on the basis
of the written complaint included certain fresh instances
concerning the involvement of the present applicant. The second
First Information Report in the circumstances could competently
be lodged. In any event the argument that the second First
Information Report is merely a statement of a witness under
section 161, Criminal Procedure Code can always be raised before
the trial Court and it is up to the trial Court to thrash out the
facts and determine whether the second First Information Report
Human Rights Case No. 10842-P of 2018
17
would amount to a statement under section 161, Criminal
Procedure Code or a new complaint giving information of newly-
detected instances of misappropriation.”
Muhammad Latif v. S.H.O., Police Station Saddar,
Dunyapur and 14 others
(1993 P.Cr.L.J. 1992)
“It is now a settled proposition of law that informations can be
laid one after the other, to be recorded as F.I.Rs. if these disclose
separate cognizable offences, the second or later not being the
mere amplification of the first but the disclosure of other criminal
activities. Although recording of a second F.I.R. or a direction to
that effect depends upon the circumstances of each case but
counter-cases are often recorded and tried. No hard and fast rules
or principles can be laid as to when a second F.I.R. can or should
be recorded. The matter has to be seen in the context of the
totality of the circumstances and the allegations. After the
registration of the first F.I.R. if a new case is made out or
allegations of a cognizable case are levelled showing a genuine
grievance, then the aggrieved party is entitled to have his case
registered and investigated.”
Hamayun Khan v. Muhammad Ayub Khan and 4 others
(1999 P.Cr.L.J. 1706)
“It was, therefore, obligatory upon the police to register a separate
report there being no bar of the first F.I.R. as a new case was
made out by the respondent disclosing allegations of separate
cognizable offences, as recording of a second F.I.R. shall depend
upon the facts of each case and the matter is to be seen in the
context of totality of the circumstances and the allegations made
in second F.I.R. Reliance is placed on the case of Muhammad
Latif v. S.H.O. and others 1993 PCr.LJ 1992.”
Muhammad Anwar, Sub-Inspector, Railway Police
Lahore v. Station House Officer, Railway Police, Kasur
and 2 others
(PLD 1999 Lahore 50)
“There is no cavil with the proposition that when two or more
versions with regard to one incident or offence are given after
recording of the F.I.R., second F.I.R. cannot be recorded on the
basis of every subsequent version but if in a case it is found that
a counter version is given by a party which discloses a distinct
and separate offence, another F.I.R. will have to be registered and
shall be investigated upon.”
Rana Ghulam Mustafa v. Station House Officer, Police
Station Civil Line, Lahore and 2 others
(PLD 2008 Lahore 110)
“From reading the language of section 154, Cr.P.C. it is clear that
information can be laid before the S.H.O. about an occurrence at
any time even if already an F.I.R. stands registered about the
same occurrence. In such circumstance, there is no bar laying
information one after the other, to be recorded as F.I.R. if such an
information discloses commission of a separate cognizable
offence. The second or later information should not be merely an
amplification for the first F.I.R. but is should be a disclosure of a
different criminal activity. Recording of a second F.I.R. or a
Human Rights Case No. 10842-P of 2018
18
direction to that effect, therefore, depends upon the facts and
circumstances of each case. No. hard and fast rules or principles
can be laid down as to when a second F.I.R. can or should be
recorded. The matter has to be seen in the context of the totality
of the circumstances and the allegations.”
Independent Media Corporation (Pvt.) Ltd. through
Attorney and another v. Prosecutor General, Quetta and
7 others
(PLD 2015 Balochistan 54)
“The moot question for consideration arises as to whether
investigation and further proceedings on the basis of all the FIRs
is permissible? Though a straitjacket formula cannot be laid
down, yet the only test whether 75 FIRs can be permitted to exist.
In such case, the Court has to examine the facts and
circumstances giving rise to all the FIRs and the test of sameness
is to be applied to find out whether all the FIRs relate to the same
incident in respect of the same occurrence or are in regard to the
incidents, which are two or more parts of the same transaction. If
the answer is in the affirmative, the second or the remaining FIRs
are liable to be quashed. However, in case, the contrary is proved,
where the version in the second FIR is different and they are in
respect of the two different incidents/crimes, the second FIR is
permissible.”
Pervaiz Rasheed and others v. Ex-officio Justice of
Peace and others
(2016 YLR 1441)
“It is well settled proposition of law that second FIR can be
registered if a distinct and separate cognizable offence is disclosed
or if any aggrieved person got reservation about the first FIR
grousing that contents of the FIR already registered does not
disclose the true picture of the occurrence. However, second FIR
cannot be registered if it is just an amplification or elaboration of
earlier.”
Imtiaz Ali v. Province of Sindh through Home Secretary
and 8 others
(2017 MLD 132)
“It is well settled that lodgment of second FIR against the same
offence is neither prohibited nor restricted by the law,
nevertheless the controverting set of allegations narrated in
second FIR must emanate a quite separate and distinct offence,
and same should be examined prudently in the purview of facts
stated regarding the incident in earlier FIR as well as
documentary evidence collected and statements of PWs recorded
under section 161, Cr.P.C. by earlier Investigating Officer, to curb
and defeat the fabrication of events with mala fide intention and
false involvement of any innocent person.”
10.
The Privy Council and this Court have also dealt with the
issue at hand in the following cases:
Emperor v. Khwaja Nazir Ahmad
(AIR (32) 1945 Privy Council 18)
Human Rights Case No. 10842-P of 2018
19
“The argument as their Lordships understood was that the only
information report under Ss. 154 to 156, Criminal P.C., was that
recorded on 31st August 1941, that the allegations recorded at a
later stage of 5th September were not an information report, but a
statement taken in the course of an investigation under Ss. 161
and 162 of the Code, that there was therefore no reported
cognisable offence into which the police were entitled to enquire,
but only a non-cognisable offence which required a Magistrate’s
order if an investigation was to be authorized. Their Lordships
cannot accede to this argument. They would point out that the
respondent in his case treats each document as a separate
information report and indeed, on the argument presented on his
behalf, rightly so, since each discloses a separate offence, the
second not being a mere amplification of the first, but the
disclosure of further criminal activities.”
Jamshed Ahmad v. Muhammad Akram Khan and
another
(1975 SCMR 149)
“Jamshed Ahmad petitioner has felt aggrieved by the order of a
learned Single Judge of the Lahore High Court, dated 8-7-1974,
whereby his petition under Clause 22 of the Letters Patent read
with section 154 of the Cr.P.C. praying for the issuance of a
direction to respondent No. 1 who is S.H.O., Police Station, City
Khanpur, Rahimyar Khan, for the registration of a case under
section
467/468/420/471/109/114/116,
P.P.C.
read
with
section 81/82 of the Registration Act and conduct of preliminary
investigation by some higher police officer was dismissed in limine
on the ground that in respect of the same transaction a case had
already been registered with the petitioner as one of the accused
therein.
2.
In support of the petition for leave, learned counsel
contended that respondent No. 1 was under an obligation to
register the case at the instance of the petitioner reflecting his
own version of the incident notwithstanding the fact that in
respect of the same transaction a case had already been
registered. In support of this, learned counsel has relied on the
plain language of the statutory provision contained in section
154, Cr.P.C.
3.
We are not impressed by the argument. A perusal of the
record shows that on receipt of the petition, the learned Judge
had called for a report from respondent No. 1 who gave three
reasons for the non-registration of the case at the instance of the
petitioner: Firstly, that no case could be registered against the
Tehsildar/Sub-Registrar, whom the petitioner wanted to rope in
as one of the accused-persons, without the previous approval of
the
Provincial
Anti-Corruption,
Council/Divisional
Anti-
Corruption
Committee.
Secondly,
that
according
to
his
information the report sought to be recorded was false, and
Thirdly, that a case of forgery and cheating etc. was already under
investigation in respect of the same transaction, the petitioner
having been named as one of the accused therein.
4.
The petition could be thrown out on the short ground that
the High Court was under no obligation to grant the relief prayed
for by the petitioner. It was a matter resting entirely in its
discretion and there is nothing to indicate that it was improperly
exercised. Even otherwise, by no means does the impugned order
shut the door on the petitioner who is at liberty to initiate
Human Rights Case No. 10842-P of 2018
20
criminal proceedings by lodging a complaint. The position is too
well known to be reiterated that the Supreme Court does not sit
as a Court of appeal and interferes only in cases of grave
injustice, the present case being certainly not one of those. The
petition is, therefore, dismissed.”
Kaura v. The State and others
(1983 SCMR 436)
“It appears to us that once the case was registered vide FIR 23 …
the registration of a fresh report notwithstanding the divergent
version contained therein was not called for inasmuch as the ball
had already been set rolling and the police was not only
competent but also duty bound to unearth the true facts and
trace the real culprits.”
Wajid Ali Khan Durani and others v. Government of
Sindh and others
(2001 SCMR 1556)
“These two petitions for leave to appeal are directed against the
judgment dated 7-11-1996 passed by the High Court of Sindh at
Karachi whereby the learned Judges gave direction to the S.H.O.,
Clifton Police, Karachi, to register another F.I.R. sought to be
lodged by Mst. Ghanwa Bhutto and Mst. Badrunnisa in respect of
the incident in which their husbands, namely, Mir Murtaza
Bhutto and Ashiq Jatoi lost their lives.”
“3.
As however, widows of the deceased were not satisfied and
felt that the two previously registered F.I.Rs did not reflect the
true facts, they filed Constitutional Petition in the High Court of
Sindh, seeking direction to the Clifton Police Station to record
another F.I.R. disclosing the true facts of the incident. During the
hearing of the Constitutional Petition, the petitioners wanted to
be impleaded as respondents to the petition, but the High Court
declined such request. The Constitutional Petition was resisted on
behalf of the State on the grounds that the two earlier F.I.Rs. in
respect of the same incident having been already registered at the
same police station, the lodging of third F.I.R. by the widows of
the deceased was not warranted in law and that if the petitioners
were not satisfied, they had an alternate remedy of filing a direct
complaint in the Court.”
“In the result, the learned High Court allowed the Constitutional
Petition and gave direction to the Clifton Police Station to register
a third F.I.R. at the behest of the widows of the deceased. Hence,
these petitions.”
“6.
We see no force in the contentions raised by the learned
counsel. Perusal of the impugned judgment passed by the learned
High Court would show that the first contention of the learned
counsel was precisely raised before the learned High Court, who
dealt with it elaborately and repelled it for the reasons shown in
the judgment, to which no exception can be legitimately taken
and the learned High Court in the circumstances of the case, was
within its jurisdiction in giving the direction to the police for
registering another F.I.R. at the instance of the aggrieved widows
of the deceased. Moreover, admittedly, since lodging of the third
F.I.R., regular challan has been submitted in the Court in which
the petitioners have been named as accused persons and the trial
is yet to take place.”
Human Rights Case No. 10842-P of 2018
21
“Similarly, the contention that the learned High Court has not
followed the view expressed by this Court in 1983 SCMR 436 is
misconceived, as perusal of the impugned judgment would also
show that in the circumstances pointed out in the judgment the
learned High Court had correctly appreciated the views expressed
in several cases by the superior Courts including the case
referred to by the counsel in giving the direction for registering
another F.I.R.”
Mst. Anwar Begum v. Station House Officer, Police
Station Kalri West, Karachi and 12 others
(PLD 2005 SC 297)
“7.
Admittedly, petitioner from the day of incident has been
agitating that the murder of her husband was managed by his
real brothers, namely, Abdul Khaliq, Abdul Malik and Latif in
league with respondents Siddiq, Saifur Rehman, Muhammad
Raza-ul-Haq,
Akbar
Ali
and
S.I.
Malik Nazir.
In
such
circumstances, the veracity and truthfulness of F.I.R. lodged by
respondent Muhammad Yousuf, the Manager of the Company,
became highly doubtful and the petitioner was right in asking for
registration of another F.I.R. at her own version. It is on record
that
she
had
been
moving
applications
and
making
representations to the high-ups in the police but because of
influence of private respondents, all in vain, therefore, she rightly
invoked the Constitutional jurisdiction of the learned High Court
and urged for registration of the case at her own version which
apparently was not disposed of in legal manner. No doubt,
exercise of the jurisdiction under Article 199 of the Constitution
is discretionary with the High Court but according to the
principles laid down by the Superior Courts, the discretionary
powers must be exercised in good faith, fairly, justly and
reasonably
having
regard
to
all
relevant
circumstances.
Examining the case of petitioner in the light of above principles,
we are of the considered opinion that the High Court has not only
exercised its jurisdiction improperly but also disposed of petition
without adverting to the grievance of the petitioner only on
technical grounds. This Court in the case of Wajid Ali Khan
Durani and others v. Government of Sindh and others 2001
SCMR 1556 maintained the order of High Court whereby
registration of third F.I.R. was allowed on the ground that the two
F.I.Rs earlier registered by police do not reflect the true facts of
the case. It has also been held in this case that if information
given to a police officer, which discloses a different offence was
also cognizable by the police, then unless it is a mere
amplification of the first version, must be recorded by the police.
In the case of Muhammad Ishaque referred (supra), the petitioner
therein approached the learned High Court for registration of
second F.I.R. as the police has refused to register his version with
regard to a cognizable offence under section 154, Cr.P.C. By
majority view, it was held that it was the duty of the police to
register counter version of the petitioner through a separate F.I.R.
and also directed for impartial and honest investigation by the
police.”
“10.
For the foregoing reasons, we are of the considered
opinion that in the instant case petitioner has been able to make
out a case for registration of second F.I.R.”
Ali Muhammad and others v. Syed Bibi and others
(PLD 2016 SC 484)
Human Rights Case No. 10842-P of 2018
22
“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: ---”
“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. 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
Human Rights Case No. 10842-P of 2018
23
considered or adjudicated 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 giving 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 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 misled or it is going to be misled and on that account the
Human Rights Case No. 10842-P of 2018
24
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
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.”
11.
The confusion gripping the issue, we observe so with great
respect and deference, is because of the fact that in none of the
precedent cases detailed above the actual scheme of the Code of
Criminal Procedure, 1898 and the Police Rules, 1934 regarding
registration of a criminal case through an FIR and its investigation
by the police had been examined in any detail and we venture to
undertake such examination in the following paragraphs.
12.
Section 154, Cr.P.C. is the legal provision under which an
FIR is registered in respect of commission of a cognizable offence
and the relevant part of that provision reads as follows:
“154. Information in cognizable cases. Every information
relating to the commission of a cognizable offence if given orally to
an officer incharge of a police station, shall be reduced to writing
Human Rights Case No. 10842-P of 2018
25
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 giving 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. ---”
It is straightaway to be noticed that the heading of this section
speaks of “cognizable cases” meaning thereby that after entering
the first information relating to commission of a cognizable offence
in the prescribed book, i.e. after registration of an FIR the matter
becomes a “case”. We have found the learned Attorney-General to
be entirely justified in maintaining that an FIR is essentially an
“incident report” which informs the police for the first time about
an occurrence in which some cognizable offence has been
committed and after registration of the FIR the occurrence is
treated as a “case” and thereafter every step taken in the ensuing
investigation under sections 156, 157 and 159, Cr.P.C. is a step
taken in that case. The steps to be taken during the investigation
of
the
case
include
gathering
of
information
about
the
circumstances of the case and such information may or may not be
in accord with the facts narrated in the FIR. Section 160, Cr.P.C.
quite clearly indicates that and the same reads as under:
“160. Police officer’s power to require attendance of
witnesses.-- Any police officer making an investigation under
this Chapter may, by order in writing, require the attendance
before himself of any person being within the limits of his own or
any adjoining station who, from the information given or
otherwise, appears to be acquainted with the circumstances of
the case; and such person shall attend as so required.”
This section clearly dispels the impression that the investigating
officer is to be guided or controlled by the contents of the FIR or
that the investigation to be conducted by him is driven by any duty
to establish that the story of the incident contained in the FIR is
correct. In fact, to the contrary, after registration of the FIR the
investigating officer is to embark upon an exercise to discover the
actuality of the matter irrespective of the version of the incident
narrated by the first informant through the FIR and in the process
he is expected to collect information from any number of persons
Human Rights Case No. 10842-P of 2018
26
who appear to him “to be acquainted with the circumstances of the
case”. Every new information received by him during the
investigation of the case or every new circumstance in which the
relevant offence was committed coming to his notice during the
investigation of the case is not to require registration of a separate
FIR because such further information or knowledge is a part of
investigation of the same case which had taken birth at the time of
registration of the FIR. Section 161, Cr.P.C. also deals with
examination of any person supposed to be acquainted with the
facts and circumstances of the case. The said section reads as
follows:
“161. Examination of witnesses by police. (1)
Any
police
officer making an investigation under this Chapter or any police
officer not below such rank as the Provincial Government may, by
general or special order, prescribe in this behalf, acting on the
requisition of such officer, may examine orally any person
supposed to be acquainted with the facts and circumstances of
the case.
(2)
Such person shall be bound to answer all questions
relating to such case put to him by such officer, other than
questions the answers to which would have a tendency to expose
him to a criminal charge or to a penalty or forfeiture.
(3)
The police officer may reduce into writing any statement
made to him in the course of an examination, under this section,
and if he does so he shall make a separate record of the
statement of each such person whose statement he records.”
The “case” already stands registered through an FIR and thereafter
any person can supply any information about the facts and
circumstances of the case to the investigating officer. There is no
bar in the matter against an information which may disclose
circumstances and culprits different from those mentioned in the
FIR. According to section 173(1)(b), Cr.P.C. the action taken under
section 173(1), Cr.P.C. by the officer-in-charge of the police station
is to be communicated through the public prosecutor “to the
person, if any, by whom the information relating to the commission
of the offence was first given”. This by itself is a recognition of a
possibility that any other information about commission of the
relevant
offence
(including
information
about
different
circumstances and different culprits) may also be provided to the
Human Rights Case No. 10842-P of 2018
27
investigating officer by any other person as well during the course
of investigation of the case commenced upon registration of the
first information received, i.e. the FIR and no fresh FIR needs to be
registered on the basis of a new information provided by a different
person.
13.
The same distinction between a “case” and an “information”
about commission of an offence also appears to be writ large in the
relevant Police Rules, 1934 as well. Rule 24.1 of the said Rules in
Chapter XXIV dealing with ‘Information to the Police’ speaks of
“information relating to an offence” received under section 154,
Cr.P.C. and Rule 24.5 makes that distinction absolutely clear. Rule
24.5 of the said Rules provides as follows:
“24.5. First Information Report Register.-- (1)
The
First
Information Report Register shall be a printed book in Form 24.5
(1) consisting of 200 pages and shall be completely filled before a
new one is commenced. Cases shall bear an annual serial
number in each police station for each calendar year. -------”
It is clear from Rule 24.5 reproduced above that commission of a
cognizable offence, when reported to the police through the first
information and registered in the FIR register, is treated as a “case”
bearing an annual serial number and such “case” carries the same
number for ever irrespective of any number of different versions
received by the police regarding commission of the said offence or
any number of different circumstances or sets of culprits brought
to the notice of the investigating officer during the investigation of
the “case”. At this stage an analogy may be apt vis-à-vis
registration of motor vehicles. After rolling out of a motor vehicle
from the assembly line and before it is brought on the road such
motor vehicle is required by the law to be registered with the
relevant authority and upon such registration the relevant motor
vehicle is allocated a registration number. After its registration and
allocation of a registration number such motor vehicle is to carry
the same registration number throughout its life and utility even
when its ownership changes hands, its user is transferred to
different persons, its colour is changed or its shape is modified at
Human Rights Case No. 10842-P of 2018
28
any subsequent stage. Similarly, the FIR number allocated to a
criminal case is the number of that case in the police record and
till culmination of the case the said criminal case is to carry the
same number and is to be identified by that number alone. This by
itself is a sure indication of the scheme of the law that in respect of
an incident involving commission of a cognizable offence there is to
be only one FIR and every step taken during the investigation of
the case is to be with reference to that FIR. Rules 24.12 to 24.18
deal with Special Reports submitted and received by different
officers during the investigation of a case and Rule 24.17 reads as
follows:
“24.17. Continuation and final reports.-- (1) Each successive
special report in the same case shall bear the same number as
the first report and shall be distinguished by the addition of a
capital Roman letter in the order of the alphabet.
Illustration--
The first special report of the murder of X is No.
20. The next special report shall be numbered 20-A, the next 20-
B and so on. -------”
This Rule again makes it evident that the case and its number in
the police record remains the same whatever development may
take place during the investigation of the case and that is also true
of any new version advanced or any new set of culprits introduced
during the progress of the investigation.
14.
Chapter XXV of the Police Rules, 1934 deals with
‘Investigation’ and Rule 25.1 falling in that Chapter provides as
follows:
“25.1. Powers to investigate.-- (1) An
officer-in-charge
of
a
police station is empowered by Section 156, Criminal Procedure
Code to investigate any cognizable offence which occurs within
the limits of his jurisdiction.
(2)
He is also empowered under Section 157(1), Criminal
Procedure Code, to depute a subordinate to proceed to the spot to
investigate the facts and circumstances of the case and, if
necessary, to take measures for the discovery and arrest of the
offenders. -------”
This Rule shows that the power to investigate is relatable to the
offence and is not confined to the circumstances reported to the
Human Rights Case No. 10842-P of 2018
29
police through the first information reduced to writing as an FIR.
The first information only sets the ball rolling and according to this
Rule the investigation to follow is about “the facts and
circumstances of the case”, not just those reported by the first
informant but including any other information received through
any other informant or source. This aspect of the matter comes out
very clearly through Rule 25.2(3) which reads as under:
“(3)
It is the duty of an investigating officer to find out the
truth of the matter under investigation. His object shall be to
discover the actual facts of the case and to arrest the real offender
or offenders. He shall not commit himself prematurely to any view
of the facts for or against any person.”
This Rule should suffice to dispel any impression that investigation
of a case is to be restricted to the version of the incident narrated
in the FIR or the allegations leveled therein. It is quite evident from
this Rule that once an FIR is registered then the investigating
officer embarking upon investigation may not restrict himself to
the story narrated or the allegations leveled in the FIR and he may
entertain any fresh information becoming available from any other
source regarding how the offence was committed and by whom it
was committed and he may arrive at his own conclusions in that
regard. The final report to be submitted under section 173, Cr.P.C.
is to be based upon his final opinion and such opinion is not to be
guided by what the first informant had stated or alleged in the FIR.
It is not unheard of that sometimes in the final report submitted
under section 173, Cr.P.C. the first informant is put up before the
court as the actual culprit.
15.
The confusion prevailing in the matter of registration of
multiple FIRs in respect of the same offence stems from a
misunderstanding that an FIR is the version of the incident
reported to the police whereas the legal position is that an FIR to
be registered under section 154, Cr.P.C. is only an information
about commission of a cognizable offence and not an information
about the circumstances in which such offence was committed or
by whom it was committed. If the information supplied to the
Human Rights Case No. 10842-P of 2018
30
police not only reports commission of a cognizable offence but also
contains a story as to how and by whom the offence was
committed then such further information is just a version of the
informant and during the investigation the investigating officer is
free to entertain any number of versions advanced by any number
of persons and it is his duty “to discover the actual facts of the
case and to arrest the real offender or offenders. He shall not
commit himself prematurely to any view of the facts for or against
any person” as mandated by Rule 25.2(3) of the Police Rules, 1934
reproduced above. All subsequent or divergent versions of the
same occurrence or the persons involved therein are to be received,
recorded and investigated by the investigating officer in the same
“case” which is based upon the one and only FIR registered in
respect of the relevant “offence” in the prescribed book kept at the
local police station.
16.
Now we turn to the judgments rendered by this Court so far
on the issue of registration of multiple FIRs in respect of
commission of the same cognizable offence depicting different
versions of the same incident. In the case of Jamshed Ahmad v.
Muhammad Akram Khan and another (1975 SCMR 149) this Court
had found the High Court to be justified in refusing to order
registration of a second FIR because an FIR already stood
registered in respect of “the same transaction” and the case was
already under investigation.
17.
In the case of Kaura v. The State and others (1983 SCMR
436) this Court had categorically held that a case had already been
registered through an FIR and, therefore, registration of another
FIR “was not called for” merely because the subsequent
information supplied to the police contained a divergent version of
the same incident. It was observed by this Court that “the ball had
already been set rolling and the police was not only competent but
also duty bound to unearth the true facts and trace the real
culprits.”
Human Rights Case No. 10842-P of 2018
31
18.
The subsequent case of Wajid Ali Khan Durani and others v.
Government of Sindh and others (2001 SCMR 1556), however,
struck a different note and, therefore, the same requires a close
scrutiny. It was alleged in that case that the two FIRs already
registered with the local police in respect of the same incident “did
not reflect the true facts” and, therefore, another FIR ought to be
registered “disclosing the true facts of the incident” and in that
backdrop the High Court had ordered the local police to register a
third FIR in respect of the selfsame incident. When the said order
of the High Court was assailed before this Court it was upheld and
maintained simply by observing that “the learned High Court in
the circumstances of the case, was within its jurisdiction in giving
the direction to the police for registering another F.I.R. at the
instance of the aggrieved widows of the deceased. Moreover,
admittedly, since lodging of the third F.I.R., regular challan has
been submitted in the Court in which the petitioners have been
named as accused persons and the trial is yet to take place.” This
Court had gone on to observe that “Similarly, the contention that
the learned High Court has not followed the view expressed by this
Court in 1983 SCMR 436 is misconceived, as perusal of the
impugned judgment would also show that in the circumstances
pointed out in the judgment the learned High Court had correctly
appreciated the views expressed in several cases by the superior
Courts including the case referred to by the counsel in giving the
direction for registering another F.I.R.” A careful examination of
the said judgment handed down by this Court shows three things:
firstly, it was presumed without referring to any legal provision or
basis that the High Court had the jurisdiction to order registration
of a third FIR in respect of the same incident; secondly, the third
FIR had already been registered on the basis of the impugned order
passed by the High Court and upon completion of the investigation
on the basis of the third FIR a Challan had already been submitted
before the trial court for holding a regular trial of the accused
persons implicated through the third FIR; and, thirdly, the
judgment passed by this Court earlier on in the case of Kaura v.
The State and others (1983 SCMR 436) had not been correctly
Human Rights Case No. 10842-P of 2018
32
appreciated. We understand, and it is submitted with great
respect, that in that case this Court did not feel persuaded to
interfere in the matter primarily because the case had already
reached the trial court after completion of the investigation stage
and it was presumably on account of that development that this
Court had paid little attention to the legal issues involved in
registration of multiple FIRs in respect of the same incident. It,
thus, appears to us that the said judgment had proceeded on the
basis of its own peculiar facts and, therefore, the same could not
readily be treated as the law declared.
19.
The case of Mst. Anwar Begum v. Station House Officer, Police
Station Kalri West, Karachi and 12 others (PLD 2005 SC 297) was a
case in which the High Court had refused to order registration of a
second FIR regarding an incident in respect of which an FIR
already stood registered with the local police but this Court issued
such an order. In this case a second FIR containing a different
version was ordered by this Court to be registered because it was
found that “the veracity and truthfulness of F.I.R. lodged by
respondent Muhammad Yousuf, the Manager of the Company,
became highly doubtful and the petitioner was right in asking for
registration of another F.I.R. at her own version”. The investigation
of the case was still in progress when this Court had observed in
that case that the veracity and truthfulness of the FIR originally
registered was “highly doubtful” which observation, it is submitted
with deep reverence, was not only presumptuous but also
premature. Apart from that while issuing an order regarding
registration of a second FIR this Court had referred to the
judgment of this Court passed in the case of Wajid Ali Khan Durani
and others v. Government of Sindh and others (2001 SCMR 1556), it
had made no mention of the judgments rendered by this Court in
the cases of Jamshed Ahmad v. Muhammad Akram Khan and
another (1975 SCMR 149) and Kaura v. The State and others (1983
SCMR 436) and it had placed reliance upon the case of Muhammad
Ishaque v. S.P. Jaffarabad and another (PLJ 1998 Quetta 1)
decided by a High Court. Unfortunately no provision of the Code of
Human Rights Case No. 10842-P of 2018
33
Criminal Procedure, 1898 or of the Police Rules, 1934 was
discussed in that judgment and as a matter of fact no discussion
of the relevant law had taken place in the said judgment of this
Court at all.
20.
The last of the precedent cases from this Court is the case of
Ali Muhammad and others v. Syed Bibi and others (PLD 2016 SC
484) wherein the High Court had ordered registration of a second
FIR containing a different version of the same incident and this
Court had upheld that order of the High Court. In that judgment
this Court had observed in the very beginning that “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: ---”. With utmost respect, this Court
could have been more circumspect before making an observation
about misleading or incorrect nature of the facts asserted in the
original FIR especially when the stage of the case was premature
and the investigation of the case was still in progress. This Court
had then gone on to notice the case of Kaura v. The State and
others (1983 SCMR 436) but unfortunately the ratio decidendi of
that case was not even adverted to. It appears that the main
consideration persuading this Court in favour of registration of a
second FIR about the same incident was what was observed in the
following paragraph of the judgment:
“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 upon by the Court.---”
Human Rights Case No. 10842-P of 2018
34
It appears that the Court was not properly assisted on that
occasion and it was erroneously made to understand that the
police are to investigate the case only on the lines asserted in an
FIR and then it is to lead evidence before the trial court only in
terms of the accusations made in the FIR. As already noticed in the
preceding paragraphs of the present judgment, the scheme of the
law is totally the opposite of it and according to the same after
commencement of an investigation on the basis of an FIR the
investigation officer is to collect every possible information about
the facts and circumstances of the case, he is to receive or record
any information in that regard becoming available from any source
whatsoever, he is not to prematurely commit himself to any
particular version of the incident and after finding out the actual
facts the final report under section 173, Cr.P.C. is to be submitted
not in terms of the allegations leveled in the FIR but in accordance
with the actual facts discovered during the investigation.
21.
In the same judgment this Court had further observed as
follows:
“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 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.”
Human Rights Case No. 10842-P of 2018
35
In this paragraph of the judgment the scheme of the law did not
appear to be correctly presented before the Court and the Court
was led to understand that investigation of a case by the police is
to be driven exclusively or predominantly by the FIR originally
registered whereas the legal position, as already discussed by us
above, is to the contrary. As a matter of fact the scheme of the law
did not support the Court’s observation that the version of the first
informant advanced through his FIR is to “non-suit” any other
version of the same incident advanced by any other person or party
to the case. In the same vein, the reference made by the Court to
the so-called “ground realities”, a subjective notion, could have
been avoided while interpreting legal provisions and enunciating
the law.
22.
It was also observed by this Court in the same judgment
that:
“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 misled 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.---”
The first thing said in this paragraph was that in our society the
police officers are no longer “honest, God fearing and fair” and the
system of investigation is no longer “impartial and honest”. We feel,
with great regard, that making of such sweeping remarks or
recording of such pervasive observations about the police or any
other department of public service as a whole was unnecessary
besides being uncharitable. Interpretation of law by this Court
Human Rights Case No. 10842-P of 2018
36
ought not to be premised on damning generalizations which are
nothing but subjective. The second thing said in this paragraph
was that a subsequent FIR may be ordered to be registered “when
the Courts feel that due to mala fide, dishonest, colourful and
motivated acts or omissions, entire investigation of the crime has
been misled or it is going to be misled and on that account the
case of the prosecution is likely to fail”. What it meant was that at
such a premature stage of the case the Courts are to pass a value
judgment and record a finding that the original FIR lodged by a
person about commission of a cognizable offence is “mala fide,
dishonest, colourful and motivated” and that the “entire
investigation of the crime has been misled or it is going to be
misled and on that account the case of the prosecution is likely to
fail”. Such an approach sets up the Courts as monitors or
supervisors of the investigation, a role which the law forbids and
the precedent loathes. The third thing said in this paragraph was a
word of caution according to which “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.” While
making these observations no guidance had been provided as to
how “extreme care and caution” is to be exercised, as to how the
jurisdiction is not to be exercised “in a routine manner” and as to
how, without delving deep into the facts and circumstances of a
case at the investigation stage, the Courts are to detect, decipher
or fathom the motivation on the part of the person seeking
registration of another FIR according to his own version of the
incident.
23.
Towards the end of that judgment this Court had observed
as under:
“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
Human Rights Case No. 10842-P of 2018
37
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.”
It appears that this Court was heavily influenced by the assertion
of the party seeking registration of a second FIR that “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.”
Acceptance of such an assertion by this Court indicates that the
Court laboured under an impression that any other version of the
same incident advanced by any other party can be brought on the
record of the investigation only through an FIR to be registered
under section 154, Cr.P.C. and such divergent version can be
investigated by the police only after registration of a separate FIR
in that regard. Such an impression entertained by this Court on
that occasion, it is submitted in all humility, was not correct and
the same ran counter to the scheme of the law referred to in the
earlier part of the present judgment.
24.
The discussion made above leads us to an inescapable
conclusion that the judgments delivered by this Court in the cases
of Jamshed Ahmad v. Muhammad Akram Khan and another (1975
SCMR 149) and Kaura v. The State and others (1983 SCMR 436)
came closer to the scheme of the relevant law whereas the
judgments handed down by this Court in the cases of Wajid Ali
Khan Durani and others v. Government of Sindh and others (2001
SCMR 1556), Mst. Anwar Begum v. Station House Officer, Police
Station Kalri West, Karachi and 12 others (PLD 2005 SC 297) and
Ali Muhammad and others v. Syed Bibi and others (PLD 2016 SC
484) drifted away from that scheme and in fact contributed
towards disturbing and distorting the same and that had been
occasioned mainly due to the reason that the Court had not been
assisted on those occasions properly and the scheme of the law on
Human Rights Case No. 10842-P of 2018
38
the subject with reference to the Code of Criminal Procedure, 1898
and the Police Rules, 1934 had not been brought to its notice at
the time of deciding those cases.
25.
During the course of hearing of this petition we had inquired
from the petitioner as to why she was insisting upon registration of
a separate FIR in respect of her version of the incident especially
when she had already instituted a private complaint containing her
version of the incident and the accused persons in her private
complaint had already been summoned by the trial court to face a
trial and a Charge had been framed against them. In response to
that query the petitioner had categorically stated that she wanted
the accused persons in her version of the incident to be arrested
and recoveries to be affected from them which was not possible
through the medium of a private complaint. Such understanding of
the law on the part of the petitioner, which understanding is also
shared by a large section of the legal community in our country,
has been found by us to be erroneous and fallacious. By virtue of
the provisions of section 202(1), Cr.P.C. a court seized of a private
complaint can “direct an inquiry or investigation to be made by any
Justice of the Peace or by a police officer or by such other person
as it thinks fit”. If in a given case the court seized of a private
complaint deems it appropriate to direct an investigation to be
carried out in respect of the allegations made then the powers
available during an investigation, enumerated in Part V, Chapter
XIV of the Code of Criminal Procedure, 1898 read with section
4(1)(l) of the same Code, include the powers to arrest an accused
person and to affect recovery from his possession or at his
instance. Such powers of the investigating officer or the
investigating
person
recognize
no
distinction
between
an
investigation in a State case and an investigation in a complaint
case.
26.
The impression entertained by the petitioner that if a
separate FIR is registered in terms of her version of the incident
then the accused persons nominated by her would automatically
Human Rights Case No. 10842-P of 2018
39
be arrested has been found by us to be not only misconceived but
also discomforting. The law does not permit arrest of a person
merely on the basis of a bald allegation levelled against him. The
powers of the police to arrest a person accused of commission of
an offence are provided in sections 54 and 55, Cr.P.C. and some
provisions in the Police Rules, 1934 also deal with the same.
Writing for a Full Bench of the Lahore High Court, Lahore in the
case of Khizer Hayat v. Inspector-General of Police (Punjab), Lahore
and seven others (PLD 2005 Lahore 470) one of us (Asif Saeed
Khan Khosa, ACJ) had observed on the subject as follows:
“20.
------- The powers of arrest in both the said sections are
the same but they relate to different situations. In the case of
Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore (1993
P.Cr.L.J. 91) this Court had an opportunity to attend to the
requirements of section 54, Cr.P.C. and it was observed by this
Court as follows:
“Under the provisions of clause first of section 54,
Cr.P.C., the Police Officer can arrest a person in
the following four conditions:-
(a)
The accused is involved in a cognizable
offence;
(b)
Against the accused a reasonable complaint
has been made for the said offence;
(c)
A credible information is received by the
Police Officer that he is involved in a cognizable
offence; and
(d)
Reasonable suspicion exists that the said
person is involved in the cognizable offence.
The expression ‘credible information’ is not
a technical legal expression importing that the
information
must
be
given
upon
oath
or
affirmation. It includes any information which in
the judgment of the officer to whom it is given
appears entitled to credit in the particular instance
and which he believes. The credible information
mentioned therein need not be in writing. -------
The object of section 54, Cr.P.C. is to give
the widest powers to the Police Officers to arrest
the persons who are involved in cognizable cases
and the only limitation placed upon their power is
the necessary requirement of reasonability and
credibility to prevent the misuse of the powers by
the Police Officers.
As the powers mentioned above given to the
Police
Officers
under
section
54,
Cr.P.C.
encroaches upon the liberty of a person, this wide
power has to be construed, interpreted and defined
strictly. A general definition of what constitutes
reasonableness in a complaint or suspicion and
credibility of information cannot be given. Both
must depend upon the existence of tangible legal
evidence within the cognizance of the Police Officer
and, he must judge whether the evidence is
sufficient to establish the reasonableness and
Human Rights Case No. 10842-P of 2018
40
credibility of the charge, information or suspicion.
It has been laid down by this Court in 1992
P.Cr.L.J. 131: ‘An arrest which is beyond the
provisions of section 54, Cr.P.C. would be illegal
and void per se’.”
Prior to that in the case of Muhammad Shafi v. Muhammad Boota
and another (PLD 1975 Lahore 729) this Court had observed that
“The words “reasonable suspicion” (in section 54,
Cr.P.C.) do not mean a mere vague surmise, but a
bona fide belief on the part of the Police Officer that
an offence has been committed or is about to be
committed. Such belief has to be founded on some
definite averments tending to show suspicion on
the person arrested. --- The action of a police
Officer under section 54, Cr.P.C. must be guarded
inasmuch as he should first satisfy himself about
the credibility of the information which, as stated
already, should relate to definite facts. It was not
at all the intention of the law-giver that the Police
Officer should at his own sweet will arrest anybody
he likes, although he may be a peace loving citizen
of the country.”
The Hon’ble Sindh High Court had also observed in the case of
Muhammad Siddiq v. Province of Sindh through Home Secretary,
Karachi and 2 others (PLD 1992 Karachi 358)(DB) that
“It will thus be seen that the first sub-clause of
section 54(1), Cr.P.C. a person can be arrested
without a warrant in the following circumstances:-
(a)
If he be concerned in any cognizable
offence.
(b)
Against whom a reasonable complaint has
been made.
(c)
Against whom credible information has
been
received
that
he
is
concerned
with
commission of such offence.
(d)
If reasonable suspicion exists about him
being so concerned.
It is true that a Police Officer has been
conferred sufficient powers to arrest a person in
the investigation of a cognizable offence if he be
concerned with commission of such offence. But
such a power can be exercised only in those cases
where a Police Officer is possessed of some
evidence indicating involvement of a person under
the four situations mentioned in section 54(1),
Criminal Procedure Code.”
In the case of Mst. Razia Pervez and another v. The Senior
Superintendent of Police, Multan and 5 others (1992 P.Cr.L.J. 131)
this Court had observed as follows:
“No doubt, the Police Officer can arrest a person
where a reasonable suspicion exists of his having
been concerned in any cognizable offence but
power given to the Police Officer under this section
(section 54, Cr.P.C.) being an encroachment on the
liberty of a citizen is not unlimited. It is subject to
the condition stated therein. An arrest purporting
to be under this section would be illegal unless the
circumstances specified in the various clauses of
Human Rights Case No. 10842-P of 2018
41
the section exist. This section does not give free
licence to a Police Officer to arrest anybody he may
like. In order to act under this section, there must
be a reasonable suspicion of the person to be
arrested having been concerned in a cognizable
offence. An arrest of a citizen in a reckless
disregard of the conditions imposed in this section
would make the arrest and detention of the subject
illegal and the Police Officer arresting or detaining
the subject would be exposed to prosecution under
the Pakistan Penal Code and also for departmental
action under the relevant rules.”
The above mentioned precedent cases clearly show that an arrest
of a person in connection with a criminal case is not to be a
matter of course and the power to arrest is conditional upon
fulfillment of the requisite legal requirements.
21.
One of the cardinal principles of criminal law and
jurisprudence is that an accused person is presumed to be
innocent until proved guilty before a court of law. However, of late
we have noticed a growing tendency on the part of the
complainant party to insist upon arrest of an accused person
nominated by it in the F.I.R. and an increasing willingness, nay
eagerness, on the part of the investigating officer of a criminal
case to affect arrest of the accused person even before initiating
or launching a proper investigation of the allegations levelled in
the F.I.R.. Such an approach has been found by us to be
absolutely against the spirit of the relevant law, to be wrought
with inherent dangers to cherished liberty of citizens who may
ultimately be found to be innocent and to amount to putting the
cart before the horse! It had been observed by the Hon’ble
Supreme Court of Pakistan in the case of Brig. (Retd.) F. B. Ali and
another v. The State (PLD 1975 Supreme Court 506) that
“In my view the mere lodging of an information
does not make a person an accused nor does a
person against whom an investigation is being
conducted by the police can strictly be called an
accused. Such a person may or may not be sent up
for trial. The information may be found to be false.
An accused is, therefore, a person charged in a
trial. The Oxford English Dictionary defines an
“accused” as a person “charged with a crime” and
an “accusation” as an “indictment”. Aiyer in his
Manual of Law Terms also gives the same meaning.
I am of view, therefore, that a person becomes an
accused only when charged with an offence. The
Criminal Procedure Code also uses the word
“accused” in the same sense, namely; a person
over whom a Court is exercising jurisdiction.”
Even the Hon’ble Federal Shariat Court had remarked in the case
of Mst. Asho and 3 others v. The State (1987 P.Cr.L.J. 538) that
“Mere leveling accusations against a person in
F.I.R. does not make him an accused person
unless and until some evidence implicating such
person in the commission of the offence is
available.”
We may add in this context that a general impression entertained
by some quarters that an arrest of a suspect or an accused
person is necessary or sine qua non for investigation of a crime is
Human Rights Case No. 10842-P of 2018
42
misconceived and the same portrays scant knowledge of the
relevant statutory provisions. We may briefly allude to such
statutory provisions here. Section 46, Cr.P.C. provides as to how
an arrest is to be made, section 54, Cr.P.C. deals with arrest by a
police officer without a warrant, section 55, Cr.P.C. pertains to
arrest of vagabonds, etc. by an officer in charge of a Police
Station, section 59, Cr.P.C. caters for a situation where a private
person may affect an arrest and section 151, Cr.P.C. authorizes a
police officer to arrest a person in order to prevent commission of
a cognizable offence. Section 169, Cr.P.C. visualizes a situation
where a suspect may be released if the investigating officer finds
no sufficient evidence or reasonable ground for suspicion against
him. The parameters of such arrests are essentially those already
discussed in the above mentioned precedent cases. According to
Article 4(1)(j) of the Police Order, 2002 it is a duty of every police
officer to “apprehend all persons whom he is legally authorised to
apprehend and for whose apprehension sufficient grounds exist”.
Rules 24.1, 24.4 and 24.7 of the Police Rules, 1934 (which are
still in vogue due to the provisions of Article 185 of the Police
Order, 2002) clearly contemplate situations where an information
received by the police regarding commission of a cognizable
offence may be doubted or even found false. Rule 25.2(1) of the
Police Rules authorizes an investigating officer to associate “any
person” with the investigation and Rule 25.2(2) categorically
provides that “No avoidable trouble shall be given to any person
from whom enquiries are made and no person shall be
unnecessarily detained”. Rule 25.2(3) clinches the issue by
clarifying that “It is the duty of an investigating officer to find out
the truth of the matter under investigation. His object shall be to
discover the actual facts of the case and to arrest the real offender
or offenders. He shall not commit himself prematurely to any view
of the facts for or against any person” (emphasis has been
supplied by us). As if this were not enough, Rule 26.1 emphasizes
that “Section 54, Code of Criminal Procedure, authorizes any
police officer to arrest without a warrant any person who has
been concerned in any cognizable offence or against whom a
reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists, of his having
been so concerned. The authority given under this section to the
police to arrest without a warrant is, however, permissive and not
obligatory. Whenever escape from justice or inconvenient delay is
likely to result from the police failing to arrest, they are bound to
do so; but in no other cases. The law allows a police officer to
apply to a magistrate for a warrant or a summons instead of
making the arrest immediately, and this discretion shall be
exercised whenever possible and expedient. The law also allows a
police officer in any bailable case to take security under section
170, Criminal Procedure Code from an accused person to appear
before a magistrate without first arresting him” (emphasis has
been supplied by us). Rules 26.2 and 26.9 provide further
guidelines to the police officers involved in investigation of crimes
requiring them not to unnecessarily interfere with the liberty of
suspects “until the investigation is sufficiently complete” and “the
facts justify arrest”. According to Rule 26.1 the facts justifying an
immediate arrest may include a possibility of the suspect
escaping from justice or inconvenient delay likely to result from
the police failing to arrest.
22.
All the statutory provisions and the precedent cases
mentioned above manifestly point towards the intention of the law
that a suspect is not to be arrested straightaway upon
registration of an F.I.R. or as a matter of course and that, unless
the situation on the grounds so warrants, the arrest is to be
deferred till such time that sufficient material or evidence
Human Rights Case No. 10842-P of 2018
43
becomes available on the record of investigation prima facie
satisfying the investigating officer regarding correctness of the
allegations levelled by the complainant party against such
suspect or regarding his involvement in the crime in issue. If the
law itself requires an investigating officer to be generally slow in
depriving a person of his liberty on the basis of unsubstantiated
allegations then insistence by the interested complainant party
regarding his immediate arrest should not persuade the
investigating officer to abdicate his discretion and jurisdiction in
the matter before the whims or wishes of the complainant party. -
------ It must always be remembered that delaying the arrest till
after formation of an opinion regarding prima facie correctness of
the allegation against a suspect goes a long way in deterring false,
frivolous and motivated complaints and also that there may not
be any adequate recompense or reparation for an unjustified
arrest. It would be preposterous and a mockery of justice if a
person may be deprived of his liberty first and later on the
allegations against him may be found by the arresting agency
itself to be bogus, trumped up or false. That surely would be, as
observed above, putting the cart before the horse.”
Enunciation of the law in the above mentioned case ought to
suffice for the purpose of dispelling the impression entertained by
the petitioner in the present case that registration of a second FIR
in terms of her version of the incident would automatically entail
arrest of the accused persons nominated by her.
27.
As a result of the discussion made above we declare the legal
position as follows:
(i)
According to section 154, Cr.P.C. an FIR is only the first
information to the local police about commission of a cognizable
offence. For instance, an information received from any source that
a murder has been committed in such and such village is to be a
valid and sufficient basis for registration of an FIR in that regard.
(ii)
If the information received by the local police about
commission of a cognizable offence also contains a version as to
how the relevant offence was committed, by whom it was
committed and in which background it was committed then that
version of the incident is only the version of the informant and
nothing more and such version is not to be unreservedly accepted
by the investigating officer as the truth or the whole truth.
Human Rights Case No. 10842-P of 2018
44
(iii)
Upon registration of an FIR a criminal “case” comes into
existence and that case is to be assigned a number and such case
carries the same number till the final decision of the matter.
(iv)
During the investigation conducted after registration of an
FIR the investigating officer may record any number of versions of
the same incident brought to his notice by different persons which
versions are to be recorded by him under section 161, Cr.P.C. in
the same case. No separate FIR is to be recorded for any new
version of the same incident brought to the notice of the
investigating officer during the investigation of the case.
(v)
During the investigation the investigating officer is obliged to
investigate the matter from all possible angles while keeping in
view all the versions of the incident brought to his notice and, as
required by Rule 25.2(3) of the Police Rules, 1934 “It is the duty of
an investigating officer to find out the truth of the matter under
investigation. His object shall be to discover the actual facts of the
case and to arrest the real offender or offenders. He shall not
commit himself prematurely to any view of the facts for or against
any person.”
(vi)
Ordinarily no person is to be arrested straightaway only
because he has been nominated as an accused person in an FIR or
in any other version of the incident brought to the notice of the
investigating officer by any person until the investigating officer
feels satisfied that sufficient justification exists for his arrest and
for such justification he is to be guided by the relevant provisions
of the Code of Criminal Procedure, 1898 and the Police Rules,
1934. According to the relevant provisions of the said Code and the
Rules a suspect is not to be arrested straightaway or as a matter of
course and, unless the situation on the ground so warrants, the
arrest is to be deferred till such time that sufficient material or
evidence becomes available on the record of investigation prima
facie satisfying the investigating officer regarding correctness of the
Human Rights Case No. 10842-P of 2018
45
allegations levelled against such suspect or regarding his
involvement in the crime in issue.
(vii)
Upon conclusion of the investigation the report to be
submitted under section 173, Cr.P.C is to be based upon the
actual facts discovered during the investigation irrespective of the
version of the incident advanced by the first informant or any other
version brought to the notice of the investigating officer by any
other person.
28.
As an FIR had been registered in the present case regarding
the same occurrence and the offences allegedly committed therein
and upon completion of the investigation of the case a Challan had
been submitted before the trial court and as the present petitioner
had instituted a private complaint depicting her version of the
same incident and after summoning of the accused persons
nominated therein a trial is already in progress in connection with
that private complaint, therefore, ordering registration of another
FIR based upon the petitioner’s version of that very incident is not
legally warranted. This petition is, thus, dismissed.
29.
Before parting with this judgment we are constrained to
observe that the occurrence in the present case had taken place
more than a decade ago and the trial court is seized of the trial of
this case for the last many years but unfortunately no significant
progress has been made by the trial court in the trial of the case so
far. The delay caused and the apathy displayed in the matter has
been found by us to be shocking, to say the least. The trial court
is, therefore, directed to conclude the trial of this case within the
next four months without fail and then to submit a report in that
regard before the Registrar of this Court for our perusal in
Chambers.
30.
The office of this Court shall send copies of this judgment to
the Inspectors-General of Police of all the Provinces and the
Islamabad Capital Territory who are directed to apprise all the
Human Rights Case No. 10842-P of 2018
46
Station House Officers of all the Police Stations in the country of
the law declared by this Court through the present judgment and
to make sure that the law so declared is followed in its letter and
spirit.
(Asif Saeed Khan Khosa)
Acting Chief Justice
(Mushir Alam)
Judge
(Maqbool Baqar)
Judge
(Manzoor Ahmad Malik)
Judge
(Sardar Tariq Masood)
Judge
(Mazhar Alam Khan Miankhel)
Judge
(Sajjad Ali Shah)
Judge
Announced in open Court at Islamabad on 23.05.2018.
(Asif Saeed Khan Khosa)
Acting Chief Justice
Islamabad
May 23, 2018
Approved for reporting.
Arif
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE IJAZ UL AHSAN
Human Rights Case No.11827-S of 2018
IN THE MATTER REGARDING SELLING OF NATIONAL ASSETS
INCLUDING PIA AT THROWAWAY PRICE.
In attendance:
Mr. Anwar Mansoor Khan,
Attorney General for Pakistan
Syed Asghar Haider, P.G. NAB
Mr. Farid-ul-Hassan, Spl. Prosecutor, NAB
Syed Nayyar Abbas Rizvi, Addl.A.G.P.
Mr. Naeem Bukhari, ASC
Dr. Musharaf Cyan, C.E.O., PIACL
(For PIA)
Ms. Asma Bajwa, Chief HR Officer, PIA
Mr. Bilal Hassan Minto, ASC
(For Mr. Shujaat Azeem)
Mr. Umar Lakhani, ASC
(In HRMA No.249/2018)
Raja Ikram Amin Minhas, ASC
(in HRMA-534/2018)
Kh. Azhar Rasheed, ASC
Mr. Junaid Younis, Ex. M.D. PIACL
Mr. Nadeem Yousafzai, Ex-M.D. PIACL
Sardar Mehtab Abbasi, Ex- Advisor to PM on
Aviation
Muhammad Saeed Tawana, Director Legal for
Auditor General
Mr. Nayyar Hayat, Ex. M. D. PIACL
Date of hearing: 03.09.2018
ORDER
IJAZ UL AHSAN, J-. This matter emanates from
an application addressed to the Chief Justice of Pakistan
wherein serious allegations of favoritism and cronyism were
leveled against top officials of the Pakistan International
Airlines Corporation (PIAC). It was alleged that these officials
were holding office without lawful authority, were bent upon
selling national assets (PIAC) at throwaway prices, had closed
Human Rights Case No.11827-S of 2018 �
2
down profitable routes of the national airlines and given the
same to other airlines, who were operating on the said routes
and generating revenues that could have been earned by PIA
by operating flights on these routes. In light of these
allegations we found it expedient to take up the matter having
come to the conclusion that it was a matter of public interest,
involved fundamental rights of citizens and their enforcement.
It was then fixed as Human Rights Case No.11827-S/2018
and notices were issued to all concerned to apprise the Court
about the affairs of the PIAC.
2.
In this case an application was also filed by the
Pakistan International Senior Staff Association (PISSA) which
was numbered as HRMA No.249/2018. PISSA challenged the
appointment of the Chief Executive Officer of PIAC namely,
Mr. Musharraf Rasool Cyan and other top management
officials of the PIAC. Notices were issued on 12.04.2018 and
vide order dated 08.05.2018 in exercise of its power to issue
writs of quo warranto, this Court directed these top officials to
file their respective replies so as to show, under what
authority of law they purported to hold public offices. In
pursuance thereof Mr. Musharraf Rasool Cyan filed a concise
statement wherein, the procedure adopted for his
appointment to the post of CEO of PIAC as well as his
eligibility to hold the same was explained.
3.
At the very outset we may observe that for the
purposes of issuance of a writ of quo warranto, it has been
held by this Court in several of its pronouncements that the
Human Rights Case No.11827-S of 2018 �
3
person laying information before the Court need not be an
aggrieved person. Hence, we do not feel the need to go into
this aspect of the law as highlighted by the learned ASC for
Mr. Cyan. The power of this Court to entertain such petitions
and pass appropriate orders is well known, well recognized
and settled. Reference is made to Farzand Ali v. Province of
West Pak. (PLD 1970 SC 98); Muhammad Naseem Hijazi v.
Province of Punjab (2000 SCMR 1720); and Hamdullah v.
Saifullah Khan (PLD 2007 SC 52).
4. �The PIAC is a body corporate, established under
the Pakistan International Airlines Corporation Act, 1956 (The
Act). By way of the Pakistan International Airlines
Corporation (Conversion) Act, 2016 the status of the
Corporation was converted into a Public Limited Company
incorporated under the Companies Ordinance, 1984. The
Chairman of the Corporation as per Section 8 of the Act is
appointed by the Federal Government and is also the Chief
Executive of the Corporation. As a result of the Conversion
Act, 2016, the office of the Chairman has been abolished.
Now the post vests with the Chief Executive Officer (CEO).
The appointment of the CEO is made by the Federal
Government on the recommendation of the Board of
Directors. The relevant law, under which appointments to
Public Sector Companies such as the PIAC are made, is the
"Public Sector Companies (Corporate Governance) Rules,
2013" (the Rules). It is not disputed that the said rules are
applicable to PIAC.
Human Rights Case No.11827-S of 2018 �
4
5. �Rule 2A of the Rules 2013 requires the
appointments of CEO and Directors' of Public Sector
Companies to conform to the 'fit and proper criteria' and in
order to determine which, criteria have been spelt out. The
appointment of the CEO however, is specifically dealt with
under the Public Sector Companies (Appointment of Chief
Executive) Guidelines, 2015 issued by the Securities and
Exchange Commission of Pakistan (SECP). For the purposes
of the instant matter we intend to confine ourselves to the
appointment process of the CEO and to that effect the step by
step process as required by the law (Schedule I of the
Guidelines, 2015), is paraphrased in the table below:
Sr.
Steps
Requirement
I.
Development of Job profile
Developing a job description in light of the
requirements and the 'fit and proper' criteria
2.
Advertisement �
for �
the
position
Publishing an advertisement in print media
and posting the same on the website
3.
Short-listing process
Board is to shortlist applicants from three
sources:
•
Those �
shortlisted �
through
database
•
Those �
who �
have �
applied
against the advertisement.
•
Those �
derived �
through
succession plan
4.
Evaluation of Candidates
The �
Board �
is �
required �
to �
Evaluate �
the
candidates on the fit and proper test and
arrange due diligence from all the concerned
govt. departments/agencies for e.g. SECP,
FBR, NADRA, SBP, HEC etc
5.
Interviewing Process
The �
Board �
shall �
conduct �
preliminary
interview �
of �
the �
candidates �
taking �
into
account numerous factors as enumerated in
Rule 5 of the 1st Schedule
6.
Recommendations by the
Board to the Competent
Authority
Three �
candidates �
are �
then �
to �
be
recommended by the Board to the Ministry
(Aviation Ministry) and if the Ministry is not
in concurrence with any of the candidates,
reasons should be assigned thereof and the
Board may either re-evaluate the candidates
from the pool of available applicants or
reinitiate the appointment process.
7.
Appointment
After concurrence of the competent authority
the Board shall appoint the Chief Executive
Human Rights Case No.11827-S of 2018 �
5
6. �Step four, as is discernable from the table above,
pertains to evaluation of the candidates on the 'fit and proper
criteria' which is spelt out both in the Rules of 2013 as well
as the Guidelines referred to above (2nd Schedule of the
Guidelines, 2015). Candidates aspiring for the position of
CEO must conform to the 'fit and proper' test. It has been so
emphasized by the SECP through various rules, regulations,
circulars and pronouncements as well as the law for
appointment against top management positions of Public
Sector Companies. Therefore, it is fundamentally important
that evaluation of applicants for the said post, in terms
thereof, is properly and meticulously conducted, in an
impartial and unbiased manner.
"Fit and Proper Criteria for Appointment as Chief Executive of a
Public Sector Company
1. In order to determine whether a candidate proposed to be appointed as
a chief executive of a public sector company is fit and proper for the
position, the following factors shall be taken into consideration:
(1)
Competence and capability - he must have the necessary
skills, experience, ability and commitment to carry out the
role efficiently and effectively.
(2)
Probity, personal integrity and reputation - he must
possess personal qualities such as honesty, integrity,
diligence, independence of mind and fairness, and has the
ability to represent a cohesive vision and strategy to all.
Financial integrity - he must be capable to manage his
debts or financial affairs prudently.
2. The Board of the public sector company shall also ensure that that the
person is not ineligible to act as a chief executive pursuant to section 201
read with section 187 of the Companies Ordinance, 1984.
3. The assessment of the above criteria shall have regard to the
considerations set out below:
(1) Competence and Capability:
(a) �
Competence and capability are demonstrated by a
person who possesses the relevant competence,
experience and ability to understand the technical
requirements of the business, the inherent risks and
the management process required to perform his
role effectively as a chief executive.
(3)
Human Rights Case No.11827-S of 2018 �
6
(b)
In assessing a person's competence and capability,
the appointing authority shall consider matters
including, but not limited to the following:
whether the person has the appropriate
qualification, training, skills, practical
experience and commitment to effectively
fulfill the role and responsibilities of the
position; and
whether the person has satisfactory past
performance or expertise in the nature of the
business being conducted.
(c)
To undertake the aforesaid assessment effectively,
the following parameters are prescribed for
consideration:
(i) He must
I. �
Possess a graduate degree from a
well-reputed institute or such other
professional qualification relating to
the principle line of business of the
public sector company, including
manufacturing, mining, science,
technology, �
agriculture, �
social
science, or any other field
commensurate to the job, or
77. �
Be a member of a recognized body of
professional accountants, or
Be a recognized businessman or
professional with a postgraduate
degree in business administration or
public administration or finance or
commerce or marketing or equivalent;
and
(ii)
He must possess demonstrated experience
of not less than ten years:
I.
in governance or business administration or
public administration or finance or commerce
or marketing or any other field
commensurate to the job in significant
organizations with a commercial orientation,
Or
II.
as chief executive or at a senior management
level in similar organizations that have
commercial attributes, or
III.
at senior positions in relevant professional
areas including, inter-alia, science,
technology, finance, law, business,
agriculture, social sciences, etc., or
IV.
in community or professional organizations;
or
V.
at the level of member of governing body of a
professional institute or as a head of
department.
(2) Probity, Personal Integrity and Reputation:
(a) �
Probity, personal integrity and reputation are values
that are demonstrated over time. These attributes
Human Rights Case No.11827-S of 2018 �
7
demand a disciplined and on-going commitment to
high ethical standards.
(b) �
In assessing a person's level of probity, integrity
and reputation to hold a position of a chief
executive, the appointing authority shall consider
matters including, but not limited to the following:
whether the person is or has been subject to
any adverse findings or any settlement in
civil/ criminal proceedings particularly with
regard to investments, formation or
management of a company or body
corporate, or the commission of financial
business misconduct, fraud, financial crime,
default in payment of taxes or statutory
dues, etc.;
(ii)
whether the person is or has been
removed/ dismissed in the capacity of an
employee, director/ chairman or from a
position of trust, fiduciary appointment or
similar position because of issues arising on
account of his misconduct;
(iii)
whether the person is or has, directly or
indirectly, i.e. through his spouse or minor
children, been engaged in any business
which is of the same nature as and directly
competes with the business carried on by
the company of which he is the chief
executive or by a subsidiary of such
company;
(iv)
whether the person has contravened any of
the requirements and standards of a
regulatory body, professional body,
government or its agencies;
(v)
whether the person, or any business in
which he has a controlling interest or
exercises significant influence, has been
disciplined, suspended or reprimanded by a
regulatory or professional body, a court or
tribunal, whether publicly or privately;
(vi)
whether the person has been engaged in
any business practices which are deceitful,
oppressive or otherwise improper (whether
unlawful or not), or which otherwise reflect
discredit on his professional conduct;
(vii)
whether the person has been associated as
a partner or director with a company,
partnership or other business association
that has been refused registration,
authorization, membership or a license to
conduct any trade, business or profession, or
has had that registration, authorization,
membership or license revoked, withdrawn
or terminated;
(viii)
whether the person has been a director,
partner or chief executive of any company,
partnership or other business association
which is being or has been wound up by a
court or other authority competent to do so
within or outside Pakistan, or of any
licensed institution, the license of which has
been revoked under any law;
Human Rights Case No.11827-S of 2018 �
8
whether the person is free from any
business or other relationship which could
materially pose a conflict of interest or
interfere with the exercise of his judgment
when acting in the capacity of a director or
chief executive or member of a governing
body which would be disadvantageous to
the interest of the public sector company;
and
(x) �
whether the person is a Pakistani citizen or
a foreign national or both.
(3) Financial Integrity:
(a) �
Financial integrity is demonstrated by a person who
manages his own financial affairs properly and
prudently.
(b) �
In assessing a person's financial integrity, the
appointing authority shall consider all relevant
factors, including but not limited to the following:
whether such person's financial statements
or record including wealth statements or
income tax returns or assessment orders are
available;
(ii)
whether the latest Credit Information Bureau
report of the person shows no overdue
payments or default to a financial institution;
Provided that such a person will be treated
as a defaulter if he has failed to repay his
loan exceeding one million rupees to a
financial institution or is a defaulter of a
stock exchange.
(iii)
whether the person has been and will be
able to fulfil his financial obligations,
whether in Pakistan or elsewhere, as and
when they fall due; and
(iv)
whether the person has been the subject of a
judgment debt which is unsatisfied, either in
whole or in part, whether in Pakistan or
elsewhere.
(c) �
The fact that a person may be of limited financial
means does not in itself, affect the person's ability
to satisfy the financial integrity criteria. 4. While
making appointment of chief executive to a public
sector company, the appointing authority shall
conform to a merit-based selection procedure and
shall also give due consideration to the following:
(a)
Sectoral expertise
(b)
Organizational awareness;
(c)
An understanding of the role of the
government as a shareholder;
(d)
Financial literacy and business acumen,
irrespective of the professional background;
(e)
A knowledge of the statutory responsibilities
of a chief executive;
The capability for a wide perspective on
issues; and
(g) �
Leadership qualities."
Human Rights Case No.11827-S of 2018 �
9
7.
In addition to the criteria for appointment of CEO
the Rules 2013 provide for the Responsibilities, powers and
functions of the Board of Directors of a public limited
company. It is clear from the language thereof that the Board
owes the company and its stakeholders a fiduciary duty,
performance whereof is solely for the best interests of the
company. Rule 5(2) makes the Board responsible for the
planning, succession and appointment of the Chief Executive
of the company and in doing so it has to evaluate the
potential candidates on the 'fit and proper criteria' as
reproduced above. It cannot be over emphasized that in
undertaking such evaluation, the board must act
independently, transparently and in a totally impartial and
unbiased manner so as to select the best and most suitable
candidate purely and strictly on merit.
8.
Apart from informing the stakeholders of all the
material events the Board has been mandated to create a
`code of conduct' for functioning of the Board as well as all
senior and/or junior management of the company. Strict
compliance with the fundamental principles of probity,
propriety, objectivity, integrity and honesty has been cast
upon the Board so as to make sure that the public assets are
not plundered or that no situation entailing a conflict of
interest catering to personal benefit, or vested or political
interest arises. To this end all the directors are required to
declare their interests in the shape of a 'register of interests'
coupled with a declaration to the effect that they would not
Human Rights Case No.11827-8 of 2018 �
10
accept any compensation, remuneration or other benefits in
any shape or form, on any account, apart from the
remuneration that they receive from the company. The Board
is also required to formulate policies to minimize corruption,
identification and monitoring of risks, procurement of goods
as well as services, including but not limited to acquisition of
assets along with disposal of these assets and other
investments. Even the services rendered by the company as a
public service obligation have to be quantified whereafter
appropriate compensation is requested from the Government.
9.
In the above backdrop, we have carefully
examined the process and various stages which Mr. Cyan's
appointment went through or ought to have gone through
under the law and did not. We also directed Mr. Cyan and his
counsel to define and justify his appointment. He was
specifically confronted with the allegations and given ample
opportunity to explain the deviations from law and procedure
which had prima facie occurred in the process of his
appointment.
10.
The irregularities and illegalities in the
appointment of Mr. Cyan, as alleged in HRMA No.249/2018
and the replies thereto given by Mr. Cyan, are reproduced in
the table below:
Allegations
Reply of Mr. Cyan
Mr. Cyan was a staff officer of
Mr. Mehtab Abbasi (Advisor to
PM on Aviation) in 1998 and
was granted undue favour
Denied that he was appointed at the behest of
Mr. Abbasi
He has no aviation industry
experience �
and �
his �
basic
degree is MBBS.
Denied that his basic degree is MBBS.
PIA, the national airline of Pakistan, Is implementing. Its focused revive/ strategy to steer the company on path of growth and success.
The airline requires a highly experienced, dynamic and passionate professional with strong operational, financial end commercial acumen
to be hired as a full time Chief Executive on contract basis. The Chief ENCCUtkat position shall be the Fecal position to implement the
turnaround strategy for the national carrier.
The Meal candidate IS required to share a passion for reshaping Pit and bring It to stand in the league of rigger national airlines. The
selected person-shall be required to develop and lead a major Change Management Program re address PIACI. financial, operational,
commercial end cultural turn-around including goidIng and motivating its people to deliver their best performance, as a team. •
The sucsessiul candidate will also be expected to hove excels/int people management and communication skills with a 'cantles' attitude.
CHIEF EXECUTIVE
a.
EDUCATIONAL QUALIFICATIONS:
I- Possess a graduate degree from a well-reputed institute or
such other, professional qualification relating to the principle
,Tine of aviation business.
oil
ills De a recognized OusineSsman or professional with a
,Postgraduate degree in Business Administration or Public
Administration or Finance or Commerce or Marketing at
equivalent from any recognised institute.
b. WORK EXPERIENCE:
Minimum 25 years of working experience preferably in
international airlines of repine. with minimum of 10 years
experience in a senior professional position in relevant
protessionaf areas Including intenalla, .sdence, technology,
finance. law, business, social sciences etc. Having an esmblisited
worldwide network in Airline industry.
c.
SKILLS / SPECIAL REQUIREMENTS:
• Strategic Management
• Professional liminess Skills
• Leadership Qualities
• Vision to steer the omariPation towards success antigrowth
d. PROFESSIONAL TRAINING / COURSES:
• Strategic Management
• Leadership Qualities
• People Management & Delegation
• Problem Solving & Decision Making
C. JOB DESCRIPTION & RESPONSIBILITIES:
• Envision, lead and encourage the efforts ofentire organiZarion
towards achieving overall business objectives. Responsible
for devising corporate strategies, formulating growth Mans
and enswing maximum returns for alt stakeholders.
Laying a foundation to achieve long terms benefits through
strategic policy making and continuous improvement for
future development of organization. Ensure that the
objectives of the organization. as agreed by the board. are
fully, promptly anti properly implemented.
• Shaping organizational activities and utilising•full potential
of ad employees to attain blithest Standards of acevice at
all levels. Creating a rengentat and user friendly work
environment for all employees of the organization.
• Fostering a culture of employee best practices. work ethics
and zero tolerance for corruption. Aliening established
policies, procedures and work practices to achieve
effectiveness and efficiency in all areas.
• Allocation of funds / capital to organisations priorities
and ensere that the necessary firranciat and operational
data are made available for the annual.report and its
external audit.
L. OPERATIONAL RESPONSIBILITIES:
Establish roles for the top layer of the organisation covering
duties, responsibilities and recourses. Develop a skilled and
capable top.management seam. Develop and implement
a Strategy to attract and retain existing and potential
business. Propose long term operational and corporate
growth plans covering the development of routes, fleet.
major facilities and revenue.
• Indoctrinate systems leading to the production of detailed .
plans and allocated budgets for business units and
supporting functions that are required throughout the
network
• To be fully aware of all safety and service quality requirementt,
and to he responsible for the outcomes and findings of alt
Internal & external safety/quality audits_
• To ensure effective functioning of liSECt Steering and Working
Committees. Assume responsibility for recording end
reporting of all occupational hazards, accidents, Incidents,
neat miss -cases to the concerned agencies as per the
Management approved system procedure.
0. EXTERNAL RESPONSIOILITIES:
• Develop and maintain the reputation and image of the
corporation In official, financial and public circles and
represent PIACL at official functions. Also develop and
maintain relationships with interfacing envernment
departments. Civil Aviation Authority and otherinternationet
and domestic orfmnIzationsfagencies at senior management
level for obtaining bilateral agreements and other
facilities/services.
• Ensure adequate representation at International Cell Aviation
Organisation (ICAO) anti International Air Transport
Association (IATA) meetings. Ensure that PIACI. interest,.
are appropriately represented on the platforms of lobt
venture or subsidiary companies and high image of PIACI.
at all rnedia forms.
h. PAY PACKAGE
•
Successful candidate will be offered market based salary and
Binge benefits.
NOTE:
• The position is merit based
• The Selected candidates will be given employment on contract hags for a period of two (2) years. which may be extended.
• The applicant shall be required to complete and sign Application Fenn (available on PIA websee) and furnish detailed CV. However at
the time of interview the eligible candidate will be required to brine original A photocopies of the degrees / testimonials duly verified
by the Higher Education Commission orthe professional hotly or association, whichever is relevant.
• The applicant shall also submit a declaration on a non-judicial stamp paper of niquIsIte value (available on PIA webslte) that he is not
ineligible to act as a Chief Execut Ks% in accordance with the prevision of the ordinance and the rules.
• The application must reach at the following address not later than 15 days from the date of publication of this advertisement.
APPLICATION PROCEDURE/GUIDELINES:
Applications are-Invited on the prescribed FORM available (free of Cost) from the PIA Recruitment & Placement Office at Karachi, and from
other PIA Offices in different stations besides being available on PIA's websltoi www.plac.aaro/careers
Interested candidates should send their application forms along with the said declaration, CV, national identity card and 02 recent passport
site photographs accompanied by Pay Order of Memos 1000/- (non.refondable) in the name Of PIAC (PIA NTN No. 080.3450-B) through
courier to the following address not later than 15 days from the date of publication of this advertisement
MANAGER RECRIJITME.NT A PLACEMENT,
NEAR PIA TRAINING CENTER. KARACHI AIRPORT 75200
Email: [email protected] Cosset. No.021-99044295
.• �
•
www.placaercs
/PekThwumnesriniorindatypt
UANO) 402-21-1111,7861.705.
Human Rights Case No.11827-S of 2018 �
11
Dispute regarding age of Mr.
Cyan �
as �
his �
matriculation
certificate �
shows �
one �
DOB
whereas �
the �
CNIC �
reflects
another
A suit for declaration has been filed by him for
correction of the DOB on the Matriculation
certificate which is pending adjudication
Mr. Cyans' appointment is in
violation �
of �
the �
PSC
(Corporate Governance) Rules,
2013
Simply stated that his appointment is in line
with the relevant law, rules & guidelines.
Salary �
of �
Mr. �
Cyan �
is
exorbitant and not in line with
others holding the same posts
The same had been approved by the Board and
comparatively, is lower than CEOs' of other
PSCs'
1 1 . �The starting point of Mr. Cyan's appointment was
the advertisement dated 20.05.2017, published by the PIAC
for appointment of the CEO. Educational qualification and
work experience, as required by the advertisement were:
Human Rights Case No.11827-S of 2018 �
12
12. �It is essential that suitability and eligibility of a
candidate is ascertained through an objective procedure and
appointment thereof needs to have a nexus with the object of
the job. This principle was laid down by this Court in
Muhammad Yasins case' in the following terms:
"36. To test the validity of the appointment process in this case, it would
be useful to adopt a test based on the following considerations:
(a) whether an objective selection procedure was prescribed;
(b) if such a selection procedure was made, did it have a reasonable nexus
with the object of the whole exercise, i.e. selection of the sort of candidate
envisaged in section 3 of the Ordinance;
(c) if such a reasonable selection procedure was indeed prescribed, was it
adopted and followed with rigour, objectivity, transparency and due
diligence to ensure obedience to the law."
We find that the antecedents of Mr. Cyan are lacking on all of
these counts. As per the Curriculum Vitae (CV) of Mr. Cyan
(HRMA No.403/2018) provided by him in his concise
statement, his basic degree is MBBS. Before being appointed
as the CEO of PIAC, Mr. Cyan was working as a Research
Assistant in Georgia State University where he had received
his Ph.D degree in Economics. No educational qualification
worth anything relating to the Aviation Industry (as required
by the advertisement) was possessed by him. The only
relevant qualification shown by him in this regard pertains to
a one-month Corporate Aviation Management course, shown
to have undertaken from May 2017 till June 2017 i.e. the
time around which the advertisement was floated. This is
obviously of no help to Mr. Cyan's case. It shows a desperate
1 Muhammad Yasin Versus Federation of Pakistan [PLD 2012 SC 132]
Human Rights Case No.11827-S of 2018 �
13
attempt at "window dressing" a candidate whose qualification
for the job was seriously deficient.
13.
As far as his work experience is concerned the
same is also not in line with what had been required by the
advertisement for the post of CEO of a company in the
aviation business which happened to be the national flag
carrier of Pakistan. It is noteworthy that PIAC for which a
CEO was being appointed had been running in huge losses. It
had to be rescued, restructured and overhauled by the
Federal Government at great public expense. He had no
experience whatsoever in the aviation industry let alone in
salvaging companies which were in dire financial trails which
fact is discernable from the Employment application as well
as the CV attached by Mr. Cyan in his concise statement. In
Asraf Tiwanas case2 this Court while dealing with a similar
issue, examined the issue of verification of CVs in the
following manner:
"Once again there is nothing at all on the record and there was
no submission made by learned counsel for the respondents which
would show that any inquiry let alone due diligence was
undertaken to ascertain the correctness or otherwise of the
contents of the CVs. So much so, even the most cursory exercise to
verify such contents from any source mentioned in the CVs, was
not attempted by the Government. In the absence of such due
diligence, we are clear that it would be impossible to ascertain
objectively the qualifications of recommendees in the Summary as
to integrity, expertise, experience and eminence etc. as required by
section 5(1) of the Act."
14.
After the process of advertisement the next logical
step for a valid and lawful appointment is the short-listing
process which is to be conducted by the Board. Mr. Cyan
claimed to have been shortlisted by a duly constituted
2 Muhammad Ashraf Tiwana Versus Pakistan & Others [2013 SCMR 1159]
Human Rights Case No.11827-5 of 2018 �
14
"Selection Committee". As a matter of fact the self-styled
committee that shortlisted him consisted of the
Chairman/ Secretary (Mr. Irfan Ellahi), Mr. Tariq Pasha and
Mr. Mahtab Abbasi, the then Advisor on Aviation to the Prime
Minister who was a stranger to the Board or any Committee
constituted by it. It is clear and obvious to us who
handpicked this committee and why. Neither Mr. Abbasi nor
the learned counsel for Mr. Cyan has denied that Mr. Abbasi
was indeed a member of the Committee that short listed Mr.
Cyan, and participated in its meetings. It has however been
urged that he was just an observer and did not participate in
its deliberations. We are neither convinced by the said
explanation nor are we willing to believe the same. It is settled
law that the presence of a stranger in a Board Meeting vitiates
the entire proceedings specially so when the stranger is in a
position of strength and can influence the outcome of the
proceedings. In the instant case, the constitution, working
and membership of this supposed 'Selection Committee' was
ex facie a highly questionable and dubious exercise in itself. It
does not figure anywhere in the Law nor in the Rules or
Guidelines. In such circumstances "The Court has also to see
if statutory provisions have been violated in making the
appointment. The invalidity of appointment may arise not only
from want of qualifications but also from violation of legal
provision for appointment. "3
3 Muhammad Naseem Hijazi Versus Province of Punjab [2000 SCMR 1720[
Human Rights Case No.11827-S of 2018 �
15
15.
The importance of following the specific criteria for
appointment provided by the Statute has been elaborated by
this Court in Ghulam Rasools case4 where it was held that
"the matter of appointment of heads of statutory bodies,
autonomous/semi-autonomous bodies, corporations, regulatory
authorities etcetera are governed under specific statutory
provisions which cannot be overlooked or substituted by some
other mechanism. We have noted that various Acts/ Ordinances
lay down a specific criteria/ qualifications for high-level
appointments and empower the Federal Government to make
such appointments".
16.
Moreover, Mr. Cyans' statement that the meeting
was attended by two Board Members too is contrary to the
record as one Member of this Selection Board was Mr. Mehtab
Abbasi, Advisor to the Prime Minister for Aviation as is
expressly stated in the Board of Directors Minutes of 13th
Meeting held on 07.07.2017 for appointment of the CEO. To
say that the Advisor to the then Prime Minister was an
innocent onlooker, did not participate in the meeting nor
exercised any influence despite his association with Mr. Cyan,
boarders on naivety.
17.
In addition to the grave illegalities pointed out
above there is nothing on record to show that necessary due
diligence as per the evaluation requirements of candidates
qua the PSC Guidelines, 2015 was undertaken by the Board.
4 Ghulam Rasool Versus Govt. of Pakistan [PLD 2015 SC 6]
Human Rights Case No. 11827-S of 2018 �
16
There is no record of the workings of the so called 'Selection
Board' and whether in evaluating Mr. Cyans' eligibility, the 'fit
and proper' criteria was adhered to. Also, had the due
diligence been conducted as per the PSC Guidelines, 2015,
the discrepancy of Mr. Cyans' date of birth would have come
to fore. We are surprised to note that In contravention of the
PIAC manual, instead of asking Mr. Cyan to follow the
prescribed procedure, an affidavit was obtained from him to
the effect that the date of birth in the computerized national
identity card (CNIC) was correct as opposed to the other
record. The said discrepancy was condoned as a special
favour and in violation of the procedure consistently followed
by PIAC.
18.
No interview of Mr. Cyan was conducted by the
Board as required by the Guidelines. This fact is corroborated
by the Minutes of the 14th Meeting of the Board of Directors
where two of the Members of the Board objected to the
selected candidate as they were denied the opportunity to
shortlist and interview the candidates, but to no avail. The
candidate ear marked for selection by those who were calling
the shots had already been selected and the board was to be
used as a rubber stamp only.
19.
After the so-called and illegal short-listing PIACL
requested the Aviation Division, vide letter dated 21.07.2017,
for onward submission of names of candidates to the Federal
Government. The letter of the PIAC Chief Human Resource
Officer dated 21.07.2017 is available on record. However,
Human Rights Case No.11827-S of 2018 �
17
neither the summary sent by the Aviation Division to the
Prime Minister is appended nor the actual approval is
available on record. The approval was however communicated
to PIAC vide letter of the Aviation Division dated 10.08.2017
whereas the approval accorded by the Cabinet Division was
given on 22.08.2017. On this score alone, the appointment of
Mr. Cyan is ex facie contrary to the law as elucidated by a
pronouncement of this Court in the case of Mustafa Impex
Versus Government of Pakistan 85 Others JPLD 2016 SC
8081.
20.
Furthermore, the contract period as provided in
the advertisement was 2 years (further extendable). The letter
of appointment issued to Mr. Cyan also stipulated a 2 year
contract. The contract appended with the concise statement
of Mr. Cyan too, reflects that it was for a period of 2 years
extendable to another 2 years. In stark contrast to the same,
the terms of the contract were unauthorizedly and
unilaterally changed by the Board of Directors to 3 years vide
minutes of the 19th Meeting held on 08.02.2018. This is
clearly contrary to the policy of the government as well as the
advertisement, published in the newspapers inviting
applications from candidates for appointment against the
post of CEO of PIA.
21.
We had directed the Auditor General of Pakistan
to conduct an independent audit of the affairs of PIAC.
Independent confirmation of the abovementioned gross
illegalities has been done by the Auditor General of Pakistan
Human Rights Case No.11827-S of 2018 �
18
in his preliminary report. In addition to the irregularities
highlighted above, misuse of corporate resources was also
highlighted by the Auditor General Pakistan (AGP). It has
been recommended by the AGP that:
• �
The Employment of Mr. Cyan be terminated without
delay;
•
Immediate recovery of salary and emoluments be
initiated; and
•
The case be referred to independent agency to probe
the external pressure applied by the Advisor to the
PM on Aviation, namely Mehtab Abbasi, in
effectuating this irregular appointment.
We are therefore, in no manner of doubt that Mr. Cyan was
selected in an arbitrary, illegal and unfair manner which was
clearly in violation of law and the rules. The rules and
regulations were ignored, the Board of Directors was virtually
bypassed by using it as a mere rubber stamp and the
candidate who enjoyed the goodwill of a politically strong and
well placed individual was hoisted at the head of a very large
government Corporation worth billions of rupees, which he
was not qualified to run. The result is not surprising. A
Corporation and a national asset which was already running
into huge losses, is in dire straits and on the verge of
collapse. We find this to be the worst form of cronyism at
public expense without any regard to the interest of the
institution or the people of Pakistan who have the largest
stake in their national airline.
22. �Selection of persons to be appointed against senior
positions bereft of merits has been frowned upon by this
Court in the past, which went on to observe in Ashraf
Tiwanas case supra that "We wish to add that issues of
Human Rights Case No.11827-S of 2018 �
19
appointments to senior positions in public bodies, which have
been highlighted in this petition and in other cases which have
come up before us, have under-scored the need for a
transparent, inclusive and demonstrably fair process for the
selection of persons to be appointed to such senior positions.
The Federal Government may consider the necessity of putting
in place independent mechanisms and of framing open, fair
and transparent processes so that the objectives for which
public bodies are established can be efficiently achieved and at
the same time the pernicious culture of arbitrariness,
favouritism and nepotism is eliminated."
23.
Unfortunately and regrettably favouritism and
cronyism was allowed to prevail over merit and competence
and a national asset was treated like a personal fief.
24.
Until and unless strict compliance with the
provisions of the statute and rules governing appointment to
these senior positions are adhered to in letter and spirit, such
appointments will always be subject to challenge on the
ground of arbitrariness and non-compliance with the law and
settled principles. It cannot be stressed enough that the
Board of Directors is a body that owes a fiduciary duty to the
stakeholders of the company and its role, as explained above,
is not of a mere by-stander. The role of the Board envisaged
by law is central and pivotal, and has clearly been articulated
in the Rules, 2013 whereby the Board has an active duty to
safeguard the rights of its stakeholders. Such duty needs to
be performed by employing independent and honest
Human Rights Case No.11827-S of 2018 �
20
individuals with training and experience in the relevant field,
with the highest level of integrity, probity and honesty.
25. �Personal bias, political affiliations and a lack of
empathy displayed by those mandated to make these
appointments defeat all ideals, hopes and mechanisms of
good governance in place. In Ashraf Tiwanas case this Court
has encapsulated this entire problem as follows:
"It has by now become well settled that Courts will look into the
process of appointments to public office. It is the process which can
be judicially reviewed to ensure that the requirements of law have
been met. In the case of Muhammad Yasin supra, the process of
appointment to public office has been made the subject of judicial
review to ensure adherence to the command of the law. This is also
a requirement of good governance and has been a subject of
comment from ancient times. Abu al-Hassan al-Mawardi (d. 1058
A.D), the famous scholar from Baghdad devoted a substantial
portion of his 11th century treatise on constitutional law, the al-
Ahkam al Sultaniyyah, to the qualifications for holding public
office. These are universal principles of good governance and are
reflected in sections 5 and 6 of the Act which lay down stringent
criteria for the kind of person the Federal Government may appoint
as Commissioner/ Chairman SECP. Section 5(1) of the Act specifies
that a Commissioner "shall be a person who is known for his
integrity, expertise, experience and eminence in any relevant field,
including the securities market, law, accountancy, economics,
finance, insurance and industry." Under the law, the federal
Government has the authority to appoint the Chairman and
Commissioners of SECP. The Federal Government, however, has no
absolute and unbridled powers in this behalf. It is constrained by
the aforesaid requirements of the Act. We have come a long way
from the days of the whimsicality of Kings and Caesers, such as
Caligula who could conceive of appointing his horse Incitatus as
Consul of Rome. The element of subjectivity and discretion of the
Government has been severely limited by the legal requirement
that an appointee �
must be a person having integrity, expertise,
eminence etc. This requirement imposes a duty on the Federal
Government to put in place a process which ensures that the
requirements of the law are met."
We note with regret that clear, unambiguous and unequivocal
pronouncements by this Court on these issues have fallen on
. Human Rights Case No.11827-S of 2018 �
21.
deaf ears and no heed has been paid to the same which has
Ted to disastrous and cataclysmic consequences. PIAC is a
grim example of the same.
26. �Above are the detailed reasons for our short order
of even date. The same for ease of reference is reproduced
below:-
"For the reasons to be recorded later, we, inter
alia, hold that Mr. Musharraf Rasool Cyan, the Chief
Executive Officer (CEO) of Pakistan International Airlines
Corporation Limited (PIA) was not qualified to be appointed
on such post. Besides, the procedure adopted for his
appointment does not conform to the law and rules on the
matter. As a consequence whereof, this application is
allowed and his appointment is set aside with immediate
effect. The Federal Government is directed to take necessary
steps to appoint a new CEO of PIA strictly on merit and in
accordance with law."
C.M.A. No.5566 of 2018 in S.M.C. No.23 of 2018:-
26.
As the main case, i.e. S.M.C. No.23 of 2018
has already been disposed of vide order dated 30.06.2018,
therefore this application has lost its relevance and is
accordingly disposed of.
H.R.M.A. No.534 of 2018:-
27.
Learned counsel wants to withdraw this
application. Dismissed as withdrawn.
ISLAMABAD, THE
3rd of September, 2018
ZR/*
NOT APPROVED FOR REPORTING
. AA*.
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Khilji Arif Hussain
Mr. Justice Amir Hani Muslim
Human Rights Case No.12271-S/2010
(Complaint by Mst. Ameer Zadi)
Complainant
:
Ameer Zadi in person
In attendance
:
Mr. Adnan Karim Memon, Assistant A.G. Sindh.
Mr. Ali Sher Jakhrani AIG Legal.
Mr. Niaz Ahmed Khosa SP/AVCC.
Mr. Ghulam Muhammad Bhutto, Registrar University
of Sindh.
Date of hearing
:
16/08/2013.
ORDER
Pursuant to the orders of this Court, Mr. Ghulam Muhammad Bhutto,
Register, claiming to be the Registrar of the Sindh University, has put in
appearance and has informed that Mohammad Nawaz Narejo, who was required
to appear has been transferred from the office of Registrar on 03.08.2013 and
has been appointed as Advisor (Planning) of Sindh University and in his place
Mr. Bhutto has been appointed as Registrar. This Court has repeatedly directed
appearance of Mohammad Nawaz Narejo, the then Registrar of Sindh University,
but for one or the other reasons, he managed to avoid appearance and now it is
claimed that since the order which was passed on 17.07.2013 requiring
appearance of the Registrar, therefore, he being the Registrar has put in
appearance. We are surprised to notice the conduct of the Vice Chancellor, Sindh
University, who after the orders of this Court has transferred him. Once this
Court has ordered appearance of Mohammad Nawaz Narejo the then Registrar,
against whom there are serious reservations of the complainant and it is claimed
that he patronized Ghulam Rasool Narejo, the accused in these proceedings and
has failed to take action against Mohammad Haq Nawaz Narejo and Rab Nawaz
Narejo, employees of the Sindh University though they were absent from their
duties since months altogether. On intervention of this Court Mohammad Nawaz
Narejo the then Registrar by his letters dated 22.04.013 terminated their
services. In this regard on 14.05.2013 this Court has passed the following order:-
“Mr. Niaz Ahmed Khosa, S.P., C.I.A/Anti Violent Crime Cell, Karachi
has submitted his report, which is taken on record. It seems that two
of the nominated accused namely Mumtaz Ali Narejo and Ghulam
Rasool Narejo are still absconding. Mr. Niaz Ahmed Khosa is,
therefore, directed to take all possible measures for their arrest so
that they may face judicial proceedings in accordance with law. Two
Office Orders dated 22.4.2013 regarding termination of services of
Haque Nawaz Jarejo, Security Guard and Rab Nawaz Narejo, Junior
Assistant Librarian, University of Sindh, Jamshoro have been placed
on record, which show that despite their absence from duty from
6.9.2009 and 28.4.2009, no appropriate action was taken by the
Registrar, University of Sindh against them and it is only when order
in this regard has been passed by this Court on 10.4.2013 that such
long awaited action has been taken against them. In this regard
Registrar, University of Sindh is, therefore, required to be present in
Court alongwith original record to show upto what period the two
absconding accused, now in custody, were paid salaries and other
emoluments despite their long absence from the duty.
2.
Mr. Manzoor Hussain Soomro brother of Abrar Ahmed
Soomro, alleged abductee submit that after the removal of above
named two accused persons from the service of University of Sindh
son of one of the alleged accused Rab Nawaz Narejo has been
appointed in the University of Sindh and all this has happened at the
behest of the Registrar of the University, who is all along patronizing
the accused party. Registrar, University of Sindh is also directed to
answer this query.
3.
Hearing of this human rights case is adjourned to a date
after three weeks, whenever a Bench is available at Karachi.”
2.
The matter was fixed on 17.07.2013, when Mohammad Nawaz
Narejo did not appear and a specific order for his appearance was passed, which
reads as under:-
“It seems that office has failed to issue notice to the Registrar of
University of Sindh as contemplated in our earlier order dated
14.5.2013. Let such notice be issued to him through D.P.O Jamshoro
for his personal appearance in terms of above referred order. Office
to relist this case in the next session.”
3.
After this order, DPO Jamshoro must have informed him and in his
place Mr. Ghulam Mohammad Bhutto has put in appearance claiming that on
03.08.2013, he became the Registrar, therefore, Mohammad Nawaz Narejo has
not appeared, who was transferred by the Vice Chancellor and presently holding
the office of Advisor (Planning) of Sindh University.
4.
We are of the tentative view that order of transfer after order of
this Court, which was passed on 17.07.2013 does not preclude him from
appearing in the Court when there are serious allegations against him and he is
patronizing the accused persons by extending them favours in getting their
brothers/sons employed in the University. After this order of 17.07.2013, the
Vice Chancellor ought to have refrained from transferring him to some other
office, when this Court has directed him to appear in person.
5.
Under these circumstances, we are compelled to direct the
Assistant Advocate General Sindh and Mr. Ali Sher Jakhrani AIG (Legal) to
procure the attendance of Vice Chancellor Sindh University as well as
Mohammad Nawaz Narejo the then Registrar in Court by tomorrow at 10:00 AM,
on which date the learned Advocate General Sindh shall also be in attendance.
The entire record of the University pertaining to the appointment of relations of
the accused Ghualm Rasool Narejo shall be placed before the Court. Copies of
this order be faxed to the Advocate General Sindh, Mr. Ali Sher Jakhrani AIG
(Legal) and Vice Chancellor Sindh University for their information and
immediate compliance.
JUDGE
JUDGE
JUDGE
Karachi.
In the Supreme Court of Pakistan
(Original Jurisdiction)
Present:
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Khilji Arif Hussain
Mr. Justice Amir Hani Muslim
H.R.C. No.12271-S of 2010
Complainant:
In person alongwith her son Manzoor Ahmed
On Court notice:
Mr. Khalid Javed Khan, Accountant General, Sind
Mr. Adnan Karim, Asstt. Advocate General, Sind
Dr. Nazir Mughal, Vice Chancellor, University of the
Sindh, Jamshoro.
Mr. Muhammad Nawaz Narejo, former Registrar
University of the Sindh, Jamshoro.
Mr. Ghulam Muhammad Bhutto, Acting Registrar,
University of the Sindh, Jamshoro.
Mr. Ali Sher Jakhrani, AIGP (Legal)
Dr. Wasi Hyder Shah, DPO/SSP, Jamshoro.
Date of hearing:
17.8.2013
Order
In response to our earlier order passed yesterday, the worthy Vice
Chancellor, University of Sindh, Jamshoro Dr. Nazir Mughal, is present in Court, so
also Mr. Muhammad Nawaz Narejo, former Registrar, University of Sindh. The latter
is directed to submit his reply to the allegations leveled against him as regards
harbouring and protecting the two employees of the University, namely, Rab Nawaz
Narejo and Haq Nawaz Narejo, despite being not only involved in F.I.R. No.314 of
2009 under sections 364/506-B/34 PPC, but also they being convicted in the said
crime. The Vice Chancellor, University of the Sindh shall also submit his reply
explaining the circumstances for justifying transfer of Registrar, Mr. Muhammad
Nawaz Narejo, in the month of August, 2013, before the fixation of this case for
hearing before us, when there were specific directions for his personal appearance in
the Court in the matter, as such action on his part, prima-facie, seems to be colourful
exercise of his authority to obstruct the course of justice. Office is directed to re-list
this case in the next Session.
2.
At this stage, complainant and her son Manzoor Ahmed have filed a
written request for protection due to fear to their lives at the hands of Narejo tribe.
The application is taken on record with directions to the Advocate General and the
concerned police officers to ensure the safety of the complainant and her son.
Karachi,
17th August, 2013
Not approved for reporting.
Riaz
Judge
Judge
Judge
In the Supreme Court of Pakistan
(Original Jurisdiction)
Human Rights Case No.39604-S of 2012
(News clipping Daily Dawn dated 27.11.2012
Two Jirgas decide fate of four girls)
For the complainant:
Nemo.
On Court notice:
Mr. Adnan Karim, Asstt. A.G. Sindh
Mr. Ali Sher Jakhrani, AIGP( Legal)
Date of hearing:
16.3.2013
Order
Anwar Zaheer Jamali, J – Mr. Ali Sher Jakhrani, AIGP (Legal) has
placed on record fresh report dated 16.8.2013, submitted by Senior
Superintendent of Police Shikarpur, which is accompanied with some
photographs and other documents. The perusal of this report reveals that
spirit of the order dated 1.3.2013 is being maintained, as regards the three
minor girls.
2.
This being the position, this human rights case is disposed of
with the observation that as far as possible the care of three minor girls be
taken till they attained puberty and/or get married as per their own wishes
and wishes of their parents.
Karachi,
16th August, 2013.
Riaz
Judge
Judge
Judge
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Gulzar Ahmed, HCJ
Mr. Justice Ijaz ul Ahsan
HUMAN RIGHTS CASE NO.13316-P OF 2018
(In the matter regarding Colossal Losses
incurred by Pakistan Railways)
On Court Notice
:
For Federation of
Pakistan
: Ch. Aamir Rehman, Addl. Attorney General
For M/o Railways
: Mr. Habib-ur-Rehman Gillani, Secretary
Mr. Dost Muhammad Leghari, CEO/SR/GM
Mr. M. Liaqat Memon, Member Finance
Mr. Farrukh Tamur, Secy., Railway Board
Mr. M. Saleem Khan, Joint Director
Mr. Mazhar Ali Shah, D.G. (Planning)
Mr. Zubair Shafi Ghori, AGM-I
Mr. Shoaib Adil, DS, Multan
Mr. Nisar Ahmed, AGM-I
Mr. Suffain Dogar, CPO/HQ
Mr. Sajjad Butt, ASC/D.G. (Legal)
Syed Rifaqat Ali Shah, AOR
Mr. Khurram Shahzad, Legal Advisor
Mr. Imran Hayat, Dy. Legal Advisor
For M/o Planning,
Development and
Special Initiatives
: Syed Waqar-ul-Hassan, Additional Secretary
Mr. Zohair Fazil,
Chief (Transport & Communication)
For Auditor General
of Pakistan
: Mr. Moeed Ali, D.G. (RA)
Mr. Kashif Farooq Ch., A.O.
For Government of
Sindh
: Mr. Muhammad Qasim Mirjat, ASC/AOR
Date of Hearing
: 09.07.2020
ORDER
A report has been submitted by the Secretary/Chairman,
Ministry of Railways, Islamabad, wherein, reference has been made to
the up-gradation of Railways trough ML-I, under the China Pakistan
Economic Corridor (CPEC) and also to the Karachi Circular Railway
(KCR).
HRC No.13316-P of 2018
2
2.
As regards ML-I, it is informed that PC-I is now pending
with ECNIC for approval and as soon as the said approval is received,
work will be started. We expect that ECNIC shall consider and have
PC-I approved, as per rules within a period of one month.
3.
As regards KCR, it has been stated that considerable work
on the ground has been done and that there are bottlenecks because
of a Nala near Urdu University and Green Line near Nazimabad. The
Secretary Railways states that if the Government of Sindh takes
immediate action and makes way for the Railways at these two
bottlenecks, the remaining work of KCR will be completed and it will
be made operational.
4.
The Secretary Railways also states that there are railway
crossings at which the Government of Sindh has undertaken to
provide
for
construction
of
either
overhead
or
underground
roads/paths, so that there is no eventuality of any one crossing the
railway line.
5.
We direct the Chief Secretary, Government of Sindh to
ensure that the above three items of work are expeditiously completed
to enable KCR to run in Karachi. Let a report, in this regard, be
submitted by the Chief Secretary, Government of Sindh within a
period of two weeks. The Chief Secretary, Government of Sindh so also
the Commissioner, Karachi shall be present on the next date of
hearing.
6.
We have noted that the overall Railways in Pakistan is not
being operated in a way it should be operated; more so, in accordance
with the Rules and Manuals of Railways, on account of which
accidents are taking place frequently, in which precious lives are being
HRC No.13316-P of 2018
3
lost and great damage to the Railways is caused. There seems to be
nothing in sight by which the operation of the Railways in Pakistan
could be improved, as not only is the infrastructure of the Railways
altogether bad and non-workable but also its employees are apparently
not fit to operate the Railways. There needs to be serious thinking on
the part of the Government of Pakistan regarding the operation of the
Pakistan Railways and overhauling the Secretariat from top to bottom
to ensure that the Railways operate in Pakistan safely. We expect that
such measures will be taken by the Government of Pakistan
immediately to ensure that the Railways do not play with the lives of
the people and its properties are not lost. A report, in this regard, may
be made available to the Court by the Government of Pakistan through
the Planning Commission within one month.
7.
Adjourned. To be fixed after one month.
Chief Justice
Islamabad, the,
9th July, 2020
Mahtab/*
‘NOT APPROVED FOR REPORTING’
Judge
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE MIAN SAQIB NISAR, HACJ.
MR. JUSTICE EJAZ AFZAL KHAN.
H. R. C. NO. 14158-G OF 2016 AND H.R.M.A. NO. 16 OF 2016 AND H.R.M.A.
NO. 17 OF 2016 AND H.R.M.A. NO. 21 OF 2016.
(Alleged gross corruption in supply of Oxygen. Nitrogen gas and theft of
medicine from hospital).
In attendance :
Mr. Nayab Hassan Gardezi, Standing Counsel.
Mr. Shehryar Qazi, Addl. A. G. Sindh.
Mr. Umar Farooq Adam. A. G. KPK.
Mr. M. Ibrahim Memon, Dy. Secy. Health Sindh.
Mr. Bakhtiar Ali, S.O. (Health) KPK.
Mr. Mudassar Khalid Abbasi, AAG. Pb.
Dr. Yadallah, Dy. Secy., Primary Health Punjab.
Mr. Tayyab Fareed, Addl. Secy. Health Punjab.
Mr. M. Asif Iqbal, Sr. Law Officer Health Punjab.
Dr. Waqar Aftab Malik.
Dr. Arshad Rana.
Dr. Anjum Javed (PIMS)
Dr. Aftab Ali Malik.
Dr. Sartaj Ali.
Dr. Shaista Habibullah (NIRM)
Dr. Tahir, DHQ, ILD.
Dr. Iftikhar Naru.
Date of hearing:
12.08.2016
O R D E R
On the last date of hearing we having discussed irregularities
committed in the hospitals summed up as under:-
“2.
How are the life saving drugs dealt with and how are the
pharmacies in the hospitals managed are some of the important
aspects to be attended and inquired into. We would, thus, direct
the law officer to collect data in this behalf of the hospitals at least
in the capital and submit a detailed report before the next date of
hearing. Dr. Muhammad Arshad, the mover of CMA. No. 16/2016 is
also directed to provide the necessary details in the matter which
is being pored over by this Court. Dr. Waqar is also eager to
provide data in this behalf. He too is directed to submit a CMA
setting out all the irregularities he happens to be posted with.
CMA. No. 17 of 2016 may further be vouched and documented to
lay bare the necessary details. We also direct the Advocates
General of the Provinces to collect details from the Chief
Executives of the hospitals as to the state of laboratories and the
other equipments installed therein to show whether they are in
functioning order or otherwise. The needful be done within two
weeks. Relist on 12.08.2016.”
2.
Some data in compliance with the order mentioned above
has been given but that appears to be deficient on many counts. Data has
also been submitted about the equipments installed in the hospitals with
the relevant details showing how many of them are in functioning order
H. R. C. NO. 14158-G OF 2016 AND H.R.M.A. NO. 16 OF 2016 AND
H.R.M.A. NO. 17 OF 2016 AND H.R.M.A. NO. 21 OF 2016.
2
and how many of them are inoperative. The picture painted in the CMAs
appears to be rosier but the grave ground realities are to the contrary.
Some of the facts and figures appear to be fudged. Total number of
ventilators available in the Polyclinic Hospital Islamabad has been shown to
be 22 out of which 6 are non-functional. This figure also appears to be
exaggerated. Refilling of Nitrous oxide cylinder 16200 liters is had at the rate
of 22000 in Polyclinic but no authentic figure has been provided so far by
the private hospitals. The learned Standing Counsel for the Federation is
directed to collect information from Medicsi, Quaid-e-Azam and Shifa
International Hospitals in this behalf. Though one of the surgeons working in
Shifa International Hospital stated that the refilling of Nitrous oxide cylinder is
done at the rate of 3000/- per cylinder, which in any case has to be
supported by documentary evidence. Dr. Arshad Rana and Dr. Sartaj have
undertaken to provide the authentic data from the above mentioned
hospitals and the pharmacies therein. How the medicines having proven
efficacy are eliminated to force way for prescription of more expensive
and less efficacious medicines is another sordid and seamy aspect of the
controversy which too cannot be over-sighted. This shows that the right to
life is overarched by the right of freedom of trade which in no case is
unfettered, unrestricted and unqualified if considered in terms of Article 18
of the Constitution of the Islamic Republic of Pakistan. What is the state of
laboratories in the hospitals in public sector and why are they out of order
and in case they are in order why their results do not conform to those of
reputed laboratories established in the private sector. Doctors like other
professionals have a right to add to their riches but not at the cost of the
ailing humanity. Statement of Dr. Shaista Habibullah representing National
Institute of Rehabilitation Medicines (NIRM) that the equipments in the
hospitals are enough to cater for the needs of the patients requiring long
term management and that destitute are treated free of cost is indeed
gladdening but why more than half of the equipments are out of order has
to be accounted for. The state of healthcare is not only pathetic and
H. R. C. NO. 14158-G OF 2016 AND H.R.M.A. NO. 16 OF 2016 AND
H.R.M.A. NO. 17 OF 2016 AND H.R.M.A. NO. 21 OF 2016.
3
painful but in shambles despite the fact that the people manning and
managing it are under Hippocratic Oath. Dr. Waqar Aftab Malik has
undertaken to provide information over and above what can be beamed
in from the internet as to what has been happening in the hospitals ever
since their establishment with the connivance and complicity of the
persons at the helm. Let him do so before the date fixed. The Advocates
General of the Provinces are also directed to provide details about the
machineries and other equipments in the DHQ Hospitals and their states of
being operative and otherwise before the date fixed. Relist on 18.08.2016.
Copy of this order be dispatched forthwith to all concerned including
Advocates General of the Provinces for doing the needful.
ACJ
Judge
ISLAMABAD
12.08.2016.
M. Azhar Malik
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE GULZAR AHMED
MR. JUSTICE SH. AZMAT SAEED
HUMAN RIGHTS CASE NO.14392 OF 2013
(Action on News Clipping published in the Daily
Pakistan
dated
17.4.2013
with
regard
to
unprecedented load shedding in the country)
On Court notice:
For WAPDA:
Syed Moazzam Ali Rizvi, ASC
Mr. Shahzad Asif, AD (Legal)
Date of hearing:
26.04.2013.
ORDER
The learned counsel appeared on behalf of WAPDA and
stated that at present the WAPDA is responsible for the generating of
hydroelectricity, which is 32% of the total electricity and at present it is
generating about 60% of its capacity for a variety of reasons, including
the fact that Indus River System Authority, which manages water flow
from the Dams, is not allowing sufficient flow of water for WAPDA to
achieve its target. He is directed to put up a comprehensive note in this
behalf.
2.
The WAPDA and all concerned Departments are also
directed to put up a combined figures of generating of electricity from
the hydroelectricity, GENCO, IPPs and RPPs, if any, for the last six
months commencing from 1.10.2012 to 31.3.2013 and subsequent
thereto a separate report from 1st April, 2013 to-date. All these
Companies are directed to achieve the maximum target of production
of the electricity for the purpose of supply to all the categories of
consumers so they may be facilitated during the Summer Season, which
has already commenced.
3.
Notice to the PEPCO, NTDS and Indus River System
Authority through their respective Chairman, be issued to file their
replies along with the facts, figures and the reasons relating to the
shortage of electricity in the country.
4.
The Court will welcome the voluntary opinion of any
expert, on the subject, for generating electricity from all the available
sources and its distribution.
5.
Adjourned to 2.5.2013.
Chief Justice
Judge
Islamabad, the
26th April, 2013.
Judge
*M Safdar Mahmood*
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN
HUMAN RIGHTS CASE NO.17599 OF 2018
(Regarding alarming high population growth rate in
the country)
In attendance:
Mr. Anwar Mansoor Khan, Attorney General
Syed Nayab Hassan Gardezi, DAG
Mr. Tariq Mehmood Jehangiri, A.G. Islamabad
Mr. Sibtain Mehmood, AAG, Sindh
Mr. Zahid Yousaf Qureshi, Addl. A.G. KP
Mr. Ayaz Swati, Addl.A.G. Balochistan
Mr. Qasim Ali Chowhan, Addl. A.G. Punjab
Cap. Retd. Zahid Saeed, Secretary M/o NHS&RC
Mr. Imran Gichki, Secy. Population Balochistan
Mr. Abdul Ghaffar, D.G. Population Welfare
Department, Govt. of Pakistan
Mr. Asghar Ali, Secy. Population, KP
Mr. Fazal Nabi Khan, DG, PW, KPK
Mr. Muhammad Jahangir for PBS, ILD
Mr. Muhammad Riaz for PBS, ILD
Date of hearing:
03.01.2019
. . .
JUDGMENT
MIAN SAQIB NISAR, CJ.– As of 2017, Pakistan is ranked as
the fifth most populous nation in the world, with a population of over 200
million. While all nations and economies rely on population growth and a
creation of future younger generations, such growth must be sustainable
and proportionate to the resources available. Approximately 14,000 babies
are born in Pakistan which is already struggling to feed, educate and
provide employment for its existing population. Pakistan has experienced
unchecked population growth since its creation in 1947. From 1998 (the
previous comprehensive census) to 2017, Pakistan’s population has increased by
57%, with the addition of approximately 76 million people to the
population. Projected growth trends from the United Nations suggest that if
this population growth rate does not slow considerably, Pakistan can
expect to have its population increase by 50% resulting in an estimated 306
million people, surpassing the United States, Indonesia, Brazil, and Russia
H.R.C. No.17599/2018
- 2 -
to become the world's third largest country in terms of population trailing
behind India and China. The steadily increasing population rate in Pakistan
is a ticking bomb which will certainly not wait till it is convenient for us to
take note of it. What will follow this population explosion is starvation,
famine and poverty, the likes of which are already visible in areas like Thar.
Other indicators of overstretched resources and infrastructure are apparent
in Pakistan’s unemployment rate, maternal and child mortality rate,
literacy and educational enrolment figures, and access to clean water and
adequate food. A brief overview of the above figures reveals the extent of the
resource and infrastructure shortcomings for an already large populace.
Pakistan currently has a very high mortality rate for children under the
ages of five years (75 deaths per 1000 live births), an above average maternal
mortality rate (178 deaths per 10,000 births), and approximately 44% of the
population lacks access to clean drinking water. Furthermore, Pakistan’s
literacy rate is 58% while over 22 million children are out-of-school. Future
projections indicate the number of educational institutions to reduce in
number. The above figures make it clear that Pakistan is not equipped to
handle the addition of another 100 million people to its ranks.
2.
After the Proclamation of Teheran, 19681 (Proclamation) at the
1968 International Conference on Human Rights, ‘family planning’ was
recognised by the international community as both a right and a means of
enabling other human rights. In this regard, paragraphs 16 and 17 of the
Proclamation are relevant which read as under:-
“16.
The protection of the family and of the child remains
the concern of the international community. Parents have a
basic human right to determine freely and responsibly the
number and the spacing of their children;
1 Pakistan was amongst the 84 members who adopted the Proclamation of Teheran by consensus on
13.05.1968. The Proclamation affirmed, for the first time in a global agreement, the basic right of parents “to
determine freely and responsibly the number and the spacing of their children” (paragraph 16).
H.R.C. No.17599/2018
- 3 -
17.
The aspirations of the younger generation for a better
world, in which human rights and fundamental freedoms are
fully implemented, must be given the highest encouragement. It
is imperative that youth participate in shaping the future of
mankind;”
As obvious from the language of the above reproduced paragraphs, the
right to freely and responsibly determine the number and spacing of
children involves imparting sufficient information and means to the parents
to control reproduction as well as providing them with adequate knowledge
regarding the advantages and disadvantages of such determination. Also
apparent from the above language is the interdependence of planned births
with the right of the younger generation to be afforded all fundamental and
human rights recognised by the international community. Thus, the right
to well-informed and controlled pregnancies is a right that paves the path
for enabling several other rights; for an overburdened economy cannot be
expected to juggle with a growing population while struggling to provide a
better facilities and opportunities for its progeny. This right, which forms
part of the international commitments of Pakistan, originates from the right
to life under Article 9 of the Constitution of the Islamic Republic of
Pakistan, 1973 (Constitution), and other fundamental rights such as the right
to education, equality, speech, information and due process (Articles 4, 25, 25-
A, 19, 19-A and 10-A of the Constitution respectively), which are in turn inevitably
linked to the economic progress of the State expected to make such rights
available to its people. Unfortunately, by failing to prioritise the provision of
information and means of controlling unplanned and unwanted births, the
country now faces a surplus of unskilled and unemployed manpower for
whom basic human and fundamental rights are luxuries they can at best
only hope for, but never attain.
3.
As the guardians of the fundamental rights of the people of
Pakistan, this Court has for decades safeguarded the fundamental rights
H.R.C. No.17599/2018
- 4 -
guaranteed under the Constitution, and in pursuance of the above
mentioned international commitment, recognised that such rights cannot
be severed from principles of socio-economic progress under Articles 37
and 38 of the Constitution. As aptly observed by this Court in Miss Benazir
Bhutto Vs. Federation of Pakistan and another (PLD 1988 SC 416):-
“Articles 3, 37 and 38 of the Constitution juxtapose to
advance the cause of socio-economic principles and should
be given a place of priority to mark the onward progress of
democracy. These provisions become in an indirect sense
enforceable by law and thus, bring about a phenomenal
change in the idea of co-relation of Fundamental Rights and
directive principles of State Policy. If an egalitarian society is
to be formed under the rule of law, then necessarily it has to be
by legislative action in which case it would be harmonious and
fruitful to make an effort to implement the socio-economic
principles enunciated in the Principles of Policy, within the
framework of the Fundamental Rights, by enlarging the scope
and meaning of liberties, while judicially defining them and
testing the law on its anvil and also, if necessary, with the
co-related provisions of the Objectives Resolution which is
now a substantive part of the Constitution.
The liberties, in this context, if purposefully defined, will
serve to guarantee genuine freedom; freedom not only from
arbitrary restraint of authority, but also freedom from want,
from poverty and destitution and from ignorance and
illiteracy. That this was the purport of the role of the rule of
law which was affirmed at Lagos in 1961 in the World Peace
Through Law Conference:
“Adequate levels of living are essential for full
enjoyment of individual's freedom and rights.
What is the use of freedom of speech to
under-nourished people or of the Freedom of
Press to an illiterate population. The rule of
law must make for the establishing of social,
economic and cultural conditions
which
H.R.C. No.17599/2018
- 5 -
promote men to live in dignity and to live with
aspirations””
[Emphasis Supplied]
Fortified with the above cited paragraph, we are inclined to conclude that
fundamental rights such as the right to free speech or information are of no
use to those struggling with malnutrition, hunger and starvation. Economic
prosperity is thus a sine quo non for the implementation of all fundamental
rights, the paramount right being that of life. A plethora of judgments of
this Court have sufficiently emphasised that Article 9 of the Constitution
does not merely protect the right to ‘exist’ or ‘live’ but embodies the right to
live a meaningful life with a minimum standard of living. In Ms. Shehla Zia
and others Vs. WAPDA (PLD 1994 SC 693) it was held that:-
“The word ‘life’ has not been defined in the Constitution but it
does not mean nor can it be restricted only to the vegetative or
animal life or mere existence from conception to death. Life
includes all such amenities and facilities which a person born
in a free country, is entitled to enjoy with dignity, legally and
constitutionally.”
4.
Similarly in the judgment passed in Suo Motu Case No.19 of
2016 (2017 SCMR 683) it was held that “[t]he Fundamental Right to life (Article
9), includes the right to adequate and safe drinking water and basic health care”. In Pir
Imran Sajid and others Vs. Managing Director/General Manager
(Manger Finance) Telephone Industries of Pakistan and others (2015
SCMR 1257) and Abdul Wahab and others Vs. HBL and others (2013
SCMR 1383) Article 9 of the Constitution was held to include a right to
livelihood. In the judgments reported as Barrister Zafarullah Khan Vs.
Federation of Pakistan (2018 SCMR 2001), General Secretary, West
Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum Vs. The
Director, Industries and Mineral Development, Punjab, Lahore (1994
SCMR 2061), Suo Motu Case No.10 of 2010 (Contamination of Water of
Mancher Lake due to Disposal Effluent from MNV Drain now converted
H.R.C. No.17599/2018
- 6 -
into RBPOD) (2011 SCMR 73), Shahab Utso Vs. Government of Sindh
through Chief Secretary and other (2017 SCMR 732), Shehla Zia’s case
(supra) the said Article was held to include the right to safe drinking water
and a safe and health-friendly environment. In OGRA through Secretary
Vs. Midway II, CNG Station (2014 SCMR 220) and Iqbal Zafar Jhagra
and Senator Rukhsana Zuberi Vs. Federation of Pakistan (PTD 2014 SC
243) the said fundamental right was held to include the right to provision
of electricity and gas. In Younas Abbas Vs. Additional Sessions Judge,
Chakwal (PLD 2016 SC 581) and National Engineering Services
Pakistan [NESPAK] (Pvt.) Limited Vs. Kamil Khan Mumtaz (2018 SCMR
211) the right to life was interpreted in the following terms:-
“It is now well established that right to life as envisaged by
Article 9 of the Constitution includes all those aspects of life
which go to make a man’s life meaningful, complete and
worth living. In the case of Employees of Pakistan Law
Commission v. Ministry of Works (1994 SCMR 1584), it has
been laid down that Article 9 of the Constitution which
guarantees life and liberty according to law , is not to be
construed in a restrictive manner. Life has larger concept
which include the right of enjoyment of life, maintaining
adequate level of living for full enjoyment of freedom and
rights.”
[Emphasis supplied]
In the recent judgment of this Court passed in Barrister Zafarullah Khan
Vs. Federation of Pakistan etc. (Constitution Petition No.57/2016 etc.)
wherein the Federal Government was directed to construct the Diamer-
Bhasha and Mohmand Dams, the right to life and the importance of water
in this regard was elucidated in the following terms:-
“For the last several decades, there has been reference to the
right to clean water, as stemming from the right to life
enshrined in the Constitution as a fundamental right. On a
national level, various judgments including those reported as
H.R.C. No.17599/2018
- 7 -
General Secretary, West Pakistan Salt Miners Labour Union
(CBA) Khewra, Jhelum Vs. The Director, Industries and
Mineral Development, Punjab, Lahore (1994 SCMR 2061),
Suo Motu Case No.10 of 2010 (Contamination of Water of
Mancher Lake due to Disposal Effluent from MNV Drain
now converted into RBPOD) (2011 SCMR 73) and Shahab
Utso Vs. Government of Sindh through Chief Secretary and
other (2017 SCMR 732) robustly discuss how clean and safe
drinking water is necessary for the existence of life, and that
contaminated and polluted water poses a threat to human
existence. The oft-quoted words of Saleem Akhtar, J. in the
case of Ms. Shehla Zia and others Vs. WAPDA (PLD 1994
SC 693), where the immediate context was regarding the
hazards of electromagnetic fields, are equally germane here:-
“Article 9 of the Constitution provides that no
person shall be deprived of life or liberty save
in accordance with law. The word ‘life’ is very
significant as it covers all facets of human
existence. The word ‘life’ has not been defined
in the Constitution but it does not mean nor
can it be restricted only to the vegetative or
animal life or mere existence from conception
to death. Life includes all such amenities and
facilities which a person born in a free
country, is entitled to enjoy with dignity,
legally and constitutionally.”
Therefore water is a resource to which everyone is entitled, is
indispensable to those who wish to lead a dignified life, and
forms the basis of many other rights including the right to life,
health and quality of life. It is a fundamental right that
emanates from the right to life enshrined in Article 9 of the
Constitution…”
[Emphasis supplied]
As evident from the above precedents, it is by now established law that the
right to life includes a right to basic amenities and living standard, access
to clean drinking water, electricity, employment etc. and there is no
denying that the same is heavily dependent on the economic progress of the
H.R.C. No.17599/2018
- 8 -
country which suffers a constant handicap on account of the rapidly
growing population. Poverty is thus deeply intertwined with each
fundamental right guaranteed in the Constitution, since divorced from an
economically thriving environment, there remains no meaning of the
fundamental right to life as explained above, nor can other fundamental
rights be implemented in their true letter and spirit. The threat of over-
population, or “population explosion” is a doom the country is unknowingly
moving towards if a national crusade for population control is not launched
in time. It is an unfortunate reality that the earth is becoming too small to
accommodate our growing numbers and its resources are rapidly
decreasing at an alarming rate. This is not only adversely affecting the
general quality of life but also threatening the mere existence of life on
earth. Hence in pursuance of its duty to safeguard the fundamental rights
of the people which is inseparable from socio-economic progress, the
Supreme Court has suo moto commenced this long and hard but necessary
journey to control the rate at which our population is multiplying.
5.
Pakistan’s family planning programme began with private
sector initiatives in 1953 and expanding to include public sector support
and involvement in the early 1960s onwards. In 1953 the Family Planning
Association of Pakistan was established and received a lukewarm response
from the Government. However, in 1959 General Ayub Khan attended an
Family Planning Association of Pakistan (FPAP) conference and spoke about
the need to combat overpopulation. In 1965, with the introduction of the
third 5-year plan, family planning received renewed funding and support
from the public sector. In the late 1970s the family planning programme fell
prey to opposition from General Zia Ul Haq, who opposed publicising or
expanding the programme due to religious opposition. The next major step
forward came in 1990 with the introduction of a new National Health Policy
which required all healthcare outlets to provide family planning services. A
social action programme was developed which incorporated family planning
H.R.C. No.17599/2018
- 9 -
in tandem with rural development, education, and sanitation efforts. An
ongoing issue with the previous decades of the family planning programme
was the high degree of centralization which has undoubtedly damaged the
effectiveness of such programmes. Although Pakistan had success in
increasing contraceptive use in the 1980s and 1990s, a plateau was
ultimately reached. The contraceptive prevalence rate (CPR), or the
percentage of married, non-pregnant women using both modern and
traditional methods of contraception, rose from 12% in 1990-91 to 28% in
2000-01, but between 2000 and 2009, there was hardly any change in CPR
which was 30% in 2000 and remained unchanged in 2006. In 2012,
Pakistan made a commitment to Family Planning 2020 (a global partnership to
empower women and girls by investing in rights-based family planning). A number of service
providers are trained to dispense contraceptives, fit intrauterine devices
(IUDs), or advise on other birth control measures. Although two other
Muslim countries, Iran and Bangladesh, had simultaneously launched
population control campaigns during the 1970s (examined later in this opinion),
they had remarkable success in such efforts while the campaign in
Pakistan miserably failed and thereafter for decades the subject of family
planning remained a taboo for elected governments whose five-year plan
could never accommodate population planning initiatives.
6.
Therefore, in the absence of policy initiatives to curb the
startling population growth and in our capacity as the guardians of the
fundamental rights guaranteed by the Constitution, this Court was
constrained to help relaunch this campaign. Initially when this Court took
cognizance of the instant matter, the Federal and all the Provincial
Governments (including the respective Chief Secretaries) were required to file their
concise statements. The learned Attorney General for Pakistan, the learned
Advocates General of all the Provinces and other stakeholders unanimously
agreed that a uniform policy for all the Provinces is required to control the
population of Pakistan. A Task Force was constituted comprising of the
H.R.C. No.17599/2018
- 10 -
persons
mentioned
below,
to
prepare
a
policy
for
this
Court’s
consideration:-
i.
Secretary, Inter-Provincial Coordination (Chairman);
ii.
Director General Population, Ministry of National Health
(Member);
iii.
Secretaries, Population & Welfare of all Provinces (Members); and
iv.
Director General, Population of all Provinces (Members).
The said Task Force submitted its report and after lengthy deliberations, a
Committee was constituted comprising of the names and having the Terms
of Reference (TORs) proposed by Capt. (R) Zahid Saeed, Secretary, Ministry
of National Health Services, Regulations and Coordination who was
appointed as the convener of the meetings authorized to co-opt any other
person on account of their expertise in the matter and modify/add the
TORs
as
deemed
necessary.
The
said
Committee
submitted
a
comprehensive report in which Recommendations (hereinafter referred to as the
“Recommendations” reproduced later in this opinion) have been made to curb the
alarming population growth rate in Pakistan. In order to sensitize the
matter and to increase public awareness on the issue, the print and
electronic
media
was
also
directed
to
print
and
broadcast
the
Recommendations continuously for three days free of cost. Thereafter, the
Council of Common Interests (CCI) held its meeting which ultimately
approved the Recommendations submitted to this Court. Additionally, a
symposium was held by the Law & Justice Commission of Pakistan (LJCP)
and the Ministry of National Health Services, Regulations & Coordination
(Population Programme Wing) wherein valuable suggestions have been
made by experts, academics, religious scholars and social activists (which
shall be examined below). Subsequently, on 29.12.2018, this initiative of
relaunching a nationwide population planning campaign, alongwith the
Recommendations, received unanimous endorsement from the elected
representatives from all Provinces, major political parties and religious
H.R.C. No.17599/2018
- 11 -
scholars at a national dialogue organized by the Population Council. Before
dilating upon these Recommendations, we deem it expedient to provide a
brief overview of efforts made by other countries including Iran,
Bangladesh, India and China in this crusade for population control and
planning and examine the role of the legislature, executive, judiciary, public
functionaries and other stakeholders in this arduous task.
7.
The Islamic Republic of Iran:- In Iran, in less than one
generation the population growth rate of 4.06% in 1984 fell to 1.15% in
1993 and a total fertility rate of 6.4 births per woman in 1984 declined to
1.9 in 2010. The reason behind this was a development plan passed by the
Iranian Parliament in 1989, which included a birth control programme, as
a part of which, inter alia a huge media campaign was initiated to
encourage women to space their pregnancies for three to four years, to limit
the number of children to two, and to avoid pregnancy under the age of 18
and above 35. Following this the Iranian Parliament removed previous
incentives for high fertility and clergy bodies and the judicial system issued
the authorisation for family planning and supported the policy. In 1993, the
Iranian legislature passed a law regarding family planning which, inter alia,
provided for incentives for smaller families including for instance some
social benefits for the first three children in a family. The said law focused
on
reducing
infant
mortality,
promoting
women’s
education
and
employment, and extending social security and retirement benefits to all
parents so that they no longer consider children as cushions/security for
their old age. The magnitude of success received by this family planning
program can be accredited to the government-backed awareness,
information and education program in this regard and to a health care
delivery system that was able to meet reproductive health needs. The
Ministry of Health of Iran established pre-marital counseling classes
throughout the country which the government made mandatory for couples
planning to marry to participate in before they could receive their marriage
H.R.C. No.17599/2018
- 12 -
license; population education became part of the curriculum at all
educational levels; university students were required to take a course on
population and family planning; and family planning services were provided
for free by the country’s primary health care system, which is based on
different levels of care and an established referral system. In rural areas,
the Ministry of Health and Medical Education is the main provider of health
care services, and trained health workers proactively provide door-to-door
family planning related information and services. In urban areas on the
other hand health services are largely provided by the private sector which
equally play a significant role in awareness and services for family
planning. In order to increase and meet the supply of modern
contraceptives, many are now manufactured in Iran, in fact the only
condom factory in the entire region is in Iran, which exports its products to
neighboring and Eastern European countries. As a result of these
measures, today 74% of married women in Iran between the ages of 15 to
49 practice family planning; 60% use a modern method; and one-third of
modern contraceptive users have relied on a permanent method, i.e., female
or male sterilization.
8.
The Republic of India:- In India, legislative efforts to curb
population growth began as early as 1994 when for example, under Section
175(1)(q) of the Haryana Panchayati Raj Act, 1994, any person having more
than two children was deemed to be disqualified from being a member of
the Gram Panchayat, Panchayat Samiti or Zila Parishad. When the
constitutionality of the said provision was assailed before the Indian
Supreme Court, it was upheld in the judgment of Javed & Others Vs.
State of Haryana & Others [2003 (8) SCC 369] recognising that the
purpose behind such legislation is inter alia to popularize the Family
Welfare/Family Planning Programme which was in line with the National
Population Policy holding that “In our view, disqualification on the right to contest an
election by having more than two living children does not contravene any fundamental right
H.R.C. No.17599/2018
- 13 -
nor does it cross the limits of reasonability. Rather it is a disqualification conceptually
devised in national interest.”. The importance laid by the Indian Supreme Court
on the implementation of the population control policy to secure the
fundamental rights of the people of India is evident from the following
paragraph of the judgment supra:-
“…Reasonableness and rationality, legally as well as
philosophically, provide colour to the meaning of fundamental
rights and these principles are deducible from those very
decisions which have been relied on by the learned counsel for
the petitioners. It is necessary to have a look at the population
scenario, of the world and of our own country.
The torrential increase in the population of the country is one of the
major hindrances in the pace of India's socio- economic progress.
Everyday, about 50,000 persons are added to the already large
base of its population…It is a matter of regret that though the
Constitution of India is committed to social and economic justice
for all, yet India has entered the new millennium with the largest
number of illiterates in the world and the largest number of people
below the poverty line. The laudable goals spelt out in the Directive
Principles of State Policy in the Constitution of India can best be
achieved if the population explosion is checked effectively.
Therefore, the population control assumes a central importance for
providing social and economic justice to the people of India (Usha
Tandon, Reader, Faculty of Law, Delhi University, - Research
Paper on Population Stabilization, Delhi Law Review, Vol. XXIII
2001, pp.125-131). In the words of Bertand Russell, "Population
explosion is more dangerous than Hydrogen Bomb." This explosive
population over-growth is not confined to a particular country but
it is a global phenomenon. India…has the population problem
going side by side and directly impacting on its per capita income,
and resulting in shortfall of food grains in spite of the green
revolution, and has hampered improvement on the educational front
and has caused swelling of unemployment numbers, creating a new
class of pavement and slum-dwellers and leading to congestion in
urban areas due to the migration of rural poor. (Paper by B.K.
Raina in Population Policy and the Law, 1992, edited by B.P. Singh
Sehgal, page 52)…
H.R.C. No.17599/2018
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…The above facts and excerpts highlight the problem of population
explosion as a national and global issue and provide justification
for priority in policy-oriented legislations wherever needed…
…Fundamental rights are not to be read in isolation. They have to
be read along with the Chapter on Directive Principles of State
Policy and the Fundamental Duties enshrined in Article 51A. Under
Article 38 the State shall strive to promote the welfare of the people
and developing a social order empowered at distributive justice -
social, economic and political. Under Article 47 the State shall
promote with special care the educational and economic interests of
the weaker sections of the people and in particular the
constitutionally down-trodden. Under Article 47 the State shall
regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its
primary duties. None of these lofty ideals can be achieved without
controlling the population inasmuch as our materialistic resources
are limited and the claimants are many. The concept of sustainable
development which emerges as a fundamental duty from the several
clauses of Article 51A too dictates the expansion of population
being kept within reasonable bounds.”
Another illustration of legislative efforts to combat the menace of growing
population can be found in the judgment of Air India Vs. Nergesh Meerza
and Others [(1981) 4 SCC 335] where the rapid multiplication of
population was judicially noticed and the constitutional validity of
legislative means to check the population was upheld as the Indian
Supreme Court found no fault with the rule which would terminate the
services of air hostesses on the third pregnancy with two existing children,
holding the rule to be both salutary and reasonable for two reasons:-
"In the first place, the provision preventing a third pregnancy
with two existing children would be in the larger interest of the
health of the Air Hostess concerned as also for the good
upbringing of the children. Secondly…when the entire world
is faced with the problem of population explosion it will not
H.R.C. No.17599/2018
- 15 -
only be desirable but absolutely essential for every country to
see that the family planning programme is not only whipped
up but maintained at sufficient levels so as to meet the
danger of over-population which, if not controlled, may lead
to serious social and economic problems throughout the
world.”
The foregoing extracts clearly reflect the conviction and certitude of the
legislature and the judiciary that the national interest of India lay in
population control of the severity that disqualifications from elections and
posts etc., was deemed to be an appropriate and necessary measure to
enforce India’s two-child policy. For breach of the two-child norm several
states put together a package of punitive measures including exclusion
from elections, exclusion from ration cards, kerosene and other BPL
incentives, denial of education in government schools to the third child and
withdrawal of welfare programmes. This phased manner of implementing
the two-child policy, was soon followed by stringent measures in the form of
Indian Ministry of Health and Welfare’s Guidelines on Standards of Female
Sterilization, enacted in October 1999. Through a public interest litigation
decided through the judgment reported as Ramakant Rai Vs. Union of
India and Others [2009 (16) SCC 565], data from the States of Uttar
Pradesh, Bihar, and Maharashtra surfaced regarding government practices
for female sterilization, which largely revealed that the poor, female
population was targeted which lacked counselling or informed consent,
lacked pre- and post-operative care, and included unhygienic and un-
anesthetized operating conditions, sterilization of minors, coercion and
cruelty. In light of evidence of the morbidity suffered by women, along with
the unreported deaths due to the lack of quality care in sterilisation camps
the Indian Supreme Court in the noted judgment issued directives
specifying the quality of care standards along with appropriate protocols
that were to be stringently followed. While the issue of health concerns and
human rights violation arising from targeted sterilization of a certain
H.R.C. No.17599/2018
- 16 -
deprived class of the population has been addressed by the Indian Supreme
Court in Devika Biswas Vs Union of India (UOI) and Others [2016 (10)
SCC 726] as well, the Courts and the legislature and executive in India
nevertheless remained uncompromising in the object of population
reduction. As a result of these stringent legislative measures complimented
by judicial support, in the year 2017 the annual population growth
percentage in India has decreased to 1.1% while that of Pakistan remains
at 2.0%.
9.
The People’s Republic of Bangladesh:- In contrast to India,
the national family planning program in Bangladesh is considered to be
“culturally sensitive” because it uses strategies that acknowledge and
account for gender inequality. A mixed contraceptive method was adopted
prioritising oral pills over other methods such as sterilization or clinical
services like IUDs which are met with hesitance, particularly among rural
populations. The Government of Bangladesh formed a National Committee
and a National Plan of Action was developed following the International
Conference
on
Population
and
Development
(ICPD)
in
1994
for
implementation of the goals set in the Plan of Action. Under the integrated
approach of population and development, national policies were formulated
on population, maternal health and strategies were developed for
reproductive health, population, health and nutrition. Taking a community-
based approach, married, literate village-women were recruited and trained
in basic medicine and family planning to go door-to-door dispensing birth-
control pills and barrier contraceptives, providing outreach services to
couples, particularly married women with limited mobility outside the home
or
compound
and
referring
women
for
clinical
contraception.
Simultaneously, the government prioritized girls’ education which lead to
delays in marriage and childbearing as knowledge, status and confidence
gave them greater control over family-planning decisions. This led to
remarkable success in population control since prevalence of contraceptive
H.R.C. No.17599/2018
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use increased dramatically from 3% to 45% among married women since
1971 and the fertility rate declined from about seven births per woman in
the mid-1970s to 3.4 births per woman in 1993. These can largely be
attributed to its Government’s efforts, particularly over the past 15 years to
expand access to family planning methods and services and awareness
campaigns.
10.
The People’s Republic of China:- China, the most populous
country in the world which unlike Pakistan can sustain its rapid growth of
population due to its progressive economy, has been able to control its
growth rate by adopting the ‘carrot and stick’ rule. Article 25 of the Chinese
Constitution and Article 12 of the Marriage Law require that family
planning be promoted by the State. Attractive incentives in the field of
education and employment were provided to couples following the ‘one-
child norm’. At the same time drastic disincentives were cast on the couples
breaching such norm which even included penal action. These stringent
measures have led to a radical decrease in the population growth rate in
China, therefore, China’s Family Planning Commission, which for nearly
four decades enforced the country’s notorious one-child policy, will be
absorbed by a new agency as the government attempts to go back on its
one-child policy.
11.
It is pertinent to mention that the elucidation of the population
control measures of various countries was only for illustration purposes.
Although Pakistan is at a disadvantage for having launched this population
control campaign decades after similarly populated countries such as Iran,
China, India and Bangladesh, we also remain at an advantage to benefit
from the errors that have surfaced decades after the implementation of the
respective strategies employed with regard to their population control
campaigns. Be that as it may, understanding the policy efforts to promote
birth control and family planning methods only provides half the context
required to formulate an effective plan. Indeed, a number of the failings of
H.R.C. No.17599/2018
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the previous family planning initiatives stem from an ignorance of the
unique cultural and religious milieu of Pakistani society. A perusal of data
from the annual Demographic and Health Survey reveals a number of
preconceived notions, obstacles and misconceptions regarding family
planning, family size, childbearing and religious instructions regarding
birth control and spacing pregnancies. Looking to fellow Muslim countries,
or those nations with similar cultural ideals, it is clear that an effective
family planning policy is an achievable goal even in spite of cultural,
societal, or religious hesitance.
12.
In order to learn from the mistakes of other countries in such
campaign and to ensure that the efforts made in this relaunched campaign
do not suffer the same fate as the previous one, a National Population
Symposium was held by the Ministry of National Health Services,
Regulations & Coordination (Population Programme Wing) in conjunction
with the LJCP under the auspices of this Court on 05.12.2018 where
several experts made valuable contributions to sketching a roadmap for
this campaign of population control. One of the points raised was that
family planning campaigns involves a two-fold process of (1) raising the
demand for contraception use and (2) reducing the unmet need for
contraception which comprises of a fair percentage of married women. The
foremost task should be the meeting of demand of contraceptives and
making them easily assessible to people while increasing the awareness
with regards to the need of contraceptives. Moreover, the best global
practices in family planning must be adopted including modern tested and
effective methods in addition to a contraceptive mix method which has
proven to be effective in many countries. Global evidence also supports task
sharing/shifting strategies which should be quickly rolled out in Pakistan
to enable mid-level and community-based service providers to provide
services to rural, peri-urban and urban poor communities. We must
emphasise the need to resort to reproductive health programming which
H.R.C. No.17599/2018
- 19 -
involves the participation of men in contraceptive use and supporting
women for use of contraception. Subscribing to family planning methods
will benefit the country in the form of a higher GDP per capita and reduced
unemployment, increased health benefits including reduced maternal
mortality, improved infant and child health and fewer abortions; these
would in turn lead to greater freedom to determine the number and spacing
of children; environmental benefits include reduced pressure on natural
resources (water, agriculture, energy, etc.) as well as reduced air water and soil
pollution; and it will also result in increased resources per capita for
schooling and healthcare sectors and infrastructure. If resources are not
increased by rationing the amount of births burdening the economy each
year, this working population age will either be unemployed or due to lack
of education and skill training will be working in unskilled and menial jobs.
In order to ensure that this working age population is productively
employed, a drastic decline in the population is required which must be
supplemented with an education ‘emergency’ whereby education and
technical training for the working age population is provided targeting both
genders equally. Additionally, strong policy reforms are required centred on
capturing the demographic dividend, the total fertility rate (TFR) must be
reduced to a sustainable rate, a national action plan is required to be
introduced in order to train our human resource and match skills to the
available work opportunities, and ensure an increase in work opportunities
for women so as to increase the source of income of each familial house.
The United Nations Fund for Population Activities2 (UNFPA) is ready to assist
Pakistan in building consensus on high quality, equitable and voluntary
family planning as a national priority working with key stakeholders
including development partners. Under the current Country Programme for
Pakistan (2018-2022) UNFPA will focus on increasing capacities at all levels to
accelerate delivery and accessibility of high-quality family planning
2 The principle global inter-governmental organisation in the UN system with a mandate for family planning.
H.R.C. No.17599/2018
- 20 -
information and services; UNFPA stands ready to foster partnerships and
provide technical support to the implementation of the Recommendations
approved by CCI and endorsed by the Provincial Legislators. This strategic
decision will also enable Pakistan to honour the commitments made at
international and national level particularly those made in the 1994
International Conference on Population and Development Programme of
Action and the commitment made to reaching Sustainable Development
Goals. Finally, coordination must be strengthened at all levels starting from
the existing fora which include the Country Engagement Working Group
(CEWG), Provincial FP2020 Working Groups, Family Planning Donor and
Reproductive Health working groups, civil society organisations and the
private sector working for the cause of population planning.
13.
Be that as it may, as mentioned earlier in this opinion, the set
of eight key Recommendations which have been prepared by the Task Force
and approved by CCI are reproduced below:-
RECOMMENDATION
RESPONSIBILITY TIMEFRAME
1. Establish National and Provincial Task Forces for steering, providing
oversight and taking critical decisions to reduce population growth, lower
fertility rate and increase contraceptive prevalence rate (CPR):
a. National TF chaired by Prime Minister
to include Chief Ministers of all the
Provinces,
Federal
and
Provincial
Ministers
of
Population,
Health,
Education,
Finance,
Planning
and
representatives of civil society.
M/o NHS
By 31.12.2018
b. Provincial TFs chaired by respective
Chief Ministers to include Provincial
Ministers
of
Population,
Health,
Education,
Finance,
Planning
and
representatives of civil society.
PWDs
By 31.12.2018
c. Progress towards reducing population
growth rate, lowering fertility and
increasing contraceptive prevalence rate
to be monitored through a robust data
collection system and assessments of
results and presented before National
and Provincial Task Forces.
M/o NHS and PWDs Bi-annually
(NTF)
Quarterly
(PTF)
2. Ensure Universal Access to FP/RH Services:
H.R.C. No.17599/2018
- 21 -
i. Mandate all public health facilities
(BHUs,
RHCs,
THQHs,
DHQHs,
Teaching Hospitals) to deliver family
planning services as part of the
essential service package.
Federal/Provincial
Governments
By 30.06.2019
ii. All general registered private sector
practitioners and hospitals to provide
FP
counselling,
information
and
services to male and female clients.
Federal/Provincial
Governments
By 30.06.2019
iii. Lady Health Workers to provide FP,
ante-natal and post-natal counselling,
and contraception services on priority
basis.
Federal/Provincial
Governments
By 30.06.2019
iv.
Current cadre of male mobilizers to be
made active and accountable for
counselling men on family planning.
Federal/Provincial
Governments
By 30.06.2019
v.
NGOs
and
Civil
Society
Organizations
to
work
in
close
coordination with provincial DOHs
and PWDs to extend FP/RH services
to underserved and unserved areas.
Federal/Provincial
Governments
By 31.03.2019
vi. Federal and Provincial Governments
to link population programs with
Social Safety Net programs like
Benazir Income Support Program and
introduce conditional cash transfer
schemes or incentivized schemes for
adoption
of
FP
service
and
institutionalized birth delivery.
M/o NHS, PWDs
and BISP
By 30.06.2019
3. Finances:
i.
Federal Government to create a five-
year non-lapsable Special Fund for
reducing Population Growth Rate with
annual allocation of Rs.10 billion. The
Fund shall be set up exclusively from
federal resources without any cut from
provincial funds. The Fund will:
M/o
Finance
and
M/o NHS
By 30.06.2019
a. Meet, for five years, 50%
amount of additional allocations
made by the provinces for
procurement of contraceptive
commodities over and above the
budget provision of FY 2018-19
in the respective head.
M/o
NHS
in
coordination
with
PWDs and Finance
Div. & PD&R Div.
FY
2019-20
through
FY 2023-24
b. Meet, for five years, 50% cost of
increase in LHWs for 100%
coverage for doorstep services in
rural and peri-urban areas.
M/o
NHS
in
coordination
with
DOH and Finance
Div. & PD&R Div.
FY
2019-20
through
FY 2023-24
c. Support innovative approaches
of
Federal
and
Provincial
Governments for reaching poor
and marginalized population to
reduce population growth and
M/o
NHS
in
coordination
with
DOH and Finance
Div. & PD&R Div.
FY
2019-20
through
FY 2023-24
H.R.C. No.17599/2018
- 22 -
increase
contraceptive
prevalence rate (CPR).
ii.
Federal and Provincial Population and
Health budgets for FP/RH to be
doubled over the next two years and
protected from reallocation to other
programs
and
departments
while
ensuring timely releases.
M/o Finance, M/o
NHS,
DOH
and
PWDs
FY
2019-20
through
FY 2020-21
iii. Donor financing to NGOs and private
sector
organizations
involved
in
FP/RH to be streamlined through an
effective coordination mechanism.
EAD and M/o NHS
in coordination with
PWDs and DOH
By 31.03.2019
iv. Corporate Sector to allocate CSR
funds for FP services and advocacy.
SECP/FBR
By 31.01.2019
4. Legislation:
i.
Family Planning and Reproductive
Health (FP&RH) Rights Bill ensuring
mandatory FP/RH services by all
general health care facilities in public
and private sector.
M/o NHS, M/o Law
and
Justice
and
Provincial
Governments/PWDs
By 31.03.2019
ii.
Early Child Marriage Restraint Act be
introduced by Federal and Provincial
Governments (Sindh passed this Act
in 2013).
M/o NHS, M/o Law
and
Justice
and
Provincial
Governments/PWDs
By 31.03.2019
iii.
Pre-marital counselling on family
planning should be mandatory for
Nikah
registration;
LHWs
or
appropriate
service
providers
to
provide the requisite counselling.
M/o NHS, M/o Law
and
Justice
and
Provincial
Governments/PWDs
By 31.03.2019
iv.
“Right to promotive and primary
health care for mother and child be
made mandatory” as the right to
education given in Article 25-A of the
Constitution.
M/o NHS/M/s Law
and Justice
By 31.03.2019
5. Advocacy and communication:
i.
A national narrative to be developed
in consultation with Provinces and
other stakeholders to create a sense of
urgency and necessity of reducing
population growth rate and achieving
socio-economic wellbeing for all.
M/or
NHS,
M/o
Information,
M/o
Religious
Affairs
and PWDs
By 28.02.2019
ii.
Mass movement leading to a call of
action to be launched involving
political leaders, corporate sector,
academia, judiciary, executive, ulema,
media, intelligentsia, civil society and
youth.
Federal
and
Provincial
Governments and all
stakeholders
Immediate
iii.
PEMRA to provide free airtime for FP
messages on radio and TV channels at
prime time.
M/o Information and
PEMRA
By 15.03.2019
H.R.C. No.17599/2018
- 23 -
iv.
Behavioural Change Communication
campaign to highlight the role and
responsibilities of men in family
planning.
Federal/Provincial
Governments/Media
and Civil Society
Immediately
6. Curriculum and Training:
i.
Health and hygiene to be included at
primary school level.
PWDs and Federal
and
Provincial
Education
Departments
By 30.06.2019
ii.
Life Skills Based Education and
Population Studies to be included in
Secondary and Higher Secondary
schools.
PWDs and Federal
and
Provincial
Education
Departments
By 30.06.2019
iii.
Population Dynamics in Pakistan to be
included in College and University
level education.
HEC, Federal and
Provincial Education
Departments
By 31.03.2019
iv.
Population modules to be included in
training at all Civil Services and
Judicial Training Institutions.
National School of
Public Policy
By 31.03.2019
v.
PMDC and PNC to include modules
on FP/RH in MBBS and Nursing
Degree Programs, respectively.
M/o NHS, PMDC
and PNC
By 31.03.2019
vi.
Training to be provided to all public
and private health care providers on
all modern contraceptive methods.
M/o NHS, DOH and
PWDs
By 31.12.2019
7. Contraceptive Commodity Security:
i.
Incentivizing Local Production of
Contraceptives:
Federal
and
Provincial
Governments
should
encourage/incentivize
the
pharmaceutical
companies/investors
to establish contraceptive production
units in Pakistan on WHO/FDA
standards.
M/o
NHS
in
coordination
with
relevant Federal and
Provincial
authorities
By 30.06.2019
ii.
Pooled Procurement model to be
adopted by the Federal and Provincial
Governments
(subject
to
their
consent) to garner the benefits of
economy of scale.
M/o NHS, PWDs
and DOH
FY
2019-20
onwards
iii.
Supply Chain Management System to
be strengthened to ensure availability
of
all
contraceptives
at
Service
Delivery Points.
M/o NHS, PWDs
and DOH
By 30.06.2019
iv.
FP Commodities should be included
in the essential drug list of primary,
secondary and tertiary drug list.
PWDs and DOH
By 31.03.2019
8. Support of Ulema
i.
Joint Declaration of Ulema made at
Population Summit-2015, Islamabad
M/o
NHS,
M/o
Religious
Affairs,
On continuous
basis
H.R.C. No.17599/2018
- 24 -
to be widely advocated.
M/o
Information,
PWDs and DOH
ii.
Training courses on family planning
to be arranged at Provincial Judicial
Academies
and
relevant
training
institutes for Ulemas and Khateebs.
DOH/PWDs
and
Provincial
Judicial
Academies
By 30.06.2019
Adopting an approach similar to that of Iran, and focusing on the main
impediment to the cause of population planning, these recommendations
involve increasing the demand and utilization of contraceptives for which a
mass movement is suggested taking on board political leaders, Ulema and
clerics, the corporate sector, academia, executive, judiciary, media,
intelligential and youth. The Ulema and Islamic scholars must also be
urged to promote Islamic teachings in the context of controlled birth so that
each child may be assured an enlightened and prosperous life. For this
national cause, the Pakistan Electronic Media and Regulatory Authority
(PEMRA) should allocate free airtime for family planning messages on all
radio and television channels in prime time. Adopting the community-based
approach of Bangladesh, these recommendations include the mandatory
delivery of family planning services by all public health facilities and
hospitals, as part of the essential service package, as well as the mandatory
provision of family planning counselling, information and services by all
registered private sector practitioners and hospitals. After thorough training
the lady health workers and the current cadre of male mobilizers are
suggested to be reactivated targeting the women and men of each family
and ensuring active and accountable counselling for them. More crucially,
it has been recommended that Federal and Provincial Governments
introduce conditional cash transfer schemes for adoption of family planning
services and institutionalised birth delivery and financial support programs
such as the Benazir Income Support which should be linked with
population planning initiatives. Moreover, it has been recommended that
the Pakistan Medical and Dental Council (PMDC) and the Pakistan Nursing
H.R.C. No.17599/2018
- 25 -
Council (PNC) should include mandatory modules on Family Planning and
Reproductive Health so we may rope in our future doctors and nurses to
this national crusade. Obviously, the general cooperation of our NGOs and
civil society is also expected and requested for this national cause. The
Federal and Provincial Governments should also consider incentivising the
local production of contraceptives by investors and pharmaceutical
companies to increase their supply and accessibility and consider pooled
procurement of contraceptives. The executive must play an active role in
ensuring effective implementation of such laws. The Federal and Provincial
Governments have agreed to allocate a sustainable amount of funds for this
urgent cause, which will be a commitment that they must stick to in order
to achieve any success in this population control campaign.
14.
The Recommendations are expected to accelerate government
efforts to reduce the population growth rate, lower the total fertility rate,
and increase the contraceptive prevalence rate. These Recommendations
which are aligned with provincial population policies and recognize the
Federal Government’s role in fostering, coordinating, and facilitating
national progress, specify clear priorities, roles and responsibilities, and
timelines for action. All that remains is for stakeholders at all levels to
translate these Recommendations into urgent action. Because further
complacence in controlling population by engaging in futile debates of
responsibility or blame fixing, will prove to be a sure drift towards disaster.
Immediate action by all pillars of the State and the public at large is not
only the need of the hour, it is now a question of survival and thus must
commence without any delay. As mentioned in the beginning of this
opinion, it is undeniable that the right to life and several other rights are
meaningless if owing to overpopulation, people are deprived of basic
amenities such as food, water etc. Even otherwise, being one of the most
populated countries in the world, Pakistan needs to realise its responsibility
and play its role in curbing its uncontrol and unplanned population before
H.R.C. No.17599/2018
- 26 -
starvation, malnutrition, illiteracy, poverty and unemployment become the
fate of a large segment of its population.
15.
The population explosion that we so rightly fear can only be
overcome if we stand against it together as one; if we successfully convince
the common man that our limited resources cannot feed more than two
children per house; if we accept that required transformative investments
in human development can only be made if our hands are not tied by
severe economic constraints and depleting resources; if we admit that the
ratio of mouths to feed has long outweighed our resources; if all
stakeholders, including policymakers, legislators, care providers, civil
society activists and religious scholars, play their roles in unison to support
responsible parenthood behaviours in our society; and if we can convince
ourselves that population planning is not a plan for the future, but a
remedial step that has already been taken too late: only then can we diffuse
this ticking bomb. Having equipped the nation with the above
Recommendations, collaboration of the three pillars of State and all
stakeholders and the words of wisdom and caution of experts for this
campaign reduce the population growth rate, this journey we have
embarked upon will indeed be one that our posterity will thank us for.
CHIEF JUSTICE
Announced in open Court
on __________ at __________
Approved for Reporting
Waqas Naseer
JUDGE
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE SAJJAD ALI SHAH
HUMAN RIGHTS CASE NO. 17842 OF 2018
(in the matter regarding removing educational and
commercial buildings etc. from cantonments areas
in Pakistan)
Date of Hearing:
26.04.2018
ORDER
The Human Rights Cell of this Court has placed a note
before the Court, which postulates that all the schools in the
Cantonment areas across Pakistan are being directed to be shifted
from the Cantonment areas within a period of 15 days. Although
vide order dated 24.10.2017, passed by a two Member Bench of
this Court in Civil Appeal No.800/2012, it has been directed that
the exercise of removing educational and commercial buildings
etc., from the concerned areas be made gradually, yet from the
note put up before us, it seems that the said order has not been
complied with in letter and spirit and thus, the educational career
of a substantial number of students would be at stake if immediate
action of removal of the said school is allowed.
2.
In the light of the above, we issue notice to all the
Cantonment Boards in Pakistan to submit their replies about the
question as to why action has been taken in such haste and what
was the urgency therein. Till the next order to the contrary, the
order of this Court dated 24.10.2017 is held in abeyance, meaning
thereby that no school shall be vacated/transferred from the
Cantonment areas till such order is passed by this Court. Relist.
CHIEF JUSTICE
JUDGE
JUDGE
ISLAMABAD.
26th April, 2018.
Mudassar/
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Ijaz Ahmed Chaudhry
Mr. Justice Sh. Azmat Saeed
Human Rights Case No.19526-G of 2013
(Application by Mst. Bibi Zahida for arrest of accused of
murder of her daughter Waheeda)
Applicant:
In person with her daughter Ms. Fareeda
On Court Notice:
Mr. Sajid Ilyas Bhatti, DAG
Syed Arshad Hussain Shah, Addl. A.G. KPK
Mr. Naveed Akhtar, Addl. A.G. KPK
For KPK Police:
Mr. Abdul Latif Afridi, ASC
Mr. M. Zahoor Qureshi, AOR with
Mr. Ihsan Ghani, IGP, KPK
Mr. Imran Shahid, SSP Operation Peshawar
Mr. Muhammad Faisal SP Cantt, Peshawar
Rana Umer Farooq, ASP U/Town Peshawar
Mr. Rizwanullah SI, U/Town
For Islamabad Police: Mr. Bani Amin Khan, IGP
Mr. Yasin Farooq, SSP Operation
Mr. Jamil Ahmed Hashmi, SP Saddar
Mr. Abdul Rasheed Niazi, DSP
Mr. Sajjad Bukhari, Inspector/SHO
Mr. Rashid Ahmed, SI
(All in person)
Date of hearing:
11.07.2013
*****
JUDGMENT
Iftikhar Muhammad Chaudhry, CJ. Instant proceedings
under Article 184(3) of the Constitution of Islamic Republic of
Pakistan, 1973 have originated from an application received from Mst.
Bibi Zahida wife of Darya Khan. Petition has been entertained for
enforcement of fundamental rights involving question of public
importance about the denial of right of the general public to have
excess to justice by the law enforcing agency i.e. the police, as a
2
result whereof victims continuously suffered at the hands of culprits,
leading to the increase of unrest/uncertainty in the society.
2.
In the instant case, petitioner Mst. Zahida alleges murder
of her daughter Waheeda @ Palwasha @ Honey, which took place on
19.05.2013 at the hands of her husband Darya Khan and son Khalid-
ur-Rahman within jurisdiction of police station University Town,
Peshawar.
3.
Recapitulating facts of the events which had given rise to
the instant case can only be appropriately explained by reproducing
the contents of her application in extenso herein below:-
3
4
4.
At the hearing of the petition, it revealed that the case of
deceased lady could not be handled as per criminal law prevailing in
the country against culprits, reasons of which are still required to be
unearth because insistence of petitioner to register FIR of murder of
her daughter was not conceded to by Peshawar police at highest level.
Inasmuch as, without conducting autopsy, her dead body was
dispatched from Peshawar to Islamabad in an ambulance but on her
hue and cry, the police was compelled to get back the dead body from
a place known as Tarnol near Islamabad, to Peshawar, where allegedly
post-mortem was conducted at 4:00 pm. Statedly instead of issuing
post-mortem report, one of the parts of her body i.e. heart was sent to
Forensic Science Laboratory, Lahore as it was difficult to ascertain her
cause of death. As such no FIR was registered except recording report
vide Entry No.16 in Daily Diary of PS Shalimar, wherein her case was
5
treated to be covered under section 174 Cr.PC. It is stated that
deceased’s husband is resident of Islamabad where she was living with
him along with her two children, therefore, her dead body was again
brought back to Islamabad in the house of her father-in-law, Bani
Amin Khan who is IGP, Islamabad.
5.
The petitioner did not permit her burial without registering
FIR and getting Post-Mortem. On this, FIR No.134/2013 dated
19.05.2013, under section 302/34 PPC was registered at Police Station
Shalimar, Islamabad, knowing well that incident had taken place in the
area of Town Police Station, Peshawar (KPK).
6.
On having issued process under HRC, reportedly no
effective progress was made by concerned Authority, therefore,
petitioner, Mst. Bibi Zahida submitted another application, contents
whereof are reproduced as under:-
“نﺎﺗﺳﮐﺎﭘ فآ ٹروﮐ مﯾرﭘﺳ بﺣﺎﺻ سﭨﺳﺟ فﯾﭼ بﺎﻧﺟ تﻣدﺧﺑ
ﯽﻟﺎﻋ بﺎﻧﺟ
از ﯽﺑ ﯽﺑ ةﺎﻣﺳﻣ ﻼﯾﺋﺎﺳ ہﮐ ﮯھ شرازﮔ ہﺧروﻣ ںﯾﻣ تﻣدﺧ ﯽﮐ روﺿﺣ ﮯﻧ ادھ۲۵
ﯽﺋﻣ۲۰۱۳ ﺎھﺗ ﺎﯾﮔ ﺎﯾﮐ رﺎﯾﺗﺧا فﻗوﻣ ںﯾﻣ سﺟ ۔ﯽھﺗ یرازﮔ تﺳاوﺧرد ددﻋ کﯾا ہﮐ
ﯽﮐ نﯾﻣﺎﻧﺑ دﻟو نﯾﻣا ﯽﻠﻋ ہﮐ وﺟ ﯽﻧھ فرﻋ ہﺷوﻠﭘ هدﯾﺣو ﯽﭨﯾﺑ یرﯾﻣ ہﮐ ﯽھﺗ یوﯾﺑ
IG ںﯾﻣ سﯾﻟوﭘ دﺎﺑآ مﻼﺳا تﻗو سا رﺳﺳ ﺎﮐ ﯽﭨﯾﺑ یرﯾﻣ روا
وﮐ ﯽﭨﯾﺑ یرﯾﻣ روا ﮯھ
ہﺧروﻣ19.5.2013 وﮐ ںﯾﻣ تﺑﺎﺑ ﯽﮐ سﺟ ۔ﺎﯾﮔ ﺎﯾد رﮐ لﺗﻗ ںﯾﻣ روﺎﺷﭘکﯾا ﮯﻧ ںﯾﻣ
ہﺧروﻣ ٹروﭘر19.5.13 روﺎﺷﭘ ہﮐ وﺟ لﺗﻗ ہﯾ ۔ﮯھ ﯽﮐﭼ وھ جرد ںﯾﻣ نٰٔوٗﺎﭨ ہﻧﺎھﺗ
ثوﻠﻣ ںﯾﻣ سا ﮯھ اوﮨ ںﯾﻣ پﺷ نٔوﺎﭨ ہﯾزوﻓ یوﯾﺑ ﯽﮐﺳا نﺎﺧ دﻟﺎﺧ ﮯھ ﺎﭨﯾﺑ ﺎﮔﺳ ارﯾﻣ
روا۔ںﯾھ ثوﻠﻣ ںﯾﻣ لﺗﻗ سا نﯾﻣا ﯽﻠﻋ دﻧوﺎﺧ ﺎﮐ ﯽﻧھ فرﻋ ہﺷوﻠﭘ هدﯾﺣو ﯽﭨﯾﺑ یرﯾﻣ
شﺷوﮐ نﮐﻣﻣ رھ نﯾﻣﺎﯾﻧﺑ دﻟاو ﺎﮐ نﯾﻣا ﯽﻠﻋ روا شﮔﻧﺑ نﺎﺧ ﺎﯾرد دﻟاو ﺎﮐ نﺎﺧ دﻟﺎﺧ ہﮐﺑﺟ
ےرﺎﻣھ ہﮐ ںﯾھ ﮯﮨر رﮐ ﭨرﺎﭘ وﻧود وﮐ ﯽﭨﯾﺑ ںﺎﻣ مھ روا ںﯾﺋﺎﺟ ﭻﺑ ﮯﭨﯾﺑ نﺎﺟ ﮯﺳ ںوﯾ
وھ رود ﮯﺳ سﯾﮐ سا مھ ہﮐ ںﯾھ ﯽﮨر لﻣ نﺎﯾﮐﻣھد لﺳﻠﺳﻣ ںﯾﻣھ روا ﮯھ هرطﺧ ﺎﮐ
6
ﮯﺳ پآ ۔ںﯾد ﺎﺑد وﮐ لﺗﻗ سا روا ۔ںﯾﻟ رﮐ ٹﻧﻣ لﭨﯾﺳ ںﯾﻣ سﭘآ ںوﻧود هو روا ںﯾﺋﺎﺟ
FC ٖ ﮯﺋﻠﯾﮐ تظﺎﻔﺣ ﯽﮐ نﺎﺟ یرﺎﻣھ ہﮐ ﮯھ شرازﮔ یرﯾﻣ
ﯽﭨروﯾﮐﯾﺳ ﯽﮐ زرﺟﻧﯾر ﺎﯾ
وﭘ ﯽﮐ دﺎﺑآ مﻼﺳا ہﮐﻧوﯾﮐ ﮯﺋﺎﺟ ﯽﮐ ﺎﯾﮩﻣ سﯾﻟ
IG ﮯ����ﮐ ﮯھ ںﯾﻣ لورﭨﻧﮐ
لﻣ ازﺳ وﮐ لﺗﺎﻗ لﺻا ہﮐ ﺎﺗ ﮯﺋﺎﺟ ﯽﮐ ددﻣ یرﺎﻣﮨ ہﮐ ﮯھ دﺎﯾرﻓ ﯽﮐ ںﺎﻣ کﯾا ﮯﺳ پآ
۔ﮯﮐﺳ
ﮯﮐﺳﺟ ﯽﭨﯾﺑ یرﯾﻣ روا ﮯھﺟﻣ2 ﮯﮐ ںوﭼﺑ ﮯﮐﺳا روا ﮯھ هوﯾﺑ ہﮐ وﺟ ںﯾﮨ ﮯﭼﺑ
O
ںﯾﮩﻧ شﺋﺎﮨر رﭘ ہﮔﺟ یرﺳود ںﯾﮩﮐ مھ ﮯﺳ ہﺟو ﯽﮐﺳﺟ ںﯾھ ﮯﮨروھ زرﭘﯾﭘ ﮯﮐ لوﯾﻟ
آ ﮯﯾﺋﻟ سا ۔ﮯﺗﮐﺳ ﮫﮐر ﮯﺋﯾﻠﯾﮐ تظﺎﻔﺣ یرﺎﻣھ پ
FC
رﭘ رھﮔ ےرﺎﻣھ زرﺟﻧﯾر ﺎﯾ
ںﯾدرﮐ تﺎﻧﯾﻌﺗ
۔ﯽﮔوھ ﯽﻧﺎﺑرﮩﻣ یڑﺑ یڑﺑ ﯽﮐ پآ
۔۔۔۔۔۔۔۔
--------
هدھاز ﯽﺑ ﯽﺑ ةﺎﻣﺳﻣ
رﺑﻣﻧ نﺎﮐﻣ۳۲۳ رﺑﻣﻧ ﯽﻠﮔ۲۱ ٹﻧﻣﺳﯾﺑ
E-11/4
دﺎﺑآ مﻼﺳا
7.
The hearing of the case commenced on 03.07.2013 when
Mr. Yasin Farooq SSP Operation conceded that in respect of murder of
daughter of petitioner, namely Mst. Waheeda @ Palwasha @ Honey,
FIR should have not been registered at Islamabad. Contents of his
statement read thus:-
“Statement regarding case FIR No.134 P.S.
Shalimar, Islamabad
On 19.5.2013, at around 8 p.m. all officers were in the
residence of I.G. Islamabad regarding the funeral of his
daughter in law Miss Waheeda. The mother of the
deceased sat in front of the Ambulance and insisted for an
FIR before the burial.
At this IG Islamabad directed SHO Shalimar Sajjad Haider
and DSP Margalla Rashid to record their statement and
register the FIR. In compliance of his orders FIR
No.134/13 u/s 302/34 PPC P/S Shalimar was registered.
Sd/-
7
YASEEN FAROOQ
SSP/Islamabad”
The above statement was followed by another statement of the same
officer, which has been incorporated in the following para of the
proceedings dated 04.07.2013:-
“4…….
Since
the
occurrence/incident
had
taken
place
at
Peshawar, hence registration of FIR at Islamabad is not
legally justified. It may be noted that undersigned has not
passed any orders for registration of FIR. It is further
submitted that after verifying that the incident has actually
taken place in the jurisdiction of PS Town, Peshawar and
legal proceedings were already underway, cancellation
report in the subject case was prepared on 25.05.2013
and the matter was referred to the Home Department,
Government of KPK.”
8.
On 04.7.2013 IGPs of KPK and Islamabad were asked to
furnish lists of officers/officials to whom they consider that right of
hearing should be provided to them, lest, injustice may not be caused
to them, if any adverse order is passed. Following lists were according
furnished:-
List of KPK Police Officers
1.
Mr. Ihsan Ghani, IGP
2.
Mr. Imran Shahid, SSP (Operations)
3.
Mr. Faisal, SP (Cantt)
4.
Mr. Umar Farooq ASP, Town
5.
Mr. Sardar Hussain, SHO Town
6.
Mr. Rizwan Ullah, I.O.
List of Police Officers of Islamabad
1.
Mr. Bani Amin Khan, IGP, Islamabad
8
2.
Mr. Yaseen Farooq, SSP (Operations),
3.
Mr. Jameel Hashmi, SP Saddar Zone
4.
Mr. Rasheed Niazi, DSP, Margalla
5.
Mr. Sajjad Haider, SHO, PS. Shalimar
6.
Mr. Rasheed Ahmed, SI, P.S. Shalimar
9.
Mr. Latif Afridi, ASC filed HRCMA No.98/2013, whereas Mr.
Bani Amin Khan, IGP Islamabad also filed HRCMA 97/2013. Similarly
Jamil Hashmi, SP filed separate application.
10.
We have heard to all of them in support of contentions put
forward by them.
11.
Learned counsel for IGP, KPK contended that as per facts
disclosed to police, no evidence was available to conclude prima facie
that she died because of unnatural death, therefore, police after
recording report No.16 dated 19.05.2013 in the Daily Diary Register of
Police Station, proceeded to consider incident covered under section
174 Cr.P.C. because in the meanwhile incomplete Post-Mortem report
was received and police surgeons/doctors were waiting for the result
of Forensic Laboratory to whom, heart of deceased was sent for
examination to ascertain whether her death was natural or due to
administrating poison to her or due to asphyxia.
12.
However, in his presence, Mr. Ihsan Ghani, IGP, KPK
stated that Bani Amin was insisting for registration of the case but he
refused to do so. Such statement he had also made on 03.07.2013
during the hearing of the case. As per Mr. Bani Amin Khan, IGP,
Islamabad, he approached to everyone, responsible for registration of
case, including Moharar to IGP, KPK but no body listened him.
9
13.
It is important to note that learned counsel for IGP, KPK
also conceded that Police should have registered the case at Peshawar
as there were allegations of murder against the father and brother of
the deceased.
14.
Learned Additional Advocate General, KPK also agreed that
as per section 154 Cr.P.C. police had no option except to register the
case at the police station where incident of murder of deceased
allegedly took place.
15.
It is to be observed that when there is no difference of
opinion amongst all of them that case should have been registered u/s
154 Cr.P.C. when matter was reported, the police administration is
bound to follow the dictate of law, which has been explained by this
Court time and again. Reference may be made to the following paras
of the judgments in the case of Muhammad Bashir v. Station House
Officer, Okara Cantt (PLD 2007 SC 539):-
27. The conclusions that we draw from the above, rather
lengthy discussion, on the subject of F.I.R., are asunder:-
(a) no authority vested with an Officer Incharge of a
Police Station or with anyone else to refuse to record
an F.I.R. where the information conveyed, disclosed
the commission of a cognizable offence.
(b)
no authority vested with an Officer Incharge of a
Police Station or with any one else to hold any
inquiry into the correctness or otherwise of the
information which is conveyed to the S.H.O. for the
purposes of recording of an F.I.R.
(c)
any F.I.R. registered after such an exercise i.e.
determination
of
the
truth
or
falsity
of
the
10
information conveyed to the S.H.O., would get hit by
the provisions of section 162, Cr.P.C.
(d)
existence of an F.I.R. is no condition precedent for
holding of an investigation nor is the same a
prerequisite for the arrest of a person concerned
with the commission of a cognizable offence;
(e) nor does the recording of an F.I.R. mean that the
S.H.O. or a police officer deputed by him was obliged
to investigate the case or to go through the whole
length of investigation of the case mentioned therein
or that any accused person nominated therein must
be arrested; and finally that
(f)
the check against lodging of false F.I.Rs. was not
refusal to record such F.I.Rs, but punishment of such
informants under S.182, P.P.C. etc. which should be,
if enforced, a fairly deterrent against misuse of the
provisions of S.154, Cr.P.C.
16.
Prior to above dictum, this Court in the case titled as the
Human Rights Case No.3212 of 2006 (2006 SCMR 1547) observed as
under:-
3.
I.G. Police is appearing in another case, which
pertained to District Sialkot, therefore, the above matter
was brought to his notice as he was present in the Court.
D.P.O. Sheikhupura stated that now the case has been
registered by the police vide F.I.R. No.138, dated 28-4-
2006 under section 302, P.P.C. and investigation is going
on. Non-registration of a criminal case wherein a murder
has taken place for a period about 2-1/2 years clearly
demonstrates inefficiency, and gross negligence on the
part of the concerned Police Officers. It is well-settled
that during the investigation it is always better to collect
evidence if available, as early as possible. We are not in
11
a position to understand that in such a case where
murder has taken place what would be the result of the
same and particularly poor lady Mumtaz Bibi who has
appeared and is complaining against the police attitude
saying that she had been approaching them again and
again for the purpose of registration of the case but no
one had listened her and at the end of the day D.P.O.
came to her rescue and directed the registration of the
case and entrusted investigation to S.P. Investigation.
We understand that matter will be investigated and
evidence will be collected, sufficient or otherwise for the
purpose of submitting challan but what would be the
recompense to the lady whose son has been killed in a
gruesome manner.
4.
As far as the system of the law is concerned, the
constitution says that everyone is entitled to the
protection of the same and is entitled to get justice in all
the circumstances but the attitude of the police in this
case is irresponsible and on account of such attitude,
mother of the deceased Mumtaz Bibi is bound to suffer
throughout her life, so long as she lives. As per her claim
she is a widow and after the death of her husband she
had taken it as a mission to bring up her children but in
the meanwhile this incident took place. The facts and
circumstances of the case which have been narrated
before I.G. Police and Advocate-General, Punjab, her
plight can be well-imagined by all of us. However, we
direct I.G. Police to take personal interest in the
investigation of the case.
5.
Let this case remain pending and I.-G. Police shall
submit report personally after every week in respect of
the progress of the case and even after the submission
of challan it would be his responsibility to ensure that
evidence is produced if ultimately evidence is not
available then it would be the liability/responsibility of
12
the police department to compensate her in any manner
whatever they deem fit, under the circumstances. In the
meanwhile I.G. Police shall take strict disciplinary action
against officers/officials who are responsible for not
registering the case ultimately after the happening of the
incident as this Court observed time and again that it is
the duty of the police to register the case without any
delay and submit challan as far as possible within the
period of fifteen days in terms of section 173, Cr.P.C.
Reference in this behalf may be made to Hakim Mumtaz
Ahmed and another v. The State PLD 2002 SC 590.
17.
Unfortunate aspect of the case is that IGP, KPK is taking
responsibility as noted above upon his shoulder not once but twice that
he had declined to register the case.
18.
Whereas on the other hand Bani Amin I.G.P, Islamabad,
whose daughter-in-law (wife of his son Ali Amin) has been murdered,
maintained that deceased was poisoned as according to him he had
noticed that: (i) her hands and feet were bluish; (ii) there were
wounds on her lips; and (iii) spots on cheeks. To substantiate his plea,
he had also produced photographs of dead body, which were taken
after her death. Contention so raised, seems to be true as per
photographs. Not only this, he had also shown another photo to show
that a sign of administering injection was visible on her forearm, which
has also been confirmed by petitioner when picture was shown to her
in Court.
19.
Prima facie these facts are sufficient to establish that
police of KPK abused their powers in not registering of FIR on
19.05.2013 as in view of principles discussed hereinabove, in the
13
judgments and the law on the subject u/s 154 Cr.P.C. The IGP, KPK
and his subordinates had no lawful authority to deny access to justice
to petitioner. This is nothing but clearly a case of either inefficiency or
criminal negligence of the police for the reasons best known to them,
including external pressure on all of them but a law abiding officer is
not supposed to deny due process of law to victim party.
20.
Importantly it is to be noted that during hearing of matter,
a case has been registered vide FIR No.366/2013, PS Town, District
Peshawar dated 19.5.2013 u/s 302/34 PPC. Copy of FIR has been
placed on record.
21.
Now turning towards the conduct of Islamabad Police,
which needs no discussion as per facts noted above and same are
sufficient to conclude that all of them acted with sheer criminal
negligence, favouritism and inefficiency.
22.
The statement of IGP Bani Amin noted above is not
acceptable as he being a senior police officer, without getting
registered FIR at Peshawar brought back dead body of her daughter-
in-law to Islamabad where under his direction in respect of incident of
Peshawar a case was got registered in Islamabad and subsequently a
guard was posted on her grave, disclosure of which has been made by
him during hearing when pointed out by Mst. Bibi Zahida, reason
should be known to him. Inasmuch as, none amongst other officers
whose named he has furnished himself, refused to accede his illegal
demand including SP Jamil Hashmi, who now is trying to distance him
from the illegal act.
14
23.
Learned Additional Advocate General pointed out that
provincial government of KPK has constituted a committee to probe
into the incident of killing of Mst. Waheeda on 19.05.2013 for non
registration of the case in Peshawar and SSP Imran Shahid has been
suspended.
24.
Learned Deputy Attorney stated that Federal Government
has been conveyed about hearing of the case and registration of FIR at
Shalimar Police Station. He also agreed that no FIR in respect of
incident, which had taken place about the alleged unnatural death of
Mst. Waheeda in the area of Town Police Station, Peshawar could have
been registered at Shalimar Police Station.
25.
It is to be noted that heavy responsibility lies upon the law
enforcing agencies, particularly, police to ensure that life and property
of the people in terms of Article 9 of the Constitution is protected by
them but we are constrained to observe that in our country police is
not fulfilling its commitments efficiently, as a result whereof, law &
order situation, all over the country, is worsening day-by-day. There
could be acceptable reasons, on account of which the forces including
the police, with other duties, maintain peace in society and bring the
culprits to book without being influenced from anyone because once
the accused is involved in an offence, he and his near ones try their
best to ensure that he is saved from the clutches of law.
26.
We have in our police department such officers who are
known for their efficiency, credibility, commitment and whenever any
task is assigned to them, they do discharge their duty strictly in
accordance with the Constitution and the law. However, justice does
15
not mean that it should only be done to the culprits, because at the
same time, victims/sufferers also deserve for the same and their
grievance can only be redressed, if the accused are brought to book
immediately.
27.
In the instant case, as we have noticed, petitioner Bibi
Zahida is agitating that her daughter Waheeda @ Palwasha @ Honey
has been killed by her husband Darya Khan and son Khalid-ur-Rahman
but no one is ready to listen her, with the result she has to run from
pillar to post and ultimately matter reached in Human Right Cell of this
Court, where jurisdiction is exercised under Article 184(3) of the
Constitution along with all other enabling provisions of law on
individual or collective requests, to ensure enforcement of fundamental
rights, particularly, in public importance cases.
28.
There could be numerous complaints against the police
throughout in the country and some of them reach to this Court in its
Human Rights Cell, which is functioning continuously to redress the
grievances but despite of issuing directions, the law enforcing agencies
failed to redress the grievances of the complainants. In this context
reference to the reported judgment in the case of the Human Rights
Case No.3212 of 2006 (ibid) may be made, wherein a lady had been
waiting for a period of 2 ½ years but no one registered FIR of the
murder of her son and ultimately she succeeded in getting the justice
from this Court. This is one case, there could be more than that.
29.
Thus, under the circumstances we direct that:
(i)
The Federal and Provincial governments may take initiative
for improving the professional efficiency of the police
16
department enabling them to meet with all types of
challenges to ensure that whosoever has taken the law in
his hands, notwithstanding the status, he has to face the
consequences.
(ii)
The Police Department in all the Provinces and Islamabad
should strictly adhere to the Constitution and the law,
while dealing with the criminal cases instead of showing
any leniency or favouritism, either to the complainant or to
the accused, whatsoever the case may be.
(iii)
As far as registration of the cases is concerned, they
should follow the law under section 154 Cr.P.C and the
principles discussed hereinabove in light of Muhammad
Bashir’s case (ibid).
(iv)
As in the instant case FIR has been registered at Peshawar
but on having seen the facts and circumstances, noted
hereinabove, let the Federal and Provincial Governments
ensure that no influence is used by any of the police
officers who have already committed criminal negligence in
not handling the case of the deceased lady. The competent
authority should also deal with them in accordance with
law on the subject.
(v)
To ensure transparent and independent inquiry, the Chief
Secretary of KPK and Secretary Interior shall take steps to
constitute a team of independent police officers who shall
be responsible to conduct the investigation and submit
challan in the court of law accordingly. Both these
functionaries shall submit report compliance of the
17
direction within a period of two weeks because any further
delay in concluding the investigation of the case is likely to
cause further injustice and prejudice to the petitioner.
30.
Petition stands disposed of accordingly.
Chief Justice
Judge
Judge
Announced in open Court on 24.07.2013
At Islamabad
Chief Justice
Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, HCJ
Mr. Justice Khilji Arif Hussain
Mr. Justice Tariq Parvez
Human Rights Case No.19 of 1996
[APPLICATION
BY
AIR
MARSHAL
(R)
MUHAMMAD ASGHAR KHAN]
Air Marshal (R) Muhammad Asghar Khan
Petitioner
VERSUS
1.
Gen(R) Mirza Aslam Baig,
Ex-Chief of Army Staff;
2.
Lt. Gen(R) Asad Durrani, Ex-DG, ISI; and
3.
Younas Habib,
Ex-Chief Mehran Bank Limited.
Respondents
For the Petitioner
:
Mr. Salman Akram Raja, ASC a/w
Petitioner
For Respondent No.1
:
Mr. M. Akram Sheikh, Sr.ASC a/w
Respondent No.1
For Respondent No. 2 :
In person.
For Respondent No.3
:
In person.
For Defence Ministry :
Raja Abdul Ghafoor, AOR
Comdr. M. Hussain Shahbaz,
Director (Legal)
For Applicant
:
Sheikh Khizar Hayat, Sr.ASC
(in CMA.918/97)
Date of Hearing
:
08.03.2012
ORDER
In obedience to order dated 29.02.2012, the office has
placed on record a sealed envelop under the cover “TOP
SECRETE” “REPORT OF THE COMMISSION TO REVIEW
THE
WORKING
OF
SECURITY
&
INTELLIGENCE
Human Rights Case No.19 of 1996
2
AGENCIES”. The envelop has been opened in Court, which
contains four folders Part-II (Report of the Commission to Review
the Working of Security & Intelligence Agencies (MARCH –
1989); Part-III (Correspondence); again Part-II (photocopy of the
same report of the Commission (March-1989); and again Part-III
(Correspondence).
2.
A perusal of the same indicates that the Report of the
Commission to Review the Working of Security & Intelligence
Agencies has not been filed. However, Comdr. Muhammad
Hussain Shahbaz, Director (Legal), representing Ministry of
Defence, is allowed to go through these documents in the office of
Registrar of this Court, who shall facilitate him in this behalf. He
is directed to file the requisite reports pertaining to the year 1990
as well as up-to-date reports on the Working of Security &
Intelligence Agencies. In the interest of nation, these documents
shall be kept CONFIDENTIAL.
3.
The envelop produced before us has been given to Mr.
Rafaqat Hussain, CA/Branch Incharge, Civil-II, who shall
handover the same to Registrar of this Court, who shall put them
under seal.
4.
Another envelop has been produced, which contains
the following items:-
“Item No.1
1.
2 Audio Cassettes relating to HRC.19/1996 containing
detail, as under:-
Cassette No.1: Dated 20.11.1997 timings 10.30 to
11.00 a.m.
Human Rights Case No.19 of 1996
3
Cassette No.2: Dated 25.11.1997 timing, 10 am to 11
am and 11.30 to 1.00 pm. (side A)
dated 26.11.1997 timings 11:45 am to
1:15 pm (side B)
Item No.2
File No.1:
Consisting 3 pages in original
Page No.1:
(Note dated 28.5.1999 of the then Additional
Registrar with regard to obtaining the orders of HJ (1)
whether Lt. General ® Nasirullah Babar and Lt.
General ® Asad Durrani may be asked to read their
statements and sign them in the presence of an officer
of this Court).
Page No.2
Note dated 1.6.1999 regarding submission of un-
signed statements/cross-examination of Maj. ® Nasir
Ullah Babar and Lt. General Asad Durrani to the
then HJ(1)
Page No.3
Order dated 2.6.1999 of Justice Said-uz-Zaman
Siddiqui
File No.2 in original
Srl.
Nos.
Detail
(All in original)
Pages
1
Cross examination of Maj. Gen.(R) Nasir
Ullah Babar by Genl. Mirza Aslam Baig
1-3
2
Explanation of Gen Babar with regard to his
cross examination
4
3
Cross examination of Maj. Gen. (R) Nasir
Ullah Babar by Habib-ul-Wahab-ul-Khairi
(in Urdu)
5-9
4
Cross examination of Maj. Gen. (R) Nasir
Ullah Babar by Mr. Muhammad Akram
Sheikh.
10-21
5
Cross examination of Lt. Gen.(R) Asad
Durrani
22-25
6
Cross examination of Lt. Gen.(R) Asad
Durrani by Habib-ul-Wahab-ul-Khairi
26-33
7
Cross examination of Lt. Gen.(R) Asad
Durrani by Maj. Gen.(R) Naseer Ullah
Babar
34-35
Item No.3
Copy No.08 of 11 Copies:-
Folder with regard to the report of the commission to
review the working of Security and Intelligence
Agencies (March-1989) submitted by (i). Air Chief
Marshal Zulfiqar Ali Khan, Chairman, (ii). S.K.
Mahmud, Secretary Interior, Member, (iii). Mr.
M.A.K. Chaudhry, Member and (iv) Air Commodore
Muhammad Yamin, Secretary. (Pages 1-57).
Item No.4
ADO letter No.RC/1/89 dated 27.3.1989 addressed to
the Mohtarma Benazir Bhutto, Prime Minister of
Pakistan, Prime Minister’s Secretariat, Rawalpindi by
the Air Chief Marshal, Zulfiqar Ali Khan along with
its synopsis of the Commissioner’s Report for facility
of reference. (Pages 1-8)”.
5.
The office has also made efforts to find out as to
whether examination-in-chief of Gen.(R) Naseer Ullah Khan
Human Rights Case No.19 of 1996
4
Babar and Lt. Gen.(R) Asad Durrani was recorded; according to
the report, no such document is available on record. However,
Mr. Salman Akram Raja, learned ASC, appearing for the
petitioner, states that they were subjected to cross-examination
on the affidavits, which have already been filed. As these
proceedings were drawn in camera, therefore, the same be sealed
and are handed over to Mr. Rafaqat Hussain for depositing the
same with the Registrar. As regards proceedings drawn by the
office of Registrar to locate these documents, the same are also
made part of the record and are ordered to be deposited with the
Registrar.
6.
In pursuance of order dated 29.02.2012, Mr. Younas
Habib, Ex-Chief of Ex-Mehran Bank Limited, has appeared and
stated that earlier at the time when the proceedings were
conducted in this case no statement was filed by him. It seems
that might be he had filed or given statement before the
investigating agencies under Section 161, Cr.PC in connection
with some criminal cases against him, as reference of the same is
available at page 220 of the file. However, today he has placed on
record a handwritten statement/affidavit, which was not sworn
on oath, although such statement or affidavit is required to be
sworn under Supreme Court Rules, 1980. It seems that as he is a
sick person and attending the Court on Wheelchair, therefore, we
accept the affidavit and direct the office to manage attestation of
the same, which has been done.
Human Rights Case No.19 of 1996
5
7.
Initially, Mr. Younas Habib claimed that the affidavit
filed by him be considered as a classified document. However, on
having gone through the same we are of the opinion that it does
not fall within the category of the documents, in respect whereof
privilege could be claimed, thus the same is declared not to be the
classified one. He has read out the contents of the affidavit in
Court and also handed over three copies of the same along with a
photograph wherein he has been shown to be one of the persons
along with the then President of Pakistan Ghulam Ishaq Khan
(Late) and uniformed officer of
Pakistan Army having
conversation with Mirza Aslam Baig, Ex-Chief of Army Staff. The
same be also kept on record.
8.
The office is directed to prepare photostat copies of
the affidavit filed by Mr. Younas Habib and handover the same to
Mr. Muhammad Akram Sheikh, learned Sr.ASC, Mr. Salman
Akram Raja, learned ASC; Mr. Asad Durrani and Sheikh Khizar
Hayat, learned Sr.ASC. They may go through the same and if
desire or instructed may opt to file their replies to the same by
tomorrow i.e. 09.03.2012.
Re-list on 09.03.2012.
Chief Justice
Judge
Judge
ISLAMABAD
08.03.2012
Zubair
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Ijaz Ahmed Chaudhry
Mr. Justice Gulzar Ahmed
HUMAN RIGHTS CASE No.20107-G/2013
(Action on News clipping in the daily “Dawn” dated 26.05.2013
regarding incident of burning of school van in Gujrat)
On Court’s Notice
:
For the Federation
: Mr. Dil Muhammad Khan Alizai, DAG
For M/o Petroleum
:
Mr. Irshad Ali Khokhar, DG
Mr. Mansoor Ahmad Raja, Chief Engineer (HDIP)
For Department of
Explosives
:
Mr. Muhammad Hussain Channa,
Chief Inspector of Explosive
For OGRA
:
Mr. Afnan Karim Kundi, ASC
Mr. Saeed Ahmed Khan, Chairman
Mr. Farrukh Nadeem, ED (Enforcement)
Mr. Rizwan ul Haq, ED (Law)
For Govt. of Punjab
: Mr. Jawwad Hassan, Addl.A.G.
Mr. Salahuddin Khan, Secretary RTA
Mr. Asif Bilal Lodhi, DCO Gujrat
For the State
: Mr. Asjad Javaid Ghurral, Addl. P.G.
Mr. Dar Ali Khattak, DPO, Gujrat
Mr. Ijaz, SHO, PS Kunjah
For Motor Vehicle
Examiner
: Mr. Aftab Ahmed Bajwar, ASC
Dates of Hearing
: 13-06-2013
O R D E R
Iftikhar Muhammad Chaudhry, CJ. :- This case was initiated
by the Court under Article 184(3) of the Constitution, 1973 on the
basis of a news item that appeared in the daily “Dawn” on 26.05.2013
titled “All are responsible: Van fire tragedy”. The item referred to the
HRC No.20107-G/2013
2
death of sixteen schoolchildren and one teacher in Gujrat on
25.05.2013 when the vehicle they were travelling in exploded. The
news item, reproduced hereinbelow, clearly depicts the apathy and
desensitisation to bloodshed that has become the norm in our society.
“REACTING to the tragic van fire near Gujrat town on
Saturday, a local official said lives could have been saved if
the driver of the vehicle had shown some courage. That
statement provides the starting point of a probe to identify
all those responsible for the heartbreaking, horrible
tragedy. The killing of at least 15 young school-bound
children and a teacher in the fire was no accident. This was
nothing short of murder or at least manslaughter.
The guilty include money-minded transporters who justify
the low safety standards they maintain by boastfully
stressing on the affordability factor. Never is their greed
more obscenely manifested than in the hot summer
months. The routine sight of children crammed in rundown
vehicles in the suffocating heat is the worst advertisement
for our education system. It is a horrifying throwback to
those dark times that we would like to pretend we have
left far behind. Sadly, the same era of ignorance and
negligence continues, frequently throwing up tragedies of
this
sort.
Those
responsible
also
include
school
administrations and the officials who run the affairs of
government.
Finally,
cruel
though
it
may
sound
considering the grief of those whose children have
perished, parents too must bear part of the blame for not
demanding a better deal for their offspring, for being the
meek of the earth who accept their fate unquestioningly.
In a saner country, the Gujrat fire would be the only news
worth pondering over for days and weeks if not months. In
Pakistan, it is likely to be quickly overtaken by other,
‘more pressing’ events, as has happened in the aftermath
of similar incidents in the past. Such incidents have
included the killing of children in gas cylinder blasts,
deaths of school-bound students at a railway crossing at
HRC No.20107-G/2013
3
one place and a bus overturning during a school excursion
at another. After a period of initial mourning, these
tragedies are forgotten in the interest of the continuation
of the system. A similar pattern appears to be emerging
now and the design could succeed once again unless a
genuine effort is made to devise and enforce safety
measures in transport used by our schoolchildren — and
urgently. The blaming of one individual — the driver of the
van — and the convenient, standard identification of short-
circuiting as the cause of the fire are dire signs of the
guilty seeking to take the old escape route. They are no
less than murderers. If they are allowed to flee now, they
will return to kill again.”
2.
The Court took notice of the case on 29.05.2013. On the
same date, the Court passed an Order which called upon the Secretary
of the Ministry of Petroleum, the Chief Secretary of the Government of
Punjab, the Secretary of the Transport Department of Punjab, the
Inspector-General (IG) of the Punjab Police and the administration of
the Jinnah School, Mangowal (the school concerned) to submit reports.
In further hearings, the Chairman of the Oil and Gas Regulatory
Authority (OGRA) was directed to explain whether any mechanism is
followed to ensure the safety of CNG cylinders used in vehicles. The
Secretary Transport, Punjab was directed to submit reports on whether
any action was taken against the concerned Motor Vehicle Examiner
(MVE) and the officials who were responsible for issuing certificates to
the school van and whether action was taken to ensure the protection
of the lives of people who travel in such vehicles.
3.
The Secretary, Ministry of Petroleum submitted an
Inspection Report that was particularly helpful in elucidating the facts
of the incident. The Inspection Report stated, inter alia, the following:
HRC No.20107-G/2013
4
i.
According to the children, the vehicle went out of
order frequently in the days prior to the incident.
ii.
The driver, Muhammad Irfan, was smoking at the
time of the incident.
iii.
The petrol tank of the vehicle was not working. The
petrol was inside the passenger compartment in a
can from where it supplied fuel to the engine through
a plastic pipe. Another can filled with petrol was also
inside the vehicle. Both these cans were placed
adjacent to the engine behind the front seat of the
van.
iv.
One minute before the incident, at least four children
complained to the driver that they smelled the odour
of petrol in the vehicle. The driver did not pay any
heed to the complaints.
v.
The fire started from the front of the vehicle where
the petrol cans were situated and proceed to engulf
the entire vehicle.
vi.
The incident was exacerbated by the fact that the
sliding doors of the vehicle could not be opened from
the inside; and the back door of the vehicle was out
of order. It was through the gallantry and heroism of
the teacher that five children survived the incident.
The teacher sacrificed her own life; pushing children
out the window of the van whereas she perished in
flames.
vii.
The driver ran from the site of the incident without
even trying to open the door of the van.
viii.
None of the CNG cylinders exploded in the incident.
ix.
Drivers in the district of Gujrat have been observed
to use unauthorised plastic cans for storage of petrol
to save money that would be spent on replacing
petrol tanks.
x.
The main cause of the incident was the spillage of
petrol on the floor of the vehicle, which most
probably ignited a fire due to contact with the hot
engine surfaces. Short circuiting of wiring and the
HRC No.20107-G/2013
5
fact that the driver was smoking while sitting near
petrol cans cannot be ruled out as causes.
xi.
The fitness certificate of the vehicle was expired.
xii.
OGRA is mandated to conduct a full-fledged inquiry
into the incident and fix responsibility to prevent
such incidents from occurring.
4.
The administration of the Jinnah School, Magowal averred
in its report dated 01.06.2013 that it owns two vehicles for the
purposes of transportation of schoolchildren and employees; one of
which was involved in the tragic incident. Apparently, the CNG
cylinders that the said vehicle was outfitted with were purchased and
installed from a private distributor and were not affirmed by any
competent authority. The vehicle ran on a dual-fuel basis, i.e. it could
run on either petrol or CNG. It was sated that the incident occurred
when the driver switched the fuel setting from CNG to petrol. On the
direction of the Chief Secretary, Punjab, the Punjab Forensic Science
Agency (the “Agency”) submitted a report which stated, inter alia, that
the probable cause of the fire was the spark produced at the CNG kit
during conversion of CNG to petrol. The Report of the Chief Secretary,
Punjab dated 03.06.2013 countenanced this difference of opinion as to
whether the incident occurred when the driver switched the fuel
setting of the vehicle from CNG to petrol or due to spillage of petrol. It
is helpful to reproduce the following portion of the Chief Secretary’s
Report:
“However, the difference of opinion has no material
bearing for the following reasons:
a) Both the reports indicate that the van was not
roadworthy and was also subjected to unauthorized
modifications as mentioned above. Of the five
available doors, three had problems; the right sliding
HRC No.20107-G/2013
6
door was permanently closed, the other sliding door
could not be opened from the inside while the back
door was out of order. Thus the chances of escaping
the fire were almost obliterated.
b) The
van’s
fitness
certificate
had
expired
on
24.04.2013, i.e. a month prior to the accident and
was not renewed.
c) The said van had no valid route-permit.”
5.
The report of the IG, Punjab stated that FIRs were
registered against the driver, Muhammad Irfan s/o Muhammad Younas
as well as the owners of the vehicle and Jinnah School, Mangowal,
namely Shafqat Hussain s/o Muhammad Hussain, Rizwan s/o Ali
Ahmad and Muhammd Ehsan s/o Nazir Ahmad. It was further stated
that action was taken against decanting of Liquified Petroleum Gas
(LPG), illegal sale of petrol and unfit vehicles. The Traffic Police also
carried out a special campaign whereby a number of challans were
issued from 26.05.2013 – 30.05.2013 to counter those driving without
route permits, fitness certificates, and driving licenses. It is pertinent
to mention a letter dated 10.12.2011 from the Additional IG of the
Punjab Traffic Police to the Secretary Transport, Punjab which is
annexed to the Report of the IG Punjab. The said letter clearly states
that fitting of fuel tanks in the passenger area of a vehicle is a clear
violation of Rule 199 of the Motor Vehicle Rules, 1969. The said letter
also expressly gives the direction to remove illegally-fitted LPG and
CNG cylinders from vehicles and to cancel the fitness certificates of
such vehicles.
6.
A report was also submitted by a committee headed by the
Commissioner, Gujranwala, which fixed responsibility for the incident
as under:
HRC No.20107-G/2013
7
i.
Mohsin
Riaz,
the
Secretary,
District
Regional
Transport Authority (DRTA), failed to carry out
inspections to ensure that vehicles without route
permits and fitness certificates do not run.
ii.
Farrukh Sohail, the MVE, failed to check the fitness
of vehicles that came within his purview.
iii.
The District Traffic Police failed to implement the
provisions of the Motor Vehicles Ordinance, 1965
(MVO).
iv.
The District Excise and Taxation Department failed to
record the change in ownership of the vehicle and
the fact that the engine of the vehicle had been
changed from diesel to petrol to CNG in violation of
the MVO.
v.
The District Education Department registered The
Jinnah School, Mangowal without proper inspections
by the said department, which is a violation of the
Punjab Private Educational Institutions (Promotion
and Regulation) Ordinance, 1984.
vi.
The management of The Jinnah School, Mangowal
failed to conduct any investigations as to the fitness
and safety of the vehicle.
vii.
The driver did not validly procure a driving licence.
viii.
The parents of the children were unaware of the
state of the vehicle; some had never even seen the
vehicle.
Pursuant to the aforementioned report, Mohsin Riaz, the Secretary,
DRTA and Farrukh Sohail, the MVE were suspended from duty by the
Secretary Transport, Punjab. Directions were also issued to the District
Education and Excise and Taxation Departments to initiate inquires in
light of the findings of the Commissioner, Gujranwala’s report.
7.
Mr. Afnan Karim Kundi, learned ASC, appeared on behalf
of Chairman, OGRA. His primary contention was that the regulation
HRC No.20107-G/2013
8
and monitoring of proper and safe installation of CNG kits and the
certification of vehicles for that purpose are in fact the domain of the
Chief Inspector of Explosives (CIE), not OGRA. The learned ASC
substantiated this contention by referring to the following provisions of
the OGRA Ordinance, 2002 in his Concise Statement:
Section 2(1)(iii) defines CNG as “natural gas
compressed for vehicular or other mobile use.”
Section 2(1)(xxxii) defines “regulated activity” as “an
activity requiring licence.” CNG consumption by
automobiles/vehicles is not a “regulated activity” and
is therefore not licensed by OGRA.
Section 2(1)(xxxiv) defines “retail consumer for
natural gas” as “a person who purchases or receives
natural gas for consumption and not for delivery or
resale other than resale for vehicular use or self
consumption by a licensee in connection with its
regulated activity”.
Section 2(1)(xxxvii) defines “sale” as “a sale of
natural gas to retail consumers of natural gas but
does not include sale of CNG for vehicular use or
self-consumption by a licensee in connection with its
regulated activity”. Importantly, sale of CNG for
vehicular is clearly ousted from sale of natural gas.
Section 6(1) states that “the Authority shall be
exclusively responsible for granting licenses for the
carrying out of regulated activities and regulating
such activities”. Regulation by OGRA is thus limited
to “regulated activities”.
Section 23(2)(b) and (d) refer only to construction
and operation of CNG testing facility, construction
and operation of CNG operation of CNG storage
facility and transportation, marketing or distribution
of CNG as “regulated activities” with respect to CNG.
Sections 41 and 42 empower OGRA to make rules
and regulations for carrying out the purposes of the
HRC No.20107-G/2013
9
OGRA Ordinance but they do not add to the list of
“regulated activities”.
OGRA only gives licenses for CNG filling stations; it is
the responsibility of authorities like the CIE and the
Hydrocarbon Development Institute of Pakistan
(HDIP) to ensure that filling stations only fill those
vehicles whose cylinders are properly fitted and are
validly certified.
8.
In asserting the responsibility of the CIE, Mr. Afnan Karim
Kundi, learned ASC placed particular emphasis on Rule 18(1) of the
CNG (Production and Marketing) Rules, 1992 (CNG Rules), which is
reproduced as under (with emphasis added by the learned ASC):
“18. Protection to the public.-(1) No licensee shall
locate or construct any new works and CNG refuelling
station in any residential area. A licensee shall locate,
construct and operate his pipeline and all works connected
with CNG Refuelling Station, and installation of CNG
equipment in automobiles in accordance with the
license granted by the Chief Inspector of Explosives
under the Mineral Gas Safety Rules, 1960, and strictly
comply with the provisions of the Petroleum Rules 1937
and the Gas Cylinder Rules, 1940, so as to avoid any
danger to the public health or safety.”
9.
Mr. Afnan Karim Kundi, learned ASC, averred that the
Federal Government has now vested the CIE with elaborate licensing,
monitoring and enforcement powers in respect of inter alia installation
of CNG cylinders, valve and fittings under the Mineral Industrial Gases
Safety (MIGS) Rules, 2010, which repealed the 1960 Rules, as detailed
hereunder:
HRC No.20107-G/2013
10
Examination, testing and condemning of cylinders
[Rules 28 and 29].
Recognition of testing stations for periodical testing
and examination or cylinders [Rule 28(2) read with
Schedule III].
Licensing import of gas cylinders including CNG
cylinders [Rule 80].
Prohibition on filling or possession of cylinders and
valves unless of type and standard approved by CIE
[Rules 129 and 130].
Approval of type of safety relief devices fitted in
cylinders [Rule 131].
Restriction on delivery or dispatch of cylinders except
to licensees of CIE unless exempted [Rule 136].
Overseeing maintenance of cylinders, valves and
other fittings in good condition [Rule 141(1)].
Prevention of leakage from cylinder/valve [Rule
141(4)].
Prohibition and special precautions against acts
causing fire or explosion relating to cylinders [Rule
142].
Ensuring a competent and experienced person to
oversee all operations (filling etc.) of cylinders [Rule
143].
Periodical retesting of cylinders [Rule 152].
Ensuring maintenance of record by owners of
cylinders [Rule 153].
Prohibition on filling any cylinder with CNG unless
same along with valve and other fittings are of type
and
standard
approved
by
CIE, have
passed
applicable testing and are otherwise compliant with
Rule 130 through Rule 134 [Rule 157].
Power to grant or to refuse to grant, renew, amend
or transfer licenses [Rules 163 and 170].
Power to suspend or cancel license for violation of
anything objectionable, including without hearing the
licensee in the public interest or in the case of
imminent danger to the public [Rule 171].
HRC No.20107-G/2013
11
10.
Mr. Afnan Karim Kundi, learned ASC, also contended that
MVEs are mandated by the Motor Vehicles Rules, 1969 (MVR) to
physically examine Public Service Vehicles (PSV), including their fuel
tanks, such as the one in question. The learned ASC relied on the
definition of “gas cylinder” in Rule 2(xl) of the MIGS Rules, 2010 in
asserting that a “gas cylinder” includes a “(CNG) cylinder fitted to a
motor vehicle as its fuel tank”. (emphasis added by the learned
ASC).
11.
The CIE submitted a reply controverting the above
contentions raised on behalf of Chairman, OGRA. The CIE averred that
OGRA was attempting to shift its responsibilities on the shoulders of
the Department of Explosives. In this regard, he referred to a letter
dated 02.03.2011 from OGRA to the Secretary, Cabinet Division. In
the said letter, OGRA protested the promulgation of the MIGS Rules,
2010 and the Explosives Rules, 2010. In the letter, OGRA stated that
the said Rules were in conflict with the provisions of the OGRA
Ordinance. In particular, the letter stated,
“8.
...OGRA Ordinance is a special law and therefore its
provisions must prevail upon the provisions of all other
general laws including but not limited to the Explosives
Act, 1884, Petroleum Act, 1934 and the rules made there
under.
10.
In view of the above it is evident that the newly
promulgated rules under the Explosives Act, 1884 and
Petroleum Act, 1934 are inconsistent with the provisions of
OGRA Ordinance and rules regulations (sic) made there
under. Hence, these rules have no legal effect, having
being (sic) made under statutes which ceased to have any
effect on the commencement of OGRA Ordinance.”
HRC No.20107-G/2013
12
Furthermore, in its letter dated 09.08.2011, OGRA mentioned that the
Explosives Act, 1884 and Petroleum Act, 1934 do not mention any
powers of the CIE with respect to Gas Cylinders; and that in any event
the OGRA Ordinance repealed these laws. Therefore, the basic
contention of the CIE was that previously, OGRA was arguing that the
MIGS Rules have no legal effect whereas in the instant case they
argued that the MIGS Rules mandate the responsibility of the CIE with
regards to CNG cylinders.
12.
From the aforementioned facts and contentions, one point
is clear above all others. This is a case of criminal negligence on the
part of the responsible authorities. Because of this patently obvious
criminal negligence, the liability of those responsible must not only be
founded in terms of laws such as the OGRA Ordinance, MVO, MVR,
MIGS Rules and CNG Rules etc. The responsible parties must also be
dealt with under the provisions of the Pakistan Penal Code, 1860 (PPC)
relating to culpable homicide and grievous bodily harm depending on
the facts and circumstances of the case.
13.
The question remains; who are the responsible parties?
The report of the Commissioner, Gujrat is particularly thorough and
has proved instructive in fixing responsibility for the incident. The
liability of Farrukh Sohail, MVE, and Mohsin Riaz, Secretary DRTA is
apparent in the terms of the MVR, which provide at Rule 35:
“35. Issue and renewal of certificate of fitness.-
(1)(a) The authority prescribed to issue or renew a
certificate of fitness... shall be:-
(ii) ...the Motor Vehicles Examiner appointed by the
Inspector-General, Police...
HRC No.20107-G/2013
13
...Provided that the Regional Transport Authority may
authorise any licensed Automobile Workshop to perform
the functions of the Motor Vehicles Examiner.”
It is the responsibility of the MVE to inspect and ensure that PSVs in
particular are roadworthy; and as is apparent from Rule 35, the
Secretary, DRTA oversees the functions of the MVE because he can
appoint automobile workshops to perform the functions of the MVE.
Moreover, the Secretary, DRTA is admittedly responsible for issuing
route permits.
14.
The omissions by these two officials are numerous. Firstly,
the petrol cans inside the vehicle constitute a violation of Rule 199(3)
of the MVR, which reads, “The fuel tank of every public service vehicle
shall be so placed that no over-flow therefrom shall fall upon any
woodwork or accumulate where it can readily be ignited. The filling
points of all fuel tanks shall be outside the body of the vehicle...” Not
only did Farrukh Sohail, MVE fail to take action, these dangerous
violations of the MVR were not even in his notice. In this regard it is
pertinent to recall the letter dated 10.12.2011 noted above which
referenced Rule 199 and the obligation to remove illegally fitted CNG
cylinders. Such directions were issued numerous times by a number of
authorities but their implementation was never ensured. Secondly, and
even more glaringly, the vehicle involved in the incident had an
expired fitness certificate and was utilising unauthorised and
unapproved CNG cylinders. This is apparent from the Commissioner,
Gujrat’s report, which states, “As per office record the fitness
certificate of this vehicle had already been expired on 30.04.2013 and
the vehicle was presented for obtaining fitness certificate on
01.05.2013. The stickers regarding cylinder and CNG kit was not
HRC No.20107-G/2013
14
produced therefore the case was refused.” Thirdly, Mohsin Riaz,
Secretary DRTA, admittedly neglected to even once visit Sarghoda
road (where the incident occurred) during the month of May, 2013.
Fourthly, the vehicle was on the roads despite the fact that it had not
been issued a route permit by the DRTA. Therefore, Farrukh Soahil,
MVE, and Mohsin Riaz, Secretary DRTA abjectly failed to perform their
duties by allowing dangerous vehicles to ply the roads. The lives of
sixteen innocent children and a brave teacher would have been saved
had they performed their duties to even the bare minimum as
mandated by law. Their gross omissions are criminal in nature and
should be dealt with under the PPC.
15.
The opposing contentions of OGRA and the CIE shall now
be addressed. We are of the opinion that both OGRA and the CIE are
responsible in the present case. Under section 23(2)(b) and (d) of the
OGRA Ordinance, it is the responsibility of OGRA to grant licenses to
those who “construct or operate... CNG testing facility or... CNG
storage facility”, as well as those who “undertake transporting, filling,
marketing or distributing of LPG, LNG or CNG”. Therefore, it is the
responsibility of OGRA to ensure that CNG is safely stored in cylinders
which have been manufactured in Pakistan. With respect to cylinders
which are imported, Rule 80 of the MIGS Rules provides:
“80. Licence for import of gas cylinders.- No person
shall import any cylinder filled or intended to be filled with
any compressed gas except under and in accordance with
the condition of the licence granted under these rules.”
Therefore, both OGRA and the CIE bear responsibility for being
criminally negligent regarding the use of unauthorised CNG cylinders.
OGRA has admittedly taken responsibility to tackle the proliferation of
HRC No.20107-G/2013
15
unauthorised CNG cylinders. This is evident from the letter dated
19.11.2012 from OGRA to the Chief Secretaries of all four provinces
wherein OGRA has expressly stated, “...OGRA is initiating action
against the CNG stations found involved in refuelling uncertified
commercial CNG vehicles.” OGRA has sent many such letters and
notifications but has been lax on the implementing the same. The CIE
also has responsibility to test and condemn cylinders, to ensure that
owners of cylinders keep record of the maintenance of cylinders, to
periodically retest cylinders and to cancel or suspend licenses where
there is imminent public danger under the MIGS Rules. It is pertinent
to highlight the obligation to oversee the filling of cylinders by a
competent person appointed by the CIE under Rule 143 of the MIGS
Rules. If only this is ensured, many lives can be saved. We are of the
considered opinion that the presence of such a competent person will
result in the prevention of tragic incidents such as the one in the
present case.
16.
Moreover, the fact that the driver of the vehicle,
Muhammad Irfan, kept cans of petrol in the vehicle highlights the
illegal availability of open petrol, which is a violation of Rule 21 of the
Petroleum Rules, 1985, which must be checked by OGRA. OGRA has
also issued a number of notifications and letters in this regard but has
failed to ensure their implementation. Thus, it is abundantly clear that
OGRA and the CIE have also completely failed to fulfil their obligations
under the relevant laws and are thereby liable for criminal action
under the PPC for the deaths of sixteen children and the teacher.
HRC No.20107-G/2013
16
17.
The report of the Commissioner, Gujrat also highlights the
responsibility of the Excise and Taxation Department in failing to
register the change in ownership and fuel setting of the vehicle as well
as the Punjab Education Department in registering the Jinnah School,
Mangowal without conducting the proper inspections. It is also not out
of place to mention that the vehicle had third-party insurance,
whereas PSVs should not be covered by such insurance under the
MVR. The conclusion that is apparent from these multiple failures on
the part of multiple public authorities is highly disturbing due to
magnitude of the loss in the case at hand. It is difficult to find words to
completely describe the utter paralysis of the bureaucracy that has
been showcased in the present case. If just the MVE had ensured that
a vehicle with petrol cans inside it could not be used as a PSV, the
children would be alive today. If just the Secretary, DRTA had ensured
that a vehicle without a route permit was not plying the road, the
children would be alive today. If just OGRA had ensured that only
licensed CNG cylinders were available to the masses, the children
would be alive today. If just the CIE had inspected the CNG cylinders
as provided in the MIGS Rules, the children would be alive today. In
short, if just one of the authorities had performed its functions in
accordance with law, we would not have had to hear of this tragedy.
These egregious omissions therefore deserve to be countenanced in
terms of culpable homicide and grievous bodily harm under the PPC.
18.
It is unfortunate that ours is a country replete with
regulation with little emphasis on implementation. The various rules
and regulations mentioned hereinabove are voluminous; teeming with
provisions that seem to cover a multitude of eventualities and
situations. However, as evidenced by the unfortunate incident in the
HRC No.20107-G/2013
17
instant
case,
there
is
absolute
apathy
when
it
comes
to
implementation of these provisions. Motor vehicles, fossil fuels and
potential explosives are subject to all of the regulation that has been
detailed hereinabove for one basic reason above all: the protection and
preservation of the life of the citizens of this country. It is trite law that
Article 9 of the Constitution, 1973 guarantees the protection of the life
of citizens. It is the duty of the State to ensure such protection by
following relevant laws which are made to protect and preserve life. In
this behalf, reference may be made to Suo Motu Action regarding law
and order situation in Karachi (PLD 2011 Supreme Court 997) wherein
we relied on the celebrated judgement in Shehla Zia v. WAPDA (PLD
1994 Supreme Court 693) in dilating upon the concept of the right to
life. In Shehla Zia’s case, we held as under:-
“Article 9 of the Constitution provides that no person shall
be deprived of life or liberty save in accordance with law.
The word "life" is very significant as it covers all facts of
human existence. The word "life" has not been defined in
the Constitution but it does not mean nor can it be
restricted only to the vegetative or animal life or mere
existence from conception to death. Life includes all such
amenities and facilities which a person born in a free
country is entitled to enjoy with dignity, legally and
constitutionally. For the purposes of present controversy
suffice to say that a person is entitled to protection of-law
from being exposed to hazards of electromagnetic fields or
any other such hazards which may be due to installation
and construction of any grid station, any factory, power
station or such like installations. Under the common law a
person whose right of easement, property or health is
adversely affected by any act of omission or commission of
a third person- in the neighbourhood or at a far off place,
he is entitled to seek an injunction and also claim
damages, but the Constitutional rights are higher than the
HRC No.20107-G/2013
18
legal rights conferred by law be it municipal law or the
common law. Such a danger as depicted, the possibility of
which cannot be excluded, is bound to affect a large
number of people who may suffer from it unknowingly
because of lack of awareness, information and education
and also because such sufferance is silent and fatal and
most of the people who would be residing near, under or
at a dangerous distance of the grid station or such
installation do not know that they are facing any risk or
are likely to suffer by such risk. Therefore, Article 184 can
be invoked because a large number of citizens throughout
the country cannot make such representation and may not
like to make it due to ignorance, poverty and disability.
Only some conscientious citizens aware of their rights and
the possibility of danger come forward.”
19.
As a consequence of above discussion it is held as under:-
(i)
All public carrying vehicles, including buses, vans, trucks,
taxies, rikshaws, etc., not worthy of roads and are being
driven throughout in the country contrary to the provisions
of Motor Vehicle Ordinance, 1965, without obtaining fitness
certificates as well as rout permits, are hereby ordered to
be kept off the roads forthwith.
A comprehensive report in this behalf shall be submitted
by the Provincial Chief Secretaries and Chief Commissioner
ICT within 30 days for our perusal in Chambers and
passing further orders, if need be.
(ii)
All the Regional Transport Authorities in the Provinces are
directed to issue fitness certificates strictly in accordance
with the rules and not to allow any vehicle not worthy of
roads to come on roads, thereby allowing the owners and
HRC No.20107-G/2013
19
the drivers to cause insecurity to the lives of the
passengers, so that their lives could be protected from
road accidents in future.
(iii)
Chief Inspector of Explosives, in exercise of powers
conferred upon them under the Mineral Industrial Gases
Safety (MIGS) Rules, 2010 read with Petroleum Rules,
1937, shall ensure action against decanting of Liquefied
Petroleum Gas (LPG), illegal sale of petrol and unfit
vehicles, by carrying out inspection from time to time.
(iv)
The OGRA is also directed to ensure strict action against
the license holders running the petrol pumps and CNG
stations, if they are found selling lose petrol or providing
CNG to the vehicles which have either unbranded cylinders
or cylinders of substandard brands not approved by
concerned authorities, as it appears that the reasons
invariably of such like incidents are, either extinguishing of
fire due to lose petrol lying inside the vehicles or due to
explosion of cylinders which are manufactured contrary to
the provisions of MIGS Rules, 2010 read with Gas Cylinder
Rules, 1940.
All commercial vehicle owners are hereby directed to
remove from their vehicles the CNG cylinders which have
not been fitted by the approved companies/authorized
dealers, to avoid any such incident in future.
(v)
IGP, Punjab is directed to take appropriate action against
the persons who are responsible for the happening of
incident of Gujrat dated 25.05.2013. The Government of
HRC No.20107-G/2013
20
Punjab is also directed to provide compensation to the
aggrieved families of the children and the teacher, who
lost their lives in the said incident, if already they have not
been compensated.
20.
Petition stands disposed of in the above terms.
Chief Justice
Judge
Judge
Announced in open Court on 09.12.2013 at Islamabad
Chief Justice
Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE IJAZ UL AHSAN
HUMAN RIGHTS CASE NO.20171-B OF 2018
(In the matter regarding murder of non-payment of
victims of terrorist attack on church in Quetta on
17.12.2017)
In attendance:
Mr. M. Rauf Ata, A.G. Balochistan
Sheikh Haq Baloch, Addl.A.G.
Mr. Aurangzeb Haq, Chief Secy. Balochistan
Mr. Wajih Ullah Kundi, Special Secretary, Home
Department, Balochistan
Syed Moazzam Ali, I.G.P. Balochistan
Mr. Samuel Payara, Chairman International
Minority Rights Forum
On Court’s call
Mr. Naseebullah Kakar, ADC (G) Quetta
Mr. Babraq Kakar, AC Saddar
Mr. Jawwad Ahmed, SSP Investigation
Mr. Ali Mardan Police Surgeon
Date of Hearing:
11.05.2018
ORDER
Quetta incident: Compensation issue
We have been informed that on 17.12.2017, a suicide
terrorist attack took place in the Methodist Church at Quetta. Eight
persons lost their lives while 58 were injured. The Federal Government as
well as the Provincial Government promised compensation package in
the sum of Rs.1 million each for the deceased, Rs.500,000/- for the
critically injured whereas Rs.1,00,000/- for less critically injured. It is
stated that the Federal Government has made a sum of Rs.26.4 million
available to the Provincial Government to be disbursed as compensation.
In this behalf the Deputy Commissioner Quetta has been charged with
the responsibility of disbursing the same amongst the legal heirs of the
victims. We have been informed that before any compensation is
H.R.C.No.20171-B of 2018 etc.
-: 2 :-
disbursed, there is a requirement of a Succession Certificate so that the
compensation could be paid to the legal heirs who are lawfully entitled to
receive such compensation. According to the record produced before us,
out of the 8, the legal heirs of only one has so far submitted the
succession certificate. Presumably the applications of the rest are
pending before the competent fora.
2.
In order to expedite the matter, we direct the Deputy
Commissioner
Quetta
to
immediately
transmit
the
amount
of
compensation lying in his account to the account of the Sessions Judge
Quetta, who is directed to ensure that all the applications of the legal
heirs are decided within a period of one month from today. As soon as
such applications are decided, he shall supervise and ensure that
disbursement is made immediately to those found entitled.
3.
We have also been informed that the Provincial Government
has also released Rs.8 million as compensation which has already been
deposited with the Deputy Commissioner Quetta for its release to the
legal heirs of the victims. A further sum of Rs.16.2 million has also been
released by the Provincial Government for payment of compensation to
the injured persons. We have asked the concerned official whether such
compensation has been disbursed. He has informed us that the matter is
still under process before the District Compensation Committee.
4.
We are disappointed and alarmed at the slow pace for which
cases of compensation are being processed. It appears that the District
Compensation Committee consists of Government officials including the
ADC (G), Assistant Commissioner Quetta, Police Surgeon Quetta, Mr.
Hakeem Khan and representative of the police department. Let the
members of the District Compensation Committee appear before this
H.R.C.No.20171-B of 2018 etc.
-: 3 :-
Court after Juma Prayer today at 2:00 p.m. to explain as to why
compensation cases have so far been not decided.
5.
We have noticed with dismay that all the injured who were
entitled to receive compensation have not so far been paid. This is
despite the lapse of number of months. The Compensation Committee
comprising of Mr. Naseebullah Kakar, Additional D.C., Quetta, Mr.
Babraq Khan, Assistant Commissioner, Mr. Ali Mardan, Police Surgeon
and Mr. Jawwad Ahmed, SSP Investigation have been summoned. They
have not been able to offer any plausible reason for the delay caused in
payment of compensation to the injured.
6.
Let payment be made to the persons entitled within three
days. Notice is issued to the above named as to why the case of
misconduct not be initiated against them departmentally for the delay
caused and for the lapse committed by them. Besides why they should
not be personally held liable to pay markup to the persons entitled for
the period they have been deprived of the money. Let this matter be listed
for hearing 17.5.2018 at Principal Seat, Islamabad.
Complaint regarding use of the word Esai
7.
It has been complained despite the decision taken by
the Council of Islamic Ideology in its 175th meeting held on 28-29th
September, 2009 that there was no harm, as per Shariah
Injunctions, to refer to the members of Christian community as
“Masihi” instead of “Esai”, no steps have been taken by the
government in this regard.
8.
Let the recommendations of the Council of Islamic
Ideology be implemented in letter and spirit and arrangement
should be made in all official records, documents, correspondence
H.R.C.No.20171-B of 2018 etc.
-: 4 :-
etc. to refer to the Christian community as “Masihi” instead of
“Esai”.
CHIEF JUSTICE
JUDGE
QUETTA.
11th May, 2018.
Not approved for reporting
Mudassar/
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SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Ijaz ul Ahsan
Human Rights Case No.20883 of 2018
[In the matter of Excessive and Unannounced Load Shedding in Sindh]
In Attendance
: Mr. Khalid Javed Khan, Attorney
General for Pakistan.
Mr.
Sohail
Mehmood,
Deputy
Attorney General
Mr.
Farrukh
Dall,
Assistant
Attorney General
Umer Rasool, Secretary, Power
Tauseef
Farooqi,
Chairman,
NEPRA
Mr. Kashif Hanif, ASC (for NEPRA)
Mr. Abid S. Zuberi, ASC
(for K-Electric) along with
Syed Moonis Abdullah Alvi, CEO,
K-Electric
(via video link from Karachi)
Mr. Muhammad Munir Paracha,
ASC
Syed Rifaqat Hussain Shah, AOR
(for HESCO & SEPCO)
Muhammad Yaqoob, CEO, HESCO
Zaheer Sheikh, Chief Operating
Officer, HESCO
Muhammad Saleem Khan, CEO,
SEPCO, Sukkur
Sattar
Bux
Soomro,
Director,
SEPCO
Mr. Arshad M. Tayebaly, ASC
Mr. Tariq Aziz, AOR
(in CMA No.76/2020)
Mr. Faisal Siddiqui, ASC
(via video link from Karachi)
Date of Hearing
: 01.09.2020
O R D E R
Gulzar Ahmed, CJ.— Power Division, Ministry of
Energy has filed its reply by way of H.R.M.A. No.78 of 2020. Such
S-1-H.R.C.No.20883 of 2018 (RO).doc
- 2 -
reply has been examined by the Court and found to be thoroughly
unacceptable and does not comply with the Court’s order,
pursuant to which this reply has been filed.
2.
Mr. Umer Rasool, Secretary, Power has appeared
before the Court and states that this reply has been filed by him. It
seems that this very reply of Power Division, Ministry of Energy
goes contrary to what NEPRA is doing and taking action against K-
Electric and there seems to be no coordination between the Power
Division and NEPRA and further with NTDC. The Ministry of
Energy (Power Division) is required to ensure that there is proper
coordination between all the departments and whatever is to be
done with regard to K-Electric a coordinated decision should be
taken by all the relevant departments, agencies and companies,
and the same should be executed by one department, in that, there
should be one window operation with the K-Electric. K-Electric
should not be allowed to go about various departments of the
Government or companies or agencies for achieving of its
objectives.
3.
The learned Attorney General for Pakistan has
contended that since the last date of hearing regarding K-Electric
matter i.e. 13.08.2020, situation in Karachi has become worse and
becoming more and more worse day by day, as on the present day,
almost half of the Karachi does not have supply of Electricity. Mr.
Abid S. Zuberi, learned ASC states that this state of affairs is
because of the rains in the city of Karachi as the infrastructure of
K-Electric has submerged or inundated in the water. If that be so,
S-1-H.R.C.No.20883 of 2018 (RO).doc
- 3 -
K-Electric being a private company, should apply its own resources
for ensuring clearing of its sub-stations and other distribution
network from the rain water and it in this regard cannot wait for
any assistance from the Government, in that, the K-Electric is a
private company, who has to do its own work and its basic work
being supply of electricity to the city of Karachi, such work cannot
be interrupted for mere reason that its installations have been
affected by rain. As a private institution, it should immediately
care for such installations and have it cleared immediately, so that,
electricity supply is restored to its consumers. K-Electric cannot
blame any institution of the Government in this regard, for that,
K-Electric has to do its own work and maintain its installations
and also to secure them from any whether effect.
4.
The learned Attorney General for Pakistan states that
he has not been able to consult the officials of the Ministry of
Energy (Power Division) and that he needs time for such
consultation and thereafter, shall give a proper report to the Court.
At the same time, learned Attorney General has referred to
provision of Section 26 of the Regulation of Generation,
Transmission and Distribution of Electric Power Act, 1997 (the Act
of 1997), which is as follows: -
“26. Modifications. If the Authority is of the
opinion that it is in the public interest, it may,
with the consent of the licensee, amend or vary
the
conditions
of
any
licence
issued
(or
generation granted) under this Act and in the
absence of licensee’s consent, the Authority
S-1-H.R.C.No.20883 of 2018 (RO).doc
- 4 -
shall conduct a public hearing on whether the
proposed amendment or variance is in the
public interest and shall make a determination
consistent with the outcome to this hearing.”
5.
The learned Attorney General has contended that the
issue of electricity in Karachi is that K-Electric has exclusive right
of generation and distribution of electricity in the city of Karachi
and therefore, to overcome the issue of exclusivity, the above
quoted provision of law has to be given effect and the
determination has to be made by the Authority. As the law has
provided the provision, we do not see any impediment as to why
the Authority is not empowered to give effect to the said provision
of law. The Authority may proceed to implement Section 26 of the
Act of 1997 and make its determination. While making such
determination, the Authority shall not be hampered by any Court,
either by issuing of any injunctive order or issuing of any writ. The
Authority, after making the determination, which it shall do within
one month, will file a report before this Court.
6.
Under Section 12A of the Act of 1997, the Federal
Government is required to constitute an Appellate Tribunal (the
Tribunal). It is stated that notification of constitution of the
Tribunal has already been issued but members of the Tribunal
have not been appointed yet. Let such members be appointed by
the Federal Government within 10 days hereof and make the
Tribunal functional and provide all necessary infrastructure for its
immediate working.
S-1-H.R.C.No.20883 of 2018 (RO).doc
- 5 -
7.
Adjourned to a date after four weeks.
CHIEF JUSTICE
Bench-I
ISLAMABAD
20.05.2020
NOT APPROVED FOR REPORTING
Rabbani*/
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT: Mr. Justice Jawwad S. Khawaja
Mr. Justice Iqbal Hameedur Rahman
CMA No.8032/2013
(Compliance report of order dated 10.12.2013
passed by this Court in HRC No.29388-K/13)
And
CMA No.8033/2013
(For correction of order dated 10.12.2013
passed by this Court in HRC No.29388-
K/13)
IN
H.R.C. No.29388-K/13
(Application by Mohabbat Shah for recovery of
Yaseen Shah, missing person)
For the Applicant:
Mr. Tariq Mehmood Khokhar, Addl.A.G.P.
Mr.Shah Khawar, Addl.A.G.P.
(in second half)
Date of Hearing:
10.01.2014
ORDER
After the hearing conducted in H.R.C. No.29388-K/13, a
comprehensive order was passed on 10.12.2013. In this order, it was
inter alia declared that Army authorities have removed 35 persons from
Malakand Internment Centre out of whom only 7 persons have been
produced. It had also been directed that the authorities, whether of the
Army or otherwise, had no authority to detain these persons illegally.
As a consequence, the Chief Executives of the Federal Government and
Government of the Province of KPK were directed to “immediately
proceed with this case and ensure recovery of these persons within 07 days
and submit report to the Registrar for our perusal.” Furthermore, persons
responsible for such detention were ordered to be ‘dealt with strictly in
accordance with law”. It is apparent that this order has not been
2
complied with. Instead, an application (CMA No.8032/13) has been
filed seeking permission to file an additional document in Court. The
additional document purports to be a notification dated 20.12.2013. In
view of its relevance the said document is reproduced in extenso:-
“ GOVERNMENT OF PAKISTAN
MINISTRY OF DEFENCE
NOTIFICATION
Subject:-
COMMITTEE TO IMPLEMENT THE ORDER OF
SUPREME COURT DATED 10TH DEC, 2013 IN
HRC NO.29388-K OF 2013 : APPLICATION BY
MUHABAT SHAH S/O QABAL SHAH
The Hon’ble Prime Minister has been pleased to
constituted a Committee for implementation of the Hon’ble Supreme
Court order dated 10.12.2013. The Committee shall include:-
(i)
Minister for Defence
-
In Chair
(ii)
Attorney General for Pakistan -
Member
(iii)
Secretary Defence
Member
(iv)
Secretary Interior
Member
(v)
Secretary Law, Justice
Member
and Human Rights
2.
The Committee is mandated to discuss the issue in
depth and submit recommendations with time lines for compliance of
order dated 10th December, 2013 passed by the Hon’ble Supreme Court
of Pakistan. The committee may also propose draft law as per directions
of the Court vide para 18 of the said order.
3.
The date and venue for the first meeting will be
communicated shortly.
Sd/-
(Hasan Mahmud)
Deputy Secretary (Army-A)
Ph:9271127 ”
We note that there is no report of compliance of our order and the
directions contained therein. Furthermore, the persons responsible for
illegal/unconstitutional acts were directed to be dealt with in
accordance with law. This also has not been done. Since there is prima
facie non compliance of an order of this Court, consequential
proceedings are required to be initiated.
3
2.
Notice shall therefore, issue initially to the Secretary to the Prime
Minister who shall bring the above noted non-compliance to the notice
of the Chief Executive/Prime Minister. Likewise, notice shall issue to
the Chief Secretary, KPK who shall bring the above noted non-
compliance of Court order to the attention of the Chief Executive KPK.
Notice shall also issue to the Secretary, Law, Justice & Human Rights.
The learned Additional Attorney General, upon being questioned as to
why the Court order has not been complied with, states that he needs
some time to obtain instructions. He may obtain instructions today.
The Chief Executive of the Federal and Provincial governments
respectively may also file comments in light of the above.
3.
In addition to the above, we have observed in our order dated
10.12.2013 that there is no law which allows for undeclared internees.
We had therefore, expressed the view that ”there must be some legislation
to control such like activities and the Federation through Chief Executive
must ensure that in future no enforced disappearance takes place.” The
notification dated 20.12.2013 reproduced above, apart from being
irrelevant in terms of the directions of this Court dated 10.12.2013, has
merely mandated a Committee “to discuss the issue in-depth and submit
recommendations with timeline” for compliance of our order dated
10.12.2013.
4.
Mr. Tariq Mehmood Khokhar, Additional Attorney General, on
his request, was granted some time to obtain instructions in respect of
any compliance with the order dated 10.12.203 and the current status
of legislation, if any, in terms mentioned in sub-para 2 of para 18 of our
order dated 10.12.2013. After about 40 minutes, the case was taken up
4
again when Mr. Shah Khawar, learned Additional Attorney General
appeared and stated that according to his instructions a report was
submitted in the office of the Registrar of this Court on 19.12.2013. The
said report is not on our file. Nevertheless, a copy which purports to be
“an interim reply” to the Court order of 10.12.2013 has been submitted
in Court. Since confidentiality is being claimed in respect of the
“interim reply” the same is ordered to be placed in a sealed envelope
to be kept with the Registrar; but we may briefly observe that
compliance of the order of 10.12.2013 has not been shown in the said
“interim reply”.
5.
Furthermore, we have, since July last year, been consistently told
that the government is serious in addressing the issue of missing
persons and in this behalf legislation is also being made. Regrettably,
despite various statements made on behalf of the Federation, even
today there is no legislation in respect of enforced disappearances
other than the Action (In Aid of Civil Power) Regulations, 2011. These
regulations however, do not address the questions which have arisen
in relation to missing persons and the enforcement of Fundamental
Rights guaranteed, inter alia, by Articles 9 and 10 of the Constitution.
6.
We have repeatedly, at least since July last year, been
emphasizing to the government that in view of said Articles 9 & 10 of
the Constitution, no person can be detained/incarcerated without the
backing of a valid law. It has also been emphasized by us from time to
time that deviation from the Constitution and law by the government
would also constitute violation of Article 5 of the Constitution, quite
apart from undermining the authority of the government. In our
5
judgment in the case of Sindh High Court Bar Association Vs. Federation
of Pakistan (PLD 2009 SC 879), it was noted that it would “be for the
representatives of the people … to determine if the absence of the rule of law within
the upper echelons and formal structures of the State has, in a significant way,
generated the lawlessness which permeates our society today…“
7.
Let this matter be listed for hearing on 20.01.2014. All the
relevant quarters mentioned above may file comments/replies by
17.01.2014. On the next date of hearing, further orders shall be passed
to ensure compliance of our order dated 10.12.2013.
CMA No.8033/2013.
8.
The learned Additional Attorney General has drawn our
attention to para 8 of our order dated 10.12.2013 and has pointed out
that at two points a statement has been referred to as having been
made by the Attorney General. He states that the statement was made
by the Additional Attorney General and likewise the direction
mentioned in para 8 was also made to the Additional Attorney
General, not to the Attorney General. This submission prima facie is
correct, since Mr. Tariq Mehmood Khokhar, the Additional Attorney
General was present on 10.12.2013 and has confirmed that the order when
dictated mentioned Additional Attorney General. The application has been
moved by Mr. Tariq Mehmood Khokhar, Additional Attorney General
himself and the same is supported by his own affidavit. The omission
of the word ‘Additional’ appears to be inadvertent. The same is
therefore, directed to be corrected. He also points out that the reference
6
to the order in para 8 should to be to the order passed on
24.10.2013 and not on 24.8.2013. Having seen the file it does appear
that the date of 24.8.2013 is on account of a typographical/clerical
error. The same is, therefore, ordered to be corrected to 24.10.2013. The
present Application stands disposed of accordingly.
Judge
Judge
ISLAMABAD
10th January, 2014
(Nasir Khan)
184(3)
8032/2013
29388-K/13
10-12-2013
8033
29388-K/13
10-12-2013
29388-K/13
2014
10
1
10-12-2013
29388-K/13
7
35
"
"
"
"
8032/13
20-12-2013
(Notification)
2013
10
29388-K/2013
10-12-2013
2
2.
2013
10
8
3
9271127
(Consiquential)
/
2
3
10-12-2013
3
"
20-12-2013
"
10-12-2013
10-12-2-13
"
"
4
10-12-2013
10-12-2013
'2'
8
19-12-2013
"
"
10-12-2013
"
10-12-2013
"
5
Action (in aid of Civl Power) Regulations, 2013
10 9
2011
4
10 9
6
5
2009
"
879
"
20-01-2014
7
10-12-2013
17-01-2014
8
10-12-2013
8
8
10-12-2013
8
"
"
24-10-2013
24-08-2013
24-08-2013
24-10-2013
5
2014
10
6
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, HCJ
Mr. Justice Mushir Alam
Mr. Justice Sardar Tariq Masood
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
HRC Case No.318 of 1993, C.M.A. No.7645/2018 in
HRC No.318/1993, CMA No.2370 in CRP Nil/2020 in
HRC 318/1993, CMA No.2416/2020 in CRP Nil/2020
in CMA No.7645/2018 in HRC 318/1993, CMA No.
2417/2020 in CRP Nil/2020 in CMA No.7645/2018 in
HRC 318/1993, CMA No.2606/2020 in CRP Nil/2020
in CMA No.7645/2018 in HRC 318/1993
(Regarding Environmental Pollution in Sector I-9/1,
Islamabad due to Industrial Estate)
In attendance:
Mr. Sohail Mehmood, D.A.G.
Mr. Niazullah Khan Niazi,
A.G. Islamabad
Ch. Faisal Fareed,
Addl. A.G. Punjab.
Mr. Amir Ali Ahmed,
Acting Chairman CDA/Commissioner
Ch. Riasat Ali Gondal, ASC for CDA
Raja Abdul Ghafoor, AOR for CDA
Mr. Adil Aziz Qazi, ASC for MCI
Miss Shafaq, CO, MCI
Sh. Ansar Aziz, Ex- Mayor
Farzana Altaf Shah, D.G. EPA
Muhammad Ramzan, AD (Legal) EPA
Mr. Shah Khawar, ASC for 4 Steel Mills
along with Mr. Mehmood A. Sheikh, AOR
Ms. Shireen Imran, ASC (in CMA 2416/2020)
along with Ch. Akhtar Ali, AOR
Syed Qalb-i-Hassan, ASC (in CMA 2417/2020)
along with Mr. Mehmood A. Sheikh, AOR
Mr. Tanveer Iqbal, ASC (in CMA 2606/2020)
Date of hearing: 19.05.2020.
ORDER
Gulzar Ahmed, CJ.- At the outset, pursuant to the order
of this Court dated 05.03.2020, it is stated by the Advocate General,
Islamabad
Capital
Territory,
Deputy
Attorney
General,
Acting
HRC Case No.318 of 1993, C.M.A. No.7645/2018 in HRC No.318/1993, CMA No.2370 in
CRP Nil/2020 in HRC 318/1993, CMA No.2416/2020 in CRP Nil/2020 in CMA
No.7645/2018 in HRC 318/1993, CMA No. 2417/2020 in CRP Nil/2020 in CMA
No.7645/2018 in HRC 318/1993, CMA No.2606/2020 in CRP Nil/2020 in CMA
No.7645/2018 in HRC 318/1993
2
Chairman Capital Development Authority/Chief Commissioner, ICT
that the whole of the Margalla Hills, spreading in Islamabad, K.P. and
Punjab, has since long declared as a heritage site and National Park,
and no part of it can be allotted to any private person, either for
residential purposes or for any sort of commercial activity. We have
been informed by the Acting Chairman, CDA that a large number of
restaurants have been established in the Margalla Hills, amongst them
Monal restaurant is a famous one, and there are rental residential
premises by the name of Pine Residencia, Whispering Pine and some
other residential premises constructed in the Margalla Hills which are
being offered as hotels/guest houses, etc. and they are being
advertised openly. It is stated that all these constructions are illegal
and against the very spirit of the Margalla Hills being declared as a
heritage site and National Park, and all such constructions and
activities have to be stopped and demolished, and the Margalla Hills
restored as heritage and National Park.
2.
We are informed that a large number of trees have been
removed and cut-down for stated expansion of the Monal restaurant
and the Acting Chairman CDA/Chief Commissioner I.C.T. is fully
familiar with such situation and states that he has taken action on this
occurrence and sealed the Monal restaurant. He has further assured
the Court that the trees that have been cut-down or removed by Monal
restaurant shall be restored with sufficiently tall and grown up trees.
Action against all those premises, which are operating for commercial
or residential purposes in the Margalla Hills be initiated to ensure their
removal. We, however, direct that notices be issued to all the alleged
owners/occupants of the premises in the Margalla Hills who shall
appear before the Court on the next date of hearing. The expansion or
HRC Case No.318 of 1993, C.M.A. No.7645/2018 in HRC No.318/1993, CMA No.2370 in
CRP Nil/2020 in HRC 318/1993, CMA No.2416/2020 in CRP Nil/2020 in CMA
No.7645/2018 in HRC 318/1993, CMA No. 2417/2020 in CRP Nil/2020 in CMA
No.7645/2018 in HRC 318/1993, CMA No.2606/2020 in CRP Nil/2020 in CMA
No.7645/2018 in HRC 318/1993
3
construction work of Monal or any other Restaurant or any other
premises in the Margalla Hills is stayed altogether.
3.
We note that except K.P. Government no report is filed by
Punjab and ICT regarding crushing activity of Margalla Hills. Let such
be done well before next date. Adjourned to 01.06.2020.
Chief Justice
Judge
Judge
Judge
Judge
Islamabad, the
19th May, 2020
Not approved for reporting
Ghulam Raza/-
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE IJAZ UL AHSAN
HUMAN RIGHTS CASE NO.32642-P OF 2018
(In the matter regarding non-registration of
Christian Marriages)
In attendance:
Syed Nayyar Abbas Rizvi, Addl. Attorney General
Mr. Razzaq A. Mirza, Addl. A.G. Punjab
Mr. Usman Yousaf Mubeen, Chairman, NADRA
Brig. (R) Nasar Mir, D.G. Operation, NADRA
Mr. Saqib Jamal, Director Law, NADRA
Mr. Umer Ali, A.D. Legal, NADRA
Mr. Naveed Ahmed Goraya, Sr. Law Officer, HR,
Punjab
M. Naeem, A.D. Legal, Local Govt. Dept. Punjab
His Excellency, Dr. Alexander Jan Malik, Bishop of
Lahore
Very Reverend Shahid P. Meraj, Dean of Cathedral
Lahore
Date of hearing:
10.9.2018
JUDGMENT
MIAN SAQIB NISAR, CJ.- The instant issue has come before
this Court pursuant to an application submitted by the Very Reverend
Shahid P. Meraj, Dean of the Cathedral Church of the Resurrection, Lahore.
The grievance propounded in the application is that of non-registration of
Christian marriages with the Union Councils of the Province of Punjab and
the National Database and Registration Authority (NADRA). Clarification and
resolution of the matter was sought from the relevant authorities numerous
times and a list of Clergy authorised to solemnise marriages was submitted
to the Director General of the Local Government Punjab who, despite
assuring the applicant that the matter would be resolved, has not taken any
practical steps to redress the stated grievance. We find it pertinent to
mention at this stage that in the judgment rendered in S.M.C. NO.1 OF
2014 etc. (PLD 2014 SC 699) pursuant to suo motu action taken by the
H.R.C. No.32642-P/2018
-: 2 :-
Supreme Court regarding the suicide bomb attack of 22.09.2013 on the
Church in Peshawar and regarding the threat being given to the Kalash tribe
and Ismailis in Chitral, the issue of non-registration of Christian marriages
was brought before the Court.1 It was noted therein that “[t]he learned Acting
Advocate General, Punjab, submitted that in terms of the Christian Marriage Act, 1872, 150
Pastors and Bishops already stand registered in 20 Districts and any Christian marriage
solemnized by a license holder under the afore-mentioned Act from the concerned Church /
denomination is duly registered under the Punjab Local Government Act and the Rules
framed thereunder.”2 However unfortunately, this perhaps is not the ground
reality and the matter remains unresolved till date.
2.
His Excellency Bishop of Lahore submitted that as per Sections
28, 29, 30 and 37 of the Christian Marriages Act, 1872 (Act) various persons
are authorised to register marriages in the registers maintained by them;
once each marriage register is complete, the said individuals send copies of
the details of the marriages so registered to the Registrar General of Births,
Deaths, and Marriages from time to time, according to Section 34 of the Act.
He stated that this process continued for many years without any problems,
however, once Union Councils were established under the respective local
government laws of the Provinces, the registrations of births, deaths and
marriages was now to be done by Union Councils. According to him, in
practice, Union Councils register Christian births and deaths, but not
Christian marriages. When questioned, the representative of the Union
Councils stated that such lapse was due to the fact that they (Union Councils)
have not received any direction or authorisation from the local government to
do so. Be that as it may, it is the applicant’s case that individuals authorised
by the Church should not need to apply and get licenses for solemnisation of
marriages as their ordination itself authorises them to solemnise marriages
according to the laws of their individual churches. Furthermore, it was
1 Paragraph No.2(ix) of S.M.C. NO.1 OF 2014 etc. (supra).
2 Paragraph No.4 of S.M.C. NO.1 OF 2014 etc. (supra).
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pointed out by the Chairman, National Database and Registration Authority
(NADRA) that according to Section 5 of the Act, five types of individuals are
authorised to solemnise Christian marriages, whereas the Union Councils of
Punjab only recognise three such categories for the purpose of registration of
marriages.
3.
Before proceeding further, it is important to note the difference
between solemnisation and registration of marriages. Solemnisation of a
marriage entails the performance of the ceremonial aspects of the marriage
whereas registration is the completion of a marriage certificate and lodging
or filing of it with the appropriate institution or authority. However, as we
shall see below, both processes are closely intertwined in the Act, as in some
instances the individual who solemnises the marriage is then responsible for
registering it according to the corresponding provisions of the Act. The
addition of the Union Councils and NADRA to the bodies concerned with
registration of marriages contributes to the already rather unclear and
complex method of registration of marriages. Hence, it appears that the non-
registration of marriages by Union Councils and NADRA is due to
uncertainty regarding the applicable law, therefore examination and
clarification of the same is necessary. The primary statute on the subject is
the Act which governs solemnisation and registration of marriages between
citizens of Pakistan who belong to the Christian faith, the provisions whereof
are to be followed to ensure that the marriage is legally valid. In this regard,
Section 4 of the Act is relevant which reads as under:-
4. Marriages to be solemnised according to Act. Every
marriage between persons, one or both of whom is or are a
Christian or Christians, shall be solemnized in accordance with
the provisions of next following section; and any such marriage
solemnized otherwise than in accordance with such provisions
shall be void.
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The Act provides for the persons who can solemnise marriages (Section 5 of the
Act), whether such persons require any license or authorisation etc. in order
to solemnise marriages under the Act (Section 6 to 9 of the Act), the solemnisation
procedure (Section 5, and the relevant provisions contained in Parts III, V and VI of the Act), and
the registration procedure (the relevant provisions of Parts IV, V and VI of the Act). The
following table is an overview of the general scheme of the Act produced for
ease of reference3:-
Who can
solemnize
marriages
in Pakistan
Whether license, etc.
required for
solemnization of
marriage
Solemnization
procedure
Registration procedure under the Act
Section 5(1). By any person who has received episcopal
ordination, provided that the marriage be solemnized
according to the rules, rites, ceremonies and customs of
the Church of which he is a minister.
Part IV
27. Marriages when to be registered.– All
marriages hereafter solemnized in Pakistan
between persons one or both of whom
professes or profess the Christian religion,
except marriages solemnized under Part V or
Part VI of this Act, be registered in the
manner hereinafter prescribed.
28. Registration of marriages solemnized
by Clergymen of Church of England.–
Every Clergymen of the Church of England
shall keep a register of marriages and shall
register therein, according to the tabular form
set forth in the Third Schedule hereto,
annexed, every marriage which he
solemnizes under this Act.
29. Quarterly returns to Archdeaconry.–
Every Clergyman of the Church of England
shall send four times in every year return in
duplicate, authenticated by his signature, of
the entries in the register of marriages
solemnized any place where he has any
spiritual charge, to the Registrar of the
Archdeaconry to which he is subject, or
tithing the limits of which such place is
situate.
…
The said Registrar upon receiving the said
returns shall send one copy thereof to the
Registrar General of Births, Deaths and
Marriages.
30. Registration and returns of marriages
solemnized by clergymen of Church of
Rome.– Every marriage solemnized by a
Clergyman of the Church of Rome shall be
Section 5(2). By any Clergyman of the Church of
Scotland, provided that such marriage be solemnized
according to the rules, rites, ceremonies and customs of
the Church of Scotland.
Section
5(3). By any
Minister of
Religion
licensed
under this
Act to
solemnize
marriage.
Section 6. Grant and
revocation of licenses
to solemnize
marriage.– The
Provincial
Government so far as
regards the territories
under its
administration, and the
Central Government so
far as regards any
Acceding State may,
by notification in the
official Gazette, grant
licenses to Ministers of
Religion to solemnize
marriages within such
territories and State,
respectively, and may
by a like notification,
revoke such licenses.
Part III
17. Issue of
certificate of
notice given and
declaration
made.– Any
Minister of
Religion
consenting or
intending to
solemnize any
such marriage as
aforesaid, shall
on being required
so to do by or on
behalf of the
person by whom
the notice was
given, and upon
one of the
persons intending
marriage making
the declaration
hereinafter
required issue
under his hand a
certificate of such
notice having
3 This table contains only the provisions of the Act relevant for the purposes of this opinion and should not be
construed to be exhaustive. The other provisions of the Act not mentioned in the table would nonetheless be
applicable.
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been given and of
declaration
having been
made.
…
25.
Solemnization of
marriage.– After
the issue of the
certificate by
Minister,
marriage may be
solemnized
between the
persons therein
described
according to such
form or
ceremony as the
Minister thinks
fit to adopt:
Provided that the
marriage be
solemnized in the
presence of at
least two
witnesses besides
the Minister.
26. Certificates
void if marriage
not solemnized
within two
months.
registered by the person and according to the
form directed in that behalf by the Roman
Catholic Bishop of the Diocese or Vicariate,
in which such marriage is solemnized, and
such person shall forward quarterly to the
Register General of Births, Deaths and
Marriages returns of the entries of all
marriages registered by him during the three
months next preceding.
31. Registration and returns of marriages
solemnized by Clergymen of Church of
Scotland.– Every Clergymen of the Church
of Scotland shall keep a register of
marriages, and shall register therein,
according to the tabular form set forth in the
Third Schedule hereto annexed, every
marriage which he solemnizes under this
Act, and shall forward quarterly to the
Registrar General of Births, Death and
Marriages, through the Senior Chaplain of
the Church of Scotland, returns, similar to
those prescribed in section 29, of all such
marriages.
32. Certain marriages to be registered in
duplicate.– Every marriage solemnized by
any person who has received episcopal
ordination, but who is not a Clergyman of
the Church of England, or of the Church of
Rome, or by any Minister of Religion
licensed under this Act to solemnize
marriages, shall, immediately after the
solemnization thereof be registered in
duplicated by the same; (that is to say) in a
marriage register-book to be kept by him for
that purpose, according to the form contained
in the Fourth Schedule hereto annexed and
also in a certificate attached to be marriage-
register-book as a counterfoil.
33. Entries of such marriages to be signed
and attested.– The entry of such marriage in
both the certificate and marriage-register-
book shall be signed by the person
solemnizing the marriage, and also by the
persons married and shall be attested by two
credible witnesses, other than the person
solemnizing the marriage, present at its
solemnization.
…
34. Certificate to be forwarded to
Marriage Registrar, copied and sent to
Registrar General.– The person
solemnizing the marriage shall forthwith
separate the certificate from the marriage-
register-book and send it, within one month
from the time of the solemnization, to the
Marriage Registrar of the district in which
the marriage was solemnized, or, if there be
more Marriage Registrars than one, to the
Senior Marriage Registrar, who shall cause
such certificate to be copied into a book to be
kept by him for that purpose.
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And shall send all the certificates which he
has received during the month, with such
number and signature or initials added
thereto as are hereinafter required, to the
Registrar General of Births, Deaths and
Marriages.
35. Copies of certificates to be entered and
numbered.– Such copies shall be entered in
order from the beginning to the end of the
said book and shall bear both the number of
the certificate as copied and also a number to
be entered by the Marriage Registrar
indicating the number of the entry of the said
copy in the said book, according to the order
in which he receives each certificate.
36. Registrar to add number of entry to
certificate and send to Registrar General.–
The Marriage Registrar shall also add such
last mentioned number of the entry of the in
the book to the certificate, with his signature
or initials, and shall, at the end of every
month send the same to the Registrar
General of Births, Deaths and Marriages.
37. Registration of marriages between
Native Christians by persons referred to
clauses (1), (2) and (3) of section 5.– When
any marriage between Native Christians is
solemnized by any such person, Clergyman
or Minister of Religion as is referred to in
clause (1) clause (2) or clause (3) of section
5, the person solemnizing the same shall,
instead of proceeding in the manner provided
by sections 28 to 36, both inclusive, register
the marriage in a separate register-book, and
shall keep it safely until it is filled, or, if he
leaves the district in which he solemnized the
marriage before the said book is filled, shall
make over the same to the person succeeding
to his duties in the said district.
Custody and disposal of register-book.
Whoever has the control of the book at the
time when it is filled, shall send it to the
Marriage Registrar of the district, or, if there
be more Marriage Registrars than one, to
Senior Marriage Registrar, who shall send it
to Registrar General of Births, Deaths and
Marriages, to be kept by kept by him with
the records of his office.
Section
5(4). By, or
in the
presence of
a Marriage
Registrar
appointed
under this
Act.
7. Marriage
Registrars.– The
Provincial
Government may
appoint one or more
Christians, either by
name or as holding any
office for any district
subject to its
administration.
Senior marriage
Part V
41. Certificate of
notice given and
oath made.– If
the party by
whom the notice
was given
requests the
Marriage
Registrar to issue
the certificate
Part V
54. Registration of marriage solemnized
under Part V.– After the solemnization of
any marriage under this Part, the Marriage
Registrar present at such solemnization shall
forthwith register the marriage in duplicate
that is to say, in a marriage-register-book,
according to the form of the Schedule hereto
annexed, and also in a certificate attached to
the marriage-book as a counterfoil.
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Registrars. Where
there are more
marriage Registrars
than one in any
district, the Provincial
Government shall
appoint one of them to
be the Senior Marriage
Registrar.
Magistrate when to be
Marriage Registrar.
When there is only one
Marriage Registrar in a
district, and such
Registrar is absent
from such district, or,
ill, or when his office
is temporarily vacant,
the Magistrate of the
district shall act, as,
and be, Marriage
Registrar thereof
during such absence,
illness or temporary
vacancy.
8. Marriage
Registrars in
Acceding States.– The
Central Government
may, by notification in
the official Gazette
appoint any Christian,
either by name or as
holding any office for
the time being, to be a
Marriage Registrar in
respect of any district
or place within any
Acceding State.
next hereinafter
mentioned, and if
one of the parties
intending
marriage has
made oath as
hereinafter
required, the
Marriage
Register shall
issue under his
hand a certificate
of such notice
having been
given and of such
oath having been
made:
…
52. When
Marriage not
had within two
months after
notice, new
notice
required.–
Whenever a
marriage is not
solemnize the
marriage nor
shall any
Marriage
Registrar enter
the same, until,
new notice has
been given, and
entry made, and
certificate thereof
given, at the time
and the manner
aforesaid.
The entry of such marriage in both the
certificate and the marriage-register- book
shall be signed by the person by or before
whom the marriage has been solemnized, if
there be any such person, and by the
Marriage Registrar present at such marriage,
whether or not it is solemnized by him, and
also by the parties married, and attested by
two credible witness other than the Marriage
Registrar and person solemnizing the
marriage.
Every such entry shall be made in order from
the beginning to the end of the book, and the
number of the certificate shall correspond
with that of the entry in the marriage-
register-book.
55. Certificates to be sent monthly to
Registrar General.– The marriage shall
forthwith separate the certificate from the
marriage-register-book and send it, at the end
of every month, to the Registrar General of
Births, Deaths and Marriages.
Custody of register-book. The Marriage
Registrar shall keep safely the said register-
book until it is filled, and shall then send it to
the Registrar General of Births, Deaths and
Marriages, to be kept by him with the records
of his office.
56. Officers to whom Registrars in
Acceding States shall send certificate.–
The Marriage Registrar in Acceding States
shall send the certificates mentioned in
section 54 to such officers as the Central
Government from time to time by
notification in the official Gazette appoints in
this behalf.
Section
5(5). By any
person
licensed
under this
Act to grant
certificates
of marriage
between
Native
Christians.
9. Licensing of
persons to grant
certificates of
marriage between
Native Christians.–
The Provincial
Government or (so far
as regards and
Acceding State) the
Central Government
may grant a license to
any Christian, either
by name or as holding
any office for the time
being, authorizing him
to grant certificate of
marriage between
Native Christians.
Any such license may
be revoked by the
authority by which it
was granted, and every
such grant or
Part VI
60. On what
conditions
marriages of
Native Christian
may be
certificated.
61. Grant of
certificate.–
When, in respect
to any marriage
solemnized under
this Part, the
conditions,
prescribed in
section 60 have
been fulfilled, the
person licensed
as aforesaid, in
whose presence
the said
declaration has
Part VI
62. Keeping of register-book and deposit
of extract therefrom with Registrar.– (1)
Every person licensed under section 9 shall
keep in English, or in the vernacular
language in ordinary use in the district or
State in which the marriage was solemnized,
and in such form as the Provincial
Government by which he was licensed may
from time to time prescribe, a register-book
of all Marriage solemnized under this Part in
his presence, and shall deposit in the
territories under the administration of the
said Provincial Government in such form and
at such intervals as the Government may
prescribe, true and duly authenticated
extracts from his register-book of all entries
made therein since the last of those intervals.
(2) Where the person keeping the register-
book was licensed as regards an acceding
State by the Central Government, references
in sub-section (1) to the Provincial
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revocation shall be
notified in the official
Gazette.
been made, shall,
on the application
of either of the
parties to such
marriage, and on
the payment of a
fee of four annas,
grant a certificate
of the marriage.
The certificate
shall be signed by
such licensed
person, and shall
be received in
any suit touching
the validity of
such marriage as
conclusive proof
of its having been
performed.
Government therein mentioned shall be read
as references to the Provincial Government
to whose Registrar General of Births,
Deaths and Marriages certified copies of
entries in registers of births and deaths are
for the time being required to be sent under
section 24, sub-section (2) of the Births,
Deaths and Marriages Registration Act,
1886.
4.
According to the Act, individuals falling under Section 5(1) and
(2) supra do not require a license from the Local Government to solemnise
marriage, rather they must follow the rules, rites, ceremonies and customs of
their respective churches. Section 5(2) supra refers to any Clergymen of the
Church of Scotland in particular, and the term “Church of Scotland” has
been defined in Section 3 to mean “the Church of Scotland as by law established”,
however Section 5(1) supra refers generally to any person who has received
Episcopal ordination, who is to solemnise the marriage in accordance with
the rules, rites, ceremonies and customs of the Church of which he is a
minister, and “Church” has been defined in Section 3 supra as including
“any chapel or other building generally used for public Christian worship”. However,
those individuals who fall in the categories defined in Section 5(3), (4) and (5)
are to be licensed according to the provisions of the Act itself, i.e. Sections 6,
7, 8 and 9 supra, in order to solemnise marriages. To elaborate, Ministers of
Religion can solemnise marriages according to the procedure provided in Part
III of the Act (see Sections 17, 25 and 26 of the Act as reproduced in the table) once granted a
license by the Provincial Government under Section 6 of the Act; Marriage
Registrars can solemnise marriages in accordance with the procedure
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provided in Part V of the Act (see Sections 41 and 52 of the Act as reproduced in the table)
once duly appointed by the Provincial and Central Governments under
Sections 7 and 8 of the Act respectively; while any Christian, either by name
or as holding any office for the time being, granted a license by the Provincial
Government (by the Central Government with respect to an Acceding State) under Section 9
of the Act can grant certificates of marriage between Native Christians (defined
in Section 3 of the Act) as per the procedure provided in Part VI of the Act (see
Sections 60 and 61 of the Act as reproduced in the table). In other words, the individual
mentioned in Section 5(3), (4) and (5) of the Act derive their power to
solemnise marriages not from ordination, but from the Act itself.
5.
With respect to registration of marriages, those solemnised by
persons under Section 5(1), (2) and (3) supra are to be registered as per the
procedure provided in Part IV of the Act which begins with Section 27 which
states that “[a]ll marriages hereafter solemnized in Pakistan between persons one or both
of whom professes or profess the Christian religion, except marriages solemnized under Part
V or Part VI of this Act, be registered in the manner hereinafter prescribed.” The
particular provisions which are relevant are provided in the fourth column of
the table above. Those marriages solemnised by or in the presence of a
Marriage Registrar [Section 5(4) supra] are to be registered in accordance with
the provisions contained in Part V of the Act, particularly Sections 54 and 55
thereof. While those marriages solemnised by persons licensed under Section
9 of the Act [Section 5(5) supra] are to be registered according to the provisions
in Part VI of the Act, particularly Section 62 thereof. Without going into the
minute details of registration which are contained in the various provisions
of the Act as highlighted above, according to all the relevant provisions for
registration, the information of all the marriages solemnised under the Act
(save for those by Clergymen of the Church of England) are to be transmitted, either
directly or through the Clergyman or Marriage Registrar, etc. by the persons
authorised under Section 5 supra to solemnise marriages under the Act, to
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the Registrar General of Births, Deaths and Marriages (see the provisions in column
No.4 of the table), who according to Section 3 supra is a Registrar General of
Births, Deaths and Marriages appointed under the Births, Deaths and
Marriages Registration Act, 1886 (Act of 1886).
6.
Be that as it may, it would be appropriate to understand the
historical context of the Act and the Act of 1886. The Act was promulgated
on 18.07.1872 in the Indian Subcontinent to consolidate and amend the law
relating to the solemnisation of the marriage of persons professing the
Christian religion (Preamble to the Act). Subsequently the Act of 1886 was
promulgated in order to provide for, inter alia, more effectual registration of
marriages under various statutes including those under the Act, and for the
establishment of general registry offices for keeping registers of those
marriages. Such Registrar Generals of Births, Deaths and Marriages were to
be appointed by the Government. But the Act of 1886 did not provide for the
registration of Muslim marriages. After partition, Pakistan retained the Act
and the Act of 1886, therefore, Christian marriages continued to be
solemnised and registered under the respective frameworks provided by the
said Acts. However thereafter, for the Muslim community, the Muslim Family
Laws Ordinance, 1961 (Act of 1961) was promulgated which provided for the
registration of Muslim marriages in Section 5 thereof which read (as originally
promulgated) as under:-
“5. Registration of marriages.- (1) Every
marriage
solemnized under Muslim Law shall be registered in
accordance with the provisions of this Ordinance.
(2)
For the purpose of registration of marriages under this
Ordinance, the Union Council shall grant licenses to one or
more persons, to be called Nikah Registrars, but in no case
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shall more than one Nikah Registrar be licensed for any one
Ward.4
⋮
(5)
The form of nikah nama, the registers to be maintained
by Nikah Registrars, the records to be preserved by Union
Councils, the manner in which marriages shall be registered
and copies of nikah nama shall be supplied to the parties, and
the fees to be charged therefor (sic), shall be such as may be
prescribed.
(6)
Any person may, on payment of the prescribed fee, if
any, inspect at the office of the Union Council the record
preserved under sub-section (5), or obtain a copy of any entry
therein.”
It is clear from the above provisions that, from the very beginning, the Nikah
Registrars so appointed by Union Councils were to register Muslim marriages
and that the records were to be preserved by the Union Councils. This is in
contradistinction to the position vis-à-vis registration of Christian marriages
which, as highlighted above, fell within the domain of Registrar Generals
appointed under the Act of 1886.
7.
However, the legal position changed after the introduction of local
governments in the Provinces and the creation of NADRA. Firstly, all the
matters pertaining to the Act have been allocated to the Human Rights &
Minorities Affairs Department (HR&MA Department) as per Rule 3 of the Punjab
Rules of Business, 2011 (Punjab Rules of Business) read with Entries No.4, 11 and
12 of the Second Schedule which are reproduced below:-
“3. Allocation of Business.- (3) The business of the
Government shall be distributed amongst several Departments
in the manner indicated in the Second Schedule.
4 The words “but in no case shall more than one Nikah Registrar be licensed for any one Ward” in Section 5(2)
of the Act of 1961 were subsequently deleted by the Punjab Muslim Family Laws (Amendment) Act, 2015.
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Second Schedule
Distribution of Business among Departments
Human Rights and Minorities Affairs Department
4.
Functions assigned under the Christian Marriage Act,
1872 and rules framed threreunder.
11.
Administration of the following laws and the rules
framed thereunder:
i.
The Christian Marriage Act, 1872 (XV of 1872).
ii.
The Hindu Gains of Learning Act, 1930 (XXX of
1930)
12.
Matters incidental and ancillary to the above subjects.”
Furthermore, according to Entries No.4(a) and 8 of the Second Schedule of
the Punjab Rules of Business, “[m]atters relating to Local Governments/Local
Councils” and “[p]olicy matters regarding registration of births, deaths and marriages by
local governments” respectively have been allocated to the Local Government
and Community Development Department (LG&CD Department). The law
governing local governments is the Punjab Local Government Act, 2013 (Act of
2013), Sections 72(1)(m) and 81(2)(x) whereof provide for the relevant function
of Union Councils and Municipal Committees respectively regarding
registration of marriages which read as under:-
72. Functions of the Union Council.- (1) A Union Council
shall:
(m)
arrange for registration of births, deaths, marriages and
divorces and pass on such information about births, deaths and
marriages and divorces in the Union Council to such persons
and institutions as may be prescribed.
81. Municipal Committees.- (2) A Municipal Committee shall:
(x)
arrange registration of births, deaths, marriages and
divorces and pass on such information about births, deaths,
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marriages and divorces in its territorial jurisdiction to such
persons and institutions as may be prescribed.
[Emphasis supplied]
According to Section 2(jj) of the Act ‘prescribed’ means “prescribed by the
rules” and the rule-making power of the Government of Punjab is
contained in Section 144 thereof. However, admittedly no rules have been
prescribed in this regard. Nonetheless it is pertinent to note Section 148 of
the Act which provides as follows:-
“148. General powers of local governments.- Notwithstanding
any specific provision of this Act, a local government shall
perform its functions conferred by or under this Act and
exercise such powers and follow such procedures as are
enumerated in Eighth Schedule.”
The Eighth Schedule provides the general powers of local governments
which means “a Union Council, a Municipal Committee, a Municipal Corporation, the
Metropolitan Corporation, a District Council or an Authority” [Section 2(v) of the Act] and
Clause 90 thereof is relevant which states that:-
“90. Birth, deaths, etc.- A local government shall register all
births, deaths, marriages and divorces within the limits of its
local area and information of such births, deaths, marriages
and divorces shall be given by such persons or authorities and
shall be registered in such manner as the bye-laws may
provide.”
The Government of Punjab, Local Government & Community Authority
Department, have issued the Union Councils Nikah/Marriage Registration
(Model) By-laws, 2016 (By-laws), the relevant portion wherefrom is scanned
hereinbelow:-
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Finally, NADRA issues computerised marriage certificates and in this
regard Section 21(2) of the National Database and Registration Authority
Ordinance, 2000 (Ordinance) provides as under:-
“21. Information relating to births, deaths, marriages,
divorces, etc.- (2) The marriage or divorce of a citizen or any
other prescribed persons or class thereof, shall be reported to
the District Registrar by such authority or officer as may be
prescribed by regulations.”
8.
According to Clause 4(i) of the by-laws regarding registration
of marriages of non-Muslims, only those persons who have been granted a
license by the HR&MA Department are authorised to get non-Muslim
marriages registered with the Union Councils. The report submitted to this
Court on behalf of the Secretary HR&MA Department outlines the process
for granting solemnisation licenses as follows:-
II)
That the Human Rights & Minorities Affairs Department
issues Christian Marriage Licenses under section 9 of the
Christian Marriages Act, 1872 to the persons recommended by
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the respective churches and accordingly they solemnize
marriages of the Native Christians. The list of all the license
holders is circulated by the Local Government & Community
Development Department to the respective districts in order to
facilitate the registration of marriages at Union Councils”
III)
“That
the
Human
Rights
&
Minority
Affairs
Department, Government of the Punjab intimates Local
Government & Community Development Department whenever
a new license is issued or an existing (license) is renewed for
solemnisation of marriages to the Christian in accordance with
the prescribed policy. The Local Government & Community
Development Department forwards the same to the concerned
District Administration for intimation to the Union Councils.
Hence, the marriages of the Christian residents in Punjab are
being duly registered with the concerned Union Councils and
the NADRA.”
Furthermore, it is stated in the letter dated 17.03.2014 [No. SO(M) HR&MA-4-
34/2013(P-I)-249] of the HR&MA Department that the said department
“…issues licenses for solemnizing marriages between Christians according to Section
5(iii), 5(iv) and 5(v) of the Christian Marriage Act, 1872…” It appears that the
precise issue of non-registration of Christian marriages by the Union
Councils and the subsequent non-issuance of computerised marriage
certificates by NADRA, as pointed out by the Chairman NADRA, is
because the Union Councils refuse to register marriages solemnised by
those persons mentioned in Section 5(1) and (2) of the Act as they, and the
HR&MA Department, are under the wrong impression that such persons
require a license to do so. As observed in paragraph No.4 of this opinion
and at the risk of repetition, the Act is clear in that individuals falling
under Section 5(1) and (2) supra are not required to apply for a formal
license from the HR&MA Department to solemnise marriages because
under canon law, ordination itself confers an inherent power to solemnise
marriages and this position is reflected in the Act, and it is only those
H.R.C. No.32642-P/2018
-: 16 :-
individuals mentioned in Section 5(3), (4) and (5) supra who require a
license under the Act to solemnize marriages. Both sets of persons, i.e.
those under Section 5(1) and (2) supra on one hand and those under
Section 5(3), (4) and (5) supra on the other, are eventually authorised to
solemnise marriages, the former of whom derive their power to solemnise
marriages from ordination and the latter from the Act. The HR&MA
Department and/or the local government cannot refuse to recognise
certain classes of individuals who solemnise Christian marriages as this is
disregarding the law. Additionally, the local government statutes of the
Provinces of Sindh, Khyber-Pakhtunkhwa and Balochistan all contain
similar provisions which empower the local government to register
Christian marriages. It is an admitted fact that in the other Provinces,
Union Councils have not raised any objection to registering Christian
marriages in this regard and in light of the Article 25 of the Constitution of
the Islamic Republic of Pakistan providing that “[a]ll citizens are equal before
law and are entitled to equal protection of law”, it is discriminatory that Punjab,
where around 80% of the total Christian population of Pakistan resides,
should refuse to do so.
9.
Moreover, as explained in the report (relevant sections reproduced
earlier in this opinion) submitted by the HR&MA Department, Union Councils
are informed when new licenses are issued and when existing licenses are
renewed, the list of license holders is circulated among Union Councils.
Therefore, in light of our findings in the preceding paragraph, the HR&MA
Department is directed to introduce a procedure whereby they receive the
names of all the persons who fall within the provisions of Section 5(1) and
(2) of the Act and are duly authorised to solemnise marriages after which
the said Department should prepare lists of such names based on the
jurisdiction of the concerned local government; the lists should be
forwarded to the concerned local government (including Union Councils) so that
H.R.C. No.32642-P/2018
-: 17 :-
they are aware that such individuals are duly recognised as persons
authorised to solemnise marriages according to the law and capable of
registering such marriages with the local government without holding a
formal license to that effect. Thereafter, the local government shall, in
accordance with law, report/pass on such information of a Christian
marriage to NADRA which shall issue the requisite computerised marriage
certificate. Therefore:-
i.
Union Councils are directed to register Christian marriages in
accordance with law;
ii.
NADRA is directed to issue computerised marriage certificates
in accordance with law; and
iii.
The LG&CD Department and the HR&MA Department of the
Government of Punjab are directed to promulgate the
necessary rules, etc. and make the necessary amendments in
the by-laws, notifications, letters, etc. to reflect the legal
position outlined in this opinion.
10.
In the light of the above, this application is accordingly
disposed of.
CHIEF JUSTICE
Announced in open Court
on 16.1.2019 at Islamabad
Approved for Reporting
M. Azhar Malik
JUDGE
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE IJAZ UL AHSAN
HUMAN RIGHTS CASE NO.3654 OF 2018
(In the matter regarding appointment of Managing
Director, Pakistan Television Corporation)
In attendance:
Mr. Khalid Jawed Khan, Attorney General for Pakistan
Syed Nayyar Abbas Rizvi, Addl.A.G.P.
(Assisted by Barrister Asad Rahim)
Sardar Ahmed Nawaz Sukhera, Secy. M/o Information
Mr. Tahir Khushnood, D.G. (IP) M/o Information
Mr. Nasir Jamal, ex-D.G. (IP) M/o Information
Mrs. Saba Mohsin, ex-Addl. Secy. Information
Mr. Yousaf Naseem Khokhar, Secretary Interior
Mr. Muhammad Azam, ex-Secretary Interior
Mr. Abdul Hameed Anjum, Member FBR
Dr. M. Iqbal, Member FBR
Mr. Saleem Baig, Chairman PEMRA
Dr. Waqar Masood, ex-Secretary Finance
Mr. Fawad Hassan Fawad, ex-Secy. to P.M.
Mr. Nadeem Hasan Asif, ex-Secy. Establishment
Mrs. Ayesha Hamid, ASC
(For Ata ul Haq Qasmi)
Mr. Nazir Jawad, ASC
Mr. Zahoor Barlas, DMD PTV
(For PTV)
Mr. Munawar Iqbal Duggal, ASC
(For Pervaiz Rashid)
Mr. Imran-ul-Haq, Special Prosecutor NAB
Mr. Shariq A. Zaidi, Sr. Partner Ernest & Young
Date of hearing:
12.7.2018
JUDGMENT
MIAN SAQIB NISAR, CJ:- The issue in this case was
highlighted during the course of hearing of another matter pertaining to
Pakistan Television Corporation Limited (PTV) when it came to the Court’s
notice that the Managing Director (MD) of PTV had not been appointed since
the completion of the tenure of the last MD on 22.02.2016. The report
sought from the learned Attorney General for Pakistan (AG) in this regard
prima facie revealed that while the office of the MD of PTV remained vacant,
that of the Chairman was occupied by Mr. Ata ul Haq Qasmi from
H.R.C. No.3654 of 2018
-: 2 :-
23.12.2015
to
18.12.2017
and
during
his
tenure,
a
sum
of
Rs.284,163,733/- was paid to him and/or expense incurred by him or on
his behalf. During the proceedings it also transpired that there were
irregularities/illegalities in Mr. Qasmi’s appointment. Summaries were
moved for relaxation of the upper age limit of 65 years for such
appointment and for the approval of a handsome salary package of
Rs.1,500,000/- in addition to other perks. Be that as it may, this Court
directed a renowned audit firm, Ernst and Young Pakistan (the Auditor), to
conduct an audit with regards to, inter alia, Mr. Qasmi’s salary, and the
expenses incurred by him or on his behalf. The Auditor submitted a report
(Audit Report – Volume I & II) to this Court. This case was conducted over many
dates of hearing and arguments of the learned counsel for Mr. Qasmi,
learned AG, and various Government officials (in person and through their learned
counsel) were heard at length. Initially Mr. Fawad Hasan Fawad and Mr.
Pervaiz Rashid stated that the learned Additional AG, Mr. Waqar Rana,
would argue on their behalf, however subsequently Mr. Fawad opted to
explain his position himself, while Mr. Pervaiz Rashid made submissions
himself and through counsel.
2.
Before proceeding further we will deal with certain preliminary
issues. Though not specifically raised during the course of hearing, we
consider it appropriate to mention that this Court has jurisdiction in this
matter under Article 184(3) of the Constitution of the Islamic Republic of
Pakistan, 1973 (the Constitution). It came to the Court’s notice that blatant
irregularities/illegalities (details of which are highlighted in this opinion) existed
involving Mr. Qasmi’s appointment as a Director and the Chairman of PTV
and the fixation of his terms and conditions (including a handsome salary package
along with perks/benefits/allowances). It was apparent from the face of the record
that there was nepotism and misuse of authority regarding Mr. Qasmi’s
appointment as Director/MD PTV. Therefore it was well within the powers
of this Court to determine the validity of such appointment and fixation of
H.R.C. No.3654 of 2018
-: 3 :-
salary etc. The question then arises whether PTV, a public sector company,
is a person performing functions in connection with the affairs of the
Federation. The test in this regard was laid down by this Court in the case
of Salahuddin Vs. Frontier Sugar Mills & Distillery (PLD 1975 SC 244)
which was relied upon in the case reported as Abdul Wahab and others
Vs. HBL and others (2013 SCMR 1383) in which this Court, while holding
that Habib Bank Limited was a private entity, observed that:-
“…in order to bring the Bank within the purview and the
connotation(s) of a ‘person’ and ‘authority’ appearing in
Articles 199, 199(5) and 199(1)(c) of the Constitution and
also for the purposes of urging that appropriate order, in the
nature of a writ can be issued independently by this Court
under Article 184(3) (Constitution), to the Bank, the learned
counsel for the petitioners has strenuously relied upon the
‘function test’…In this context, it may be held that for the
purposes of resorting to the ‘function test’, two important
factors are the most relevant i.e. the extent of financial
interest of the State/Federation in an institution and the
dominance in the controlling affairs thereof…”
[Emphasis supplied]
Considering the facts and circumstances of the instant case, we are of the
opinion that PTV, the national broadcaster, fully satisfies the test in that it
is substantially under the control of the Federal Government. PTV is a
public limited company with the Federal Government holding the entire
paid up share capital of Rs.1529.3 million. Thus the Government has a
major financial interest in PTV. Moreover, as per the notification dated
23.12.2015 issued by the Ministry of Information, Broadcasting & National
Heritage (MOIBNH) (reproduced below in paragraph 4 of the opinion), majority of the
Directors (six out of eight), i.e. (i) Mr. Qasmi (Federal Government nominee); (ii)
Additional Secretary, MOIBNH; (iii) Additional Secretary (Admn), Ministry of
Foreign Affairs; (iv) Additional Secretary (B), Ministry of Finance; (v)
Director
General,
ISPR;
and
(vi)
Managing
Director,
PTV,
are
H.R.C. No.3654 of 2018
-: 4 :-
representatives of the Federal Government which constitute the Board of
Directors. Therefore the Federal Government completely controls the affairs
of PTV. In light of the above, PTV satisfies the definition of Public Sector
Company provided in Rule 2(1)(g) of the Public Sector Companies
(Corporate Governance) Rules, 2013 (Rules of 2013) (reproduced hereinbelow) and
thus the control of PTV vests in a substantial manner in the hands of the
Federal Government:-
2. Definitions.- (1)(g) “Public Sector Company” means a
company, whether public or private, which is directly or
indirectly controlled, beneficially owned or not less than fifty
percent of the voting securities or voting power of which are
held by the Government or any instrumentality or agency of
the Government or a statutory body, or in respect of which the
Government or any instrumentality or agency of the
Government or a statutory body, has otherwise power to elect,
nominate or appoint majority of its directors, and includes a
public sector association not for profit licensed under section
42 of the Ordinance.
In light of the foregoing, PTV is a person performing State functions and
therefore the validity of appointment of its Director and Chairman, Mr.
Qasmi, can be examined, particularly considering the seemingly arbitrary
manner in which he was appointed, despite being overage to hold such an
important office. He was given an immensely generous salary package
together with other perks and benefits. On account of complete lack of skill
and experience of running a company, PTV, once a profitable institution,
experienced a sharp decline both financially and in its reputation as a
major player in the electronic media market. It was burdened with an
exorbitant amount of expenses on account of inefficient and inept
management. In the context of the proper role of State agencies in the
management of public sector enterprises, it was held in Habibullah Energy
Limited and another Vs. WAPDA through Chairman and others (PLD
2014 SC 47) that:-
H.R.C. No.3654 of 2018
-: 5 :-
“28. An overview of the judgments reproduced or referred to
herein above leaves little room for doubt that it is now a well-
settled principle of law that all public functionaries must
exercise public authority, especially while dealing with the
public property, public funds or assets in a fair, just,
transparent and reasonable manner, untainted by mala fide
without discrimination and in accordance with law, keeping
in view the Constitutional Rights of the Citizens.”
[Emphasis supplied]
Hence notwithstanding the fact that Mr. Qasmi had resigned from his
position, this Court has ample jurisdiction to consider a matter where it
appears that public money has been misused through the corrupt practice
of nepotism and favouritism by giving excessive salary/perks/privileges and
incurring other undue expenses causing loss to the public exchequer.
When the law is being blatantly flouted by the Executive at the expense of a
national institution promoting public awareness and understanding of
events, culture and heritage, and public money is showered on a chosen
few as a favour without regard to qualification or merit, it undeniably
becomes a matter of public importance. This Court is well within its powers
to take cognizance of the matter under Article 184(3) of the Constitution on
account of violation of the fundamental rights of the citizens, including
those guaranteed under Article 18 and 25 of the Constitution. Even
otherwise, this Court has the power to do complete justice under Article
187 of the Constitution.
3.
Learned counsel for Mr. Qasmi raised certain preliminary
objections vis-à-vis the Audit Report. As far as the objection to the
disclaimers in the Audit Report is concerned, we reject this objection as
unfounded because they are standard disclaimers that are routinely and as
a matter of professional propriety inserted in every audit report. These do
not affect the veracity of the Audit Report. Moreover, the record submitted
to the Auditors has been verified by PTV’s officials and we do not believe
H.R.C. No.3654 of 2018
-: 6 :-
that further verification is required. As regards the objection that the Audit
Report states that the Auditors did not involve Mr. Qasmi in the audit
process, and therefore he should not be condemned unheard, suffice it to
say that Mr. Qasmi was issued a notice to appear in Court in person to
explain his position. However, he chose to be represented by counsel. It is
worthy to note that learned counsel for Mr. Qasmi herself prayed (in C.M.A.
No.98/2018) for the matter to be referred to an auditor. Besides, she was given
full opportunity to respond to the record brought before this Court by PTV
and the Audit Report. As such, this objection is also overruled.
4.
Before delving into the reasons for our opinion, we find it
expedient to provide a detailed account of the factual background of the
instant matter. On 23.09.2015, Mr. Mohammad Azam, Secretary MOIBNH
submitted a policy note seeking special exemption from the Cabinet
Division’s instructions of 09.10.2007 regarding the upper age limit of 65
years for the appointment of heads of autonomous bodies under MOIBNH:-
As discussed, it is considered view of this Ministry that
in case of certain specialized media – literary organizations
(Lok Virsa, Pakistan National Council of the Arts, Pakistan
Academy of Letters and Pakistan Television Corporation). The
Government requires highly professional and experienced
candidates from open market to provide professional
leadership to the said organizations.
2.
The presence of Cabinet Division’s instructions of 9th
October, 2007 obligating this Ministry to observe upper age
bracket of 65 years limits the choice of the Government for
hiring really experienced professionals in media and literature
who actually attain specialized excellence in post 65 years age
bracket.
[Emphasis supplied]
A draft summary was accordingly issued for the approval of the Prime
Minister (PM), the contents whereof mirror the aforementioned policy note.
It also mentioned the following:-
H.R.C. No.3654 of 2018
-: 7 :-
4.
It is proposed that Prime Minister may kindly relax this
upper age limit to the extent of following MOIBNH
jurisdictional organizations as a special case:-
a.
Lok Virsa.
b.
Pakistan National Council of the Arts.
c.
Pakistan Academy of Letters.
d.
Pakistan Television Corporation.
5.
Minister for Information, Broadcasting & National
Heritage has seen and approved the submission of the
Summary.
Mr. Javaid Aslam, Secretary to the PM, vide letter dated 29.09.2015 sought
a clarification from MOIBNH on inter alia the following:-
6.
Ministry of Information, Broadcasting and National
Heritage may clarify the following:
iii.
The specific grounds for seeking exemption from the
subject instructions in respect of the organizations mentioned
at para 4 of the summary may also be explained including the
literary and media related nature of these organizations and
the benefits of having veterans as Chairpersons of these
organizations.
In response thereto, Mr. Mohammad Azam, Secretary MOIBNH vide letter
dated 05.10.2015 clarified inter alia as under:-
7.
Prime Minister’s Office directions at (Para – 6) of the
Summary refer MOIBNH clarification is explained below:-
c.
MOIBNH four jurisdictional organizations listed at
Para – 4 of the Summary, by nomenclature, reflect their
professional operations in terms of art, culture, media,
literature and issues relating to higher learning in designated
professional disciplines. Capping the senior appointments up
to the age of 65 is respect for routine GOP bodies – but not in
the instant case where people of higher learning and proven
understanding / achievements are required to contribute – who
normally attain this position in (sic) beyond 65 years age
bracket that entitles them to be on the national canvass.
H.R.C. No.3654 of 2018
-: 8 :-
Subsequently, Mr. Fawad Hasan Fawad, Additional Secretary to the PM
issued a letter dated 22.10.2015 which read as follows:-
9.
In view of the justification given in para 7 of the
summary, the Prime Minister has been pleased to approve the
proposal at para 4 of the summary.
Thereafter, Ms. Saba Mohsin Raza, Additional Secretary, MOIBNH issued a
summary to the PM dated 30.10.2015 for the appointment of the Chairman
of PTV. The important parts of the summary read as below:-
2.
The composition of the eight-Members Board of
Directors for PTVC has been notified vide M/o IB&NH
No.1(11)/2001-TV, dated 22 October 2007 (Annex-I). One of
the Directors has to be an eminent person from the media to
be appointed by the Federal Government and that position is
lying vacant.
3.
The framework for appointment of Chairman/Director
PTVC is governed by following set of laws and regulations:-
a) Section – 183 (b) of the Companies Ordinance – 1984
empowers
the
Federal
Government
to
notify
the
composition of the Board of Directors of PTVC. The said
Section empowers the Federal Government by stating that
nothing in Sections – 178, 180 or 181 shall apply to
“Directors nominated by the Federal Government or a
Provincial Government on the BOD of the Company”
(Annex-2).
b) Article-95 of PTVC’s Memorandum & Articles of
Association (Annex-3) states that the “BOD shall elect a
Chairman of the Company from amongst the Directors
representing Government of Pakistan to preside over their
meeting, and determine the period for which he is to hold
office. The office of the Chairman shall be filled up on any
vacancy by the Directors in accordance with the directives
received by them from the Government of Pakistan”.
4.
It is, therefore, proposed that:-
H.R.C. No.3654 of 2018
-: 9 :-
a. Mr. Atta ul Haq Qasmi who is an eminent literary
personality with nationwide recognition in the disciplines
of poetry, drama, literature and media (CV at Annex-5)
may be appointed as Director of the Company for a period
of three years and also act as Chairman of PTVC.
b. Mr. Atta ul Haq Qasmi is 72 years old, however, the Prime
Minister has already relaxed the upper age limit (65 years)
for appointment of Heads of M/o IB&NH four
jurisdictional organizations vide an earlier approved
Summary (22-10-2015 – Annex-6), which includes PTVC
Chairman.
6.
Approval of the Prime Minister is solicited to the
proposal contained in Para-4 (a & b) and Para-5 above.
7.
Minister for Information, Broadcasting and National
Heritage has seen and approved the submission of the
Summary.
[Emphasis supplied]
Mr. Nadeem Hassan Asif, Secretary Establishment issued a letter dated
13.11.2015 stating the following in furtherance of the foregoing summary:-
8.
…the Prime Minister may approve appointment of Mr.
Atta ul Haq Qasmi as Director of PTVC and may also like to
convey direction of the Federal Government to the Board of
Directors to elect him as Chairman, PTVC.
10.
Proposal at para 6, read with paras 8&9, is submitted
for orders of the Prime Minister, please.
Subsequently, Mr. Fawad Hassan Fawad, Secretary to the PM, issued the
following approval dated 23.11.2015:-
11.
The Prime Minister has been pleased to approve the
proposal at para 6 read with paras 8 and 9 of the summary.
Thereafter, a notification dated 23.12.2015 was issued by MOIBNH:-
H.R.C. No.3654 of 2018
-: 10 :-
With the approval of the Competent Authority, and in
partial modification of this Ministry’s earlier Notification No.
1(11)/2001-TV dated 22nd October, 2007, and in exercise of the
power conferred under Section – 183 (b) of the Companies
Ordinance – 1984, the Government of Pakistan is pleased to
re-notify the composition of the Board of Directors of PTVC,
with appointment of Federal Government nominee, Mr. Atta-
ul-Haq Qasmi as one of the Directors as well as Chairman of
the Board of Directors of the Corporation – as follows :-
1. Mr. Atta-ul-Haq Qasmi
Member and Chairman
(Federal Government nominee) of the PTVC Board
of Directors
2. Additional Secretary,
Ex-officio Member
M/o Information, Broadcasting
& National Heritage
3. Vice Chancellor, Allama
Ex-officio Member
Iqbal Open University
4. Additional Secretary (Admn),
Ex-officio Member
M/o Foreign Affairs
5. Additional Secretary (B),
Ex-officio Member
M/o Finance
6. Director General, ISPR
Ex-officio Member
7. Managing Director, PTVC
Ex-officio Member
8. Director General, PBC
Ex-officio Member
2.
Mr. Atta-ul-Haq Qasmi as Federal Government
nominee shall, unless he resigns earlier, hold office for a
period of 3 years. The above administrative re-composition of
the Board is to be read in sync with PTVC’s Memorandum and
Articles of Association (Article – 95) which are in line with the
Provisions of the Companies Ordinance – 1984.
3.
The terms and conditions of Mr. Atta-ul-Haq Qasmi’s
appointment shall be decided separately by Ministry of
Information, Broadcasting & National Heritage.
Another summary for the PM dated 08.01.2016 was moved by Ms. Saba
Mohsin Raza, Acting Secretary MOIBNH regarding the terms and conditions
of Mr. Qasmi’s appointment as the Chairman of PTV:-
H.R.C. No.3654 of 2018
-: 11 :-
2.
Mr. Qasmi has been appointed in terms of Section –
183 (b) of the Companies Ordinance – 1984, read with,
PTVC’s Memorandum and Articles of Association (Article –
95) as one of the Directors of the PTVC’s Board against the
position of “one eminent person from the media to be
appointed by the Federal Government” in terms of MOIBNH
earlier notification (22nd October, 2007: Annex – 4). Mr.
Qasmi has been appointed for three years tenure which is
protected
under
Public
Sector
Companies
Corporate
Governance Rules – 2013 (Rule – 5 : 1) that states as under :-
i.
“A Director, once appointed or elected, shall hold
office for a period of three years, unless he resigns or is
removed in accordance with the provisions of
Companies Ordinance – 1984”.
3.
It may be noted that the appointment against the said
position did not warrant open advertisement in terms of Civil
Establishment Code – 2007 (Volume – I: Chapter – 2 : SI.
No. 141 : sub para – iii : a & b : Page – 216 - 217) – as the
appointment has been made under Section – 183 (b) of the
Companies
Ordinance
–
1984,
read
with,
PTVC’s
Memorandum and Articles of Association (Article – 95).
5.
The operation of the Ministry of Finance Public
Sector Management Grades vide their O.M of (24th
December, 2012 : Annex – 5) is not warranted in this case as
the appointment has not been made through an open
advertisement in terms of Civil Establishment Code – 2007
(Volume – I : Chapter – 2 : SI. No. 141 ; sub para – iii : a & b
: Page – 216 - 217). Instead, other set of Law of the Land has
been applied.
6.
Above in consideration, Mr. Atta ul Haq Qasmi’s
terms and conditions of appointment have been worked out
(Annex – 6) that would entitle him to receive a consolidated
salary package of Rs. 15,00,000/- (net of taxes) per month,
which approximately is slightly higher than what Mr.
Muhammad Malick MD – PTV is currently being paid (Rs.
13,80,000/- per month : net of taxes).
7.
Minister for Information, Broadcasting & National
Heritage has seen and approved submission of the Summary.
H.R.C. No.3654 of 2018
-: 12 :-
8.
Prime Minister is requested to approve the proposal at
Para – 6 above.
[Emphasis supplied]
Mr. Waqar Masood Khan, Finance Secretary issued a letter dated
26.02.2016 which reads as under:-
9.
Finance Division endorses the proposal at para-6 of the
Summary.
Thereafter Mr. Fawad Hasan Fawad, Secretary to the PM issued the
following letter dated 28.02.2016:-
10.
The Prime Minister has seen and is pleased to approve
the proposal contained in para 6, as endorsed by Finance
Division vide para 9 of the summary.
Finally vide notification dated 29.02.2016, the terms and conditions of
appointment of Mr. Qasmi as the Chairman of PTV were issued:-
2.
…the competent authority has approved following
terms and conditions of the appointment of Mr. Atta-ul-Haq
Qasmi, Chairman, Pakistan Television Corporation (PTVC),
with effect from 23rd December, 2015, as given below:-
1
2
3
Sl. No. Subject
Terms & Conditions
1.
Salary &
Allowances
Rs. 15,00,000/- (net of taxes)
2.
Leave
As admissible to MP – I public office
holders.
3.
TA/DA
As admissible to MP – I public office
holders.
4.
Period of
Contract
For three years in terms of Article – 95
of PTVC’s Memorandum and Articles of
Associations to be determined by the
PTV
BOD
on
directions
of
the
Government of Pakistan, read with, Rule
– 5 of Public Sector Companies
Corporate Governance Rules – 2013.
H.R.C. No.3654 of 2018
-: 13 :-
5.
Medical and
Entertainment
As admissible to MP – I public office
holders.
6.
Termination of
Contract
One month’s notice on either side or
payment of one month’s salary in lieu
thereof.
7.
Conduct and
Discipline
As per Civil Servants Conduct Rules –
1964.
8.
Administrative
and Financial
functions
As detailed in Public Sector Companies
Corporate Governance Rules – 2013.
9.
Administrative
and professional
framework
As detailed in PTVC’s Articles and
Memorandum of Association enabled
under Companies Ordinance – 1984.
10.
Reporting
Channel
As detailed in Rules of Business – 1973
(Schedule – II : Entry – 16 : provision –
13 : ii : a).
11.
Verification of
antecedents on
first appointment
in public sector
In line with Civil Establishment Code –
2007 (Volume – I : Chapter – 2 : SI. No.
17), read with, Civil Establishment Code
– 2007 (Volume – II : Chapter – 9 : SI.
No. 170 – 172).
3.
Pakistan Television Corporation Limited (PTVCL)
Management is advised to take further necessary action in this
regard.
5.
From the foregoing factual background emanate the following
questions of law which will be addressed accordingly:-
i.
Whether Mr. Qasmi’s appointment to the post of Director
and/or Chairman of PTV was legal/valid in light of the
relevant law and the Articles of Association of PTV (AoA)?
ii.
Irrespective of the answer to question No.i, whether Mr.
Qasmi was legally entitled to the salary package that he
received in light of the relevant law and the AoA and
whether the expenses incurred by Mr. Qasmi or on his
behalf were legal/valid?
iii.
If the answers to questions No.i and ii are in the negative,
who
is
to
be
held
responsible
for
such
illegal
appointment and/or expenditure?
H.R.C. No.3654 of 2018
-: 14 :-
[Note:- Since the duration of Mr. Qasmi’s term includes periods both prior to and post the
promulgation of the Companies Act, 2017 on 30.05.2017, the Companies Ordinance, 1984 will be
deemed to be applicable to the former, and the Act to the latter.]
i.
Whether Mr. Qasmi’s appointment to the post of Director and/or Chairman of
PTV was legal/valid in light of the relevant law and the AoA?
6.
Learned counsel for Mr. Qasmi referred to Section 183(b) of the
Companies Ordinance, 1984 (the Ordinance) read with Articles 95 and 106 of
the AoA to argue that PTV was bound by any nomination made by the
Federal Government, therefore Mr. Qasmi’s appointment as a Director and
the Chairman of PTV was legally valid. She stated that the Federal
Government exercised its discretion that it thought fit at the relevant time
and
this
Court
has
no
jurisdiction
to
interfere
with
such
discretion/decision making power. She relied on Rule 4(4) of the Rules of
2013 to submit that while the Chairman of the Board of Directors (Board) of
a Public Sector Company is to be elected by the Board of such company,
this does not apply where the Chairman of the Board is appointed by the
Government; besides, not being elected as Chairman by the Board is a
curable defect as per Section 185 of the Ordinance; nonetheless his
appointment was ratified by the Board as is evident from the minutes dated
12.04.2016 of the 211th Board meeting. According to her, if the Court is to
judge his qualifications, then it should also examine his performance at the
end of the tenure, and that Mr. Qasmi was instrumental in bringing in
extra revenue to PTV by his actions. She also pointed out that the age
relaxation was not specific to him. As regards Mr. Qasmi’s credentials,
learned counsel highlighted a number of honorary awards and positions he
occupied previously and his literary contributions.
7.
The learned AG referred to Article 95 of the AoA and stated
that the Chairman of PTV is to be elected by the Board and there is no role
of MOIBNH or the PM. He candidly mentioned that paragraph 4(a) of the
summary for appointment dated 23.09.2015 establishes that there was no
H.R.C. No.3654 of 2018
-: 15 :-
earlier process of advertisement. Even otherwise the learned AG was of the
view that Mr. Qasmi was not qualified to hold the post of Chairman.
8.
This question about the legality of the appointment of Mr.
Qasmi can be subdivided into two parts: (i) Mr. Qasmi’s appointment as a
Director of PTV; and (ii) his appointment as the Chairman of PTV. With
respect to the first part, the primary provision of law is Section 183(b) of the
Ordinance which states that “Nothing in section 178, section 180 or section 181 shall
apply to…directors nominated by the Federal Government…on the board of directors of the
company.” Sections 178, 180 and 181 of the Ordinance pertain to the
procedure for election of directors, the term of office of directors, and
removal of directors, respectively and by virtue of Section 183(b) thereof,
they do not apply to such nomination by the Federal Government.
According to Article 83 of the AoA, “Subject to the provisions of Section 183 of the
Ordinance, the Government of Pakistan shall have the right to nominate directors who shall
hold office during the pleasure of the Government of Pakistan…” (note:- while learned
counsel for Mr. Qasmi referred to Article 106 of the AoA, we do not find it to be relevant to this case
as it pertains to election and removal of directors and directives of the Government of Pakistan with
respect to any casual vacancy on the Board of Directors). Therefore under the law the
Federal Government has the power to nominate a Director to the Board of
PTV.
9.
An important question that stems from the foregoing is what is
the criteria on the basis of which such nomination is to be made? Rule 3(1)
of the Rules of 2013 provides that “The Board shall consists (sic) of executive and
non-executive directors…with the requisite range of skills, competence, knowledge,
experience and approach so that the Board as a group includes core competencies and
diversity considered relevant in the context of the Public Sector Company’s operations.”
Furthermore, according to Rule 3(7) of the Rules of 2013, “The appointing
authorities, including the Government…shall apply the fit and proper criteria given in the
Annexure in making nominations of the persons for election as Board members under the
provisions of the Ordinance.” The Annexure to the Rules of 2013 provides a
H.R.C. No.3654 of 2018
-: 16 :-
non-exhaustive list of the criteria for the purpose of determining as to
whether a person proposed to be appointed as a director is a fit and proper
person. According to such list the person should, amongst other things, be
at least a graduate, a reputed businessman or a recognized professional
with relevant sectoral experience, have financial integrity, no convictions or
civil liabilities, be known to have competence, have good reputation and
character, have the traits of efficiency and honesty, and does not suffer
from any disqualification to act as a director stipulated in the Ordinance or
from a conflict of interest, etc. [Clause (1) of the Annexure]. The Annexure also
provides certain conditions for disqualification [Clause (2) thereof]. These
criteria prescribed by the Rules of 2013 ensure that highly competent and
capable people are appointed to the Boards of Public Sector Companies so
that such companies are run in a smooth and efficient manner. In the
instant case, while PTV is a media organization and therefore experience in
the relevant sector of media would undoubtedly be helpful. At the end of
the day PTV is a big company with an annual turnover of Rs.8.778 billion
in the year 2014 but a comprehensive loss of Rs.1.467 billion;1 an annual
turnover of Rs.9.4 billion in the year 2015 but a comprehensive loss of
Rs.0.437 billion;2 and an annual turnover of Rs.9.54 billion but a
comprehensive loss of Rs.1.736 billion.3 Business management skills and
experience of running a big company are the basic requirements for an
MD/Chairman to efficiently run such a huge commercial enterprise. While
we refrain from commenting as to whether Mr. Qasmi indeed possessed
such skills, the point to be noted is that nowhere from the record produced
before us was it evident that the Federal Government considered such
criteria while nominating Mr. Qasmi as a Director of PTV. In fact, the
summary dated 30.10.2015 moved to the PM for Mr. Qasmi’s appointment
as a Director and the Chairman of PTV fails to state his business
1 PTV’s Annual Report 2014.
2 PTV’s Annual Report 2015.
3 PTV’s Annual Report 2016.
H.R.C. No.3654 of 2018
-: 17 :-
management and media sector skills, whilst answering the AoA
requirement that “One of the Directors has to be an eminent person from the media”.
This depicts the myopic and stubborn resolve of the Federal Government to
accommodate Mr. Qasmi against the said position.
10.
Another pertinent question that must be answered is what is
the manner in which such nomination is to be made? Paragraph 3 of the
summary for the PM dated 08.01.2016 regarding the terms and conditions
of Mr. Qasmi’s appointment as the Chairman of PTV states that “the
appointment against the said position did not warrant open advertisement in terms of Civil
Establishment Code – 2007 (Volume – I: Chapter – 2 : SI. No. 141 : sub para – iii : a & b :
Page – 216 - 217) – as the appointment has been made under Section – 183 (b) of the
Companies Ordinance – 1984, read with, PTVC’s Memorandum and Articles of Association
(Article – 95).” At this juncture it is necessary to examine SI. No. 141 of the
Civil Establishment Code (Esta Code) which contains the Policy Guidelines for
Contract Appointments for posts in Autonomous/Semi-Autonomous
Bodies, Corporations, Public Sector Companies etc. owned and managed by
the Federal Government:-
In
order
to
regulate
contract
appointments
in
Autonomous/Semi-Autonomous Bodies, Corporations, Public
Sector Companies etc., owned and managed by the Federal
Government, the Chief Executive has been pleased to lay down
the following policy guidelines:–
(i) In the case of tenure posts, appointment to which is
regulated by specific provisions of a law, rule and policy
instructions, contract appointments may be made in the
manner prescribed in the applicable law, rules and policy
guidelines/directions issued by the Federal Government.
(ii) For projects which have a limited life…
(iii) For posts other than those mentioned at (i) and (ii)
above contract appointments should be made only subject to
fulfillment and observance of the following conditions:
(a) Where the nature of a particular job/vacant position
requires contract appointment for a specific period,
H.R.C. No.3654 of 2018
-: 18 :-
standing
instructions
should
be
issued
by
the
administrative
Ministry/Division
concerned,
after
consultation with the Chairman of the Board of
Directors/Board of Governors, specifying such posts and
the parameters governing appointment on contract basis
against such posts.
(b) Vacancies should be advertised in the leading national
and regional newspapers.
(c) Selection should be made through regularly constituted
Selection Committees/Boards.
*[(v) The contract appointment, where justified, may be made
for a period of two years initially, on standard terms including
termination clause of one month’s notice or one month’s pay in
lieu thereof. Extension may be made on two yearly basis].
[Emphasis supplied]
As mentioned above, the summary dated 08.01.2016 simply stated that
Clause (iii) of SI. No.141 did not apply to the instant case because Mr.
Qasmi was appointed under Section 183(b) of the Ordinance read with
Article 95 of the AoA. While at first glance it may seem that appointment as
a Director of PTV is “regulated by specific provisions of a law, rule and policy
instructions” as per Clause (i) of SI. No.141 and thus no advertisement for
such post is required, it must be seen whether or not such post is a ‘tenure
post’. In the case of Pakistan Vs. Fazal Rahman Khundkar and another
[PLD 1959 SC (Pak.) 82] this Court held that:-
…the expression “tenure post” as defined by Fundamental
Rule 9 (30-A) is “a permanent post which an individual
Government servant may not hold for more than a limited
period”. The meaning of the expression was considered very
recently by this Court in the case of Mr. M. H. Khan (PLD
1959 SC (Pak.) 13)…where it was held by the majority of the
Judges who heard the case that by definition, a tenure post is
one which cannot be held for more than the prescribed period
without an order of extension; it is not to be understood to
mean a post which is to be held for the period prescribed, once
the appointment is made.”
H.R.C. No.3654 of 2018
-: 19 :-
While it is prescribed in Rule 5(1) of the Rules of 2013 that a Director, once
appointed or elected, is to hold office for a period a three years, Directors
nominated by the Federal Government are to hold office ‘during the
pleasure of the Government of Pakistan’ (Article 83 of the AoA). This is bolstered
by Section 183(b) of the Ordinance which states that Section 180 thereof
does not apply whereunder Directors are to hold office for a term of three
years. Thus this particular post (Director of PTV appointed by the Federal Government)
does not fall within the definition of ‘tenure post’ as explained above and
therefore Clause (i) of SI. No.141 does not apply. Rather Clause (iii) thereof
is attracted which stipulates certain conditions that must be fulfilled and
observed before appointments can made to other contract posts. These
conditions are: (i) issuance of standing instructions by the administrative
Ministry/Division concerned, after consultation with the Chairman of the
Board/Board of Governors, specifying such posts and the parameters
governing appointment on contract basis against such posts; (ii)
advertisement of vacancies in the leading national and regional
newspapers; and (iii) selection through a regularly constituted Selection
Committee/Selection Board. No cogent reasons were provided in the
summary dated 08.01.2016 to justify the non-applicability of Clause (iii) of
SI. No.141 of the Esta Code. Going further, it is pertinent to note SI. No.140
of the Esta Code which provides the guidelines according to which the
cases of appointment to various posts in autonomous/semi-autonomous
bodies are to be processed. Being a public limited company, PTV is an
autonomous public sector organization albeit regulated by company law.
For the appointment of a Director of PTV, SI. No.140 iii.(a) is relevant which
reads as under:-
SI. No.
Nature of Case
Selection Procedure
Approving Authority
iii. (a)
Appointment to posts in
Management
Grades
other than of a Finance
Member/Director
and
Selection Board headed by the
Secretary
of
the
Ministry/Division
concerned
to consider and recommend
Prime
Minister/Chief
Executive
H.R.C. No.3654 of 2018
-: 20 :-
those covered by (i)4
and (ii)5 above
from a panel of three names
for each vacancy.
Therefore while SI. No.141 ibid requires, inter alia, selection through a
regularly constituted Selection Board, according to SI. No.140 ibid, such
Board is to be headed by the Secretary of the Ministry of MOIBNH to
consider and recommend from a penal of three names for the vacancy of
Director of PTV which was not so done in the instant case. Only one name
was put forward, that of Mr. Qasmi.
11.
In light of the above, we find that while the Federal Government
was empowered under Section 183(b) of the Ordinance read with Article 83
of the AoA to appoint a Director to the Board of PTV, it had to do so by
following the procedure prescribed in Clause (iii) of SI. No.141 of the Esta
Code, keeping in mind the criteria laid down in Rules 3(1) and (7) and the
Annexure (‘fit and proper’ person) to the Rules of 2013. Furthermore, the
procedure laid down in SI. No.140 of the Esta Code had to be followed.
Such a process additionally ensured transparency, merit and fairness in
the appointment of public functionaries as required by the law laid down by
this Court. We consider that disregard of the aforementioned procedure by
the Federal Government in the instant case was meant to benefit a
predetermined candidate, Mr. Qasmi. His appointment as a Director of PTV
was made in violation of the prescribed legal criteria and procedure. It is
hereby declared to be illegal.
12.
We shall now examine the law with respect to the second part
of the question regarding Mr. Qasmi’s appointment as the Chairman of
PTV. Rule 4(4) of the Rules of 2013 in force at the time of Mr. Qasmi’s
appointment provided that, “The Board shall elect its chairman from amongst the
independent directors so as to achieve an appropriate balance of power, increasing
accountability, and improving the Board’s capacity for exercising independent judgment.”
4 Appointment of Chief Executive/Head of the Organization.
5 Posting of government servants of (a) BS-21 and above; and (b) BS-20 and above.
H.R.C. No.3654 of 2018
-: 21 :-
It is worth noting that Rule 4(4) of the Rules of 2013 relied upon by the
learned counsel for Mr. Qasmi during the course of hearing that, “The
chairman of the Board shall be elected by the Board of Directors of the Public Sector
Company. However, this provision shall not apply where chairman of the Board is
appointed by the Government” only came into force on 21.04.2017 vide S.R.O.
No.275(I)/2017 issued by the Securities and Exchange Commission of
Pakistan after Mr. Qasmi had retired, which substituted the originally
enacted Rule 4(4) of the Rules of 2013. Be that as it may, according to
Article 95 of the AoA, “The Board of Directors shall elect a Chairman of the Company
from amongst the Directors representing Government of Pakistan to preside over their
meeting, and determine the period for which is to hold office. The office of the Chairman
shall be filled up on any vacancy by the Directors in accordance with the directives received
by them from the Government of Pakistan and subject to the provision of the Ordinance.”
We are not persuaded to read Article 95 of the AoA to mean that election
ought to have taken place only in the absence of any directives received by
the Federal Government as argued by the learned counsel for Mr. Qasmi as
that would render the first part of Article 95 supra redundant. Her
argument that nothing turns on the fact that the Board did not formally
elect the Chairman ignores the point that requirements of the law (including
those stipulated in the AoA) must be followed in letter and spirit and no one,
including the Government, can be allowed to flout and disregard such
requirements. When confronted whether a meeting of the Board was
convened in this regard, Mr. Pervaiz Rashid stated that according to his
recollection, a Board meeting was held but the minutes were not recorded.
Be that as it may, the minutes of the 211th Board meeting held on
06.01.2016 were brought to our attention wherein under item No.1 it was
stated that, “Mr.Atta ul Haq Qasmi has taken over the charge of the post of Chairman,
PTVC w.e.f. 23.12.2015…it is proposed that…nomination of Mr.Atta ul Haq Qasmi, as
Chairman/Director, PTVC Board of Directors/Government of Pakistan’s nominee may be
confirmed from the same date.” We do not find this to have been done in
H.R.C. No.3654 of 2018
-: 22 :-
accordance with law for the reason that this meeting was held after the
notification of Mr. Qasmi’s appointment as Chairman was issued on
23.12.2015 and after he had assumed charge as Director and Chairman of
PTV vide Charge Assumption Report of even date. Therefore, Mr. Qasmi’s
appointment as Chairman of PTV is also declared to be illegal.
Before proceeding to the second question, we consider it appropriate
to mention that Article 95-A of the AoA is an alternate provision dealing
with the situation where the Board of PTV elects a person as Chairman
when it (the Board) “is of the opinion that a person be elected as Chairman whose
presence would bring, in the opinion of the Board, prestige to the Company then it may elect
such person as the Chairman whether he is or is not a Director of the Company.”
Although this Article does not apply to the instant matter and it was no
one’s case that it does, even if we were to assume for argument’s sake that
Mr. Qasmi was appointed as Chairman under Article 95-A supra, such
appointment would again be hit by the reasoning above that the Board had
never elected Mr. Qasmi as Chairman. Neither any Board meeting was held
for the said purpose nor was any Board resolution passed to that effect.
13.
The foregoing discussion clearly suggests that the illegal
appointment of Mr. Qasmi as a Director and the Chairman of PTV was
undertaken in a systematic and methodical manner, beginning from the
special exemption from the upper age limit of 65 years for the appointment
of heads of autonomous bodies under MOIBNH to the summary for Mr.
Qasmi’s appointment. No justification was provided for relaxation of the
upper age limit. When confronted, Mr. Pervaiz Rashid, the then Minister for
Information, stated that his department assisted him in the matter of the
summary for appointment of Mr. Qasmi after which the matter went to the
Establishment Division which never sent the summary back to him. He
stated this was not the first time that a Chairman was appointed or paid
remuneration, and that no law or rules were violated. We find that Mr.
Rashid did not have the power or authority to decide and propose (even in
H.R.C. No.3654 of 2018
-: 23 :-
consultation with his department) on his own, the name of any particular individual
for the post in question. No advertisement was made, no criteria was laid
down and no qualifications were taken into account. The discretionary
power of appointing a Director under Section 183(b) of the Ordinance
cannot be reduced to a simple ‘cherry picking’ of Mr. Qasmi by the Federal
Government, rather as per Article 9 of the Constitution and various
judgments of this Court, a transparent procedure of appointment should
have been adopted, in this case in line with SI. No.141 of the Esta Code,
which inter alia entails publishing an advertisement to gauge the talent pool
available for such post, filtering and then assessing the best candidates for
the post in accordance with the criteria laid down in the Rules of 2013. In
this case admittedly there was no advertisement for appointment to the
said post thus there was no consideration of any pool of potentially capable
candidates from which Mr. Qasmi was chosen. In fact, the process started
and ended with his name, and was therefore person-specific, rendering the
exercise colorable and tainted with nepotism and mala fide. We are in no
manner of doubt that every endeavor was made to turn Mr. Qasmi’s
appointment into a reality. While the Federal Government has the power to
nominate a Director on the Board of PTV and even issue directives to such
Board to elect a Chairman, the proper procedure provided in law and the
relevant rules, guidelines and criteria as discussed above had to be followed
when making such appointments. This Court held in Ghulam Rasool Vs.
Government of Pakistan (PLD 2015 SC 6)6 that:-
“9.
…The Federal Government has been expressly
empowered
by
the
Legislature
to
make
high-level
appointments in accordance with the criteria specified in the
concerned Acts / Ordinances. In case of companies
incorporated in the public sector under the Companies
Ordinance, 1984, the appointment and removal of Directors is
6 See also Khawaja Muhammad Asif Vs. Federation of Pakistan (2013 SCMR 1205) wherein this Court
discussed the parameters to be followed by the Government while making appointments to public bodies.
H.R.C. No.3654 of 2018
-: 24 :-
comprehensively dealt with under the said Ordinance and the
memorandums,
rules/regulations
framed
thereunder.
However, it is also made clear that the Court's deference to
the Executive Authority lasts for only as long as the Executive
makes a manifest and demonstrable effort to comply with and
remain within the legal limits which circumscribe its power.
Even where appointments are to be made in exercise of
discretionary powers, such powers are to be employed in a
reasonable manner.”
Failure of the Federal Government to exercise its discretionary powers in a
reasonable manner meant that it had exercised its power arbitrarily and at
its own whim and caprice. The Federal Government not only bypassed the
law, but took active steps for appeasement upon which this Court
expresses its disapproval and dismay. In light of the above, Mr. Qasmi’s
appointment as a Director and the Chairman of PTV is declared to be illegal
and without any lawful effect.
ii.
Irrespective of the answer to question No.i, whether Mr. Qasmi was legally entitled
to the salary package that he received in light of the relevant law and the AoA and
whether the expenses incurred by Mr. Qasmi or on his behalf were legal/valid??
13.
Learned counsel for Mr. Qasmi argued that his salary was the
Federal Government’s decision alone and he cannot be attributed any
blame in this regard. Therefore the letter dated 29.02.2016 fixing his terms
and conditions of appointment is valid and Mr. Qasmi was legally entitled
to the salary and monetary benefits including other perks, privileges, and
allowances, etc.. However, when confronted with the question why Mr.
Qasmi was given a tax free salary of Rs.1,500,000/- when no Chairperson
of any other similar entity was drawing such amount, learned counsel had
no satisfactory explanation except that some previous Chairmen of PTV
also drew generous salaries, but no evidence was provided to substantiate
such claim. She also attempted to justify the same by stating that Mr.
Qasmi was the de facto MD of PTV which according to her warranted such
H.R.C. No.3654 of 2018
-: 25 :-
generous salary. In this regard, the learned AG pointed out that the posts of
MD and Chairman are distinct. He submitted that according to the letter
dated 29.02.2016, Mr. Qasmi was entitled to perks including leave, TA/DA
and medical etc. as admissible to MP-I public office holders. However in fact
he had unlimited entitlement for entertainment and other heads pursuant
to minutes of the 119th Meeting of the Board of PTV held on 17.02.2000
(confirmed at the Board meeting held on 11.03.2000, hereinafter referred to as the “Board
Resolution 2000”). According to Article 95-A of the AoA the post of Chairman is
honorary in nature thus he is not entitled to any remuneration. As regards
the expenses outlined below, the learned AG submitted that they were
unnecessary, arbitrary and whimsical. He stated that while the matter
could be referred to the National Accountability Bureau (NAB), he was of the
view that Mr. Qasmi should not be subjected to a NAB inquiry due to Mr.
Qasmi’s advanced age and literary contributions and insisted that the offer
of voluntarily returning these expenses incurred by PTV be accepted.
14.
Before proceeding further, we find it expedient to discuss the
roles of the Chairman and MD and the relevant law in this regard.
According to Article 96. i) of the AoA, “There shall be Chief Executive of the
Company who shall be appointed in the manner provided in Section 196 and 199 of the
Ordinance by the Board from amongst the Directors representing the Government of
Pakistan. He may be styled as the Managing Director.” Section 2(6) of the Ordinance
defines a Chief Executive as “…an individual who, subject to the control and
directions of the directors, is entrusted with the whole, or substantially the whole, of the
powers of management of the affairs of the company, and includes a director or any other
person occupying the position of a chief executive, by whatever name called, and whether
under a contract of service or otherwise;” As per Rule 4(3) of the Rules of 2013,
“The chief executive is responsible for the management of the Public Sector Company and
for its procedures in financial and other matters, subject to the oversight and directions of
the Board, in accordance with the Ordinance. His responsibilities include implementation of
strategies and policies approved by the Board, making appropriate arrangements to ensure
H.R.C. No.3654 of 2018
-: 26 :-
that funds and resources are properly safeguarded and are used economically, efficiently
and effectively and in accordance with all statutory obligations.” Rule 4(1) of the Rules
of 2013 provides that “The office of the chairman shall be separate, and his
responsibilities distinct, from those of the chief executive.” Rule 4(2) thereof describes
the role of the Chairman which is to “(a) ensure that the Board is properly working
and all matters relevant to the governance of the Public Sector Company are placed on the
agenda of Board meetings; (b) conduct the Board meeting including fixing the agenda; and
(c) ensure that all the directors are enabled and encouraged to fully participate in the
deliberations and decisions of the Board. The chairman has a responsibility to lead the
Board and ensure its effective functioning and continuous development, he shall not be
involved in day to day operations of the Public Sector Company.” Mr. Qasmi was
appointed as a Director and the Chairman of PTV and not the MD. As is
clear from the foregoing discussion the roles, duties and responsibilities of
the Chairman and MD are distinct and separate and they are not to be
conflated. Rule 4(2) of the Rules of 2013 categorically states that the
Chairman is not to be involved in the day to day operations of the Public
Sector Company which is the function of the MD as per Section 2(6) of the
Ordinance and Rule 4(3) of the Rules of 2013.
15.
With respect to remuneration, according to Section 191(2) of
the Ordinance, “The remuneration to be paid to any director for attending the meetings
of the directors…shall not exceed the scale approved by the company or the directors, as the
case may be, in accordance with the provisions of the articles.” In this respect the AoA
provide in Article 85 that “Unless otherwise determined by the Company in General
Meeting each Director (other than a Chief Executive and a full time working Director) shall
be paid out of the funds of the Company by way of remuneration for his services, the amount
to be determined by the Company or the Directors, for each meeting of the Directors
attended by him.” Article 86 of the AoA goes on to clarify that “The remuneration
of the Directors, shall from time to time be determined by the Company in its General
Meeting, except those who are deputed to work on a whole time basis in which case the
remuneration will be determined by the Board.”
H.R.C. No.3654 of 2018
-: 27 :-
16.
With respect to Directors performing extra services, including
the holding of the office of Chairman, Section 191(1) of the Ordinance
provides that their remuneration “…shall be determined by the directors or the
company in general meeting in accordance with the provisions in the company's articles”
(note:- the same statutory provision in verbatim is retained as Section 170 of the Companies Act,
2017). In this regard the AoA state in Article 87 that “Any Director appointed to
any executive office including for the purpose of this Article the office of Chairman…or to
devote special attention to the business of the Company or who otherwise perform extra
services, which in the opinion of the Board are outside the scope of the ordinary duties of a
Director, may be paid such extra remuneration by way of salary, fees, allowances or
otherwise as shall from time to time be determined by the Directors.” ‘The Directors’
has been defined in Article 2. vi) of the AoA as “the directors for the time being of
the Company or as the case may be, the directors assembled as a Board”, and ‘Board’
has been defined in Article 2. iii) thereof as “a meeting of the directors duly called
and constituted or as the case may be the directors assembled at a Board.”
17.
The foregoing indicates that the remuneration of Directors,
other than a Chief Executive and a full time working Director, is to be
determined by the Company in its General Meeting, whereas the
remuneration of the Directors who are deputed to work on a whole time
basis is to be determined by the Board. The remuneration of Directors who
perform extra services including holding the office of Chairman is also to be
decided by the Board. Therefore the remuneration of Mr. Qasmi, being a
Director who also held the additional charge of Chairman, had to be
determined by the Directors of PTV in a duly constituted Board meeting
which is absent in the instant case. Instead, Mr. Qasmi’s remuneration
(including his salary of Rs.1,500,000/- and certain benefits/allowances) was determined by
MOIBNH in its summary for the PM dated 08.01.2016 signed by Ms. Saba
Mohsin Raza, the then Acting Secretary MOIBNH, which was seen and
approved by Mr. Pervaiz Rashid, the then Minister of Information. The said
summary was subsequently approved by the Finance Division as is evident
H.R.C. No.3654 of 2018
-: 28 :-
from paragraph No.9 thereof signed on 26.02.2016 by Mr. Waqar Masood
Khan, the then Finance Secretary, and thereafter was seen and approved
by the PM through approval dated 28.02.2016 signed by Mr. Fawad Hasan
Fawad, the then Secretary to the PM. Finally the terms and conditions of
Mr. Qasmi as the Chairman of PTV were issued by MOIBNH on 29.02.2016.
There was no determination of any sort by the Board of PTV in this regard.
It should be noted that the minutes of the Board Resolution 2000 is
available on the record which sanctions some entitlements of the
Chairman, however, this does not include salary. The Board Resolution
2000 shall be discussed further below with respect to Mr. Qasmi’s
benefits/allowances.
18.
While the arguments of Mr. Qasmi’s counsel and the
summaries moved for his appointment ring praises of his literary
background, no justification has been provided for the special treatment he
was afforded nor has it been explained as to why a Chairman was offered a
salary package that is more generous than that of an MD whose duties and
functions are of a managerial nature while the duties of the former are
limited to overseeing the working of the Board (as discussed above). The
argument of his learned counsel that Mr. Qasmi was acting as de facto MD
and was performing extra services does not save him because as mentioned
above, as per Article 87 of the AoA, if any Director is appointed to the office
of Chairman or devotes special attention to the business of the Company or
otherwise is performing extra services, a determination is to be made by the
Board as to whether such special attention or extra services are outside the
scope of the ordinary duties of a Director after which the Board may decide
to pay the Director such extra remuneration in the form of salary, fees,
allowances, etc. There is no Board resolution on record to suggest that the
Directors of PTV made any such determination with respect to Mr. Qasmi.
Nonetheless, some of the officials involved in the process of Mr. Qasmi’s
appointment submitted that the post of Chairman is higher than that of
H.R.C. No.3654 of 2018
-: 29 :-
MD, and since the then MD was drawing a handsome salary/perks,
therefore
Mr.
Qasmi
was
offered
a
monthly
salary
package
of
Rs.1,500,000/-. According to the Audit Report, Mr. Qasmi’s total salary
amount received during his tenure was Rs. 35,806,452/- and the tax paid
by PTV in this regard was Rs.12,439,908/- resulting in a gross salary
expense by PTV of Rs.48,246,360/-. Here it would be relevant to refer to
Rule 17(2)(f) of the Rules of 2013 which provides that in the Board’s annual
report to the shareholders, a statement and the requisite information to the
effect that “the appointment of chairman and other members of Board and the terms of
their appointment alongwith (sic) the remuneration policy adopted are in the best interests
of the Public Sector Company as well as in line with the best practices.” Furthermore
according to Rule 17(3) of the Rules of 2013, “The disclosure of an Executive’s
remuneration is an important aspect for a Public Sector Company. The annual report of a
Public Sector Company shall contain a statement on the remuneration policy and details of
the remuneration of members of the Board. Separate figures need to be shown for salary,
fees, other benefits and other performance-related elements.” Despite the fact that
PTV has suffered colossal losses during the past seven years, Mr. Qasmi
was awarded with a generous salary and exorbitant perks and privileges.
This raises serious concerns as to whether the remuneration policy of the
Chairman is “in line with the best practices.” Admittedly in the year 2008 the
salary of Mr. Shahid Masood, the then Chairman of PTV, was Rs.850,000/-
however it must be noted that he also had the additional charge of MD, PTV
whose role and responsibilities are different and much more than that of a
Chairman
of
PTV
as
mentioned
earlier.
Mr.
Qasmi’s
salary
of
Rs.1,500,000/- was also far beyond the salary admissible to MP-I public
office holders which, as per the Finance Division’s Office Memorandum (OM)
dated 24.12.2012 (in force at the time of Mr. Qasmi’s appointment), could be a
maximum of Rs.372,000/- (basic pay of Rs.240,000/-, house rent of Rs.105,000, utilities of
Rs.12,000 and an increment of Rs.15,000/-).
H.R.C. No.3654 of 2018
-: 30 :-
19.
Salary
aside,
Mr.
Qasmi
was
also
given
certain
benefits/allowances, the entitlement whereof is contained in two
documents, the terms and conditions letter dated 29.03.2016 read with the
Finance Division’s Office Memorandum dated 24.12.2012 and the Board
Resolution 2000 which is illustrated in the table below:-
Subject
Entitlement
as per Mr.
Qasmi’s
terms and
conditions
letter dated
29.03.2016
Finance Division’s Office Memorandum
dated 24.12.2012 (in force at the time of
Mr. Qasmi’s appointment)
Board
Resolution
2000
Leave
As
admissible to
MP-I public
office
holders.
The incumbent shall earn leave on full
pay @ 3 days per month for the period
of duty. The leave shall be availed
during the currency of contract period.
Title to leave shall expire on expiry of
contract. If given a fresh contract, the
period of earned leave available in
respect of the previous contract shall not
be carried forward.
-
Travelling
allowance/Daily
allowance
As
admissible to
MP-I public
office
holders.
As admissible to civil servants of the
highest grade (domestic official tour).
As admissible to civil servants in Cat-I
(official duty abroad).
-
Medical
As
admissible to
MP-I public
office
holders.
Reimbursement
of
medical
and
hospitalization charges for self, spouse,
and children for treatment received at
Govt. or Govt. Recognized institutions
in Pakistan.
No limit
Entertainment
As
admissible to
MP-I public
office
holders.
-
No limit
Chauffer driven
car
-
Monetized value of transport facility for
MP-I @ Rs.95,910/-
One
Petroleum, oil
and lubricants
(POL)
-
-
No limit
Air travel
-
-
Club class on
official tours
Hotel stay
-
-
Paneled hotels
on
official
tours
Mobile
-
-
No limit
H.R.C. No.3654 of 2018
-: 31 :-
telephone
Two STD office
telephones
-
-
No limit
One fax
machine with
telephone line
-
-
No limit
Computer with
printer
-
-
One
Office
stationery
-
-
No limit
Newspaper and
magazines
-
-
No limit
Refrigerator
-
-
One
20.
A brief summary of the expenses incurred by or on behalf of
Mr. Qasmi as determined by the Auditors is reproduced below:-
Description
Expense as
determined by
the Auditor
Breakdown
Learned counsel for Mr.
Qasmi’s arguments
Travel (domestic
and international)
Rs.1,437,501/-
TA/DA, self-approved
daily allowances of
Rs.301,753/- and
travel expenses of
Rs.215,727/- to Lahore
(also his place of
residence) on or near
weekends, expenses
from his stay at
Ramada Hotel after he
assumed the office of
Chairman costing
Rs.284,753/- and
international travel to
Belarus costing
Rs.400,510/- to attend
a book exhibition.
These expenses were not paid
to Mr. Qasmi directly but to
the travel agents etc. Mr.
Qasmi was only a beneficiary
thus he is not entitled to
return them.
Medical expenses Rs.355,278/-
Medicines purchased
(Rs.56,999/-) and
hospital facilities
(Rs.2,550/-) availed
from non-paneled
chemists and hospitals.
Incurred as per the
notification of the Finance
Division.
Entertainment
expenses
Rs.2,359,602/-
Includes Islamabad
Club membership of
Rs.1,543,153/-.
The Islamabad Club
membership and subscription
fee was approved by the then
MD. The other entertainment
expenses are covered by the
Board Resolution 2000.
Vehicle running
Rs.1,998,913/-
Official vehicle
Mr. Qasmi was entitled to the
H.R.C. No.3654 of 2018
-: 32 :-
and maintenance
expense
(Honda Civic Vti
Oriel, SJ-332) –
Rs.787,743/-.
Official vehicle
(Toyota Corolla Altis,
JV-515) – Rs.430,578.
Personal vehicle
(Mercedes E-200,
LEA 332) –
Rs.780,592/-.
chauffer driven car as per the
Board Resolution 2000. As
far as the second car is
concerned, he has refunded
the amount to PTV. With
regard to the expenses
incurred by PTV on account
of the maintenance and fuel
of the personal vehicle, she
admits he had no entitlement
thus Mr. Qasmi is willing to
return such amount.
Telephone/mobile
expense
Rs.569,366/-
Includes expenses
incurred at Mr.
Qasmi’s Islamabad
office (Rs.123,789/-),
residence at the guest
house (Rs.22,000/-),
and mobile phone
(Rs.423,577/-).
He was entitled to these
according to the notification
of the Finance Division and
the Board Resolution 2000.
Refreshment/food
expenses (Lahore
office)
Rs.207,252/-
-
This food was not for Mr.
Qasmi’s consumption alone,
but the entire office.
Guest house
expenses
(Shalimar
Recording and
Broadcasting
Corporation
Limited “SRBC”)
Rs.2,104,000/-
Includes room rent
(Rs.1,460,000/-),
salary of cook
(Rs.600,000/-), and
purchase of items
(Rs.44,000/-).
Private matter between Mr.
Qasmi and SRBC as the
expenses were charged to him
directly. She states he would
be willing to pay the room
rent. However the cook is
SRBC’s employee thus Mr.
Qasmi is not liable to pay for
the same nor the other
expenses incurred.
Newspapers and
periodicals
Rs.62,734/-.
-
Chairman’s office
renovation
expenses
Rs.2,486,228/-
Office renovation
(Rs.1,082,440/-) and
purchase of equipment
(Rs.1,403,788/-).
He did not authorize nor was
a signatory to the renovations
etc. It was authorized by the
MD. The equipment and
goods have been bought by
PTV and subsequently
retained by PTV, Mr. Qasmi
has not kept the things with
him for his personal benefit.
Chairman’s camp
office’s expenses
Rs.1,356,795/-
This includes:
renovation of office –
Lahore (Rs.754,276/-),
furniture (Rs.225,810/-
), two ACs, 3 LEDs,
window blinds
(Rs.270,498/-), Smart
TV internet
(Rs.30,460/-), vehicle
Mr. Qasmi only used it when
he went to Lahore. These are
normal expenses incurred in
the normal course by PTV for
improving their own property
and for the benefit of PTV
and the GM in particular.
H.R.C. No.3654 of 2018
-: 33 :-
hiring expenses
(Rs.22,770/-) and
telephone expenses
(Rs.52,981/-).
Program
expenses
(“Khoye hu’unn
ki Justaju”)
Rs.59,326,257/- Transmission costs
(Rs.51,648,873/-),
program host salary
(Rs.3,157,161/-),
talent fee
(Rs.2,456,750/-),
program parties,
design and props
(Rs.960,440/-),
travelling
(Rs.773,204/-), hiring
of technical facilities
(Rs.63,000/-), vehicles
hiring (Rs.69,526/-),
guest entertainment
(Rs.33,960/-), and
staff food and mobile
(Rs.163,343/-).
PTV did not charge for any
transmission costs, they are
not remotely related to Mr.
Qasmi. As a host of a
programme has got nothing to
do with transmission costs nor
is he liable for them. The
figure of transmission costs is
arbitrary and made up by the
auditors. The actual costs are
the remaining which were
incurred on account of the
production of the programme,
not one penny of it went to
Mr. Qasmi even though he
was the host, therefore he is
not liable to pay for the same.
Press
advertisement
expenses
Rs.55,104,720/- -
No money was actually
incurred by PTV, this was
under a barter arrangement. It
is a notional expense, and in
any event, if Mr. Qasmi is one
of the co-hosts of a
programme which is
produced by PTV, this is not
to the direct benefit of Mr.
Qasmi and he is not liable for
such amount.
Program promos
Rs.23,768,685/- These are the normal
transmission costs.
Not remotely related to Mr.
Qasmi and he has got nothing
to do with such costs or be
liable for them. The figure is
an arbitrary number made up
by the auditors.
Ramadan
transmission –
Chairman’s
promos –
transmission
costs
Rs.551,700/-
Payment to Mr.
Yasir Pirzada
Rs.480,000/-
Fees paid to
writers
Rs.31,770/-
Hotel expenses
Rs.29,855/-
Writers’
conference
expenses
Rs.61,625/-
Administrative
decisions of Mr.
Qasmi
-
In the absence of an MD for
such a long period of time,
Mr. Qasmi was de facto MD
H.R.C. No.3654 of 2018
-: 34 :-
and hence these were
justified.
21.
As mentioned earlier, remuneration (salary and benefits/allowances)
of a Director also performing the functions of a Chairman has to be
determined
by
the
Board.
Therefore
the
salary
and
other
benefits/allowances given to Mr. Qasmi vide MOIBNH’s letter dated
29.03.2016 read with the Finance Division’s OM dated 24.12.2012 were
inadmissible and illegal as there was no Board resolution to this effect. In
this regard, repeated reliance has been placed on the Board Resolution
2000 in Mr. Qasmi’s defense, however, considering the spirit of the Rules of
2013, particularly Rules 17(2)(f) and 17(3) thereof, we find that the
unlimited benefits/allowances granted to the office of the Chairman of PTV
is not in line with the policy of the ‘best interests of the Public Sector
Company.’ Furthermore, Rule 5(7)(o) of the Rules of 2013 specifically
provides that “The Board shall also formulate significant policies of the Public Sector
Company, which may include…capital expenditure planning and control.” Moreover,
Rule 5(5)(a) and (b) provide that:-
(5)
The Board shall establish a system of sound internal
control, which shall be effectively implemented at all levels
within the Public Sector Company, to ensure compliance with
the fundamental principles of probity and propriety;
objectivity, integrity and honesty and relationship with the
stakeholders, in the following manner, namely:-
(a)
the principle of probity and propriety entails that
company’s assets and resources are not used for private
advantage and due economy is exercised so as to reduce
wastage. The principle shall be adhered to, especially with
respect to the following, namely:-
(i)
handling of public funds, assets, resources and
confidential information by directors, executives and
employees; and
(ii)
claiming of expenses;
H.R.C. No.3654 of 2018
-: 35 :-
(b)
the principle of objectivity, integrity and honesty
requires the following, namely:-
(i)
the directors and executives of a Public Sector
Company do not allow a conflict of interest to
undermine their objectivity in any of their activities,
both professional and private and that they do not use
their position in the Public Sector Company to further
their private gains in a social or business relationship
outside the Public Sector Company. If a situation arise
where an actual or potential conflict of interest exists,
there shall be appropriate identification, disclosure
and management of such conflict of interest;
(ii)
An appropriate conflict of interest policy is developed
and duly enforced. Such a policy shall clearly lay
down circumstances or considerations when a person
may be 11 deemed to have actual or potential conflict
of interest, and the procedure for disclosing such
interest:
Explanation: For the purposes of this clause a
person shall be deemed to have an interest in a matter
if he has any stake, pecuniary or otherwise, in such
matter which could reasonably be regarded as giving
rise to a conflict between his duty to objectively
perform his functions under these rules so that his
ability to consider and decide any matter impartially
or to give any advice without bias, may reasonably be
regarded as impaired;
(iii)
where a director, executive or other employee has a
conflict of interest in a particular matter, such person
shall play no part in the relevant discussion, decision
or action;
(iv)
A “register of interests” is maintained to record all
relevant personal, financial and business interests, of
directors and executives who have any decision
making role in the company, and the same shall be
made publicly available. Such interests may include,
for
instance,
any
significant
political
activity,
including office holding, elected positions, public
appearances and candidature for election, undertaken
in the last five years;
(v)
a declaration by the directors and executives that they
shall not offer or accept any payment, bribe, favor or
H.R.C. No.3654 of 2018
-: 36 :-
inducement which might influence, or appear to
influence, their decisions and actions; and
(vi)
the Board shall also develop and implement a policy
on “anticorruption” to minimize actual or perceived
corruption in the company.
22.
Even a cursory perusal of the above reveals that the Board
Resolution
2000
allowing
unlimited
expenditure
for
certain
benefits/allowances of the Chairman of PTV is not in line with the
principles of probity and propriety, objectivity, integrity, honesty and due
economy in the claim of expenses, as mentioned above. Further, Mr.
Qasmi’s actions, as evidenced in the Audit Report, were not in consonance
with the aforementioned principles contained in the Rules of 2013, as he
failed to lead by example to ensure that these principles were promoted,
rather he himself acted contrary to PTV’s interest. While Article 87 of the
AoA permits the Board to determine the remuneration for any extra services
performed by a Director including holding the office of Chairman, we do not
think that the Board can sanction excessive remuneration by way of
various benefits/allowances while keeping in mind the spirit of the Rules of
2013. It is incomprehensible as to why such excessive benefits/allowances
as mentioned in the Board Resolution 2000 (see the table in paragraph 19 above)
such as office entertainment and entertainment of guests outside office etc.
is required for the ‘smooth running’ of the company. More importantly
when the Rules of 2013 were enacted, the policies and inner workings of all
Public Sector Companies including PTV had to be brought in line with the
Rules of 2013 as per Rule 24 thereof and any contravention of the said
Rules can potentially result in imposition of penalties under Rule 25. Thus,
the Board Resolution 2000 should have either been amended or completely
discarded unless the approved expenses could be justified in terms of how
they were necessary in light of the performance of duties of Mr. Qasmi as
the Chairman of PTV.
H.R.C. No.3654 of 2018
-: 37 :-
23.
As mentioned earlier, the Rules of 2013 set out the specific role
of the Chairman and to our mind none of these duties requires excessive
entertainment, petrol and telephone expenses or international travel, etc.
Being a public document, the Chairman of PTV is expected to have been
aware of the Rules of 2013 enacted specifically to regulate Public Sector
Companies. He should have played an instrumental role in implementing
rather than flouting the said Rules. Therefore in light of the foregoing, we
hold that the payment of salary and the benefits/allowances to Mr. Qasmi
was unlawful and unauthorized under the Rules of 2013 and the AoA. He
was not entitled to such payments and cannot retain the same.
24.
It is crucial to note that the post of a Director (and therefore
Chairman of the Board) of a company and for that matter a Public Sector
Company is fiduciary in nature [note:- for the purposes of the discussion in this
paragraph, reference is made both to the Ordinance and the Companies Act, 2017 (the Act) since
both of these applied at various times during Mr. Qasmi’s tenure]. As per Section 217 of the
Ordinance (Section 212 of the Act) a Director may be declared to be lacking
fiduciary behavior if he contravenes the provisions of inter alia Section 214
of the Ordinance (Section 205 of the Act) which states that “Every director of a
company who is in any way, whether directly or indirectly, concerned or interested in any
contract or arrangement entered into, or to be entered into, by or on behalf of the company
shall disclose the nature of his concern or interest at a meeting of the directors.”
Regardless of the fact that Mr. Qasmi did not receive any monetary benefit
in terms of payments for the programme ‘Khoye Hu’uun ki Justuju’, we find
that being a host thereof (while he was a Director and the Chairman of PTV) he was
benefiting from the same and had a personal interest in airing of the
program. Therefore he was liable to disclose the same to the Board.
According to the Audit Report, the said programme did not go through
PTV’s standard practice for approval of production of programmes and
there is no board resolution approving the same. We are of the view that
pushing for the development and promotion of this programme renders Mr.
H.R.C. No.3654 of 2018
-: 38 :-
Qasmi guilty of self-promotion and personal aggrandizement by utilizing
public money. Furthermore, regarding the matters of the hiring of Mr.
Qasmi’s son, Mr. Yasir Pirzada, as a scriptwriter for the drama ‘Dhund’ at
Rs.80,000/- per episode, using two instead of one official car and getting
maintenance and running allowances for a third personal car, using PTV
funds to pay the membership and subscription fees of Islamabad Club,
incurring exorbitant expenses for renovation of various officers and for
entertainment of guests inside and outside the office, and using public
funds to attend a book exhibition completely unrelated to his duties as a
Director and Chairman of PTV, we find that Mr. Qasmi breached his
fiduciary duties. He failed to “act in good faith in order to promote the objects of the
company for the benefit of its members as a whole, and in the best interests of the
company,” [Section 204(2) of the Act] to “discharge his duties with due and reasonable care,
skill and diligence” and “exercise independent judgment,” [Section 204(3) of the Act] and
he put himself “in a situation in which he may have a direct or indirect interest that
conflicts, or possibly may conflict, with the interest of the company” [Section 204(4) of the
Act]. Furthermore, we find him guilty of “achiev[ing] or attempt[ing] to achieve…
undue gain or advantage either to himself or to his relatives, partners, or associates.”
Therefore in accordance with Section 204(5) of the Act, Mr. Qasmi is “liable
to pay an amount equal to that gain to the company.” Being fully aware of the
miserable and weak financial situation of PTV, and of his duties as a
Director and the Chairman under the Rules of 2013, the Ordinance and the
Act, he miserably failed to act in the interest of PTV. He grossly,
intentionally and deliberately misused its funds for the purposes of self-
projection and self-enrichment. In light of the above, we are inclined to
declare, under Section 217 of the Ordinance (Section 212 of the Act), Mr. Qasmi
to be lacking fiduciary behavior. Consequently, from the date of this
judgment onwards he is declared to be ineligible to be appointed as a
Director of any company as per Section 187(g) of the Ordinance [Section 153(g)
of the Act].
H.R.C. No.3654 of 2018
-: 39 :-
25.
As an ancillary matter, the Audit Report also discusses the
administrative actions taken by Mr. Qasmi. Suffice it to say that we are of
the view that such actions are beyond the scope of duties of a Chairman as
provided in the Rules of 2013. Therefore all such orders passed by Mr.
Qasmi during his tenure are declared to be illegal and void ab initio.
iii.
If the answers to questions No.i and ii are in the negative, who is to be held
responsible for such illegal appointment and/or expenditure?
26.
Concise statements were filed by Sardar Ahmad Nawaz
Sukhera, Secretary Information and Broadcasting Division, Ms. Saba
Mohsin Raza, Additional Secretary (R) MOIBNH, Mr. Nasir Jamal, Officer on
Special Duty/Ex-Director General (IP) MOIBNH, Mr. Pervaiz Rashid, former
Minister for Information, Mr. Fawad Hasan Fawad, former Secretary to the
PM, Mr. Nadeem Hassan Asif, former Secretary Establishment Division and
Dr. Waqar Masood Khan, former Finance Secretary. Their basic and
common plea was that Mr. Qasmi’s appointment and terms and conditions
were made in accordance with the relevant law and rules.
27.
We have noted that the approvals from the PM’s office as
reproduced above were all issued and signed by Mr. Fawad Hasan Fawad.
During the hearing on 26.02.2018 when he was asked to produce the file
where the then PM had himself approved the summaries, Mr. Fawad stated
that as a matter of practice, a file was placed before the PM who verbally
issued an order and this has been the past practice in the PM’s office for
the last 10 to 15 years. When asked to cite some rule or regulation
supporting such practice, Mr. Fawad frankly conceded that there was no
such rule in the Rules of Business, 1973 (the Rules of Business) which envisaged
that verbal approval of the PM could be taken and conveyed and notified by
his Secretary. He also conceded that in this particular case, the PM never
made any noting on the file. Subsequently on 03.07.2018, Mr. Fawad came
forth to state that Rule 5(11A) of the Rules of Business was now being
H.R.C. No.3654 of 2018
-: 40 :-
implemented in letter and spirit and written approval of the PM was being
sought with his signature. The said rule is reproduced herein below:-
5. Transaction of Business.- (11A) Verbal orders given by a
functionary of the Government should as a matter of routine be
reduced to writing and submitted to the issuing authority. If
time permits, the confirmation shall invariably be taken before
initiating action. However, in an exigency where action is
required to be taken immediately or it is not possible to obtain
written confirmation of the orders before initiating action, the
functionary to whom the verbal orders are given shall take the
action required and at the first available opportunity obtain the
requisite confirmation while submitting to the issuing authority
a report of the action taken by him.
According to him, in 99% of the cases it is done immediately after issuance
of the approval/order, and in the rest of the cases it is done either next
morning or as soon thereafter as possible. He concedes that the past
practice was a lapse and requested the Court to condone the same. Coming
to the facts of the instant matter, Mr. Fawad stated that the PM’s approval
was only to the extent of Director and not for direct appointment as
Chairman. Nevertheless he admitted that the proper process was not
followed. He further stated that the remuneration of Mr. Qasmi was the
business of the Finance Division, which was done by Dr. Waqar Masood
Khan, former Finance Secretary with the approval of Mr. Ishaq Dar, the
then Finance Minister, and that the perks and privileges was a matter for
the Board of PTV to decide. He categorically stated that at no stage was Mr.
Qasmi’s appointment as an MD approved by the PM and there was no such
proposal before him.
28.
Learned counsel for Mr. Pervaiz Rashid, the then Minister of
Information submitted that there were two instances where his client had a
role in the instant matter: (i) summary dated 30.04.2015 for Mr. Qasmi’s
appointment as a Director and the Chairman of PTV; and (ii) summary of
Mr. Qasmi’s terms of appointment fixing his salary, both of which (summaries)
H.R.C. No.3654 of 2018
-: 41 :-
were approved by Mr. Rashid. When confronted, Mr. Rashid stated that his
department assisted him in the matter of preparation of the summary for
Mr. Qasmi’s appointment. Thereafter, the matter was sent to the
Establishment Division which never returned the summary to him in case
they had any problem with it. With respect to Mr. Qasmi’s terms and
conditions of service, the learned counsel argued that while such summary
was routed through the Finance Division, the ultimate approval was given
by the PM. With regard to the issue of the unlimited expenses, learned
counsel argued that it was for the Board of Directors of PTV to explain as it
fell within their domain. He made reference to Article 37 of the
Memorandum of Association (MOA). As regards the issue of salary, he stated
that the previous four Chairmen of PTV also drew salaries therefore it was a
past practice which was followed. He further stated that he sought
guidance from the Finance Division with respect to Mr. Qasmi’s terms and
conditions, and the said Division did not advise against offer the said terms
and conditions to Mr. Qasmi.
29.
According to the concise statement filed by Dr. Waqar Masood
Khan, the former Finance Secretary, the summary dated 08.01.2016 for
Mr. Qasmi’s terms and conditions was examined by the Regulation Wing of
the Finance Division. It (Wing) moved a note dated 13.01.2016 which did not
support the proposal (salary package of Rs.1.5 million and other facilities as per MP-I). It
suggested that the referring Ministry be asked to revise the package in
conformity with the salary of MP-Scales/Management Grade. Alternatively,
they also suggested that the proposal may be endorsed. Thereafter the
concerned Additional Secretary, while submitting the case to the Finance
Secretary, recommended endorsement of MOIBNH’s proposal based on past
precedents. The Finance Secretary on 18.01.2016 asked for further
examination of the case in light of the role and responsibilities of the
Chairman of PTV. The Regulation Wing then concluded in a note dated
27.01.2016 that the proposed salary package was not warranted and a
H.R.C. No.3654 of 2018
-: 42 :-
salary package of MP-1 be recommended. A draft endorsement along the
recommended lines was prepared and submitted to the Finance Secretary
on 29.01.2016. He sent the note to the Finance Minister, Mr. Ishaq Dar on
30.01.2016. A noting dated 08.02.2016 on the draft endorsement stated
that “FM has handed over a photocopy to Honorable PM on 8-2-2016. The PM Office
would get back to us.” According to the Finance Secretary it was later conveyed
that MOIBNH’s proposal should be supported by the Finance Division.
Accordingly the Regulation Wing prepared a revised note dated 25.02.2016
along with a revised draft endorsement that supported MOIBNH’s proposal.
On 25.02.2016 the Finance Secretary sent the endorsement for the perusal
of the Finance Minister, Mr. Ishaq Dar who then returned the file on
26.02.2016 noting that the Finance Minister had seen it. Thereafter the
endorsement was signed and sent to the PM the same day.
30.
The discussion throughout this opinion raises serious
questions about the ethical and professional responsibility of the officials
involved in the appointment of Mr. Qasmi and fixation of his terms and
conditions of service, etc. when they should have been fully conversant with
the relevant provisions of the Ordinance (and the Act), the Rules of 2013, the
AoA and the Esta Code. The alarming negligence of the government officials
which they tried to justify by stating that they were merely following orders
from superiors/political heads, shows their utter lack of ability to
withstand pressure and influence from higher officers or political bosses.
Furthermore, it is evident that each official was trying to shift responsibility
from himself onto the other Ministry(ies)/Division(s). This exercise of
shirking responsibility and ignoring the rules has resulted in colossal loss
of millions of rupees to the public exchequer and PTV. At this stage, it is
pertinent to mention that public officials, particularly heads of Ministries
who are elected representatives of the people of Pakistan, owe their first
and foremost allegiance and loyalty to Pakistan, the Constitution and the
law. Thus, they are obligated to act in accordance therewith, without being
H.R.C. No.3654 of 2018
-: 43 :-
influenced by any extraneous considerations. Such officials are not allowed
to take decisions and push for relaxations and summaries arbitrarily which
bypass or circumvent the law and the rules and at their own whims and
caprices in order to please certain individuals. Government officials are
duty bound to discharge their functions independently and are not to be
influenced by dictatorial misuse of powers and/or dictated exercise of
discretion.7 In our view the instant matter is a clear cut case of dictated
exercise of direction. At the cost of repetition, “it is now a well-settled principle of
law that all public functionaries must exercise public authority, especially while dealing
with the public property, public funds or assets in a fair, just, transparent and reasonable
manner, untainted by mala fide without discrimination and in accordance with law, keeping
in view the Constitutional Rights of the Citizens.”8 Therefore, we find the following
officials responsible for the illegal appointment of Mr. Qasmi and the illegal
fixation of his terms and conditions.
31.
Mr. Pervaiz Rashid, as the Minister for Information, was
responsible for the following: (i) the summary dated 23.09.2015 for
exemption from the upper-age limit as it was proposed in paragraph 4 that
the upper age limit be relaxed for the heads of inter alia PTV. Upon a
clarification sought by Mr. Javaid Aslam, Secretary to the PM, on
29.09.2015 with respect to the said summary, it was stated in paragraph
7(c) of the clarification letter dated 05.10.2015 issued by MOIBNH that the
posts of the heads of autonomous bodies of inter alia PTV require people of
higher learning and achievements which can only be achieved after the age
of 65. This to our understanding is not at all a satisfactory or plausible
justification; (ii) the summary dated 30.10.2015 for the appointment of Mr.
Qasmi as the Chairman of PTV in which it was stated in paragraph No.4(a)
that “Mr. Atta ul Haq Qasmi who is an eminent literary personality with nationwide
7 See further the judgments of this Court reported as Province of Punjab Vs. Azhar Abbas (2002 SCMR 1),
Samiullah Khan Marwat Vs. Government of Pakistan (2003 SCMR 1140), Syed Nazar Abbas Jafri Vs.
Secretary to the Government of the Punjab and another (2006 SCMR 606), Human Rights Cases Nos.
4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759), Syed Mahmood Akhtar Naqvi and
others Vs. Federation of Pakistan and others (PLD 2013 SC 195).
8 Habibullah Energy Limited (supra).
H.R.C. No.3654 of 2018
-: 44 :-
recognition in the disciplines of poetry, drama, literature and media (CV at Annex-5) may
be appointed as Director of the Company for a period of three years and also act as
Chairman of PTVC.”; (iii) the summary dated 08.01.2016 for the terms and
conditions of Mr. Qasmi in which it was incorrectly stated in paragraph
No.3 that appointment to the post of Chairman did not warrant
advertisement in terms of SI. No.141 of the Esta Code as appointment had
been made under Section 183(b) of the Ordinance read with the AoA (Article
95) and MoA; it was also proposed in paragraph No.6 that Mr. Qasmi’s
salary has been worked out to be “Rs. 15,00,000/- (net of taxes) per month, which
approximately is slightly higher than what Mr. Muhammad Malick MD – PTV is currently
being paid (Rs. 13,80,000/- per month : net of taxes).” The arguments put forward by
Mr. Rashid and his learned counsel were evasive whereby the brunt was
being passed onto the former PM, and the Finance and Establishment
Divisions. We do not believe that the MOIBNH had no role to play and that
it was only acting as a conduit through which Mr. Qasmi’s appointment as
well as terms and conditions of service were merely routed. We find that
Mr. Rashid, as the Minister for Information, under which the business of
PTV falls, was the most relevant person to make a decision regarding the
candidate for the proposed post and the salary package (including
benefits/allowances). It was his Ministry that thought it appropriate to seek
relaxation of the upper-age limit for appointment to autonomous bodies. All
three summaries were issued by MOIBNH. He had seen and approved both
the summaries for appointment and fixation of terms and conditions of Mr.
Qasmi. Being the head of MOIBNH, Mr. Rashid was responsible for the all
of the above. He cannot be absolved of responsibility for his acts and
omissions which were deliberate, intentional and consciously done and
committed the responsibility and liability for which clearly falls on Mr.
Rashid.
32.
The role of Mr. Ishaq Dar, the Finance Minister, in the
assessment and calculation of the salary package of Mr. Qasmi as outlined
H.R.C. No.3654 of 2018
-: 45 :-
above in paragraph No.29 is motivated. Due to his involvement in the
instant matter, it was deemed appropriate to provide him an opportunity to
justify his position. To that end notices were issued to him vide order dated
3.7.2018 after which he was given various opportunities to appear before
this Court vide orders dated 9.7.2018 and 12.07.2018. However, he failed
to do so despite repeated notices, which were not only affixed at his
residence but also published in the print and electronic media. We have
reason to believe that he had knowledge of the notices sent and suo motu
proceedings pending before this Court. He nevertheless chose to stay away
and did not even appoint a counsel to represent him. We are therefore
justified in presuming that he has nothing to say in his defence. We
accordingly hold him along with the others responsible for the illegal
fixation of the terms and conditions of service of Mr. Qasmi as the
Chairman of PTV.
33.
As mentioned above, Mr. Fawad Hasan Fawad, Secretary to the
PM, conceded that the past practice of seeking verbal approval of the PM
was a lapse. He also admitted that the proper process for the appointment
of Mr. Qasmi was not followed. Being a senior civil servant and the
Secretary to the PM, it is reasonably expected of him to know the relevant
law including the Esta Code, particularly that regarding the appointment to
posts in autonomous bodies etc. for which the PM is the appointing
authority. He should have raised an issue with or sought further
clarification of the summary dated 30.10.2015 recommending only one
person, i.e. Mr. Qasmi, as opposed to a panel of three names for the
consideration of and appointment by the PM, and returned the same
(summary) to the Establishment Division. Therefore we find that Mr. Fawad
failed in his duty, as a civil servant, to act responsibly and with due
diligence as he did not question the summary(ies) placed before the PM and
instead went ahead and sought approval as a matter of routine.
H.R.C. No.3654 of 2018
-: 46 :-
34.
The illegal and exorbitant salary paid to and expenses incurred
by or on behalf of Mr. Qasmi burdening PTV cannot be left unaccounted
for. In the case reported as Mehmood Akhtar Naqvi Vs. Federation of
Pakistan (PLD 2012 SC 1054) this Court directed for the recovery of the
salary along with perks and other emoluments paid to the members of
Parliament who were declared to be disqualified:-
“(e)
The members of Parliament/Provincial Assemblies
noted hereinabove, being disqualified persons are directed to
refund all monetary benefits drawn by them for the period
during which they occupied the public office and had drawn
their emoluments etc. from the public exchequer including
monthly remunerations, TA/DA, facilities of accommodation
along with other perks which shall be calculated in terms of
money by the Secretaries of the Senate, National Assembly
and Provincial Assemblies accordingly.”
A similar direction was issued in the case of Sher Alam Khan Vs. Abdul
Munim and others (PLD 2018 SC 449), as under:-
“34.
Consequently, it is held that Respondent No.1 was not
qualified to be and disqualified from being a Member of the
Provincial Assembly of Khyber Pakhtunkhwa at all material
times, hence, was liable to be de-notified as such by the ECP.
Furthermore, he was obliged to return all the benefits i.e.
salary and other allowances received by him as a Member of
the Provincial Assembly and also criminal proceedings as
provided under the law are also directed to be taken against
him…”
35.
According to our calculations illustrated below, a total amount
of Rs.197,867,491/- is liable to be recovered being the loss caused to PTV:-
Gross salary expense by PTV (+)
Rs.48,246,360/-
Total expenses incurred other than salary (sum of
column two of the table in paragraph No.20) (+)
Rs.152,292,301/-
Expenses Mr.
Qasmi willing to
Vehicle running and
maintenance expense [second
official vehicle (Toyota Corolla
Rs.430,578/-
Rs.780,592/-
H.R.C. No.3654 of 2018
-: 47 :-
return or already
returned (–)
Altis, JV-515) and personal vehicle
(Mercedes E-200, LEA 332)]
SRBC room rent expenses
Rs.1,460,000/-
Total
Rs.197,867,491/-
In light of the foregoing discussion and taking into account the lapses and
illegal actions committed by Mr. Qasmi as a Director and the Chairman of
PTV and by the officials identified above, we hereby direct that the
aforementioned amount be recovered from the named persons in the ratio
stated below:-
Name
Reason for liability
Ratio
Mr. Ata ul Haq Qasmi
Beneficiary of illegal acts
50%
Mr.
Pervaiz
Rashid,
Minister for Information
Ignored the law and disregarded their duty
to confer benefit on Mr. Qasmi
20%
Mr. Ishaq Dar, Finance
Minister
20%
Mr.
Fawad
Hasan
Fawad, Secretary to the
PM
Failure to act with due diligence in
processing the summary for appointment of
the Director of PTV from a person-specific
recommendation as opposed to a panel of
three names as required by the Esta Code
10%
These amounts are their liabilities and they must reimburse the same to
PTV. We give them an opportunity to do so voluntarily. However if they fail
to do so within a period of two months, PTV is directed to recover the said
amounts from them in the stated ratio as per the procedure in practice for
the recovery of dues.
36.
As far as the issue regarding delay in the appointment of the
MD of PTV is concerned, from which the matter of Mr. Qasmi’s appointment
as Director and Chairman of PTV and the huge expenses incurred by or on
his behalf emanated, we direct the Federal Government to look into the
issue of the appointment of a full-time MD of PTV (if the position is still vacant)
after fulfilling all legal, procedural and codal formalities, strictly in
accordance with law. A report in this regard shall be submitted within two
weeks of the issuance of this order.
H.R.C. No.3654 of 2018
-: 48 :-
37.
To recapitulate:-
i.
Mr. Qasmi’s appointment as a Director and the Chairman of
PTV is declared to be illegal and without any lawful effect;
ii.
The payment of salary and the benefits/allowances to Mr.
Qasmi was unlawful and unauthorized. He was not entitled to
such payments and cannot retain the same;
iii.
On account of lack of fiduciary behavior, Mr. Qasmi is declared
to be ineligible to be appointed as a Director of any company
from the date of this judgment onwards;
iv.
The administrative actions taken by Mr. Qasmi are beyond the
scope of duties of a Chairman, therefore all such orders passed
by him during his tenure are declared to be illegal and void ab
initio;
v.
Taking into account the lapses and illegal actions committed by
Mr. Qasmi as a Director and the Chairman of PTV, Mr. Pervaiz
Rashid, Minister for Information, Mr. Ishaq Dar, Finance
Minister and Mr. Fawad Hasan Fawad, Secretary to the PM, we
hereby direct that the amount of Rs.197,867,491/- be
recovered from them in the ratio stated in paragraph No.35 of
this opinion; and
vi.
The Federal Government is directed to appoint a full-time MD
of PTV (if the position is still vacant) after fulfilling all legal, procedural
and codal formalities, strictly in accordance with law.
This matter is disposed of in the aforementioned terms.
CHIEF JUSTICE
JUDGE
JUDGE
Announced in open Court
on 8.11.2018 at Islamabad
Approved for Reporting
M. Azhar Malik
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE SH. AZMAT SAEED
H.R.C. NO. 3677-E OF 2014
(Non-availability of machine readable passports
in Pakistan Embassy in China)
In Attendance:
Mr. Shah Khawar, Addl. Attorney General
Mr. Muhammad Safdar, PD(MRP), Immigration &
Passport
Ch. Salman, Manager, HR(I&P)
Barrister Mudassar Shah Naqvi, Legal Advisor (I&P)
Date of Hearing:
17.02.2014
ORDER
Mr. Muhammad Safdar, Project Director (Machine Readable
Passports), Immigration & Passport Department submits that the office is in
receipt of the applications of 7500 overseas Pakistanis who are held up in
China because of non-availability of Machine Readable Passports in Pakistan
Embassy in China. He added that the machine was installed in February, 2013,
however, it is not operational on account of non-appointment of the technical
officer which is a grade-17 post. Adds on Court query that a reference was sent
to Ministry of Interior in July, 2013; that 4/5 reminders were issued but the
Ministry has not issued the requisite appointment order because the said
Ministry has sent the reference to the Prime Minister Secretariat and on
account of the general ban imposed, no further action could be taken.
2.
We are surprised and rather dismayed over the insensitive attitude
of the passport department. However, before we pass any order, we are
persuaded to direct Secretary Interior to appear in Court on 19.02.2014 and
explain the factual position.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
17th of February, 2014
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE IJAZ UL AHSAN
Human Rights Case No.39216-G of 2018
IN THE MATTER OF SLACKNESS IN THE PROGRESS OF
PENDING
ENQUIRIES
RELATING
TO
FAKE
BANK
ACCOUNTS, ETC.
In Attendance:
Mr. Anwar Mansoor Khan, Attorney General
for Pakistan
Syed Nayyar Abbas Rizvi, Additional AGP.
Mr. Shehryar Qazi, Addl. A.G.
Ch. Aitzaz Ahsan, Sr. ASC
Mr. Gohar Ali Khan, ASC (For Bahria Town)
Kh. Ahmed Tariq Raheem, Sr. ASC
Mr. Azhar Siddique, ASC (For Zain Malik)
Mr. Farooq H. Naek, Sr. ASC
(For Asif Ali Zardari and Faryal Talpur)
Mr. Shahid Hamid, Sr. ASC
Ms. Ayesha Hamid, ASC
Syed Rafaqat Hussain Shah, AOR
(For Anwar Majeed and Abdul Ghani Majeed)
Mr. Munir Ahmed Bhatti, ASC
(For Kh. Nimar Majeed, Kh. Mustafa
Zulqarnain Majeed and Ali Kamal Majeed)
Kh. Naveed Ahmed, ASC for President
Sindh Bank
Mr. Salman Aslam Butt, Sr. ASC for UBL
Mr. Ibrar Saeed, Legal Advisor
(For SECP)
Mr. Haseeb Jamali, ASC
Mr. M. Qasim Mirjat, AOR
(For Nasir Abdullah Lootha)
Mr. Abid S. Zuberi, ASC
Mr. Tariq Aziz, AOR
(For Summit Bank)
Mr. Shoukat Hayat, ASC
Mr. M. Qasim Mirjat, AOR
Human Rights Case No.39216-G of 2018
2
(For Hussain Lawai)
Mr. Ahmed Nawaz Chaudhary, AOR
(For Sher Muhammad Mugheri)
Mr. Shahab Sarki, ASC for Shahzad Jatoi
(For A One Group)
For FIA
Mr. Bashir Ahmed Memon, DG FIA
Mr. Najaf Quli Mirza, Addl. DG FIA
Mr. Monir A. Sheikh, Director FIA, Karachi
Mr. Qaiser Masood, Addl. Director, Law FIA
Mr. Mohammad Ali Abro, Asst. Director /
I.O FIA Karachi.
Mr. Tariq Malik, Director Law FIA
Mr. I.D Mangi, AIGP (Legal) Sindh Karachi
For NAB
Mr. Imran-ul-Haq, Sp. Prosecutor
For FBR
Mr. Jahanzeb Khan, Chairman FBR
Mr. Habibullah, Member I.R Operation FBR
For State Bank
Mr. Tariq Mehmood Bajwa, Governor
Mr. Sanaullah Gondal, Director
Syed Ansar Hussain, AD
Raja Abdul Ghafoor, AOR
Date of Hearing:
05.09.2018
ORDER
This matter arises out of inquiries initiated by
Federal Investigation Agency (“FIA”) regarding fake/Benami
accounts connected with various individuals and entities
including
A-One
International,
Iqbal
Metals,
Lucky
International and Omair Associates. Another inquiry was also
initiated on receipt of suspicious transaction reports (“STRs”)
from Financial Monitoring Units (“FMU”) of State Bank of
Pakistan (“SBP”). An investigation team headed by Dr. Najaf
Quli Mirza, Additional Director General, FIA, was constituted
to investigate the matter. Having received information that
there was slackness and slow progress in the matter and
probe and investigation was being obstructed and hampered,
this Court took suo motu notice of the same in exercise of its
Human Rights Case No.39216-G of 2018
3
powers under Article 184(3) of Constitution of the Islamic
Republic of Pakistan, 1973 (“the Constitution”). In one of the
matters, an FIR was also registered regarding which an
interim challan has already been submitted in the Special
Court (Banking), Karachi. In this regard, some accused
persons holding senior positions in Summit Bank were
arrested and are presently in Jail. The investigation found 29
suspicious/fake Bank accounts showing transactions in
excess of Rupees 35 Billion undertaken through various
Banks. The ostensible holders of such accounts denied
opening or operating the accounts. There are valid reasons to
believe that accounts were opened by misusing National
Identity Cards (“NICs”) of different unsuspecting persons
without their knowledge. This appears to have been done in
order to undertake illegal rotation and layering of huge sums
of money through the said accounts presumably for money
laundering. Interrogation of the arrested suspects and
concerned persons led to discovery of further information
about the accounts, companies and individuals who had links
with deposit of the funds in question. These included Omni
Group, its associate Companies and Sugar Mills, Bahria
Town, Zardari Group Private Limited, Arif Habib, Nasir
Abdullah Loota, H&H Exchange Company, Parthenon Private
Limited, Dream Trading & Company, and Ocean Enterprises
amongst others, etc. Some of the accused persons were
arrested. They are facing investigation. Some of the accused
persons got protective bails. A few are absconding.
Human Rights Case No.39216-G of 2018
4
2.
We have been informed by Director General, FIA
that
as
investigation
progresses
more
accounts
and
information is being discovered by the investigators. This
points towards a series of suspicious transactions involving
Billions of Rupees spanning various jurisdictions by skillfully
structured methods in order to camouflage and avoid
detection by the Regulators and Law Enforcement Agencies.
He, therefore, maintains that despite bona fide efforts on the
part of FIA, progress is slow on account of huge quantity of
electronic data that requires unravelling and interpretation.
For this exercise FIA is facing lack of specialized investigators.
In
order
to
conduct
effective,
in-depth
and
incisive
investigations to discover the truth, cut through multiple
layers of transactions, fake accounts, movement of funds, and
establish the real identity of persons who are actual but
hidden beneficiaries, a broad based, multidimensional and
technically skilled team of experts is required which at
present is not available with FIA. He also submits that on
account of alleged involvement of high profile and powerful
political and business figures with the tainted transactions,
who have powerful connections within the government,
investigation is being seriously hampered and at times
willfully
obstructed
at
every
stage.
Additionally,
the
investigators feel threatened by the pressure generated due to
involvement of high profile persons in the case. Their fear is
not without foundation considering the general environment
and the law and order situation. He, therefore, prays that this
Court may appoint a Joint Investigation Team (JIT) consisting
of an Additional Director General of Federal Investigation
Agency (FIA); Experts from Federal Board of Revenue (FBR),
State Bank of Pakistan (SBP), National Accountability Bureau
Human Rights Case No.39216-G of 2018
5
(NAB) and Securities & Exchange Commission of Pakistan
(SECP) as well as representatives of Inter-Services Intelligence
and Military Intelligence.
3.
The learned counsel appearing on behalf of Omni
Group, M/s Abdul Ghani Majeed, Asif Ali Zardari, Mrs. Fryal
Talpur, Zain Malik/Behria Town and others have opposed the
formation of aforesaid JIT. They argue that this is not a case
of the investigating agency being unwilling to proceeding in
the matter. In fact the FIA has already submitted an
incomplete challan before the concerned Banking Court. It is,
therefore, the right of the accused persons that final challan
should be submitted and trial should commence. It is
maintained that since incriminating material or evidence
against the accused persons is lacking or is deficient, the
matter of submission of final challan is being delayed which is
violative of the fundamental rights of due process and fair
trial guaranteed to the accused persons by the Constitution.
It has also been argued by the learned counsel that FIA has
sufficient powers under the Federal Investigation Agency Act,
1974 as well as Anti Money Laundering Act, 2010 to
constitute JITs (if required). Therefore, there is no need for
this Court to appoint a JIT.
4.
As far as jurisdiction of this Court is concerned,
reference has been made to Imran Ahmed Khan Niazi v. Mian
Muhammad Nawaz Sharif (PLD 2017 SC 265). It has also
been argued that M/s Nimar Majeed, Mustafa Majeed and Ali
Kamal Majeed are not involved in the matter, however, their
names have been placed on the Exit Control List (ECL) which
is not justified.
Human Rights Case No.39216-G of 2018
6
5.
Mr. Aitzaz Ahsan, learned Sr.ASC, has inter alia
contended that this Court is generally slow to appoint JITs in
cases where an FIR has been lodged or the matter has been
sent for trial to a Court of law. He has further argued that
name of Mr. Najaf Quli Mirza, ADG, FIA may not be included
in the JIT owing to the fact that one of the accused persons
has lodged an FIR against him and the impartiality of the said
person has been brought under question. It is argued that JIT
can be constituted only where the Head of the concerned
investigation agency expressly unwilling to act.
6.
We have heard the Director General, FIA as well as
learned counsel appearing for some of the accused persons.
From the record produced so far, prima facie it appears that
fake accounts have been opened in various Banks in the
names of persons whose NICs have been misused without
their consent or knowledge. Many such persons have
appeared before us and have categorically stated that they
have no knowledge of the accounts in question. Some of them
have also complained of systematic harassment and prayed
for protection. There is no denial of the fact that huge sums of
money running into billions have been deposited in the said
accounts by or on behalf of the persons who are under
investigation or entities controlled by them. After being
deposited in the said accounts, such funds have either been
routed to other accounts which are traceable with some due
diligence or withdrawn without any ostensible trail available.
Evidence of large sum of foreign exchange being routed out of
Pakistan through hawala transfers by one of the arrested
suspects has added
an additional dimension to the
investigation. Further, we find that specialized knowledge of
Human Rights Case No.39216-G of 2018
7
financial transactions and expertise in identifying and tracing
movement of funds through banking channels and otherwise
is required, in order to conduct a proper probe and
investigation
in
the
matter.
Expertise
in
working
of
Companies, banking transactions, electronic transactions and
cyber activities relating to money transfers is needed.
Knowledge of reporting requirements and monitoring regime
put in place by the State Bank of Pakistan, modes of
discovering and tracing suspicious transactions and modes
utilized for unlawful circulation and movement of money
within the country and abroad is required. Such specialized
expertise is not presently available within the FIA. Further, in
view of the fact that this Court has taken Suo Motu notice of
this matter and considering the request made by the Director
General, FIA and the difficulties expressed by him, we are
convinced that it is in the interest of justice and to ensure
that national resources and national wealth which belong to
people
of
Pakistan
is
not
looted,
plundered
or
misappropriated, a high powered and highly skilled JIT is
required to be set up.
7.
Learned counsel for some of the accused persons
while making their submissions have frankly conceded that
this Court has ample powers and jurisdiction in terms of
Article 184(3) of the Constitution to appoint and nominate
such JITs. The concession by the learned counsel for the
suspects that a JIT can be constituted by the investigating
agency under the Anti Money Laundering Act, 2010 renders
their objection to such action by the Court to be academic. In
fact an order passed by the Court in this behalf is a valid
exercise of jurisdiction in aid of a lawful object. We are of the
Human Rights Case No.39216-G of 2018
8
view that in appropriate cases, technical inability to
undertake a complicated modern day investigation furnishes
a reasonable basis and justification to constitute a JIT. We
are in no manner of doubt that in the present case formation
of a JIT is imperative and necessary.
8.
Accordingly, we constitute the following JIT for the
purpose of conducting a thorough, in depth and incisive
investigation and probe into the matter of fake bank accounts
subject matter of these proceedings to get to the truth,
uncover the persons involved and collect all material evidence
for the purpose of ensuring that in case an offence is made
out, the persons involved therein are properly prosecuted:-
1. Mr. Ahsan Sadiq, Additional Director General
(Economic
Crime
Wing),
FIA
Headquarters,
Islamabad;
2. Mr.
Imran
Latif
Minhas,
Commissioner-IR
(Corporate Zone), Regional Tax Office, Islamabad;
3. Mr. Majid Hussain, Joint Director BID-I, State
Bank of Pakistan, Islamabad;
4. Mr.
Noman
Aslam,
Director,
National
Accountability Bureau, Islamabad;
5. Mr.
Muhammad
Afzal,
Director,
Specialized
Companies
Division,
Securities
&
Exchange
Commission of Pakistan, Islamabad; and
6. Brigadier
Shahid
Parvez
of
Inter-Services
Intelligence.
9.
We also direct as follows:-
i)
The JIT shall set up its Secretariat at a place
convenient to it;
ii)
The JIT shall have all powers relating to
inquiries and investigations including those
available in the Code of Criminal Procedure,
1908; National Accountability Ordinance,
Human Rights Case No.39216-G of 2018
9
1999; Federal Investigation Agency Act, 1974
and the Anti Corruption Laws, etc;
iii)
All executive authorities or agencies in the
country shall render assistance and provide
support to the JIT in its working, if required;
iv)
The JIT shall submit periodic reports before
this Court qua the progress made in the
investigation on fortnightly basis under
sealed cover for our examination;
v)
The Additional Director General, FIA, who
shall head the JIT may co-opt any other
expert who may in his opinion be necessary
to complete the investigation in an effective
and timely manner; and
vi)
First Report of the JIT shall be filed within a
period of 15 days from today.
10.
In order to ensure that the investigation is
conducted in a professional, transparent and effective
manner, neither the JIT nor FIA nor any of the Members of
the JIT shall issue press releases or provide information
relating to the investigation to the media.
11.
Further, owing to the apprehensions about the
safety of the investigators expressed by DG, FIA, in the first
instance, we direct Pakistan Rangers to provide adequate and
effective security to the investigators and to ensure that they
perform their functions without any fear to their life or liberty
or that of their families. Such protection shall also upon
request be provided to the witnesses.
12.
The request of the Director General, FIA that
investigation may be transferred to and conducted in
Islamabad is for the time being declined. However, in case,
any material, ground or information comes before this Court
Human Rights Case No.39216-G of 2018
10
showing interference in the investigation or an attempt to
hamper, delay or obstruct investigation or creating an
environment of fear and pressure for the investigators, the
said request will be re-examined at that stage for passing
appropriate orders.
13.
Let
this
matter
be
listed
for
hearing
on
24.09.2018.
Chief Justice
Judge
Judge
ISLAMABAD, THE
5th of September, 2018
Not Approved For Reporting
ZR/*
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE GHULAM RABBANI
MR. JUSTICE KHALIL-UR-REHMAN RAMDAY
HUMAN RIGHTS CASE NO. 4668 OF 2006
HUMAN RIGHTS CASE NO. 1111 OF 2007
HUMAN RIGHTS CASE NO. 15283-G OF 2010
[Action taken on news clippings regarding
Fast Food outlet in F-9 Park Islamabad]
Applicant:
Barrister Saadia Abbasi with
Mr. Amanullah Kanrani, ASC
For the CDA:
Mian Allah Nawaz, Sr. ASC
Mr. Afnan Karim Kundi, ASC
Mr. Imtiaz Inayat Illahi, Chairman, CDA with
Mr. Mazhar Hussain, Member (Environment)
Mr. Abdul Jabbar Milano, Member Planning/
Engineering
Syed Mustafain Kazmi, Member
Administration
Mr. Mansoor Ali Khan, Director DMA
For Siza Foods:
Mr. Anwar Kamal, Sr. ASC
With Amin Muhammad Lakhani
For NPC:
Mr. M. Bilal, Sr. ASC
Mr. Shah Sharabeel in person
Dates of hearing:
06, 07, 10 & 13.05.2010
.-.-.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In January
2005, the Capital Development Authority (CDA) leased out a plot
of 6000 square yards in F-9 Park (Fatima Jinnah Park) to M/S
HRC 4668-2006 etc.
2
Siza Foods (Pvt.) Ltd., hereinafter referred to as “M/S Siza
Foods”, a franchise holder in Pakistan of McDonald’s Corporation,
Delaware,
USA,
for
setting
up
a
fast
foods
restaurant
(McDonald’s Pakistan) on the western side of F-9 Park (Fatima
Jinnah Park). The members of the civil society expressed grave
concerns in a segment of the press about the legality/desirability
of the project in a public park. Barrister Saadia Abbasi, Member,
Senate of Pakistan also, vide application dated 14.02.2007
highlighted the issue and alleged that permission to set up a fast
food restaurant in the public park was, in fact, a special
favour/benefit bestowed upon a particular individual in sheer
violation of CDA Rules and Regulations, which was also violative
of several fundamental rights guaranteed to the citizens of the
country under the Constitution. The matters were registered as
Human Rights Cases.
2.
During hearing, it was divulged that apart from the
McDonald’s Restaurant, some other buildings, namely, Aiwan-e-
Quaid and Bowling Centre had already been constructed in F-9
Park and were operative, whereas Citizens Club was being
constructed. In pursuance of the Court orders, the Chairman CDA
filed comments/replies on all the above projects.
3.
On the issue of McDonald’s, it was stated, inter alia,
that as per Master Plan developed by the Japan International
Cooperation Agency (JICA), various areas for different activities,
viz., amusement park, sport facilities and cuisine areas were
earmarked for shops, food outlets, etc. In order to develop
HRC 4668-2006 etc.
3
multinational food chain in the Park, expression of interest from
the interested parties through public advertisement was invited
on 08.07.2004. Two firms, namely M/S Siza Food and M/S
Sheikh Trading International, USA came forward. The expression
of interest was evaluated by a committee headed by Director
General (Environment), CDA, on whose recommendation, the
case was placed before the CDA Board for leasing out an area of
6000 sq. yards to M/S Siza Foods @ Rs.275,000/- per month or
5% of the gross income from sales, whichever was higher for a
period of 33 years. Offer letter was issued on 23.09.2004, the
MoU was signed on 25.09.2004 while the lease agreement
entered on 14.01.2005. Later on, a revised lease deed was
entered into between the parties wherein lease amount was
enhanced to Rs.316,250/- per month (15% higher than the
earlier one). It was further agreed that the lessee would also
develop five acres of the Park in two phases with its maintenance
until the expiry of the lease period.
4.
In the rejoinder filed in HRC No. 1111/207, the
applicant alleged violation on the part of CDA authorities of
Articles 9, 25, 26 and 38 of the Constitution in the light of the
law laid down in the case of Iqbal Haider v. Capital Development
Authority (PLD 2006 SC 394) wherein it was held, inter alia, that
commercial activities in public parks were violative of Article 26
of the Constitution, therefore, the lease agreement granting
rights to a private company to operate a mini-golf course in a
public park in Sector F-7, Islamabad was set aside.
HRC 4668-2006 etc.
4
5.
On the question of allotment of plot to Nazriya
Pakistan Council (NPC), the CDA submitted, inter alia, that vide
letter dated 04.06.2001, Director General, Libraries, Ministry of
Education informed CDA that Minister for Education had directed
to request CDA for allotment of plot earmarked for Library to NPC
for construction of Aiwan-e-Quaid, which would also house
Islamabad Public Library. The CDA, in turn, informed them that
as the provisions of Islamabad Land Disposal Regulations, 1993
did not allow allotment of such plots to private organizations, it
might consider to allot the site to the Ministry of Education. As
such, MoU was signed between Ministry of Education and NPC for
establishment of Aiwan-e-Quaid on the said plot. In pursuance of
Prime Minister Secretariat letter dated 30.05.2005, with the
approval
of
the
Chairman,
CDA,
allotment
letter
dated
02.08.2005 was issued to NPC.
6.
On the issue of Citizens Club, it was submitted that
the provision for a club house was there since long, which was
reflected in the Master Plans of 1992 and 1995 (prepared by
JICA). In June 2007, the then Chairman CDA, Mr. Kamran
Lashari during his visit to the F-9 Park instructed Mr. Nayyar Ali
Dada, the principal architect for development of the Park to
prepare the concept design of Citizens’ Club to be established in
the Park. The construction of Citizens Club was earlier proposed
in Sector H-11/2 but later on shifted to F-12 and then re-shifted
to Fatima Jinnah Park, Sector F-9 due to non-acquisition of land
in Sector F-12. The CDA Board, in its meetings held on
HRC 4668-2006 etc.
5
24.09.2007 and 01.10.2007 decided that M/S Nayyar Ali Dada &
Associates
were
already
working
as
consultants
for
the
development of the Park as project consultants, therefore, there
was no need of separate approval of the case. The engineering
estimates prepared by the consultants were sanctioned for
Rs.1.383 billion by Member (Planning), CDA on 29.10.2007.
Pursuant to the invitation of tenders published in the newspaper,
the lowest bid quoted by M/S Expertise (Pvt.) Ltd., was accepted
by the Chairman. The club facilities would include auditorium,
conference rooms, fitness centre, gymnasium & aerobic area,
tennis courts, squash courts, billiard room, games room,
swimming pools, banquet halls, restaurants, bakery, library, car
parking and residential rooms for the members. The proposed
membership structure of the club was 62.5% (private citizens),
15% (government officers & parliamentarians), 7.5% (CDA
officers) and 15% (diplomats/corporate). Cost of the project
excluding furnishing was worked at Rs.1254.149 million. An
amount of Rs.575.146 million had been expended so far. Physical
progress of the work was 69.16%.
7.
On the question of bowling centre, it was stated that
as per Master Plan prepared by JICA, a variety of amusement
and entertainment facilities were to be provided in south-western
part of the Park. On 11.06.1994, the CDA published notice for
pre-qualification in the newspapers to lease out a plot measuring
2 acres of land for construction and operation of a bowling centre
in F-9 Park to which seven parties responded. The highest bid of
HRC 4668-2006 etc.
6
Rs.752,000/- per annum was offered by M/S S&S Enterprizes.
The CDA Board, in its meeting dated 27.11.1994, approved
award of licence for a period of 20 years to M/S S&S Enterprizes.
It was, inter alia, provided that it would be a single storeyed
building having basement with a maximum covered area not
exceeding 1/3rd of the total land, which was reduced to 1.5 acres.
In 1997-98, the CDA issued various notices to the licensee for
illegal construction/extension of mezzanine floor, stair tower,
construction of swimming pool, changing room and toilets at the
basement level, 10 shops instead of 3 approved, extension of
basement, solid wall instead of see-through fence and ice cream
parlor. There was litigation between the licensee and the CDA.
Ultimately, the CDA Board in its meeting dated 07.06.2007
regularized the unauthorized construction on payment of certain
penalties/charges.
8.
Mian
Allah
Nawaz,
Sr.
ASC,
learned
counsel
representing CDA in the matter of M/S Siza Foods candidly
conceded that no order for change in the Master Plan was
available on record and that the CDA, vide publication dated
09.07.2004 did not invite any national food chain, which violated
Article 18 of the Constitution. However, without controverting or
disputing the facts leading to grant of lease for the construction
of McDonald's restaurant, he insisted that as now huge amount
had been spent, therefore, following the principle of equity, the
violation of above constitutional provision and the law, if any, be
HRC 4668-2006 etc.
7
condoned by issuing direction in a manner that the restaurant
might also continue functioning in the interest of the CDA.
9.
Mr. Anwar Kamal also candidly accepted violation of
Article 18 of the Constitution. However, his claim was that M/S
Siza Foods, a franchise holder of McDonald’s, hardly could be
held responsible for the same as in response to a publication
appeared in the newspaper in February 2004, they filed an
application and as no further progress was made, therefore,
when second publication appeared, M/S Siza Foods again
submitted expression of interest wherein they initially demanded
4000 square yards and subsequently by negotiation the area was
got increased to 6000 square yards at a monthly of Rs.275,000/-
per month or 5% of gross sale, whichever was higher, which was
later increased to Rs.316,250/- per month or 5% of gross sale,
as aforesaid, which was being paid regularly. In addition to it,
M/S Siza Foods had agreed to develop an area of 5 acres of land
in the Park without charges from CDA, which indicated good faith
on their part. However, any direction/suggestion, if given by the
Court, including reducing the area leased out shall be accepted
by M/S Siza Foods, but it would not be in the interest of the CDA
and M/S Siza Foods to demolish the restaurant on the application
filed by a person who otherwise had no legal right or interest in
the continuation or otherwise of the restaurant, therefore, taking
into consideration this aspect of the case, appropriate orders may
be passed.
HRC 4668-2006 etc.
8
10.
When his attention was drawn towards two letters
written to the Prime Minister and the President, particularly to
the latter, criticizing judgment of the Supreme Court in the case
of Iqbal Haider v. Capital Development Authority (PLD 2006 SC
394) in a sarcastic manner, he stated that as the CDA authorities
were somehow reluctant to finalize bid of M/S Siza Foods,
therefore, high ups were requested to intervene. However, he
voluntarily stated that the author of the letter (Amin Muhammad
Lakhani) had respect for the Courts and was ready to voluntarily
explain his position, simultaneously tendering unconditional
apology. Such explanation as well as apology, however, was filed
later on.
11.
It is to be noted that initially F-9 Park was a
residential sector as per admissions and documents available on
record. However, subsequently, in 1968, it was converted into a
Park comprising 800 acres of land and generally it was known as
Capital Park as well as Fatima Jinnah Park. There could not be
two opinions in respect of importance of Master Plan. Despite our
repeated insistence, original Master Plan was not produced
except the one which was got prepared from JICA for establishing
a Park. Sufficient time was given to CDA as the Court wanted to
apprise itself about the facilities, provisions, activities in the Park.
However, the photocopy of the Plan whatsoever was produced,
which indicated number of activities like Children Park, Ladies
Club, provision of restaurants at different places, which were to
be constructed/provided inside the Park. And on the southern
HRC 4668-2006 etc.
9
side, an area was earmarked as cuisine pavilions with dense
vegetation. As per plain meanings of the expression ‘dense
vegetation’, there was no provision for setting up a large
restaurant to be run by an international food chain. But, it did
mean that such a restaurant could not be constructed of course
after an amendment in the Master Plan made by the CDA Board,
replacing cuisine pavilions having dense vegetation with a
restaurant. According to section 14 of the CDA Ordinance, 1960,
the CDA Board is empowered to prepare schemes with the
approval of the Federal Government. As stated earlier, the
change was quite possible, but subject to section 19 of the CDA
Ordinance, 1960. No such document was placed on record,
inasmuch as the directions of the Court were not being carried
out, and prima facie it was ascertained that construction of the
restaurant suffered from lack of transparency, therefore, notice
was issued to Mr. Kamran Lashari, former Chairman CDA who
seemed to be the architect of this project.
12.
In response to the notice he appeared and submitted
reply and also addressed the Court in person. His main emphasis
was that McDonald's restaurant was constructed in the Park for
the purpose of providing facilities, charm and temptation to the
general public in good faith, otherwise he had no bad intentions.
He explained that in the foreign countries as well, restaurants
along with other facilities were provided in the Parks. As far as
his explanation in exercising jurisdiction in good faith was
concerned, it could not be accepted for want of transparency in
HRC 4668-2006 etc.
10
the construction of McDonald's and violation of the constitutional
provision, which shall be discussed hereinbelow. At the cost of
repetition, it may be mentioned that he could not satisfy as to
why McDonald's restaurant was not allowed to be constructed
strictly in accordance with the provisions of CDA Ordinance,
discussed hereinbefore. It is also to be noted that in the Plan
prepared by JICA, different spaces providing for construction of
restaurant in the Park were available, but in the place of more
than one cuisine pavilion areas, construction of one restaurant
was not available. The incumbent Chairman, Imtiaz Inayat Illahi
also could not help Mr. Kamran Lashari, the former Chairman in
justifying
violation
of
CDA
Ordinance,
1960
as
well
as
constitutional provision. It is to be noted that non-adherence to
legislative provisions other than the Constitution is permissible,
provided it does not entail penal consequences as there are two
types of statutes/legislation, i.e. mandatory and directory. As far
as mandatory provision of law is concerned, same is required to
be enforced strictly without interpreting/construing it in any
manner liberally. Such a principle of interpretation is discussed
and applied in the case of Niaz Muhammad v. Mian Fazal
Raqib (PLD 1974 SC 134) in the following words:-
"It is the duty of the Courts to try to get at the real
intention of the Legislature, by carefully attending to
the whole scope of the statute to be construed. As a
general rule, however, a statute is understood to be
directory when it contains matter merely of direction,
but not when those directions are followed up by an
express provision that, in default of following them,
HRC 4668-2006 etc.
11
the acts shall be null and void. To put it differently, if
the Act is directory, its disobedience does not entail
any invalidity; if the Act is mandatory, disobedience
entails serious legal consequences amounting to the
invalidity of the act done in disobedience to the
provision".
In this respect it will be advantageous to refer to a celebrated
passage from the Interpretation of Statutes by Maxwell (Tenth
Edition – 1953): -
"On the other hand, where the prescriptions of a
statute relate 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.
It has often been held, for instance when an Act
ordered a thing to be done by a public body or public
officers and pointed out the specific time when it was
to be done, that the Act was directory only and might
be complied with after the prescribed time."
The nature of a mandatory provision is described in the “Words
and Phrases”, Permanent Edition, Vol. 26, p. 463 in the following
words: -
“Generally, where statutory provision concerning
powers and duties of public officer affect the public
HRC 4668-2006 etc.
12
interest or are intended to protect a private citizen
against loss or injuries to his property, provisions are
“mandatory” rather than “director”.
“A “mandatory provision” of a statute is one the
failure to follow which renders the proceeding to which
it relates illegal and void.”
The other principle of jurisprudence in this very context is that
the things are required to be done strictly according to law, or it
should not be done at all. Reference in this behalf may be made
to the case of Mir Dost Muhammad v. Govt. of Balochistan (PLD
1980 Quetta 1), relevant Para therefrom is reproduced below: -
“It is well settled principle of law that in a case where
statute provides a procedure for doing of a thing in a
particular manner, that thing should be done in that
manner and in no other way or it should not be done at
all. Indeed such statute impliedly prohibits doing of
thing in any other manner; particularly when the
procedure is laid down for taking proceedings before a
Tribunal or a Court where such procedure before a
Court or Tribunal is usually construed to be an
imperative one as doing of the act or a thing under that
statute is a condition precedent to conferring upon the
jurisdiction on a Court or a Tribunal, as the case may
be. The compliance of such act or thing in no way could
be either ignored or dispensed with. Their non-
compliance
would
certainly
invalidate
all
the
proceedings, orders made or passed by the same
authority or any other authority either superior or
inferior thereto in respect of the same. Our views get
support from cases: -
(i)
E. A. Evans v. Muhammad Ashraf P L D 1964
S C 536;
HRC 4668-2006 etc.
13
(ii) Atta Muhammad Qureshi v. The Settlement
Commissioner, Lahore Division Lahore and 2
others P L D 1971 S C 61;
(iii) Muhammad Yousaf Khan Khattak v. S. M.
Ayub and 2 others P L D 1972 Pesh. 151;
and
(iv) In the Statutory Laws, 6th Edn., Craies has
said that :-
"When a Statute confers jurisdiction upon a
Tribunal of a limited authority and statutory
origin,
the
conditions
and
qualifications
annexed to the ground must be strictly
complied with."
The same principle has been reiterated by High Courts as well as
this court in various judgments. Reference may be made to
Mazhar Illahi v. State (PLD 2008 Pesh. 162), Commissioner of
Income Tax/Wealth Tax v. M/s Idara-i-Kissan (2006 PTD 2569),
Iftikhar Ahmed alias Ali v. State (2006 YLR 2826), Dr. Ishtiaq
Hussain v. Special Judge Anti-Corruption (2004 YLR 716) and
Muhammad
Iqbal
v.
SHO,
PS
New
Anarkali,
Lahore
(2000 PCRLJ 1924), Ghulam Hassan v. Jamshaid Ali (2001 SCMR
1001).
13.
Non-production of Master Plan of the Park leads us to
draw inference that construction of a pakka restaurant perhaps
was not provided therein. Be that as it may, the CDA Board may
have taken a policy decision to convert cuisine pavilions with
dense vegetation, but no such decision has been brought on file.
Contrary to it, the CDA officials admitted that no such decision
was taken by the Board. Therefore, whole exercise has been
done illegally by Mr. Kamran Lashari, former Chairman, CDA.
No doubt, the Authority is competent to make alterations
in the Master Plan, but as discussed in Fazal Din v.
HRC 4668-2006 etc.
14
Lahore Improvement Trust (PLD 1969 SC 223), the alteration or
modification of a sanctioned scheme is permissible in the manner
prescribed by the relevant statute.
14.
Now
turning
towards
violation
of
constitutional
provision, there is no need to highlight this aspect of the case in
view of the admission made by learned counsel for the CDA as
well as M/S Siza Foods and to substantiate their plea, it would be
appropriate to refer to the publication appeared in the newspaper
on 09.07.2004 under the caption, “SPACE AVAILABLE FOR
INTERNATIONAL FOOD CHAIN”. It recited, inter alia, that the
CDA intended to provide an opportunity for setting up/opening a
branch of a “MULTI-NATIONAL FOOD CHAIN” (fast food) or
coffee/ice-cream chain, with all features including children play
area etc., in F-9 Park and the interested parties were requested
to express their interest and submit their applications by
25.09.2004 for pre-qualification with detailed technical proposal,
area required, terms and conditions, etc.
Thus, as the
citizens/local
chains
were
deprived
to
participate
in
the
competition, therefore, action taken by the Chairman is in
violation of Article 18 of the Constitution. It is to be noted that by
inviting expression of interest from international food chains
alone, not only Article 18 has been violated, but at the same time
the Chairman had allowed international food chains to have
monopoly, which, under clause (c) to the Proviso to Article 18 of
the Constitution was available to no one else except the
government. In this behalf, reference may be made to the case
HRC 4668-2006 etc.
15
of Arshad Mehmood v. Government of Punjab (PLD 2005 SC
193). In the precedent case, the Court examined the question
whether section 69-A of the West Pakistan Motor Vehicles
Ordinance, 1965 was contrary to the fundamental rights of the
appellants enshrined in Article 18 of the Constitution who were
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 they had
made huge investments by purchasing of vehicles i.e. wagons,
suzukies, etc. Another grievance was that the right of movement
of the general public could not be limited by compelling them to
undertake journey in the transport owned by the private
respondents because they had obtained franchise rights and were
charging exorbitant fare compared to other transporters who
used to ply buses on the same route, and if competition was
allowed, they would charge less fare from them, as such citizens,
having limited resources of income were not bound to pay fare to
respondents transporters at high rates. It was held that though
the right of trade/business or profession under Article 18 of the
Constitution was not an absolute right, but so long a trade or
business was lawful, a citizen, who was eligible to carry out the
same, could not be deprived from undertaking the same. In
another case titled Iqbal Haider v. Capital Development Authority
(PLD 2006 SC 394), this Court observed as under: -
HRC 4668-2006 etc.
16
“13. From perusal of publications, appeared initially
on 1st and 2nd February 2004 in "Daily Frontier Post"
and
"Daily
Jang"
respectively
as
well
as
the
publication appeared on 14th August 2004 in "Daily
Jang" and "Daily Dawn", it is abundantly clear that no
area
was
earmarked
for
the
purpose
of
establishing/developing Mini Golf Course at the site of
Jubilee Park in Sector F-7. It seems that this device
was adopted to keep the interested parties out of
competition,
except
the
respondent
No.2,
who
statedly had the experience of running identical
project at Lahore. Thus, we are of the opinion that
disclosure of the area, on which the Mini Golf Course
was to be developed, was necessary in the publication
and in this way the interested parties would have
given much higher bids than the one, on which, C.D.A.
had leased out land to respondent No.2 i.e. Rs.2.55
million per annum. We were told that admittedly the
plot of five acres, leased out to respondent No.2, is
situated in most expensive location of Sector F-7 and
is situated adjacent to the main road, therefore, it is a
prime land being situated in the heart of the Capital.
Following observations made in the course of the above
judgment, being relevant in the context of the present case, are
also reproduced below: -
“18.
It is to be observed that under section 49
of the Ordinance, 1960 C.D.A. retains powers for the
purpose of leasing, selling, exchanging the land etc.
vested in it. For the purpose of achieving the object of
this section, from time to time, Rules and Regulations
arc framed, as it is evident from the contents of
Notification dated 18th December 1993 (No. CDAS-
30(2)(NOTI)-Coord 93). Reference of some of the
HRC 4668-2006 etc.
17
Regulations, framed thereunder, has already been
made herein above. [The Islamabad Land Disposal
Regulation 1993]. It is equally important to note that
learned counsel for petitioner when called upon to
satisfy as to whether in terms of Ordinance 1960, the
master plan is available with the C.D.A., he produced
the same but stated that according to its contents
Sector-wise division of the Capital has not been made.
He also explained that in Sector F-7, one public park
under discussion was created by means of preparing
PC-1, therefore, it may be presumed that the plan
submitted along with PC-1 must be having separate
identification of the Jubilee Park, where the Mini Golf
Course is being established. In this behalf he has
referred to a copy of the site plan attached with the
reply of the C.D.A. to demonstrate that the Jubilee
Park is situated in the area of Markaz F-7. He was
called upon to produce the original file/documents,
including PC-1 as we wanted to ascertain the status of
the plot in question for the purpose of examining the
proposition that in terms of section 49 of the
Ordinance, 1960, the lease has rightly been executed
in favour of respondent No.2 by C.D.A. or not? But
despite of our demand, said file was not produced and
ultimately Chairman C.D.A. gave a statement in
writing expressing disability of the authority to
produce
the
file.
The
contents,
whereof
are
reproduced herein below for reference:
"The file of PC-1 of Sector F-7 is presently not
available and being traced out. It will be
produced before the learned Court as it is found
out.
(Sd.)
Chairman C.D.A.''
HRC 4668-2006 etc.
18
None-production of above file persuades us to draw
adverse inference against the C.D.A., necessarily with
all consequences.
“23.
Thus, in view of above discussion, it is held
that the mala fides of respondent No.1 in concluding
the transaction with respondent No.2 are abundantly
apparent on record. This Court in the case of
Government of West Pakistan v. Begum Agha Abdul
Kharim Shorash Kashmiri (PLD 1969 SC 14) has held
that mala fide is to be proved on record. This view has
been reiterated by this Court in the case of Ahmad
Hassan v. Government of Punjab (2005 SCMR 186).
Therefore, applying the test laid down in these
judgments on the facts of the present case, we are
inclined to hold that in view of the admitted facts on
record, mala fides on the part of respondent No.1 in
granting lease to respondent No.2 are apparent, thus,
the lease agreement dated 4th June, 2005 is not
transparent.
“25.
Learned counsel stated that the right of
entertainment can only be made available subject to
law as it is defined in section 2(d) of the West
Pakistan Entertainment Act, 1958. There is no cavil
with his this argument but subject to the condition
that
if
the
arrangements
of
providing
such
entertainment to the citizens is made in transparent
manner
by
an
authority
in
exercise
of
lawful
jurisdiction which lacks in instant case as discussed
above.”
The above observations are fully attracted in the present case.
15.
It is beyond our comprehension that as to why
provisions of Article 18 of the Constitution were not applicable.
HRC 4668-2006 etc.
19
There could be two reasons: firstly, exclusive powers in this
behalf had been assumed by the then Chairman himself, or
secondly, on the intervention of high ups this exercise was
carried out to accommodate M/S Siza Foods. As far as investors
of outside country are concerned, they should be encouraged to
make investment, but subject to the law of the land, particularly
constitutional provisions. It is a fact that there are good number
of investors who belong to outside the country and are doing
trade/business in the country subject to following the law on the
subject and not otherwise. However, since violation of legal
provisions noted hereinabove also entails consequences because
the Park is only to be used for the purpose for which it has been
established and not for running a business/trade. In this behalf,
judicial notice can be taken of the fact that such facilities in parks
are used by general masses belonging to all walks of life
including citizens and children belonging to the families who are
living below poverty line. The persons like McDonald’s are bound
to earn profit as per its international standards, which is beyond
the reach of an ordinary person comparing to a local restaurant
providing food to the visitors of the Park at a cheaper rate.
Importance of such public parks has been adequately examined
by this Court in the case of Iqbal Haider (supra) in the following
paragraphs, which read as under: -
“16. There is yet another important provision of law,
which prohibits C.D.A. to amend the scheme i.e.
sections 19 and 21. Admittedly, in instant case, in
terms of these sections, neither the permission was
HRC 4668-2006 etc.
20
sought to convert the Public Park into the Mini Golf
Park nor before doing so objections were invited from
the general public in terms of I section 21 of the
Ordinance, 1960. This Court way back in 1969 in the
case of Mian Fazal Din v. Lahore Development Trust,
Lahore (PLD 1969 SC 223) has held that "the plots in
a Housing Scheme for public use cannot be converted
for other use". Relevant Para from this judgment has
already been reproduced in the order dated 26th
December 2005. Admittedly a Public Park, if is
earmarked in a housing scheme, creates a right
amongst the public and that right includes their entry
in the Park without any obstacle, being fundamental
right enshrined in Article 26 read with Article 9 of the
Constitution. It may be noted that liberty of a person,
to have access or utilize a right available to him,
cannot be taken away by converting such facility into
commercial one, for the purpose of extending benefit
to a third person, because in instant case considerably
a big plot of land, measuring five acres, has been
handed over to respondent No.2 at a throwaway lease
money, causing huge loss to the public exchequer,
therefore, tax payers have a right to inquire from
C.D.A. as to how a right of life and liberty can be
denied to them. As in instant case, above facts are
admitted, therefore, no formal evidence is required to
prove these facts. Reference in this behalf can be
made to Government of Punjab v. Crescent Textile
(PLD 2004 SC 108).”
“24. Learned counsel for respondent No.2 however,
persuaded to convince us that as status of the Public
Park has not been changed, therefore, provisions of
Regulation No.12(3) of the Regulation would not be
attracted. To substantiate his plea, he made reference
HRC 4668-2006 etc.
21
from the books written by Architects with regard to
explain the idea of planning and development of the
Islamabad. One of the Paras from the said book
compiled by C.D.A., Government of Pakistan i.e.
Communities and Housing, composed by Doxiadis
Associates, Consulting Engineers is reproduced herein
below for convenience:-
"305. The second and third categories of open
spaces, that is the public playgrounds, playing-
fields, parks and public gardens, have to be
reckoned together as this stage, since it is as yet
too early to define exactly how much will go for
playing-fields and how much for green spaces.
These spaces are usually planned together in
broader areas, and only after detailed planning is
a decision taken in each case as to exactly how
much will go for playgrounds and how much for
gardens and parks. It has to be borne in mind
that all these are general averages, since the
need for parks, gardens and playgrounds differs
enormously from area to area, and from one
social, professional or income group to another.
For example, high income groups, which have
their private gardens, do not need public
gardens and parks as such as the low income
groups, which are deprived of the benefit of
having
their
own
private
garden.
On
the
contrary, higher income groups may need
playing-fields requiring more space, like tennis,
playgrounds, etc. which the lower income groups
may not need to the same extent."
A perusal of above Para is sufficient to hold that the
jubilee Park of Public Park is meant for the use of
general public, majority of which i.e. is more than
HRC 4668-2006 etc.
22
90% is living in the vicinity. Under Article 26 of the
Constitution, it is fundamental right of the citizens to
have access to public places of entertainment or
resorts. As per the socio-financial status of the citizens
of Pakistan, majority of public is not in a position to
afford luxury of joining Mini Golf Course along with
children, subject to F payment of tickets etc.
“25. Learned counsel stated that the right of
entertainment can only be made available subject to
law as it is defined in section 2(d) of the West
Pakistan Entertainment Act, 1958. There is no cavil
with his this argument but subject to the condition
that
if
the
arrangements
of
providing
such
entertainment to the citizens is made in transparent
manner
by
an
authority
in
exercise
of
lawful
jurisdiction which lacks in instant case as discussed
above.”
Thus, in absence of any decision by the CDA Board, the use of
the restaurant by the masses is tantamount to defeating the
object/purpose for which the public park has been established in
view of the discussion in the judgment, relevant Para therefrom
are discussed hereinabove.
16.
In addition to above, next important question relates
to transparency in granting lease to M/S Siza Foods. As it has
been pointed out that there was no decision by the CDA Board
either, and exercise of accommodating M/S Siza Foods on the
basis of chit issued under the signature of Mr. Kamran Lashari,
former Chairman, CDA, scanned image whereof is given below: -
HRC 4668-2006 etc.
23
17.
After having seen the state of affairs on the basis of
which proceedings started, nothing is left to be discussed as the
above conduct of the then Chairman speaks for itself and needs
no further deliberation. Therefore, by no stretch of imagination, it
can be held that the transaction was a transparent one. It may
be noted that reportedly one of the parties who filed expression
of interest, namely, M/S Sheikh Trading International, when
inquired about the original application submitted by it, same was
not produced or shown except placing on record its photo copy.
Publication appeared in the newspaper indicates that 16 days
were given to international food chains to submit expression of
HRC 4668-2006 etc.
24
interest. How it is possible for the chains working outside the
country and any investor interested to run the business, following
certain provision of law including its registration under the
Companies Ordinance as well as meeting the criteria laid down
by the Board of Investment.
18.
This Court, time and again, has insisted upon public
functionaries to adhere to the principle of transparency in the
performance of their duties. In the case of Messrs Airport
Support Services v. The Airport Manager (1998 SCMR 2268), this
Court dealt with the question whether a concluded contract could
be struck down on the grounds of mala fides, arbitrary exercise
of discretionary power, lack of transparency, discrimination and
unfairness,
etc.
Relevant
portion
from
the
judgment
is
reproduced below: -
"Further a contract, carrying elements of public
interest, concluded by functionaries of the State, has
to be just, proper, transparent, reasonable and free of
any taint of mala fides, all such aspects remaining
open for judicial review. The rule is founded on the
premise that public functionaries, deriving authority
from, or under law, are obligated to act justly, fairly
equitably,
reasonably,
without
any
element
of
discrimination and squarely within the parameters of
law, as applicable in a given situation. Deviation, if of
substance, can be corrected through appropriate
orders under Article 199 of the Constitution. In such
behalf even where a contract, pure and simple, is
involved,
provided
always
that
public
element
presents itself and the dispute does not entail
HRC 4668-2006 etc.
25
evidentiary facts of a disputed nature, redress may be
provided."
In the case of Shams and Brothers v. Government of Pakistan
(2007 CLD 125), a Division Bench of the High Court of Sindh,
Karachi, while dealing with the issue of causing heavy financial
loss to the exchequer in awarding a contract, held as under: -
“23. From the above discussion, we have come to an
irresistible conclusion that the whole process of
inviting of tender/sealed offers by the respondent
No.2 on the first occasion as well as on the second
occasion was game of fraud and cheating full of
ulterior motive and mala fide, aimed to oblige some
particular party (respondent No.4) and for causing
heavy financial loss to public exchequer. Thus, we
have no option but to allow and dispose of this
petition in the terms that the acceptance of the bid of
respondent
No.4
in
the
sum
of
Rs.6,05,000;
subsequent awarding of contract in his favour and the
whole process of bidding conducted by respondents
Nos.1 and 2 for this purpose is illegal, without lawful
authority and of no legal effect. The respondents Nos.
1 and 2 are, therefore, directed to invite fresh
bids/offers for granting of lease of Pakistan Sports
Board Coaching Centre plot at Sir Shah Suleman
Road, Karachi for the purpose of marriage lawn, by
incorporation of only such conditions, which are
available in the first advertisement or relevant and
necessary to safeguard the interest of respondents
Nos.1 and 2 properly.”
In Sheri-CBE v. Lahore Development Authority (2006 SCMR
1202), this Court while dealing with the issue of lease of amenity
HRC 4668-2006 etc.
26
plot to a private company for construction of big complex
including cinema and shopping mall, noted the following
questions/issues: -
“30.
The question is, could the concerned
authorities be permitted to play around with Gulberg
Scheme on the pretext of non-availability of the
scheme? Since it is the respondents who wished to put
a piece of land which had been preserved and used as
an open space for over half a century, to a different
use, the onus lay on the said authorities to establish
that such a use was permitted by law. The question
could thus also be whether a mere plea of non-
availability of the said basic document could ever be
considered a sufficient discharge of the said burden
and a further question would be as to why adverse
inferences
should
not
be
drawn
against
the
respondents in the said matter on account of their
said conduct?
“31.
Referring to the provisions of section 5 of
the Disposal of land by Development Authorities
(Regulation) Act No.XII of 1998, it was argued that
there was a complete and absolute prohibition on
converting a Public Utility area or a Public Amenity
plot to any other use and that the contravention of the
said prohibition was an offence in terms of section 6
thereof which was punishable with imprisonment up to
one year or with fine which could extend up to
Rs.1,000 per day from the date of such a conversion
till the default continued, or with both. It was added
that since the respondents could not offer any proof
and were, according to their own admission, not
possessed of any evidence that the plot in question
was not a public utility area or a public amenity park,
HRC 4668-2006 etc.
27
therefore, all concerned were guilty of the commission
of the said offence and were liable to be prosecuted
and punished for the same.
“33.
Emphasis was next laid by the learned
Advocate Supreme Court for the petitioners on the
transfer of the said piece of land to the said company
for the said purpose. It was submitted that by virtue
of the provisions of section 47 of the L.D.A.. Act of
1975, all functions and powers relating to all such
schemes
including
Gulberg,
together
with
all
properties and assets etc. pertaining to the same, had
got vested in the Lahore Development Authority
whereafter, as per section 6(3)(iv) of the said Act, the
said assets and properties could be sold, leased out,
exchanged or otherwise disposed of only by the said
Authority and even a licence or concession in respect
thereof could not be granted by any one except the
Lahore Development Authority which according to the
provisions of section 4 of the said Act consisted of the
members named therein with Zila Nazim of Lahore as
its Chairman.
“34.
It was argued that even on the said score,
the entire action was illegal because it was never the
case of the respondents that the land in question had
ever been sold or leased out or even a licence or
concession in respect thereof had been granted to the
said company. by the L.D.A. The case of the
respondents before the High Court, in this connection
was, that it was the Chief Minister of Punjab, who on a
summary submitted to him for the purpose, had
leased out the said land to the said company for a
period of 25 years.
HRC 4668-2006 etc.
28
“35.
Was
this
then
a
legal
and
a
valid
transfer/entrustment of the said property vesting in
the L.D.A. to the said company?
“36.
It was next complained that the building in
question which was intended to be a huge complex
was being constructed at the site without the
sanctioning of its plans by the competent authority.
The plea of the respondents was that construction of
Government buildings did not require sanctioning of
their building plans. The question is whether there
was any law exempting Government building from the
operation of the said legal requirement and question
would also be whether a building constructed by the
said company which was an independent legal entity
having
been
incorporated
as
such
under
the
Companies Ordinance of 1984, could be said to be a
Government building?
“37.
It was submitted that the complex in
question which involved construction of a huge
building with an initial estimated cost of Rs.1500
million; which involved use of roads in a residential
locality by a large number of additional persons and
vehicles visiting the said plaza and which also involved
a change of land use, fell within the purview of a
`Project' as defined by section 2(xxxv) of the Pakistan
Environmental Protection Act No.XXXIV of 1997 and in
view of the provisions of section 12 of the said Act of
1997, the very commencement of its construction
without filing an initial environmental examination
with the Federal Agency and without its approval
regarding the environmental impact assessment, was
grossly illegal and was even a culpable offence under
the said Act. This-issue also requires examination.
HRC 4668-2006 etc.
29
“38.
It was next argued that the respondent
Government had entered into a contract with a foreign
company by the name of IMAX for the supply of
equipment for the cinema in question and that this
contract worth about Twenty-five crores in Pakistani
currency had been entered into with the said foreign
supplier/company in violation of the law, the rules and
the policy on the subject and also in violation of all
norms of transparency and good governance as no
advertisement or notice had ever been issued in the
national or international press inviting tenders, bids
and offers with respect to the same and the deal had
been finalized in secrecy and in a clandestine manner.
“40.
Serious reservations had been expressed
by the petitioners even about the reasonableness and
the lack of bona fides regarding the conception of the
project in question. As has been noticed above, the
land on which the said project was being constructed
was worth around 2500 million rupees. It is on record
that the initial estimate of the project in question was
1500 million Rupees which would of course be subject
to escalation and inflation. It was submitted that more
than 4000 million Rupees of public money were thus
being dumped to produce a Cinema Hall and a
shopping
complex
on
the
pretext
of
showing
educational movies to the children which movies the
children could watch and were watching on Discovery
Channel and such-like other educational channels of
the T.V. every day; that there was hardly a household
in the city which did not have a television and further
that there was also no dirt of shopping plazas in the
city or even in Gulberg. It was added that a cinema of
the kind was available in a neighbouring country and
HRC 4668-2006 etc.
30
the per person ticket to watch a movie in the said
cinema was around Rs.4,000 (four thousand Pakistani
Rupees). It was contended that in a country like ours
where thousands were giving away their precious lives
yearning for a bed in a hospital or a single dose of
live-saving drugs and where millions were getting
afflicted with deadly diseases on account of non-
availability of clean drinking water, it did not behove
the Government to be involved in building luxurious
three dimensional movies theatres and expensive
shopping malls for the rich and the famous and that
also by j investing millions from the hard-earned
money of the public. We were asked whether such a
use of public money could never be condoned as a
reasonable exercise of executive power? We need to
answer it.
“41.
Grave apprehensions and reservations had
also been expressed by the petitioners about the
manner in which the said company had been created;
the allegedly surreptitious manner in which a contract
had been settled by the Government with a foreign
company; the manner in which an invaluable piece of
land which even otherwise was a public amenity area
had been transferred to it and the manner in which
hundreds of millions of rupees of the public were
transferred to the said company which was then
directed to own the above-mentioned foreign contract
entered by the government and to produce a cinema
hall and a shopping complex on the site in question. It
was submitted that the said company, according to its
Memorandum and Articles of Association, was a
company formed by Twelve persons, each one of them
contributing "(A sum not exceeding Rs.1000 Rupees
one thousand only) with a "Paid up capital of Rs.1100
HRC 4668-2006 etc.
31
(Rupees eleven hundred only)" whereafter the "Equity
of the Company" was to be provided by the
Government in the form of fifty laks shares of Rs.100
each amounting to Rs. One Hundred and fifty million
only. It was added that only because ten of the said
twelve sponsors happened to be public servants
posted with the Government of Punjab could not ever
mean that the said was a company sponsored,
floated, formed or owned by the Government. It was
further
submitted
that
nothing
precluded
these
Twelve, in law, from amending or altering the
Memorandum or the Articles of Association, that these
ten public servant sponsors were even otherwise
guilty of misconduct having involved themselves in a
trade/business as they had failed to show any
permission, in law, allowing them to indulge in such
an activity; that even if the Government of Punjab
thought that it had accomplished all other tasks and
discharged all its other all important obligations and
had now nothing better to do than running cinemas,
theaters and shops then it could have directly gone
into the said business instead of entrusting millions of
public money to a company which was an entity in
itself
independent
of
all
Governmental
checks
including the control of the authorities established by
the Constitution to audit public accounts.
“42.
Mr.
S.M.
Zafar,
the
learned
Senior
Advocate Supreme Court attempted to put these
apprehensions at peace by submitting that the said
company was a State/Government-owned company;
that its Memorandum and Article of Association
prohibited its Sponsors/Directors to change the same;
that it was a global trend all over the world to achieve
governmental objectives by setting up companies
HRC 4668-2006 etc.
32
which was a more efficient and effective mode of
securing the said objects as these companies, not
being
Government
departments,
were
free
of
bureaucratic
red-tapism
and
controls;
that
the
company in question was to sovereign and was
subject to governmental controls and that the public
money entrusted to it was safe.
“44.
The learned Advocate Supreme Court for
the petitioners, at this juncture, reminded us of an
earlier ruler of this Province who, despite being not an
elected representatives of the people, had resisted all
temptations of converting available vacant spaces in
the city into residential and commercial complexes
and had blessed the people of Lahore with powerful
public lungs in the form of Race-Course (now Jilani)
Park, Gulshan-e-Iqbal Park, Model Town Park, lqbal
Park (old Minto Park), Jallo Park, Lahore Park, a park
adjacent to Pearl-Continental Hotel on the Mall and so
on and that thousands of hands rose everyday praying
for his noble soul. He also made repeated references
to a recent judgment of this Court relating to public
amenity area in Islamabad and added that such
examples could be a valuable guide and a good food
for thought for all concerned.”
19.
There is another important aspect of the case that
after executing the lease in pursuance whereof an area of 6000
square yards has been given for 33 years to M/S Siza Foods in
respect of most valuable property, which was actually earmarked
for Blue Area, but its subsequent change from residential sector
into Park has not been brought into our notice. In future, it would
HRC 4668-2006 etc.
33
be constructed along the site of F-9 Park where the McDonald’s
has been constructed.
20.
No one appearing on behalf of CDA has assisted us
about the formula followed in calculating the rent. It is most
interesting part of this case that in the publication dated
09.07.2004, following conditions were mentioned: -
CDA intends to provide an opportunity for setting
up/opening a branch of a “MULTI-NATIONAL FOOD
CHAIN” (fast food) or coffee/ice-cream chain, with all
features including children play area etc., in F-9 Park,
Islamabad.
Interested
parties
are,
therefore,
requested to express their interest and submit their
applications by 25.09.2004 for pre-qualification with
detailed technical proposal, area required, terms and
conditions …..”
A perusal thereof indicates that the CDA had not disclosed the
location in which the area would be available for the said
purpose. Thus, incomplete advertisement was given so that no
one should have a clear idea about the future business prospects.
It is also not understandable as to why CDA agreed to lease out
4000 + 2000 = 6000 square yards of a valuable piece of land for
33 years at a rent of Rs. 316,250/- or 5% of gross sales.
Undoubtedly, CDA is an authority, which is supposed to discharge
its functions in the interest of public and if, in any manner,
establishment of restaurant was permissible, they should have
tried to fetch maximum price of the land. As far as developing 5
acres of land is concerned, this was also not without an object
and purpose, as it has been observed hereinabove to confer
HRC 4668-2006 etc.
34
exclusive rights on M/s Siza Foods. The CDA had signed MoU with
M/S Siza Foods, perusal whereof indicates that a third party,
namely, M/S Lakson group was also involved. Para 11 of the MoU
provided that construction and development of the Park may be
undertaken by M/S Lakson Group or any of its group company
and such Group/group company shall be entitled to advertise and
display its logo in the Park. The size/design of logo shall be
mutually agreed between CDA and Lakson Group/its group
company. It is not on record about the interest of M/S Siza Foods
with Lakson Group, but one can imagine that full facility is being
extended to install signage, etc. Such permission exclusively
cannot be granted by CDA in the garb of MoU between CDA and
M/S Siza Foods. There is no indication that after installing such
signage, benefit will be extended to the CDA or M/S Siza Foods.
Therefore, it is not correct to say that the Park was being
developed free of cost. In addition to it, MoU also indicates that
the CDA, even before the execution of the lease deed, permitted
and authorized M/S Siza Foods to undertake work to an
agreeable level and design. Thus, there was no transparency,
rather it was a shabby deal in violation of the Constitution and
the law.
21.
A perusal of the letters which were sent by Amin
Muhammad Lakhani to the then Prime Minister and the President,
prima facie, showed use of influence. An officer of the status of
Chairman CDA (Mr. Kamran Lashari) has succumbed to the
pressure, and had not only violated the service discipline and the
HRC 4668-2006 etc.
35
provisions of the Constitution and the law, but prima facie has
also exposed himself to legal action because government
functionaries are not bound to carry out/implement any order
which is not in accordance with law.
22.
It is pertinent to mention here that this was not the
first time that such irregularities were committed. Similar
instances have come before the Court on more than one occasion
in different cases. In the case of Iqbal Haider (supra) this Court
had dealt with a similar situation as under: -
“33.
It
is
most
important
to
note
that
functionaries, exercising statutory powers like C.D.A.,
are bound to discharge their functions strictly in
accordance with law, otherwise the action contrary to
law would not be sustainable and such authority shall
expose itself for m disciplinary action. This Court in
the case of Fazal Din v. Lahore Improvement Trust
(PLD 1969 SC 223), reference of which has already
been [made] herein above, has discouraged denial of
valuable rights of the residents in respect of the plot,
meant for specific purpose. This principle has also
been reiterated in the case of Ardeshir Cowasjee v.
Karachi Building Control Authority (1999 SCMR 2883),
wherein it has been held that without obtaining no
objection from the general public, such plots cannot
be used for any other purpose. As it has been noted
herein above that in instant case, objections were not
invited from the general public by the competent
authority before converting the Jubilee Park into a
commercial
oriented
amusement Park, with the
collaboration of multinational companies, delegating
powers to respondent No.2 to enter into joint venture
or franchise for giving licences to local or international
HRC 4668-2006 etc.
36
parties, food chains, etc. In our opinion, such
delegation to private person to watch his financial
interests of the high degree [is] tantamount to
depriving the authority as well as the public from their
valuable rights, for whose benefits such authority has
been created, and apparently such action has got no
legal
sanctity,
therefore,
action
against
such
responsible officer/official of the authority is called for
in view of the judgment of this Court Pervaiz Oliver v.
St. Gabriel School (PLD 1999 SC 26), wherein it has
been held that "no public property, big or small,
tangible or intangible, can be disposed of except in
accordance with law. Those who transgress, expose
themselves to the severest penalty under the law". As
a consequence of this observation, finally following
directions were made to the authority:--
"While, in this background, upholding the order
of the High Court, we dismiss the above listed
three petitions with costs, the one filed by the
Assistant Administrator also on the ground of
limitation, we would also direct the Chairman of
the Evacuee Trust Board to personally hold an
enquiry about the conduct of the above said
several functionaries involved by departmentally
proceeding
with
the
matter
and
taking
appropriate action(s). This would also include the
examination of the question as to by whom and
under what circumstances sanction was accorded
firstly, for defending the petition in the High
Court and secondly, for preferring the leave
petition in this Court. The Chairman of the Board
would be required to submit the final enquiry
report(s) with details of action taken, within four
moths before the High Court of Balochistan,
copies being endorsed to this Court. It will then
be for the High Court to pass such orders in the
matter as it deems fit, including due activation, if
required, of the Federal Ombudsman and the
Chief Ehtesab Commissioner. A copy of this
order would be forwarded to the Chairman of the
Board, the Chief Ehtesab Commissioner the
Federal Ombudsman and the Secretary, Law and
Justice Division, of the concerned Ministry, for
action and for record."
HRC 4668-2006 etc.
37
23.
This Court, on a number of occasions, has emphasized
upon the government functionaries to perform their duties
strictly in accordance with law. In the case of Government of
Balochistan v. Muhammad Ali (2007 SCMR 1574), this Court held
as under: -
“7. Undisputedly, the respondents have lodged the
claim in respect of the land measuring 4300 acres
approximately recorded in favour of the Provincial
Government in the year 1964-65 which being in
nature of the public property was supposed to have
been used, utilized and dealt with by the Provincial
Government or its Departments to whom it was
transferred in the year 1979 in the sole public interest
being the custodian of the public property and likewise
the public functionaries are supposed and required to
act accordingly under the law and to defend any legal
proceedings concerning the public property before any
Court or forum effectively; preserve, protect, and
defend the title, rights and interest of public property
in accordance with the law which did not vest or
belong to any of the public functionaries. It was the
bounden duty of all the concerted to have acted and
proceeded
promptly
and
effectively
to
take
appropriate
steps
and
to
pursue
the
available
remedies against any proceedings, order or decree of
a Court within the prescribed period of limitation. The
serious lapses on the part of all the concerned in
withholding the matter and not having filed the appeal
before
the
learned
Majlis-e-Shoora
within
the
prescribed period of limitation and after dismissal of
the revision petition by the learned High Court, even
approached to this Court after a considerable delay of
HRC 4668-2006 etc.
38
320 days in filing C.P.LA. speaks about the inaction,
inefficiency or deliberate omission by all the concerned
though being under legal obligation to have taken the
prompt action in availing the legal remedies but not so
done as above noted; cannot be ignored, yet; no
action in such behalf appears to have been taken by
the competent authority against the delinquents. Due
to the serious lapses and failure to discharge the legal
duties promptly and within the prescribed period of
limitation by all the concerned in the matter in view of
the decree of the trial Court; of course no actual loss,
damage or deprivation of rights has occurred to the
public functionaries concerned in the matter, rather;
the Government and the Forest Department stands
completely deprived of the public property solely
meant to be used, utilized and dealt with in the public
interest being a public property of which the
Government
and
the
Department
through
its
functionaries are the custodian but decree of the trial
Court was not assailed before Majlis-e-Shoora within
the prescribed period of limitation and for such reason
alone, appeal was dismissed, upheld by the learned
High Court as well; consequently the Government
stood divested of huge public property for being its
custodian and thereby interests of the public stood
completely jeopardized merely because of the grave
omissions and inaction on the part of the concerned
public functionaries ……..”
In Capital Development Authority v. Shaheen Farooq (2007
SCMR 1328), this Court held as under: -
“7.
We have gone through the impugned
order, relevant record and also attended to rival
contentions so raised before us. There is no cavil with
HRC 4668-2006 etc.
39
the proposition that the order of cancellation of
allotments had not been passed by the Chairman, as
despite repeated asking, learned counsel for the
petitioner was unable to point out any document
showing that the cancellation orders were passed by
the Chairman except referring to certain documents
whereby a reference has been made to the verbal
orders of the Chairman. Verbal order has no sanctity
in law and such orders are alien to the process of the
law and the Courts. All orders I passed and acts
performed,
particularly,
by
the
State/public
functionaries and adversely affecting anyone must be
in writing, as section 24-A(1) of the General Clauses
Act, 1897 envisages that .the powers shall be
exercised reasonably, fairly and justly and subsection
(2) further makes it necessary that the authority
passing
orders
shall,
so
far
as
necessary
or
appropriate, give reasons for making the orders and
unless the order is in writing, the reasons and fairness
etc. thereof cannot be ascertained/ adjudged.”
In the case of Mehr Ali v. Noor Muhammad (2007 SCMR 1965),
this Court held as under: -
“It is a settled law that public functionaries are duty
bound to decide the controversy between the parties
after judicial application of mind as envisaged by
section 24-A of General Clauses Act and Article 4 of
the Constitution as law laid down by this Court in
Aslam Warraich's case PLD 1991 SC 2330, Mollah
Ejahar Ali's case PLD 1970 SC 173 and Gouranga
Mohan Sikdar's case PLD 1970 SC 158. It is the
command of the Constitution by virtue of Articles 4
and 5(2) that the public functionaries have to decide
the controversy between the parties in accordance
HRC 4668-2006 etc.
40
with law and not in derogation of law as law laid down
by this Court in Utility Stores' case PLD 1987 SC 447.
The contention of the learned counsel for the
petitioner that the highest forum in the hierarchy of
Revenue Officers is the Member, Board of Revenue,
therefore, High Court had erred in law to interfere in
the findings with regard to appointment of Lambardar
has no force in view of aforesaid discussion that
Member, Board of Revenue is duty bound to decide
the cases in accordance with law and shall not disturb
the findings of fact recorded by the Tribunals below
unless and until the same are suffered from illegality
or irregularity or in violation of any law laid down by
the superior Courts.”
In Iqbal Hussain v. Province of Sindh (2008 SCMR 105), it was
held as under: -
“3.
We are in complete agreement with the
view taken by the Division Bench of the High Court
when it says that public functionaries including the
Chief Minister can deal with the public property only
under a prescribed procedure within the parameters
of law under a duly sanctioned scheme and not at
their whims. Even if such order was passed by the
Chief Minister in favour of the petitioner, authorities
concerned would not be bound to follow such illegal
and void order of a superior authority. It would
rather be in the exigencies of good order of
administration and their duty to point out to the
high-ups that they were acting in excess of their
lawful authority and in violation of law and the
constitutional mandate. They may be apprised of the
legal consequences flowing from such acts. The
compliance of any illegal and arbitrary order is
HRC 4668-2006 etc.
41
neither binding on the subordinate forums nor valid
in the eyes of law. Reference in this behalf may be
made to decision of this Court in Abdul Haq Indhar
V. Province of Sindh 2000 SCMR 907 and (ii) Taj
Muhammad v. Town Committee 1994 CLC 2214.”
In the case of Government of Pakistan v. Farheen Rashid [2009
PLC (C.S.) 966], this Court held as under: -
“It is the inalienable right of every citizen to be
treated in accordance with law as envisaged by Article
4 of the Constitution. It is the duty and obligation of
the public functionaries to act within the four corners
of the mandate of the Constitution and law. Even the
Chief Executive of the country is not above the
Constitution and is bound to obey the command of the
Constitution as envisaged under Article 5(2) of the
Constitution and law laid down by the Court in various
pronouncements.”
In the case of Secretary Ministry of Health v. Rehana Hameed
(2010 SCMR 511) this Court made the following observations: -
“After addition of section 24-A in the General Clauses
Act, it is the duty and obligation of the public
functionaries
to
redress
the
grievances
of
the
citizens/their sub-ordinates with reasons as law laid
down by this Court in Messrs Airport Services case
1998 SCMR 2268. We may observe that since Pakistan
is founded on the basis of religion of Islam, efforts
should be made to bring out an egalitarian society
based on Islamic concept of fairplay and social justice.
Therefore public functionaries are expected to act
fairly and justly in a manner which should not give to
any one any cause of complaint on account of
discriminatory treatment or otherwise.”
HRC 4668-2006 etc.
42
24.
This Court has also emphasized that the departmental
functionaries are only obliged to carry out lawful orders of their
superiors and if they are being pressurized to implement an
illegal order, they should have put on record their dissenting
note. Reference in this behalf can be made to the case of Zahid
Akhtar v. Government of Punjab through Secretary, Local
Government and Rural Development (PLD 1995 SC 530).
Relevant Para therefrom is reproduced herein below: -
"………We need not stress here that a tamed and
subservient bureaucracy can neither be helpful to
Government nor it is expected to inspire public
confidence in the administration. Good governance is
largely dependent on an upright, honest and strong
bureaucracy. Therefore, mere submission to the will of
superior is not a commendable trait in a bureaucrat.
Elected
representatives
placed
as
incharge
of
administrative departments, of Government are not
expected to carry with them a deep insight in the
complexities
of
administration.
The
duty
of
a
bureaucrat, therefore, is, to apprise these elected
representatives the nicety of administration and
provide them correct guidance in discharge of their
functions in accordance with law. Succumbing to each
and
every
order
or
direction
of
such
elected
functionaries without bringing to their notice the legal
infirmities in such orders/directions may sometimes
amount to an act of 'indiscretion on the part of
bureaucrats which may not be justifiable on the plane
of hierarchical discipline. It hardly needs to be
mentioned that a Government servant is expected to
comply only those orders/directions of his superior
HRC 4668-2006 etc.
43
which
are
legal
and
within
his
competence.
Compliance
of
an
illegal
or
an
incompetent
direction/order
can
neither
be
justified
on
the
plea that it came from a superior authority nor it could
be defended on the ground that its non-compliance
would have exposed the concerned Government
servant to the risk of disciplinary action."
This view was further reiterated by this Court in the case of
Muhammad Akhtar Shirani v. Punjab Tex Book Board (2004
SCMR 1077). Relevant portion therefrom is reproduced below: -
“We
have
noted
with
pain
that
departmental
authorities responsible to run its affairs do submit to
whims and wishes of their superiors and never feel
hesitation in implementing even an illegal order,
knowing well that it has no legal sanction and if such
order is implemented it is bound to give rise to a
number of complications in the future. This Court time
and again has emphasized that the departmental
functionaries are only obliged to carry out lawful
orders of their superiors and if they are being
pressurized to implement an illegal order they should
have put on record their dissenting note and if such
practice is followed chances of issuing/passing illegal
orders shall be minimized.”
25.
Coming to the issue of NPC, we have examined, with
the assistance of the learned counsel for the NPC as also the
learned counsel for the CDA, the relevant record regarding
allotment of plot to the NPC for construction of Aiwan-e-Quaid on
the pattern of Aiwan-e-Iqbal, Lahore. To begin with, it may be
noted that Islamabad Land Disposal Regulation 1993, which laid
HRC 4668-2006 etc.
44
down different procedures for allotment of land of community
buildings and facilities in the public and private sectors. Under
regulation 12(2), community buildings and facilities shall be
allotted to government organizations at amenity rates whereas
under regulation 15(2), plots for other private institutions,
including plots for hospitals, maternity homes, clinics, art-
galleries,
gymnasium,
amusements
parks,
etc.,
shall
be
sold/leased by auction. Clearly, NPC was a private entity, hence
not entitled to be allotted a plot on amenity rate as provided
under regulation 12(2). The procedure governing allotment of
plots to private institutions envisaged by regulation 15(2), viz.,
sale/lease by auction was not followed in the matter of allotment
of plot to NPC. In this view of the matter, the learned counsel for
the CDA did not support the transaction and stated that the CDA
was ready to take over the plot/building.
26.
At this stage, we would like to advert to the MoU
dated 30.10.2001, signed between Ministry of Education and the
NPC. Evidently, the NPC had been approaching the CDA and
other governmental functionaries for allotment of plot reserved
for Islamabad Public Library in F-9 Park for establishment of
Aiwan-e-Quaid. However, keeping in view the afore-noted
provisions of the Regulation of 1993, no plot on amenity rate
could be allotted to a private organization, therefore, the
aforesaid MoU was reached, which provided as under: -
(1)
Cost of plot as demanded by C.D.A. will be arranged
by the Council after President of the Islamic Republic
HRC 4668-2006 etc.
45
of Pakistan lays down the foundation stone of the
project.
(2)
Cost of building structure, equipment, fixtures, etc.,
being integral part of the project, will be borne by the
council.
(3)
Design of the buildings on the plot will be prepared by
the Capital Development Authority in consultation with
Director
General
Libraries
and
Nazriya
Pakistan
Council according to their requirements.
(4)
This will be a project of Department of Libraries,
Ministry of Education.
(5)
The PC-1 will be prepared by the Department of
Libraries of the Ministry of Education and will be
subject to approval by the Planning Commission and
will
be
completed
within
24
months
of
its
commencement.
(6)
Any alteration or addition in the project building will
be the right of Department of Libraries.
(7)
Maintenance cost of the project buildings will be borne
by the Department of Libraries of the Ministry of
Education.
(8)
Revenues on account of renting out auditorium &
other parts of the building will be revenues of the
Department of Libraries. Rules for use of the facilities
will be approved by the Secretary to the Government
of Pakistan, Ministry of Education.
(9)
An Executive Committee comprising Representative of
Nazria Pakistan Council (Mr. Ashraf Nadeem), Joint
Educational Adviser (HE&LB) of Ministry of Education
and Director General, Department of Libraries will
administer the affairs of the project till its completion.
Thereafter, the Director General, Department of
Libraries will be responsible for its operations.
(10) To ensure smooth and prompt implementation of the
project, Aiwan-e-Quaid Authority on the pattern of
HRC 4668-2006 etc.
46
Aiwan-e-Iqbal Authority, Lahore, has been set up by
the
Education
Minister
with
the
following
composition:-
a. Minister for Education
Chairman
b. Minister for Interior
Member
c. Joint Secretary (ICT-CDA)
Member
d. Chairman, CDA
Member
e. Mr. Mahmood Ali (NPC)
Member
f. Joint Secretary (Admn)
Member
Ministry of Education
g. Gen. (Retd.) Imran Ullah Khan
Member
Executive Committee of NPC
h. Director General Libraries
Member
i. President, NPC (Mr. Zahid Malik)
Secretary
General”
It transpired during the hearing that the cost of land was paid
from the government exchequer on a directive of the Prime
Minister and the funds for construction of the project were also
granted by the government, though as per MoU, the cost of plot
as also cost of building structure, equipment, fixtures, etc, being
integral part of the project was to be borne by the NPC. Further,
according to the MoU, it was a project of Department of Libraries,
Ministry of Education and was to be run by the Aiwan-e-Quaid
Authority set up on the pattern of Aiwan-e-Iqbal Authority,
Lahore by the Education Minister with the composition mentioned
in the MoU. However, it appears that no such Authority was set
up and instead the project was given in the hands of NPC. It was
nothing but grabbing of State land, that too, unfortunately in the
name of the father of the nation, Quaid-e-Azam Muhammad Ali
Jinnah.
HRC 4668-2006 etc.
47
27.
On the last date of hearing, the learned counsel filed
application on behalf of NPC, containing decisions of the
Executive Committee of the Council, which are reproduced
below: -
(1)
That keeping in view the observations of the
Honourable Court and realizing that while the Council
acted in good faith, yet there is a legal aspect of the
case which may adversely affect the status of the
lease deed granted by the CDA the same can,
therefore, be treated as cancelled thus reverting the
plot to the CDA. NPC is not interested in ownership of
the property but in the concept and in the process of
running the Library.
(2)
A request be made to the Honourable Court that
Nazriya Pakistan Council may be allowed to continue
and operate Aiwan-e-Quaid.
(3)
Finally that NPC would like the CDA to nominate its
representative to the Executive Committee of the
Council.”
We have given anxious consideration to the submission of the
NPC in the light of the provisions of MoU. In our view, the Aiwan-
e-Quaid ought to be managed and controlled on the pattern of
Aiwan-e-Iqbal Authority, Lahore, as envisaged by the aforesaid
MoU dated 30.10.2001, signed between the Ministry of Education
and the NPC. We, therefore, direct that the project shall be taken
over
by
the
above
mentioned
Aiwan-e-Quaid
Authority.
Necessary legal cover will be provided to it by the concerned
quarters.
HRC 4668-2006 etc.
48
28.
Now we take up the establishment of Citizens Club in
F-9 Park. Admittedly, according to the Master plan of F-9 Park,
no residential building for lodging/boarding of the members of
the Citizens Club could be constructed without approval of the
competent authority and without taking into consideration the
requirements of the public park. The revised Master Plan of 1995,
which envisaged establishment of a club, itself was not a legal
document in absence of approval by the Federal Government in
terms of section 19 of the CDA Ordinance, 1960; therefore, no
superstructure could be built upon it and no scheme prepared in
pursuance thereof. It is pertinent to mention here that as per
minutes of the decisions of the CDA Board taken in the meetings
held on 24.09.2007 and 01.10.2007, the construction of Citizens’
Club was earlier proposed in Sector H-11, but later on shifted to
Sector F-12 and then re-shifted to Sector F-9 (Fatima Jinnah
Park) due to non-acquisition of land in Sector F-12. The scheme
for a full-fledged Citizens’ Club with 18 holes golf course and
amphitheatre, ladies club and for children sports area was
examined and approved in a meeting presided over by the
Chairman CDA, and attended by officers of the CDA Environment
Directorate. Here too, the scheme was approved neither by the
CDA Board nor by the Federal Government in accordance with
the provisions of the CDA Ordinance, 1960, referred to
hereinabove. Further, assuming for the sake of argument, though
not accepting, there was a provision for establishing a club in the
Park, an elitist club with a commercial perspective was hardly
HRC 4668-2006 etc.
49
justified considering the primary aims and objectives of the
public park. In the case of Iqabal Haider (supra), this Court
considered the issue of establishment of a mini golf course in the
Jubilee Park situated in Sector F-7, Islamabad, relevant
paragraphs have already been reproduced in Para 15 above. In
this view of the matter, the establishment of Citizens’ Club aimed
at providing facilities to the elitist class alone was not for the
general masses for whom F-9 Park was primarily meant. As such,
the same was not permissible.
29.
In the case of Bangalore Medical Trust v. B.S.
Muddappa (AIR 1991 SC 1902) the Supreme Court of India
considered the issue of construction of a hospital in the space
reserved for Public Park. According to the facts of the case, an
improvement scheme was adopted under the City of Bangalore
Improvement Act, 1945 and, in terms of the Bangalore
Development Authority Act, 1976, was deemed to have been
prepared and duly sanctioned by the Government. Under the
scheme, a site was reserved as an open space for Public Park.
Pursuant to the orders of the State Government, and by a
Resolution, the Bangalore Development Authority (BDA) allotted
the said open space in favour of a private medical trust, for the
purpose of constructing a hospital. This allotment and diversion
of the user of the site was challenged before the High Court by
the respondents, as residents of the locality and as general
public, contending that it was contrary to the provisions of the
Act and the scheme sanctioned thereunder, and the legislative
HRC 4668-2006 etc.
50
intent to protect and preserve the environment by reserving open
space for ventilation, recreation and playgrounds and parks for
the general public. A Single Judge of the High Court dismissed
the Writ Petition holding that a hospital being a civic amenity, the
allotment of the site by the BDA in favour of the appellant for the
purpose of constructing a hospital was valid and in accordance
with law, and, rejected the claim of the petitioners that the BDA
had no power to alter the scheme, and in any event, a site
reserved for a civic amenity could not have been allotted for
construction of a hospital, on the ground that the scheme could
be altered under Section 19(4) of the Act, and it was done with
approval of State Govt. On appeal, a Division Bench of the High
Court held that though the BDA had the authority to deal with
the plot in question, the area having been reserved in the
sanctioned scheme for a Public Park, its diversion from that
object and allotment in favour of a private body was not
permissible under the Act, even if the object of the allotment was
the construction of a hospital, since a hospital could not be
considered to be an amenity, and that in allotting the site to the
Trust, a largesse was conferred on it in utter violation of law and
rules, and set aside the allotment of the site in question with
liberty to the BDA to make a fresh allotment of any alternative
site in favour of the Trust. While dismissing the appeal, the
Supreme Court held as under:-
“A private Nursing Home could neither be considered
to be an amenity nor it could be considered
improvement over necessity like a public park. The
HRC 4668-2006 etc.
51
exercise of power, therefore, was contrary to the
purpose for which it is conferred under the statute.
“Financial gain by a local authority at the cost of
public welfare has never been considered as legitimate
purpose even if the objective is laudable. Sadly the
law was thrown to winds for a private purpose. The
extract of the Chief Minister's order quoted in the
letter of Chairman of the BDA leaves no doubt that the
end result having been decided by the highest
executive in the State, the lower in order of hierarchy
only followed with 'ifs' and 'buts' ending finally with
resolution of BDA which was more or less a formality.
In less than ninety days, the machinery in BDA and
Government moved so swiftly that the initiation of the
proposal, by the appellant, a rich trust with foreign
deposits, query on it by the Chief Minister of the
State, guidance of way out by the Chairman, direction
on it by the Chief Minister, orders of Govt., resolution
by the BDA and allotment were all completed and the
site for public park stood converted into site for
private nursing home without any intimation direct or
indirect to those who were being deprived of it.
“Speedy or quick action in public institutions calls for
appreciation
but
our
democratic
system
shuns
exercise of individualised discretion in public matters
requiring
participatory
decision
by
rules
and
regulations. No one howsoever high can arrogate to
himself or assume without any authorisation express
or implied in law a discretion to ignore the rules and
deviate from rationality by adopting a strained or
distorted interpretation as it renders the action ultra
vires and bad in law.
“An illegality cannot be cured only because it was
undertaken by the Government, or because it is done
HRC 4668-2006 etc.
52
at the behest of the Chief Executive of the State. No
one is above law. In a democracy what prevails is law
and rule and not the height of the person exercising
the power.
“The executive or the administrative authority must
not be oblivious that in a democratic set up the people
or community being sovereign, the exercise of
discretion must be guided by the inherent philosophy
that the exerciser of discretion is accountable for his
action, it is to be tested on anvil of rule of law and
fairness or justice particularly if competing interests of
members of society are involved.”
30.
Learned counsel for the CDA placed on record copy of
PC-I for construction of Citizens’ Club. According to estimate
worked out for its completion, an amount of Rs.1.28 billion has
been allocated. This huge amount belongs to no one else except
the taxpayers/citizens. Such amount, therefore, could have been
spent appropriately for their welfare instead of providing
luxurious type of Citizens’ Club only for its members. There is no
dispute that facility of membership can only be availed by the
persons who have resources, and not by the general public who
have no financial means to avail such facilities; therefore,
besides violation of the CDA laws, a huge segment of the society
belonging to downtrodden class have been deprived. Incumbent
Chairman CDA informed that physical work progress was 69%
and an amount of Rs.575 million had been spent so far. He was
of the opinion that construction of Citizens’ Club shall be
providing additional facility not only to members, but also to
HRC 4668-2006 etc.
53
those who would visit Islamabad, including diplomats; therefore,
from this point of view, the Club was being constructed. We are
not opposing establishment/construction of such like clubs in the
Capital, but definitely on a suitable place and by not curtailing
rights of the general public. History as it has been traced
hereinbefore suggests that the Club was proposed in different
sectors, such as H-11 and F-12, but the construction work could
not commence for want of acquisition of land in those sectors.
This explanation does not seem to be impressive. CDA can
undertake such projects not in the park, but in any other area,
ensuring at the same time that the money of taxpayers shall not
be used for such purposes. However, as now a huge amount has
already been spent; therefore, CDA with the approval of the
Federal Government, instead of abandoning the project, may
utilize the building and other facilities for any public welfare
project, like women university, medical/engineering college,
science, technology or IT institution, etc.
31.
On the issue of Megazone (formerly named as Hot
Shots), Mr. Afnan Karim Kundi submitted that the Master Plan of
F-9 Park envisaged setting up of a bowling alley/centre. In
pursuance of advertisement published in the press in the year
1994 to which in all seven firms responded. M/S S&S Enterprizes,
a Pvt. Ltd. Co., one of the seven parties to the bid, having
offered the highest bid of Rs.752,000/- was selected. The CDA
Board, in its meeting held on 27.11.1994 approved grant of
licence to M/S S&S Enterprizes. The management of the centre
HRC 4668-2006 etc.
54
had changed hands. As no notice was issued to them, they were
not before the Court.
32.
Mr. Qamar Afzal, ASC appeared on behalf of M/S S&S
Enterprizes Pvt. Ltd., occupants of the bowling alley/centre, first
operated in the name of ‘Hot Shots’, and now named as
‘Megazone’. He submitted that presently the concern was being
managed and operated by Brig. (R) Iftikhar Ahmed (Chief
Executive) along with Mr. Shi Hua Ping a Chinese national
(Director). He submitted that there was litigation between his
clients and the CDA on account of unauthorized construction of
basement, mezzanine floor, etc., and non-conforming use of the
premises, e.g. swimming pool, shops, etc., and ultimately,
certain portions of the constructed area were demolished while
the rest was compounded by the CDA on payment of fine/rent.
He was asked to explain under what provisions of law the CDA
had so compounded the unauthorized construction. He referred
to different Regulations of the CDA, e.g., the CDA Ordinance,
1960,
Islamabad
Building
Regulations,
1963,
Islamabad
Residential Sectors Zoning (Building Control) Regulation, 1993,
etc., but failed to show how the aforesaid Ordinance/Regulations
were applicable to the building in question, which was not of
residential nature. He then submitted that the answer to the
proposition was found in the record of the CDA (pp. 108-110 of
the CDA P/B Part IV), which we have perused with his assistance.
The issue was considered by the CDA Board in its meeting dated
20.11.2002 and made the following decisions: -
HRC 4668-2006 etc.
55
(1)
Compoundable violations of excess area of basement
and ground floor may be regularized by imposing
compounding charges of Rs.10,000/- (lump sum) &
fine @ Rs.1500/- per sq ft or to demolish the area
constructed over and above the approved plan and
beyond the terms and conditions of bid.
(2)
The
non-compoundable
violations
of
additional
facilities i.e. construction of mezzanine floor, stair
tower, swimming pool, toilets, etc., provided in the
basement against its lawful use may be demolished
after giving the licensee proper/mandatory notice.
The CDA vide letter dated 10.07.2003 worked out amount of
fine, etc. and directed M/S S&S Enterprizes to deposit
compounding charges in the sum of Rs.73,87,000/- failing which
the Authority would remove the same. In the same letter, the
CDA gave the detail of non-compoundable violations area, e.g.
mezzanine floor, stair tower, swimming pool, etc., but did not
propose to take any consequential penal action. The Deputy
Commissioner, CDA, in pursuance of the report by the CDA, vide
order dated 15.01.2004 directed the CDA to take action against
M/S S&S Enterprizes, i.e. to stop the non-conforming use of the
premises. Pursuant to an application submitted by M/S S&S
Enterprizes, the CDA Board in its meeting dated 12.05.2004
decided to regularize the basement and swimming pool without
charges, and to regularize extended portion of ground floor,
mezzanine floor on payment of charges/fine @ Rs.1500/- sq. ft.
along with charges for non-conforming use/activities and asked
the licensee to pay Rs.1,99,72,742/-. The CDA Board, then in its
HRC 4668-2006 etc.
56
meeting dated 19.10.2004 decided that existing halls, which
were used for marriage parties, would be utilized for sports and
recreational activities and asked the Cost Accountant and
Planning Wing to examine the rates while keeping in mind the
rules and regulations to work out excess rates, compound and
other charges. The Deputy Director BCS-II, having re-measured
the area, calculated/worked out a sum of Rs. 66,39,507/- to be
paid by M/S S&S Enterprizes in terms of the Islamabad
Residential Sectors Zoning (Building Control) Regulation, 1993,
which was approved by the Member (Planning) and the Chairman
CDA. It was pointed out during the 2005 Audit that the
compoundable charges came to Rs.2,24,70,000/- against the
demanded amount of Rs.66,39,507/-, which caused a loss of
Rs.1,99,72,000/- to the Authority. The above amount having
been paid by the licensee, the CDA Board, in its meeting dated
07.06.2007 regularized the compoundable violations.
33.
The above narration in no way provides an answer to
the question under what law the CDA had regularized the
compoundable as well as non-compoundable constructions. The
learned counsel agreed that the premises in question were not
governed by any of the aforesaid laws/regulations. Mr. Afnan
Karim Kundi, too, was unable to refer to any legal instrument in
support of the decisions/actions of the CDA authorities. In
absence of any legal instrument empowering the CDA to take the
kind of actions that it did, the entire transaction from the
beginning to the end was illegal and unsustainable in law.
HRC 4668-2006 etc.
57
34.
The CDA Board, in its meeting dated 27.11.1994
decided, inter alia, that the bidder himself would construct the
bowling centre on international standards and that the land
would be licensed out for 20 years, renewable on mutual consent
of both parties for another term of 20 years on new/re-
negotiated terms. Thus, there was no provision for transfer of the
licence. Surprisingly, in the licence deed dated 07.05.1995 issued
by the CDA in favour of M/S S&S Enterprizes, a clause was added
providing for transfer of the bowling centre to a Pakistan based
company registered under the Companies Ordinance, 1984 after
completion of construction, issuance of completion certificate and
execution of the lease deed in favour of the licensee. Later,
though the construction was completed with certain alterations
and additional constructed area in violation of the approved
building plan, but no completion certificate was obtained nor any
lease deed was executed. Later on, the company created a
collaboration with a Chinese Company, namely, M/S North
Industrial Corporation of Peoples Republic of China (NORINCO),
which got itself incorporated in Islamabad as M/S Islamabad
NORIN Co. (Pvt.) Ltd., with Chinese Directors and Brig. (R)
Iftikhar Ahmed as Chief Executive. M/S S&S Enterprizes entered
into
construction
agreement
dated
09.08.1995
with
M/S
Islamabad NORIN Co. After construction of the centre, the
project in the name and style of M/S Hot Shots Bowling Centre
became operational. Later on, M/S S&S Enterprizes surrendered
all its rights in favour of M/S International NORIN Co., and the
HRC 4668-2006 etc.
58
possession was formally handed over to Brig. (R) Iftikhar Ahmed
who was presently running the centre, later called as Megazone.
All the above actions were done in violation of the decision of the
CDA Board on the issue, as also the relevant rules and
regulations of the CDA.
35.
The revised Master Plan prepared in 1995 was not
approved by the competent authority. On that view of the
matter, spaces reserved for cuisine area, bowling alley, etc., in
the un-approved Master Plan did not have the proper legal
sanction at their backing and the CDA authorities thus rendered
bereft of the power to go ahead with the preparation of schemes
in relation thereto, as envisaged by section 13 of the CDA
Ordinance, 1960. As such, the issuance of licence to M/S S&S
Enterprizes was illegal and unsustainable. Having held so, the
reference to the terms of the licence governing non-conforming
use of the premises by the licensee, or in case of breach of
anyone or more of the conditions of licence, the licence was liable
to be withdrawn/cancelled and the structure, if any, would be
confiscated without any payment, was of no consequence. Even
otherwise, regulation 12(3) of the Islamabad Land Disposal
Regulation, 1993 obligates the CDA to itself develop and
maintain public parks, playing fields and graveyards, which the
CDA violated by awarding lease/licence in favour of M/S S&S
Enterprizes and M/S Siza Foods. This aspect was highlighted by
HRC 4668-2006 etc.
59
this Court in the case of Iqbal Haider (supra) in the following
words: -
“15. What
we
have
understood
from
above
documents is that in the Capital territory, a master
plan was prepared at the time of its inception and
subsequently
under
different
schemes,
different
sectors were set up. In this behalf, reference to the
preamble and sections 11 and 12 of the Ordinance,
1960 may be made. In the scheme of a sector, some
of the areas have been earmarked as a Public Park to
attract general public. According to Article 12(3) of the
Regulation, the public parks, playing fields and
graveyards are to be developed and maintained by the
CDA.
Thus
the
conclusion
is
that
during
the
classification of the plots, under Article 3 of the
Regulation, if a piece of land has been earmarked for
purpose of Public Park, same cannot be leased out and
CDA itself is bound to develop the same.”
36.
Thus, for the foregoing reasons, it is declared and held
as under: –
(1)
Establishment/construction of McDonald’s restaurant
in Fatima Jinnah Park, Sector F-9, Islamabad was
contrary to Article 18 of the Constitution read with
CDA Ordinance, 1960. Consequently, CDA is directed
to cancel the lease of M/S Siza Foods forthwith, put up
the matter before the CDA Board for converting
cuisine pavilion area with dense vegetation into
restaurant area, and then re-auction a site for setting
up a food outlet therein, and seek approval from the
Federal Government to the Master Plan as also the
schemes prepared thereunder, in accordance with the
provisions of the CDA Ordinance, 1960 and the other
relevant rules and regulations. If the CDA Board or the
HRC 4668-2006 etc.
60
Federal Government declined to grant conversion of
the cuisine pavilions into a site for construction of food
restaurant, the existing superstructure raised by the
McDonald’s shall be demolished by defunct lease
holder at its cost within three months. Fresh
applications shall be invited from the local as well as
international food chains by inviting expression of
interest, indicating the area, facilities, etc., and
whosoever succeeds shall be entitled to set up a food
outlet accordingly. However, if M/S Siza Foods
participated and succeeded in the auction, it shall
continue with the business subject to fresh terms and
conditions, without introducing in the business any
third party, like Lakson Group/group company, etc.
However, if any other food chain succeeded, then the
parties with the intervention of the CDA shall
negotiate the cost of the existing structure of
McDonald’s restaurant;
(2)
The CDA shall forthwith cancel the allotment of land to
NPC, take over the premises along with facilities and
place the matter before the Federal Government in
the light of the MoU signed between the Ministry of
Education and the NPC so as to run affairs of Aiwan-e-
Quaid smoothly and achieve the objects for which it
was established. However, it would be for the Federal
Government to allow representation to NPC in the
management committee, but complete administration
of the premises shall rest with the Government;
(3)
As far as Megazone is concerned, its transfer in the
name of Brig. (R) Iftikhar Ahmed and others was
made contrary to the terms of the licence; therefore,
the occupants subject to the rights of the original
licence holder shall be given opportunity to get the
same transferred in their name in accordance with
law/guidelines issued by the Securities and Exchange
HRC 4668-2006 etc.
61
Commission of Pakistan within a period of three
months, failing which the licence shall be cancelled,
the land shall be taken over by the CDA and the
occupants shall be directed to restore it to the position
as it was prevailing before issuing the licence in favour
of M/S S&S Enterprizes;
(4)
As far as Citizens Club is concerned, its construction
shall be completed as a huge amount of public money
has been spent over it unauthorizedly and the building
with other facilities shall be used for a project of public
welfare;
(5)
A perusal of the documents made available to the
Court abundantly makes it clear that Mr. Kamran
Lashari, the former Chairman CDA, in violation of the
constitutional provisions, CDA Ordinance, 1960 as well
as other rules and regulations on the subject granted
lease for 33 years of government land at a very
nominal lease money to M/S Siza Foods in a non-
transparent
manner,
undoubtedly,
with
the
connivance of the other officials of the CDA; therefore,
they all deserve to be dealt with strictly for
misconduct, departmentally as well as by instituting
both civil and criminal action against them, so that it
may serve as a deterrent for like-minded persons,
who discharge their duties/functions without adhering
to the relevant provisions of the Constitution and the
law. Such an action has become necessary with a view
to avoiding in future violation of any provision of the
Constitution and the law. In the case of Iqbal Haider
(supra), it was observed that action against the
responsible officer/official of the CDA was called for in
view of the judgment of this Court in Pervaiz Oliver
(supra), but it seems that no action against anyone
was taken so far. The CDA through Establishment
Division, Government of Pakistan is directed to take
HRC 4668-2006 etc.
62
action against Mr. Kamran Lashari, former Chairman
CDA for violation of the Constitution, the CDA
Ordinance, 1960, rules and regulations, reference
whereof has already been given in the case of Iqbal
Haider (supra);
(6)
The Chairman CDA shall ensure implementation of
directions in the above Paragraph through concerned
functionaries of the Federal Government within a
period of three months from the date of this
judgment. He is also directed to ensure transparency
in other projects of the CDA and at the same time
office files of Master Plan and preparation of schemes
shall be maintained properly instead of showing
helplessness to produce the record before the Court;
(7)
Unconditional apology tendered by Amin Muhammad
Lakhani, proprietor of M/S Siza Foods is accepted
because he himself volunteered for the same.
However, he is warned to be careful in future and
avoid scandalizing the courts.
(8)
As these petitions have been considered involving
public interest/general masses/citizens, thus no order
as to costs.
The listed HR cases are disposed of in the above terms.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad
Announced in Court on __________.
C.J.
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE DOST MUHAMMAD KHAN
HRC NO.4729-P/2011 in SMC.No.03/2009
(Application by Muhammad Shafi)
Applicant:
Malik Muhammad Shafi in person
On Court Notice:
Mr. Razzaq A. Mirza, Addl. A.G. Pb.
Mr. Ejaz Ahmed, DFO, Rawapindi
Mr. Tasleen Ali, AC Saddar, Rawalpindi
Mr. Iftikhar Ahmed Qureshi, CF, Rwp
For Bahrai Town:
Mr. Aitazaz Ahsan, Sr. ASC
Raja Abdul Ghafoor, AOR
On Courts Call:
Mr. Israr Abbasi, CPO, Rawalpindi
Date of hearing:
14.7.2015
ORDER
Jawwad S. Khawaja, J. This case was taken up when the applicant Malik
Muhammad Shafi brought to our notice the fact that on 28.10.2005 Raja Khalid Hussain,
Chief Conservator of Forests had written a letter to the Deputy Inspector General of Police,
Rawalpindi seeking registration of criminal case for beating up and unlawfully detaining
govt. employees and in respect of encroachment on forest land, etc. Since the contents of
the letter are important for the present purposes, the same is reproduced below in extenso:-
“PHONE NO.9271931
OFFICE OF THE CHIEF CONSERVATOR OF FORESTS, NORTHERN ZONE,
RAWALPINDI
To
The Deputy Inspector General,
Police, Rawalpindi
No. /RK dated 2005
Subject:
ENCROACHMENT ON FOREST LAND BY DESTROYING
TREES
AND
DETAINING
FOREST
OFFICERS—
REGISTRATION OF CRIMINAL CASE.
It is stated that on 11.10.2005 the functionaries of Bahria Town started up-
rooting of forest crop and encroaching forest land of a part of Rakh Lohi Bher Forest
situated in Rawalpindi District by employing excavators and dumpers. The forest
staff reached the site and stopped its work. The functionaries of Bahria Town
HRC 4229-P/11
2
resumed its work in forest land on 24.10.2005. The forest party again stopped them
and fenced the affected area with wooden poles. On 25.10.2005, Captain Shahid, Site
Incharge, Bahria Town accompanying a number of persons of Bahria Town forcibly
up-rooted the fence and re-encroached forest land besides beating M/S Jamshaid
Khan, Block Officer, Muhammad Razwan and Ghazanffar Ali Forest Guards.
Afterwards on 26.10.2005 at about 10 pm having come to know that Bahria Town
Functionaries have again started destroying forest crop and encroaching forest land
of Lohi Bher Forest situated in Rawalpindi District by employing heavy machinery,
the Divisional Forest Officer Rawalpindi South reached the affected site in the
accompany of Conservator of Forests, Coordination Circle, Rawalpindi, Divisional
Forest Officer, Timber Extraction Division Rawalpindi, Divisional Forest Officer,
Rawalpindi North Forest Division, Deputy Director, Wildlife Rawalpindi, Sub
Divisional Forest Officer, Rawalpindi and other forest and Wildlife field staff. On
reaching the site work of Bahria Town Functionaries being under-taken with the
help of Habib Rafique & Company Limited was stopped at about 11:30 pm. The
offenders however, succeeded in taking away 4 excavators along with dumpers
whereas the 5th excavator was apprehended. The functionaries of Bahria Town and
Habib Rafique & Company Limited made repeated attempts to make a quarrel with
the forest staff and take away excavator but they could not succeed for about 2 hours.
The offenders then arranged about 100 person equipped with arms and sticks and
attacked the forest party. The offenders thus succeeded in kidnapping M/S Bashir
Ahmad, Conservator of Forest, Coordination Circle Rawalpindi and Sardar Fida
Hussain, Divisional Forest Officer, Timber Extraction Division Rawalpindi whereas
the other forest officers and Wildlife staff escaped. The forest officers so kidnapped
were seriously beaten and beaten to shot to death. After about 2 hours the officers
detained illegally6 were released at far flung place.
Under the circumstances explained above it is requested that SHO Civil
Lines Police Station may please be directed to register FIR against the offenders
(functionaries of Bahria Town and Habib Rafique & Company Limited for
destroying forest crop and encroaching forest land measuring 3 Kanals, kidnapping,
beating and threatening of forest officers and interfering of forest officers and staff in
discharging their Government duties. An immediate action is requested in the
regard.
Enclosed:-
Written request for
Registration of FIR
(RAJA KHALID HUSSAIN)
CHIEF CONSERVATOR OF FORESTS
NORTHERN ZONE RAWALPINDI
394-99/RK 28.10.2005”
HRC 4229-P/11
3
2.
We are therefore, concerned to learn as to whether a case has been registered on the
basis of the said letter and if so, whether the same has been discharged or challaned after
investigation. We asked the learned Additional Advocate General to ascertain this fact. He
has confirmed that no FIR had been registered even to date. This has also been confirmed
by Mr. Iftikhar Ahmed Qureshi, Conservator of Forests, who is present in Court.
3.
Mr. Aitazaz Ahsan, learned Sr. ASC has stated that there is a whole history behind
this case. We, however, asked him to show us if in the above circumstances there is any
law, which says that police may refuse to register a case in such eventuality even where a
cognizable offence has been committed as per contents of the complaint. He did not give an
answer but stated that there is no encroachment on forest land. In response, Mr. Razzaq A.
Mirza, learned Additional A.G states that there is definite encroachment of 684 acres
according to official inquiries and record. This, however, is wholly irrelevant in the light of
the above reproduced letter. In any event, it is for the police to investigate and if indeed the
client of Mr. Aitazaz Ahsan has any facts available with him, he may bring those to the
notice of the police. Likewise if the Conservator of the Forests has any information, he may
also bring it to the notice of the police. We are not to embark on any investigation of these
factual matters.
4.
Learned Sr. ASC then stated that an application had been moved by Syed Ali Zafar,
ASC and by Malik Riaz Hussain through a private letter, addressed to the Hon’ble Chief
Justice, stating that one of us (Jawwad S. Khawaj, J.) should recuse from hearing this case.
Mr. Aitzaz also acknowledged that the application and private letter referred to above were
being dealt with in CMA 3854/14 and CMA-4341 of 2014. That is a matter which has been
delinked from this case. However, for ease of reference we may mention that vide orders
dated 2.4.2015 and 31.3.2015, we had asked Syed Ali Zafar ASC to give his explanation in
respect of the matters mentioned in our said orders. His reply being found unsatisfactory,
an order was passed on 9.4.2015 that “since there is no valid explanation forthcoming from Mr.
Ali Zafar, ASC in respect of the issues which have been highlighted above and in our order of
31.3.2015, we are inclined to the view that Mr. Ali Zafar has been guilty of misconduct and conduct
unbecoming of an Advocate. The dignity and high standing of the legal profession and of Judges and
Courts has to be defended for the sake of the independence of the Judiciary and Bar and for the
effective administration of justice. This has to be done, if necessary, especially in the face of
HRC 4229-P/11
4
misconduct or conduct which is unbecoming of an Advocate. Such conduct must be curbed if the
honour and dignity of the Bar and Bench are to be preserved. We, therefore, issue notice to Mr. Ali
Zafar to show cause why action envisaged under Order IV Rule 30 of the Supreme Court Rules
(including suspension/removal from practice) be not taken against him”.
5.
That matter, however, is not listed before us today and we, therefore, donot intend
to decide the same particularly when Syed Ali Zafar who is respondent in the show case
notice, is not present.
6.
Mr. Israr Abbasi, CPO, Rawalpindi appeared on Court call. He shall submit a
report, as to whether any FIR was registered, pursuant to the above reproduced letter of the
Conservator of the Forests and if so, what is the outcome of such FIR. Secondly, he shall
also state that if no FIR was registered, the reasons for not registering the same. Let this be
done within this week.
7.
Re-list on 23.07.2015.
Judge
Judge
Islamabad, the
14th July, 2015
Nisar /-‘
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE SH. AZMAT SAEED
H.R.C. NO. 4925-G OF 2014
(Suo moto taken on the Daily News dated
25.2.2014 regarding diagnostic injections cause
cancer)
In Attendance:
Mr. Sajid Ilyas Bhatti, DAG
Dr. Javaid Akhtar, D.G. PINSTECH
Mr. Sohail Akram, Sr. Law Officer
Date of Hearing:
03.04.2014
ORDER
TASSADUQ HUSSAIN JILLANI, CJ.- Suo moto notice
was taken on a news item published in Daily News dated
25.2.2014 to the effect that the Pakistan Institute of Nuclear
Science and Technology (PINSTECH) has been supplying cancer
diagnostic injections allegedly contaminated with undesirable
radionuclides that could cause cancer instead of diagnosing it and
despite a direction for an enquiry, no action had been taken.
Pursuant to the notice issued, the Director General PINSTECH
constituted a committee to investigate into the allegations leveled
and submit a report. It would be pertinent to refer to the summary
of the findings of the said inquiry, which is as under:-
“i.
The committee studied in depth the quality procedures
/ SOP, visited relevant production facilities and testing
Labs, interviewed relevant scientists / technicians as
well as went through the record of inspection /
acceptance / rejection.
ii.
The following quality acceptance tiers are functioning
at PINSTECH.
a.
The Quality Control Group under Incharge
Production.
b.
Health Physics Laboratories and Quality
Assurance Group under DG PINSTECH:-
H.R.C. NO. 4925-G OF 2014
2
The
Inquiry
Committee
thoroughly
checked the QC and QA record of all the
molybdenum-99 batches produced at
PINSTECH and found it in order as per
SOP.
iii.
Pakistan Nuclear Regulatory Authority (PNRA), being
an independent regularity authority and licensor, also
conducts random testing which was verified by the
Committee.
iv.
The production facility was installed / commissioned
by renowned German scientists and highly qualified
Pakistani scientists. The Mo-99 is thus produced
according to the international quality standards.
v.
The feed-backs from various end-user hospitals have
been received and confirmed that product is rechecked
and qualified by the user. The disqualified product (if
any) is not used.
vi.
The committee has satisfied itself that standard
operating
procedures
for
qualification
and
certifications were not violated. No evidence could be
found of any pressure whatsoever from the high ups
on the analysts or technicians to alter the quality
control results.”
2.
In view of the report submitted, it seems the news item
was not based on a correct appreciation of the relevant facts. In
any case, it has served a purpose i.e. on intervention of the Court,
the PINSTECH got the allegations inquired into and the findings
referred to above lend credibility to the exercise undertaken by the
PINSTECH. In the afore-referred circumstances, the proceedings
have fructified and are being disposed of accordingly.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
3rd of April, 2014
Not Approved For Reporting
Khurram
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In the Supreme Court of Pakistan
(Original Jurisdiction)
Present:
Mr. Justice Iftikahr Muhammad Chaudhry, CJ
Mr. Justice Javed Iqbal
Mr. Justice Raja Fayyaz Ahmed
Mr. Justice Anwar Zheer Jamali
Mr. Justice Ghulam Rabbni
Mr. Justice Khalil-ur-Rehman Ramday
SMC No.24 of 2010
(Regarding Corruption in Hajj Arrangements in 2010)
Human Rights Cases No.57701-P, 57719-G, 57754-P, 58152-P,
59036-S, 59060-P, 54187-P & 58118-K of 2010
(Applications by Abdul Rasheed & others)
On Court Notice:
For Member of Committee
of Parliamentarians
:
Nemo.
For former Minister S&T
:
Mr. Afnan Karim Kundi, ASC with
Senator Muhammad Azam Khan
Sawati.
For former Minister
Religious Affairs
:
Sardar Khurram Latif Khan Khosa, ASC.
Mr. Mehmood A. Sheikh, AOR.
For M/o Religious Affairs
:
Mr. Shaukat Hayat Durrani,
Secretary
For former Secretary
Religious Affairs
:
Mr. G.N. Gohar, AOR
For Establishment
Division
:
Mr. M. Ijaz Ghani, Dy. Secy.
Mr. Muhammad Arshad, Dy. Secy.
For NAB
:
Mr. Muhammad Akbar Tarar, Addl. PGA
Mr. Fauzi Zafar, ADPGA.
For FIA
:
Syed Jawed Ali Bukhari,
Incharge Investigation.
Mr. M. Azam Khan, Director (Law).
Mr. Khizar Hayat, S.I Police with
Rao Shakeel, former DG Hajj (in
custody).
In C.M.A No.218/2011
:
Mr. M. Ikram Chaudhry, ASc.
For Tour Operators
:
Nemo.
Date of hearing
:
20.1.2011.
Suo Moto Case No.24 of 2010
2
Order
Iftikhar Muhammad Chaudhry, CJ – Mr. Shaukat
Hayat Durrani, Secretary, Religious Affairs has stated that
complete arrangements have been made for disbursing the amount
of SR 700 to each pilgrim and he has been ensured by the
concerned Banks that task assigned to them shall be completed in
a transparent manner and the aforesaid amount equal to Pakistani
rupees, shall be ensured to be handed over to the pilgrims as early
as can be possible. He has added that he himself is supervising the
distribution of the money to them and has assured the Court that
there shall be no complaint of mishandling etc. We appreciate the
gesture shown by the Secretary as he has taken personal interest
in obeying order the Court. However, he may procure a
comprehensive report from the Banks, which shall be submitted
after a period of one month to the Registrar for our perusal.
2.
Learned Attorney General placed on record
following notification dated 15.1.2011, issued by the Government
of Pakistan, Cabinet Secretariat, Establishment Division:-
“No.12/309/80-E-3 (Police)
Government of Pakistan
Cabinet Secretariat
Establishment Division
Islamabad, the 15th January, 2010
Notification
Syed Jawed Ali Shah Bukhari, a BS-21 officer of the Police Service of
Paksitan, presently posted as Officer on Special Duty (OSD), Establishment
Division is transferred and his services are placed at the disposal of Federal
Investigation Agency (FIA), under Ministry of Interior, with immediate effect
and until further orders.”
It is evident from the perusal of above notification that the services
of Syed Jawed Ali Shah Bukhari (BS-21) have been placed at the
Suo Moto Case No.24 of 2010
3
disposal of Federal Investigation Agency (FIA) under Ministry of
Interior with immediate effect and until further orders. The above
notification is followed by order dated 17.1.2011, issued by the
Government of Pakistan, Ministry of Interior:-
“No.7/138/2010-FIA
Government of Pakistan
Ministry of Interior
*****
Islamabad, the 17th January, 2011
To,
The Director General,
FIA, Islamabad
Pursuant to Establishment Division’s notification
No.12/309/80-E-3 (Police), dated 15th January 2011, the services of Syed
Jawed Ali Shah Bokhari, a BS-21 officer of the Police Service of Pakistan,
have been placed at the disposal of FIA.
2.
He is hereby appointed as Incharge Investigation of Suo Moto Case
No.24 of 2010 (Hajj scam) being heard in the Honourable Supreme Court of
Pakistan. In performance of his duties, the officer will report exclusively to the
Supreme Court of Pakistan through Attorney General of Pakistan. He is
authorized to select an officer of his choice from any agency/department to
conduct and complete the investigation.
3.
He is directed to start work immediately and report progress/seek
further instructions from Supreme Court of Pakistan in the next hearing fixed
on 20th January 2011.”.
Again, perusal of above order indicates that Syed Jawed Ali Shah
Bukhari has been appointed as Incharge of investigation of Suo
Moto Case No.24 of 2010 (Hajj Scam). It is to be noted that on
account of unsatisfactory performance by the incumbent Director
General (FIA), who has been appointed on contract basis, he was
asked to exercise the option either to disassociate himself with the
investigation of the case or the Court will pass an order in this
regard. Meanwhile he himself submitted an application and
requested the Government to allow him to disassociate himself
whereafter the above orders have been issued, but the above-noted
notification and the order, both are not in accord with section 3(2)
Suo Moto Case No.24 of 2010
4
read with sections 4 & 5(2) of the Federal Investigation Agency Act
1974. For sake of convenience, these sections are reproduced
herein below:-
“3(2) The Agency shall consist of a Director-General to be appointed by
the Federal Government and such number of other officers as the
Federal Government may, from time to time, appoint to be members of
the Agency.
4. Superintendence and administration of the Agency.---(1) The
superintendence of the Agency shall vest in the Federal Government.
(2) The administration of the Agency shall vest in the Director-General
who hall exercise in respect of the Agency such of the powers of an
Inspector General of Police under the Police Act, 1861 (V of 1861), as
may be prescribed by rules.
5(2) Subject to rules, if any, a member of the Agency not below the rank
of a Sub-Inspector may for the purposes of any inquiry or investigation
under this Act, exercise any of the powers of an officer in charge of a
police station in any area in which he is for the time being and, when so
exercising such powers, shall be deemed to be an officer-in-charge of a
police station discharging his functions as such within the limits of his
station.”
3.
Needless to observe that in view of the importance
of the case, which is based not only on the complaints of general
public, who had gone to perform Hajj, but also on the
recommendations
of
the
representative
of
the
public/
Parliamentarians, instant proceedings have been initiated. During
the course of hearing, the then Minister for Religious Affairs has
been removed alongwith another Minister, who had come forward
and appeared before the Court to substantiate the allegations of
corruption in the Ministry of Religious Affairs. Therefore, we were
expecting that the Government of Pakistan would itself take all
necessary steps to ensure transparent investigation in the case, to
bring the accused persons to book, but we are constrained to
observe that different devices are being adopted to hush up or
Suo Moto Case No.24 of 2010
5
hamper the investigation of the case. In this behalf the notification
referred to hereinabove clearly indicates that the Government has
not realized so far the intention and object of conducting the
investigation in a transparent manner, particularly so because on
the basis of above notification and order no one, including the
person appointed, would be in a position to legally exercise the
jurisdiction in accord with the relevant provisions of law
reproduced above, unless he is not made a member of the Agency
(FIA). We feel no doubt in expressing that the above notification
has either been issued intentionally or by a person who has no
knowledge about the law, at all.
4.
Syed Jawed Ali Shah Bukhari, who is present, has
stated that he himself expressed reservations vis-à-vis the above-
noted notification and order because without having been made a
Member of the Agency it would not be possible for him to deliver. It
is interesting to note that Syed Jawed Ali Shah Bukhari is a BS-21
Regular Officer of the Police. Previously he had been working as
PPO/IGP, Balochistan and now he has only been made Incharge of
the investigation and his performance will be supervised in terms
of section 4 of the Act 1974 by a person, who after attaining the
age of superannuation has been appointed on contract basis. It is
indeed very strange that in the disciplinary forces, particularly, like
police and FIA where people have to work in well defined discipline,
the persons supervising the forces have been permitted and are
holding the charge on contract basis. It may not be out of context
to note that in terms of the definition of section 2 (1) (b) (ii) of the
Civil Servants Act 1973, a person who is employed on contract
does not even fall within the definition of a civil servant, so his
Suo Moto Case No.24 of 2010
6
authority to command and maintain discipline can well be
imagined from the fact that if a person himself is not a Civil
Servant, he is considered only bound by the terms and conditions
of his contract and not by the statutory law, because if any
condition laid down in the contract is violative to statutory law, he
would only be subject to action under the said contract.
5.
We have asked the learned Attorney General that
it is in the interest of the Government to promote the junior
officers, who are waiting for promotion and rather they should be
encouraged instead of employing persons on contract basis unless
their services are indispensable, particularly, with regard to
disciplined forces like Police, FIA etc.
6.
This Court is fully conscious of its duty, which has
to be discharged under the Constitution and when it is attempted
to hush up the corruption cases, such as one under consideration,
the Court can pass appropriate order as it has already directed,
and it could also not be oblivious of its function to ensure that in
the departments like the police and FIA, people, who deserve to be
promoted on the basis of efficiency or performance etc. are
appointed and not on contract basis. Therefore, we direct the
Secretary, Establishment Division to furnish the list of all Police
Officers, including the Director General, FIA who have been
appointed on contract basis and also furnish the reasons for the
necessity and the interest of the Government for allowing them to
continue with such posts like IG and DG, which are of high
importance and the persons occupying these posts are supposed to
be responsible to ensure the rule of law in the country. The list shall
Suo Moto Case No.24 of 2010
7
be furnished by the Secretary, Establishment Division by
21.1.2011. On receipt of such list, the office shall issue notices to
all such officers to appear and explain as to under what authority
they have been appointed on contract basis, and as to why
notifications for their appointments should not be cancelled.
Meanwhile, learned Attorney General shall take up the matter with
the Government and point out that as the incumbent Director
General, FIA has disassociated himself from the investigation, the
person who has been appointed as Incharge of the Investigation
shall be made a Member of the Agency and he shall continue with
the investigation of the case in accordance with the law, without
being influenced from any quarter or high up whosoever found
involved in the matter.
7.
Case is adjourned for 27.1.2011.
Islamabad,
the 20th January, 2011.
Riaz
Chief Justice
Judge
Judge
Judge
Judge
Judge
| {
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN
HUMAN RIGHTS CASE NO.69229-P OF 2018
(Regarding functioning of Patwaris, Kanungos and
Tehsildars in urban area of Lahore)
In attendance:
Mr. Ahmed Awais, A.G. Punjab
Rana Shamshad Khan, Addl. A.G. Punjab
Mr. Sibtain Mahmood, AAG Sindh
Mr. Ayaz Swati, Addl. A.G. Balochistan
Malik Akhtar Hussain, Addl. A.G. KP
Syed Ahsan Mustafa, Director BOR Punjab
Mr. Saadullah, Supdt, BOR, KPK
Mr. Habibullah, Law Officer for DC, Lahore
Mian Zafar Iqbal Kalanauri, ASC
Mr. Amanullah Kanrani, ASC/President, SCBA
(amicus curiae)
Date of hearing:
03.01.2019
JUDGMENT
MIAN SAQIB NISAR, CJ.- The instant matter arises from a suo
motu notice taken pursuant to various complaints that despite the fact that
Lahore is an urban area and thus not subject to land revenue, revenue
authorities are functioning therein and entering mutations, etc. A report
was called from the Senior Member, Board of Revenue (MBR), Punjab
requiring him to explain, inter alia, under what authority of law are Patwar
Circles, Kanungos and Tehsildars established and how transactions in the
alleged revenue Record are being maintained or changed. Pursuant thereto,
a report was submitted stating the following:-
i.
Within the District of Lahore there are 363 estates/mauzas in
Tehsils Raiwind, City, Cantonment, Shalimar and Model Town;
ii.
Out of these estates, 246 are under settlement, three are under
consolidation of holdings operation and the remaining 114 are
urban;
iii.
The land records of 218 estates in Lahore District have been
computerized and the Board of Revenue, Punjab has already
H.R.C. No.69229-P/2018
-: 2 :-
issued notifications under Section 41-A(2) of the Punjab Land
Revenue Act, 1967 (the Act of 1967);
iv.
Sections 41-A and 41-B of the Act of 1967 deal with
preparation of computerized records;
v.
Section 42 thereof deals with the procedure of manual
mutation by the revenue field officers;
vi.
Section 42-A thereof deals with computerized mutation at the
Arazi Record Centres at Tehsil level;
vii.
The Arazi Record Centers at the Tehsil level established under
the Punjab Land Records Authority Act, 2017 deal with
computerized land revenue record; and
viii.
Since the land record of 218 estates in Lahore District has been
computerized while the remaining 145 are yet to be
computerized, therefore, Patwaris, Kanungos and Tehsildars
are dealing with mutations and maintaining the revenue record
in the light of the instruction issued by the Board of Revenue
under the purview of the Act of 1967 and the Punjab Land
Record Manual (Second Edition 1958).
Notices were also issued to the other provinces for their input. The Senior
MBR, KPK in his report has submitted that the Act of 1967 is applicable in
the Province of KPK since 1974. The urban areas have already been
earmarked in the Shajra Aks as ‘Laal Lakeer’ and hence the sub-Registrar
of each District under Section 17 of the Registration Act, 1908 (Act of 1908) is
dealing with properties of urban areas and maintaining its record. However,
the only record being maintained by the Patwari, Kanungos, Tehsildars, by
way of Aks Shajra and Massavi is to the extent of roads and drainage
system owned by the government or local authorities, whereas, the revenue
record being maintained by the Patwaris, Kanungos, Tehsildars is regarding
the rural area(s). The Revenue and Estate Department prepare the land
record at the time of settlement through the settlement staff whereafter it is
handed over to the concerned District Revenue Agency on completion.
H.R.C. No.69229-P/2018
-: 3 :-
Whereas in urban areas the post of Sub-Registrar has been created at the
district level to register documents under the Act of 1908 including
property documents by registering sale deeds. As far as the local area
authorities are concerned, the land is transferred to the concerned local
area authority through a mutation whereafter subsequent transactions are
carried out by other concerned authorities. Revenue Officials like Patwaris,
Girdawars, etc. have no role in transactions falling within the domain of
such areas. In the report submitted by the Board of Revenue, Balochistan,
it is stated that under Section 6 of the Act of 1967 the Government of
Balochistan is empowered to create Patwar Circles in the urban area, which
have been created vide notifications issued from time to time. It is further
submitted that Section 3(2) thereof authorizes the Board of Revenue to
issue general or special orders to the Collector, to determine for the
purposes of the said Act, “what lands are included within the site of a town or village,
and to fix and from time to time to vary the limits of the same, regard being had to all the
subsisting right of the land-owners”; however, the record of the Board of Revenue,
Balochistan is silent to the extent of issuance of general or special orders in
this behalf. Besides, the Transfer of Property Act, 1882 (Act of 1882) is not
applicable in the Province of Balochistan, whereas, the record of rights is
established in urban and rural areas under Section 116 of the Act of 1967.
2.
Before proceeding further it would be appropriate to consider
the relevant provisions of the Punjab Land Revenue Act, 1887 (Act of 1887),
the Act of 1967 and the Punjab Local Government Act, 2013. which read
as under:-
The Punjab Land Revenue Act, 1887
3. Definitions.- (1) “estate” means any area—
(a) for which a separate record-of-rights has been made; or
(b) which has been separately assessed to land revenue, or
would have been so assessed if the land-revenue had not been
released, compounded for or redeemed; or
H.R.C. No.69229-P/2018
-: 4 :-
(c) which the Local Government may, by general rule or
special order, declare to be an estate;
4. Exclusion of certain land from operation of Act.- (1)
Except so far as may be necessary for the record, recovery
and administration of village cesses, nothing in this Act
applies to land which is occupied as the site of a town or
village and is not assessed to land revenue.
(2)
A Revenue Officer may define, for the purpose of this
Act, the limits of any such land.”
31. Record of rights and documents included therein.- (1)
Save as otherwise provided by this Chapter, there shall he
record of rights for each estate.
(2)
The record of rights for an estate shall include the
following documents, namely:-
(a)
statements showing, so far as may be practicable,-
(i)
the persons who are land owners, tenants or assignees
of land revenue in the estate , or who are entitled to receive
any of the rents, profits or produce of the estate or to occupy
land therein;-
…
(d)
such other documents as the Financial Commissioner
may
with
the
previous
sanction
of
the
Provincial
Governments, prescribe.
The Punjab Land Revenue Act, 1967
3. Exclusion of certain land from operation of this Act.— (1)
Except so far as may be necessary for the record, recovery
and administration of village cess, or for purposes of survey,
nothing in this Act applies to land which is occupied as the
site of a town or village, and is not assessed to land revenue.
(2) It shall be lawful for the Collector acting under the
general or special orders of the Board of Revenue, to
determine for the purposes of this Act, what lands are
included within the site of a town or village, and to fix and
from time to time to vary the limits of the same, regard being
had to all the subsisting rights of the land-owners.”
4. Definitions.– (9) “estate” means any area–
(i) for which a separate record-of-rights has been made; or
(ii) which has been separately assessed to land-revenue; or
(iii) which the Board of Revenue may, by general rule or
special order, declare to be an estate;
H.R.C. No.69229-P/2018
-: 5 :-
39. Records-of-rights and documents included therein.– (1)
Save as otherwise provided by this Chapter there shall be a
record of rights for each estate.
(2) The record-of-rights for an estate shall include the
following documents, namely:-
(a)
statements showing, so far as may be practicable:
(i)
the persons who are land-owners, , or who are entitled
to receive any of the rents, profits or produce of the estate or
to occupy land therein;
…
(d)
such other documents as the Board of Revenue may,
with the previous approval of Government, prescribe.
56. Assessment of land revenue.— (1) A11 land, to whatever
purpose applied and wherever situated, is liable to the
payment of land revenue to Government, except—
(a)
such land as has been wholly exempted from that
liability by special contract with Government, or by the
provisions of any law for the time being in force;
(b)
such land as is included in village site;
(c)
such land as is included in Cantonment limits;
(d)
land on which property tax under the Punjab Urban
Immovable Property Tax Act, 1958 (W.P. Act V of 1958), is
payable;
116. Revenue survey may be introduced by Board of
Revenue in any part of Province.— (1) It shall be lawful for
the Board of Revenue, whenever it may deem expedient, to
direct by notification, the survey of any land in any part of the
Province with a view to the settlement of land revenue, the
preparation of record-of-rights and preservation thereof, or
for any other similar purpose, and such survey shall be called
a revenue survey.
(2) A revenue survey may extend to the lands of any village,
town, or city generally, or to such land only as may be
specified in the notification. (3) Subject to the orders of the
Board of Revenue, it shall be lawful for the officers
conducting any such survey to except any land to which it may
not seem expedient that such survey should extend.
The Punjab Local Government Act, 2013
2. Definitions.– In this Act–
(hhh) “urban area” means an area within the jurisdiction of
the Metropolitan Corporation, a Municipal Corporation, or a
H.R.C. No.69229-P/2018
-: 6 :-
Municipal Committee and includes any other area which the
Government may, by notification, declare to be an urban area
for purposes of this Act;
6. Local areas.-
(2)
For purposes of this Act, the Government shall, by
notification, demarcate and declare a local area consisting of:
(a)
Lahore District as the Metropolitan Corporation;
(b)
rural area in a District, other than Lahore District, as
District Council;
3.
As per Section 4 of the Act of 1887, the land which is occupied
as the site of a town or village and is not assessed to land revenue is
expressly excluded from the ambit of the said Act, except where doing so
may be necessary for the purposes of record, recovery and administration
of village cesses. The said Act was repealed through the Act of 1967,
however, a similar exclusion was provided in Section 3 thereof, wherein the
land which is occupied as the site of a town or village and is not assessed to
land revenue has been exempted from the operation of the said Act except
where its application was necessary for the purposes of record, recovery
and administration of village cesses.
4.
Besides, Section 31 of the Act of 1887 dealt with the record of
rights and documents included therein, providing inter alia that there shall
be a record of rights for each estate which shall, so far as may be
practicable, include statements showing the persons who are land owners,
tenants or assignees of land revenue in the estate, or who are entitled to
receive any of the rents, profits or produce of the estate or to occupy land
therein; statements reflecting the nature of the interests of such persons
and conditions attached to such interests; rent, land revenue, rates, cesses
or other payments due from and to each of these persons and/or to the
Government; a map of the estate; and such other documents as the
Financial Commissioner may prescribe with the previous sanction of the
Provincial Governments. The said Section was re-enacted with slight
modification as Section 39 in the Act of 1967 which more or less contained
H.R.C. No.69229-P/2018
-: 7 :-
the same requirements for entry into the record-of-rights however the
previous sanction to be acquired from the Government in order for the
Finance Minister to prescribe any additional documents was now to be
acquired from the Provincial Government instead. Specific exclusion from
payment of land revenue is given in Section 56(2) of the Act of 1967 which
provides that land included in village sites, land that has been wholly
exempted from that liability on account of a special contract with the
Government, or by the provisions of any law for the time being in force,
land which is included in Cantonment limits and land on which property
tax under the Punjab Urban Immovable Property Tax Act, 1958, is payable
are all exempted from the payment of land revenue under the Act of 1967.
Additionally, Section 116 thereof provides that a revenue survey may be
conducted of any land in any part of the Province with a view to the
settlement of land revenue by the Board of Revenue whenever it may deem
such survey expedient. This revenue survey may extend to the lands of any
village, town, or city generally, or to such land only as may be specified in
the notification issued in this regard, however the Board may through its
orders exempt any land from such survey.
5.
The key term used in the aforementioned provisions is “land”,
which has neither been defined in the Act of 1887 nor the Act of 1967,
therefore, the same is liable to be construed from other relevant statutes
and/or in light of its ordinary dictionary meaning. As per Section 4(1) of the
Punjab Tenancy Act, 1887, “land” means “land which is not occupied as the site of
any building in a town or village and is occupied or has been let for agricultural purposes
or for purposes subservient to agriculture or for pasture, and includes the sites of buildings
and other structures on such land”. The term “land” has also been defined in the
Land Reforms Regulation, 1972, to mean land which is not occupied as the
site of a town, village, factory or industrial establishment, and is occupied
or has been or can be let for agricultural purposes allied or subservient to
agriculture and includes the sites of buildings and other structures on such
H.R.C. No.69229-P/2018
-: 8 :-
land. The term “land” has been defined in Section 2(3) of the Punjab
Alienation of Land Act, 1900 to mean, “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 agricultural or for pasture, and includes (a) the sites of buildings
and other structures on such land; (b) a share in the profits of an estate or holding; (c) any
dues or any fixed percentage of the land revenue payable by an inferior land-owner to a
superior land-owner; (d) a right to receive rent; (e) any right to water enjoyed by the owner
or occupier of land as such; (f) any right of occupancy; and (g) all trees standing on such
land”. As per the judgment of Ghulam Rasul Vs. Ikram Ullah (PLD 1965
Lahore 429), relying on Vir Bhan and another Vs. Sham Singh etc. (AIR
1944 Lahore 455) it was held that the term “land” in Section 141 of the
Punjab Land Revenue Act (XVII of 1887) has a special and restricted
meaning and does not comprise site assessed to land revenue on which
buildings with structures of a permanent character have been constructed.
6.
Adverting to the dictionary meanings of “land”, according to
Black’s Law Dictionary (Ninth Edition), it means “an immoveable and
indestructible three-dimensional area consisting of a portion of the earth’s surface, the
surface above and below the surface, and everything growing on or permanently affixed to
it. An estate or interest in the real property”. In Chambers 21st Century Dictionary
it is defined as “the solid part of the Earth’s surface as opposed to the areas covered by
water” and “ground that is used for agriculture”. As mentioned in Wharton’s Law
Lexicon (Fourteenth Edition) “the word land used in its generic terms comprehends
every species of ground, soil, or earth or whatsoever as meadows, pastures, woods, moors,
waters, marshes, furze and heath. It includes also houses, mills, castles and other buildings
for the conveyance of the land the structure upon it also passes.”. From the above
dictionary as well as statutory definitions, it is established that the term
land includes within its meaning buildings and structures etc., and thus
includes land falling within the ambit of Punjab Urban Immoveable
Property Tax Act, 1958. Therefore, the exemption to such land to
payment of land revenue under Section 56(2) of the Act of 1967
H.R.C. No.69229-P/2018
-: 9 :-
applies to all such urban property falling within the ambit of the said
Act.
7.
Section 4 of the Act of 1887 has been explained by Om Prakash
Aggarwala in the third edition of his commentary thereof as under:-
“It is usual to measure the village site in one number, together
with the small plots attached in which cattle are penned,
manure a stored, and straw is stacked, and other waste
attached to the village site. The entry in the column of
ownership and occupancy is simply abadi deh. In the shajras
this number is inked in red so that in common parlance abadi
deh is known as the area within the lal lakir.
Land included within Municipal limits: - It must not be
assumed that merely because a definite area of land which is
not assessed with land revenue happens to have been included,
for jurisdictional purposes within the limits of a Municipal
Committee, ipso facto becomes the site of a town, and the act of
including it within Municipal limits makes it the site of a town
or village within the meaning of section 4 of the Land Revenue
Act, so as to oust the jurisdiction of the revenue officer over
such land. Every case must be decided on its merits [Jiwa v.
Karam Baksh 1925 L.L.T.3=1925 P.C.L.I (Rev.)]
Thus, it is clear that any land that is occupied as the site of a town or
village and is not assessed to land revenue is exempt from the operation of
the provisions of the Act of 1967. However, as is evident from the above
commentary (regarding Section 4 of the 1887 Act in India which is pari materia to Section 3 of
Act of 1967), every case must be decided on its merits and the mere inclusion
of a certain area within a town/village for jurisdictional purposes does not
trigger the exemption from land revenue under the law. For instance, the
construction of a house on one single field does not convert land otherwise
subject to land revenue, into the site of a town or village. Similarly, where
the area is under fluctuating assessment and if during the currency of a
settlement of a particular part of the land is used for purposes other than
agriculture, it is not excluded under Section 3(1) of the Act of 1967.
H.R.C. No.69229-P/2018
-: 10 :-
8.
Further to the foregoing discussion, the definition of the word
“estate” under Section 3(1) of the Act of 1887 must be noted which includes
(1) any area for which a separate record-of-rights has been made; (2) or
which has been separately assessed to land revenue; or (3) would have been
so assessed if the land-revenue had not been released, compounded for or
redeemed; or (4) which the Provincial Government may, by general rule or
special order, declare to be an estate. The same definition of “estate” has
been given in Section 4(9) of the Act of 1967. Reference in this regard may
be made to paragraph No.123 of Douie’s Settlement Manual (Fourth Edition
issued in 1930), wherein the terms mauzas or villages and mahals or estates
have been explained as under:-
123. Mauza or villages and mahals or estates.— Before
describing the village community it will be convenient to
explain exactly what is meant by the two terms mauza, which is
usually translated “village,” and mahal, of which the English
equivalent is “estate.” A mauza is defined by Mr. Thomason as
“a parcel or pastels of land having a separate name in the
revenue records and known limits,” and a mahal as “any
parcel or parcels of land which may be separately assessed
with the public revenue, the whole property of the persons
settled within the mahal being held hypothecated to
Government for the sum assessed upon it.” There are two
elements in this definition, the separate assessment and, where
more than one person own the same estate, their joint
responsibility for the payment of its revenue. “Village” is not
defined in the Land Revenue Act, but the meaning of “estate”
is explained to be “any area—
(a)
for which a separate record of rights has been made, or
(b)
which has been separately assessed to land revenue, or
would have been so assessed, if the land revenue had not been
released, compounded for, or redeemed, or a leased,
compounded for, or redeemed, or
(c)
which the Local Government may, by general rule or
special order, declare to be an estate.”
The joint responsibility of all the landowners of an estate for its
revenue is provided for in section 61 of the Act. In practice it is
rarely enforced. A rule made under clause (c) of the section
H.R.C. No.69229-P/2018
-: 11 :-
quoted above declares “all demarcated areas of uncultivated
and forest land owned by Government” to be estates.
A village, as a rule, consists of a single block of land. But
occasionally the whole of its land does not lie in a ring fence,
and some outlying fields are found mixed up with the lands of
another village.
Thus, there remains no ambiguity in the determination that an “estate”
means any area for which either a separate record-of-rights (jamabandi) has
been prepared or which has been treated separately for an assessment or
which has been declared to be an estate by the Provincial Government. An
“estate” or “mahal” is somewhat different from a village or mauza. Although,
according to the judgment reported as Jamil and 5 others Vs. Sheerin
and 3 others (2011 YLR 1083) passed by the learned Peshawar High
Court, the connotation of word “estate” employed in Section 4(9) of the Act
of 1967, does not mean that it consists of village or mauza or gaon or pind;
generally an estate or mahal is identical to a village or mauza but an estate
may include more than one villages, and a village may be divided into two
estates. Furthermore, as per the judgment reported as Muhammad Khan
Vs. Ghulam Rasool and another (1999 YLR 2688), the Supreme Court of
AJ&K held that the term “estate” is a legal expression which forms the unit
for revenue assessment, an estate or mahal is different from a village or
mauza, however, generally an estate is a mahal which is assessed to
revenue.
9.
Under the provisions of Section 3(1) and (2) read with Section
116 of the Act of 1967, the maintenance of record of rights in cities and
towns is also the function of the Board of Revenue for which it issues
directives from time to time under various provisions of the said Act. In this
regard, it is pertinent to note the judgment of the learned High Court
reported as Pervez Ahmad Khan Burki and 3 others Vs. Assistant
Commissioner, Lahore Cantt. and 2 others (PLD 1999 Lahore 31)
wherein the following was held:-
H.R.C. No.69229-P/2018
-: 12 :-
“4. Having heard the learned counsel for the parties and
perused the record, I am of the view that the contentions raised
on behalf of the petitioners are unexceptionable. Undoubtedly
respondents Nos.2 and 3 are functionaries appointed under the
Punjab Land Revenue Act, 1967 to carry out the purposes of
the aforesaid Act. The preamble to the Act recites that it was
being framed to consolidate and amend the law relating to the
making and maintenance of records-of-rights, the assessment
and collection of land revenue, the appointment and functions
of revenue officers and other matters connected therewith.
According to section 3 of the Act, except for certain fiscal
purposes, nothing in the Act applies to land which is occupied
as a building site or such land on which permanent structures
have been raised; it loses all characteristics of. A agriculture
land and the dispute as regards the partition of such land has
to be resolved through the Civil Court and not by Revenue
Court. No detailed discussion on the subject is necessary in
view of the judgment of this Court in Ghulam Rasool v. Ikram
Ullah etc. PLD 1965 (W.P.) Lahore 429 whereafter exhaustive
discussion on the subject it was held that a Revenue Officer
does not have any jurisdiction to entertain an application for
the partition of the properties which have ceased to be land
notwithstanding the fact they continue to be assessed to land
revenue. The land involved’ in the present case is on much
better footing inasmuch as the land does not pay any land
revenue. The same view was taken in Syed Aslam Shah and 3
others v. Mst. Sakina and another 1988 MLD 1596. So far as
the judgment relied upon by the learned counsel for the
respondents is concerned, it is clearly distinguishable
inasmuch as it related to demarcation of open plots of land.”
In the judgment reported as Dr. Jalal Khan Vs. Qazi Naseer Ahmed,
District Deputy Officer, (Revenue), Kharian, District Gujrat and 6
others (2005 MLD 814) the Lahore High Court held as follows:-
5.
I have minutely considered the respective arguments
of the learned counsel for the parties and have examined the
record, appended herewith. Before proceeding with the
determination of the controversy, it has to be kept in mind
that property subject of dispute is located within limits of
Town Committee, Kharian, and is not only urban in nature
but has also been converted into building site. For
H.R.C. No.69229-P/2018
-: 13 :-
examination whether such property could be demarcated by
respondent No.2 (Tehsildar/Revenue Officer) under the
provisions of Land Revenue Act, 1967, we will have to see
provisions of section 3 thereof, which excludes certain land
from operation of the Act. This provision of law clearly
excludes the land which is kept as a site of Town or village
and is not assessed to land revenue. The property subject of
dispute being part of site of the Town provisions of the Act
(ibid) were not applicable to it and thus resort to its
provisions for demarcation thereof was not permissible.
Petitioner himself moved for demarcation of a part of site of
the Town under section 117 of the said Act, which equips a
revenue officer to define the limits of any estate or of any
holding, field or other portion of an estate but cannot be
extended for this purpose, to the land not falling in any
Estate. Had the land subject of dispute been part of any
estate, the revenue officer could have proceeded to
demarcate it under section 117(1) of the Act, but he could
not undertake any such activity about the land falling
outside the limits of the estate of any village. Demarcation in
terms of section 177 of the Land Revenue Act, 1967 has to be
done under rule 67-A of the West Pakistan Land Revenue
Rules, 1968, which as well, refers to defining the limits of an
estate, a holding, a field or any portion thereof. In view of
this clear provision, there is no ambiguity that a Revenue
Officer designated under the Land Revenue Act, 1967 could
not demarcate any urban property falling within the limits of
Town Committee especially that, which has gained the
character of building site.
7.
Properties of parties were, undeniably urban even at
the
time
of
allotment
by
Deputy
Settlement
and
Rehabilitation Commissioner, for this reason as well,
Revenue Officer was not competent to undertake the exercise
of demarcation. Under law, the Revenue Officer could only
demarcate boundaries of any estate or any part thereof,
under the provisions already discussed. Predecessor of the
respondents, who was plaintiff, was required to prove his
title to property in possession of the petitioners through
some lawful/cogent evidence, in absence of which his suit
could not have been decreed. Even otherwise, since there
was the only dispute of demarcation which could have
resolved the controversy for all times to come, the trial
Court should have invoked its own jurisdiction in this behalf,
in spite of report Exh.P.1, but both the Courts below, being
oblivious of their jurisdiction under Order XXVI, rule 9,
C.P.C. proceeded to decide the lis without adverting to
H.R.C. No.69229-P/2018
-: 14 :-
legality or otherwise of the said report.
In the case of Khizar Hayat and another Vs. Pakistan Railway through
Chairman, Pakistan Railway, Lahore and 2 others (2006 CLC 1028) the
Lahore High Court opined that:-
5.
…It is not disputed between the parties that suit
properties are no more agricultural land and are building
sites, located within the municipal limits of Khushab. Such
properties could not have been demarcated by the officials
working in revenue hierarchy under West Pakistan Land
Revenue Act, 1967, as its section 3, excluded land kept as
site of a town or village from its operation. Language of the
provision of law, under discussion, accepts no ambiguity
that demarcation of land kept/used as a building site could
not have been done under the provisions of Act of 1967,
which was A subject to their process only for certain
restricted physical purposes like recovery of land revenue
etc. In forming this view, I have to my credit a chain of
judgments including the cases of Ghulam Rasul v. Ikram
Ullah and another PLD 1965 (W,P.) Lah. 429; Tahir Hanif
v. Member, Board of Revenue and others 1982 CLC 1732;
Syed Aslam Shah and 3 others v. Mst. Sakina and another
1988 MLD 1596 and Pervez Ahmed Khan Burki and 3 others
v. Assistant Commissioner, Lahore Cantt. and 2 others PLD
1999 Lah. 31.
The Lahore High Court held, in the judgment reported as Muhammad
Muneer and 7 others Vs. Member Board of Revenue, Punjab, Lahore
and 12 others (2009 MLD 930), that:-
“8.
…The land which is excluded from operation of Land
Revenue Act, is described in section 3 of Act, 1967…
9. The above provision reflects that Act, 1967 will not apply to
the land, which is kept as site of town or village and is not
assesseed to land revenue. Revenue authorities proceeded with
partition of joint land, as there was no objection to the title of
owner. The objection of the petitioners, that Killa Nos. 13/3
and 16 in square No.15, are residential and fall under
boundary wall of Abadi, were turned down on the ground that
change in the classification of land took place through Khasra
H.R.C. No.69229-P/2018
-: 15 :-
Girdawari during the period of Rabi 2005, when the partition
proceedings were pending. No interference in such finding is
justified as the Revenue Officer has proceeded in the matter, as
per entries in the revenue record, as they existed at the time of
filing of the application for partition. Any subsequent change is
immaterial. The land, as per Revenue Record, was assessed to
land revenue, therefore, the respondent had rightly proceeded
in the matter of partition.”
In the case of Makhdum Raju Shah Vs. Member Board of Revenue,
Punjab and 17 others (2011 YLR 1724) the Lahore High Court held as
follows:-
7.
It is an admitted fact between the parties that
property is ‘Abadi Deh’ and is not an agriculture one. The
only question require resolution is whether Tehsildar was
competent to entertain the application of partition of land
situated in ‘Abadi Deh’ or not? Under section 3 of West
Pakistan Land Revenue Act, 1967, the Revenue Court has no
power or jurisdiction to pass a partition order of land which
is not agricultural land and is ‘Abadi Deh’. For better
appreciation of proposition of law section 3 is reproduced as
under:--
“(3) Exclusion of certain land from operation of this Act.-
8.
The perusal of this provision of law shows that
important word is land. The word “land” has not been
defined in the West Pakistan Land Revenue Act. This term,
therefore, has to be construed according to the ordinary
dictionary meaning. Under the Punjab Tenancy Act, 1877
“land” has been defined in the following terms:-
“Land which is not occupied as the site of any
building in a town or village and is occupied or has
let for agricultural purposes or for purposes
subservient to agriculture or for pasture and includes
the sites of buildings and other structures on such
lands”.
9.
The term “land” under Land Reforms Regulations,
1972 means which is not occupied as the site of a town,
village, factory or industrial establishment and is occupied
or has been or can be let for agricultural purposes allied or
subservient to agriculture and includes the sites of buildings
and other structure on such land.
H.R.C. No.69229-P/2018
-: 16 :-
10.
Section 2(3) of the Punjab Alienation Act defines the
term “land” as under:--
“The expression 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 agricultural
or for pasture and includes the sites of buildings and
other structures on such land; a share in the
profits of an estate or holding; any dues or any
fixed percentage of the land revenue payable by an
inferior land-owner to a superior land owner; a right
to receive rent; any right to water enjoyed by the
owner or occupier of land as such; any right of
occupancy; all trees standing on such land.”
11.
From the perusal of above said provision of law the
definition of agricultural land is its agricultural or pasture
character.
12.
As this is not dispute between the parties that land in
dispute is not situated in ‘Abadi Deh’ and the parties are
using the said land for residential purposes, the jurisdiction
of Tehsildar with reference to its partition in terms of
section 3 of West Pakistan Land Revenue Act, 1967 was
barred this shows that original order dated 26-3-1996
passed by the Tehsildar was without jurisdiction. It is a
settled principle of law that an order passed by a Court not
competent to pass is a void order and against void order the
bar of limitation is not applicable.
The Peshawar High Court has held in the case of Muhammad Ayaz and
others Vs. Malik Zareef Khan and others (PLD 2016 Peshawar 8) that:-
11.
Let us first see the forum of revenue hierarchy provided
under the Act of 1967. In this regard, the jurisdiction and
procedure for partition of undivided immovable property is
vested in the Revenue hierarchy under the enabling provisions
of sections 135 to 150 of the Act of 1967. What is important to
note is that section 3 of the Act of 1967 determines the area
coming within the purview and jurisdiction of the Revenue
hierarchy. The said provision reads:
“Section 3. Exclusion of certain land from operation of
this Act…
The aforementioned provision clearly provides that as far as
H.R.C. No.69229-P/2018
-: 17 :-
non-applicability of Act of 1967 is concerned, it would extend
to the area, which is neither within the Site of Village nor
paying land revenue. It is also important to note that with time
the appropriate Officer would alter the Site of Village and
include the areas, which has with time become Abadi in the
Mauza and accordingly the said area would be included and
recorded within the red line of the Site of Village in the revenue
record.
12.
While in cases of undivided immovable property, which
falls outside the express domain of the Revenue hierarchy as
provided under section 3 of the Act of 1967, the jurisdiction for
partition thereof would vest in the ordinary Civil Court, of
competent jurisdiction and the partition proceedings would
proceed under the provision of the Partition Act, 1893.
In 1942, under Section 31(2)(d) ibid, the Financial Commissioner, Punjab
prescribed a document called khasra imarati for certain areas in the estates
of Lahore Urban Assessment Circle. Besides, Rule 67-A of the Land
Revenue Rules, 1968 referred to demarcation of agricultural land only and
not to property other than agricultural land. As determined hereinabove,
Section 3 of the Act of 1967 expressly excluded land not assessed to land
revenue from operation of the said Act.
10.
At this stage, it is to be noted that certain provisions of the Act
of 1882, such as, Section 54 (sale), Section 59 (mortgage), Section 107 (lease),
Section 118 (exchange) and Section 123 (gift) were applicable to urban areas of
Punjab since 1974 (and even earlier). Besides, the transfer of land in urban
areas could only be made through registered deeds under the Act of 1908.
The registered deeds pertaining to land form the basis of mutations under
Section 42 of the Act of 1967 by the revenue field staff and under Section
42-A thereof at the Arazi Record Centre functioning under the Punjab Land
Records Authority.
11.
Another important statute which is relevant for the issue in
hand is the West Pakistan Urban Immoveable Property Tax Rules, 1958
(Rules of 1958), whereunder the assessing authority of the Excise & Taxation
H.R.C. No.69229-P/2018
-: 18 :-
Department is required to prepare a property register in Form P.T.l for the
rating area and enter therein the necessary particulars, separately for each
unit of property. The assessing authority is also required to ascertain the
name of the owner and the occupier, if any, of the property and note the
same in Register P.T.2.
12.
As per Section 56 of the Act of 1967 certain lands are exempt
from the payment of land revenue. This Section provides, inter alia, that all
land, to whatever purpose applied and wherever situated, is liable to the
payment of land revenue to the Government, except such land as is
included in a village site, Cantonment limits, or on which property tax
under the Punjab Urban Immovable Property Tax Act, 1958 is payable.
However, land revenue was abolished through the Punjab Land Revenue
(Abolition) Act, 1998, Section 2 whereof provides that notwithstanding
anything to the contrary contained in the Act of 1967 or any other law (for
the time being in force), no land revenue, as defined in the Act of 1967, shall be
charged.
13.
The instructions of the Board of Revenue, Punjab contained in
Paragraphs 7.40, 7.45, 7.46 and 7.57-A of the Punjab, Land Records
Manual (Second Edition 1958) are also relevant. Paragraph 7.40 ibid deals
with Register Haqdaran Zamin, notes (1) and (2) whereof read as under:-
(1)
In case of estate which is partly within Cantonment
limits, Municipal Committee or Town committee, Register
Haqdaran Zamin should be prepared in parts, namely (a) for
rural lands, and (b) for urban lands.
(2)
For Colony Town/Chaks see form namely, “Register
Haqdaran Zamin Abadi” (Patwari/Tepedar Standard Form
No. XXXIV-B). This form will be used where the land in a
Colony Town/Chak has been built upon.”
Paragraphs 7.45 and 7.46 ibid deal with Jamabandi Abadi for Colony
Towns and Chaks. Paragraph 7.57-A ibid concerns maintenance of the
H.R.C. No.69229-P/2018
-: 19 :-
record of rights/periodical records for ‘rating area’ to which the Urban
Immoveable Property Tax Act, 1958 applies.
14.
In this regard, it is to be noted that in supersession of the
earlier Office Memo dated 31.07.1965, the Government of Pakistan through
the Revenue Department, issued the following Memorandum bearing No.
3417-68/1203(S) dated 8.7.1968:-
“To
All Commissioners in West Pakistan.
(except Karachi. Hayderabad & Khairpur Div ision),
All the Deputy Commissioner in the West Pakistan.
(except Karachi, Hayderabad & Khairpur Division)
Memorandum No. 3417-6811203-(S).
Dated the 8th July. 1968
Subject:
Exemption from the payment of land revenue
and abandonment of revenue records in the
respect of lands located within “rating areas”
of the Urban Immoveable Property Tax Act.
Reference: In supersession of this office memo No.321-
65/1958-(S), dated 31st July, 1965, on the above
subject.
Memorandum:
Under Section 56(1)(d) of the West Pakistan Land Revenue,
Act, 1967 Land on which Property Tax under the West
Pakistan Urban Immovable Property Tax Act, 1958 (West
Pakistan Act-V-1958), is payable, is exempt from the
assessment of Land revenue. This Act came into operation in
the Province with effect from 1st January, 1968. In view of the
above provision, in the Act, the instructions issued in the
memorandum under reference stand superseded. You are,
therefore, requested kindly to direct the field staff not to assess,
land revenue with effect from Rabi 1968 in respect of
properties which are subject to assessment of Property Tax.
2.
The shortfall in revenue due to the above orders should
please be reported for the information of Finance Department.
3.
So far as the preparation of record of rights in the
Rating Area is concerned it has been decided that the
instructions contained in paragraph 2 of Board of Revenue’s
memorandum No. 3210-65/1859-(S), dated 31st July 1965,
H.R.C. No.69229-P/2018
-: 20 :-
should be followed with a light modification as under. Only the
existing staff should however, be employed for this work and
no additional staff be entertained.
i)
The practices of maintaining revenue records in Rating
Areas may continue as before. All transactions which
have been completed after 8th July, 1968, should be
incorporated in the revenue records. If a piece of land
has since been sold or otherwise transferred any
number of times the mutations of all the transactions
should be recorded, datewise.
ii)
Areas which have been built up may be treated as
`Abadi Deh’ for the purposes of revenue records and
further maintenance of record in respect thereof should
be discontinued. It may be made clear that only those
Khasra/Survey numbers should be treated as Abadi
Deh, which have entirely been covered by construction.
It would not be advisable to treat a portion of a field
number as Abadi Deh and discontinue further
maintenance of records in respect thereof.
iii)
If a field/survey number is covered by buildings, it
would not be necessary to change entries in Jamabandi
(Revenue records) forthwith, but new entries may be
made at the time of preparation of the next quadrennial
Jamabandi (revenue Records). At the time of revising
the quadrennial Jamabandi (Revenue records) the
Tehsildar/Naib Tehsildar concerned should personally
inspect the existing Abadi Deh and compile a report
about the field/ survey numbers which were covered by
buildings during the last four years. He should then
submit a proposal to include that area in the Abadi
Deh, for orders of the Collector. After obtaining the
orders of the Collector the Tehsildar/Naib Tehsildar
should make entries in the new Jamabandi (Revenue
Records) by sanctioning a mutation accordingly.
If any difficulty is experienced in the implementation of the
above instruction, a reference may be made to the Board of
Revenue for clarification.
Sd/-
Deputy Secretary to Government, West Pakistan
Revenue Department”
In the above Memorandum, being conscious of the fact that under Section
56(1)(d) of the Act of 1967, the land on which property tax is payable under
H.R.C. No.69229-P/2018
-: 21 :-
the West Pakistan Urban Immovable Property Tax Act, 1958 is exempt from
the assessment of land revenue, the Government has clarified the precise
legal position to the extent of the exemption from the payment of land
revenue and abandonment of revenue records in respect of lands located
within “rating areas” of the Urban Immoveable Property Tax Act, 1958. In
the said Memorandum, specific directions were issued that the areas which
have been built up should be treated as ‘abadi deh’ for the purposes of
revenue records and further maintenance of record in respect thereof
should be discontinued. However, it was made clear that only those
khasra/Survey numbers should be treated as abadi deh, which have
entirely been covered by construction; whereas, a portion of a field number
would not to be treated as abadi deh and further maintenance of records
would not be discontinued in respect thereof. Besides, it was further
directed that if a field/survey number is covered by buildings, it would not
be necessary to change entries in jamabandi (revenue records) forthwith, but
new entries would be made at the time of preparation of the next
quadrennial jamabandi (revenue records). At the time of revising the
quadrennial jamabandi
(revenue
records) the Tehsildar/Naib Tehsildar
concerned would personally inspect the existing abadi deh and compile a
report about the field/ survey numbers which were covered by buildings
during the last four years. He should then submit a proposal to include
that area in the abadi deh, for orders of the Collector. After obtaining the
orders of the Collector the Tehsildar/Naib Tehsildar should make entries in
the new jamabandi (revenue records) by sanctioning a mutation accordingly.
18.
It is to be noted that the terms “urban area” and the “local
area” have been defined in Section 2(hhh) and Section 6(2) of the Punjab
Local Government Act, 2013. The “urban area” means an area within the
jurisdiction of the Metropolitan Corporation, a Municipal Corporation, or a
Municipal Committee and includes any other area which the Government
may, by notification, declare to be an urban area for purposes of this Act
H.R.C. No.69229-P/2018
-: 22 :-
and the “local area” means the area notified, demarcated and declared by
the Government for purposes of this Act as a local area, consisting of
Lahore District as the Metropolitan Corporation; and rural area in a
District, other than Lahore District, as District Council.
19.
From the above, it is clear that land not subject to land
revenue, which has been enclosed within Municipal limits, does not ipso
facto become the site of a town. Meaning thereby that from mere inclusion
of a certain area for purposes of jurisdiction within the limits of a Municipal
Committee it could not be presumed that it has become the site of a town
or village within the meaning of Section 3 of the Act of 1967. However, the
‘land’ falling within the site of a town or village, if it is not assessed to land
revenue, then it stands excluded from operation of the Act of 1967 in terms
of Section 3 thereof according to the ratio the Lahore High Court judgment
of Dr. Jalal Khan Vs. Qazi Naseer Ahmed, District Deputy Officer
(Revenue) (2005 MLD 814). The revenue officer does not have any
jurisdiction to entertain an application for partition of the property which
has ceased to be land, notwithstanding the fact it continues to be assessed
to land revenue as per Ghulam Rasul Vs. Ikram Ullah judgment (supra)
and Syed Aslam Shah Vs. Mst. Sakina (1988 MLD 1596). According to
the ratio of Pervez Ahmad Khan Burki and others Vs. Assistant
Commissioner and others (PLD 1999 Lah 31) the revenue authorities
have no jurisdiction to carry out demarcation of property which formed part
of a bungalow.
20.
In light of the above discussions as well as the ratio decidendi
there is no doubt in our minds that the land/estate located within “rating
areas” of the Punjab Urban Immoveable Property Tax Act, 1958, is
exempted from the payment of land revenue and the revenue authorities,
i.e. Patwaries, Kanungos, Tehsildars etc., are not authorized to enter
mutations of alienation of property etc., in their record. We, therefore, hold
that under the law, any urban area in Lahore or otherwise within Punjab
H.R.C. No.69229-P/2018
-: 23 :-
which falls within the ambit the Punjab Urban Immoveable Property Tax
Act, 1958, are not subject to land revenue and hereby issue directions to
the revenue authorities to refrain from any and all functions (to the extent that
these are within the ambit of the Punjab Urban Immoveable Property Tax Act, 1958) in the said
areas particularly with regards to entering mutations, etc. Since the
revenue authorities of the Province of KPK are already compliant with these
directions, the above findings and directions shall also apply to the
Provinces of Sindh and Balochistan as well as that of the Federal Capital.
Compliance reports of the above directions (from all the Provinces and the Federal
Capital) be placed before this Court after a period of one month for our
perusal in Chambers.
21.
These are the reasons of our short order of even date, which
reads as under:-
“For the reasons to be recorded later, it is held that all the
urban areas to which the Land Revenue Act, 1967 does not
apply shall be governed by the Transfer of Property Act, 1882
(Transfer of Property Act) and the Registration Act, 1908 for
the purposes of transfer of property or devolution of any rights
in property. No oral mutations for the purposes of the transfer
of property shall be valid in law in such urban areas (which
have become part of settled areas including municipalities,
towns, etc.). The patwaar khanas or revenue records can only
be maintained for record keeping and not for the transfer of
property under any of the modes recognized by the Transfer of
Property Act or any other law prevalent at the time. Disposed
of accordingly.”
CHIEF JUSTICE
Islamabad, the
3rd of January, 2019
Not Approved For Reporting
JUDGE
JUDGE
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
[Original Jurisdiction]
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE KHILJI ARIF HUSSAIN
HUMAN RIGHTS CASE NO.7734-G/2009 & 1003-G/2010
[Alleged Corruption in Rental Power Plants]
HUMAN RIGHTS CASE NO. 56712/2010
[Fraud in payment of Rental Power Plants
detected by NEPRA]
Applicants in person:
Makhdoom Syed Faisal Saleh Hayat,
Federal Minister for Housing and Works
Khawaja Muhammad Asif, MNA assisted by
M/s Mustafa Ramday and Syed Ali Shah
Gilani, Advocates
Amicus Curiae:
Mr. M. Anwar Kamal, Sr. ASC
On Court Notice:
For NEPRA:
Syed Najmul Hassan Kazmi, Sr. ASC
Mr. M. S. Khattak, AOR
Syed Safeer Hussain, Registrar
Syed Insaf Ahmad, DG
For PEPCO/GENCOs/
Kh. Ahmed Tariq Rahim, Sr. ASC
WAPDA & M/o W & P:
Mr. Abbas Mirza, ASC
Mr. Moazzam Ali Rizvi, ASC
Syed Zafar Abbas Naqvi, AOR
Mr. Arshad Ali Ch. AOR assisted by
Mr. Ijaz A. Babar, Finance Director, PEPCO
Barrister Asghar Khan, SML, PPIB
Mr. Hamid Ali Khan, Addl. Secy. M/o W&P
Mr. Masood Akhtar, GM NPCC
Mr. Mansoor Ali Khan, CE, WPPO
Rana Muhammad Amjad, GM, WPPO
Rana Asif Saeed, Chief Legal Advisor
Mr. Salman Iqbal, Executive Directed (Legal)
Mr. Abdul Jabbar Memon, CRRO, WAPDA, KHI
Mr. Anisuddin Alvi, DD, CRRO
Mr. Razi Abbas, former CFO
Mr. Abdul Jabbar Shaikh, DM, LPGCL
HRC 7734-G/09
[RPPs case]
2
Mr. Faizullah Dahri, FD, LPGCL
Mr. Muhammad Anwar Brohi, CEO, LPGCL
Mr. Sultan Muhammad Zafar, CEO, GENCO-III
For Raja Pervez Ashraf
Mr. Wasim Sajjad, Sr. ASC
Former Minister W&P:
Mr. M. S. Khattak, AOR assisted by
Mr. Idrees Ashraf, Advocates
For Karkey :
Mr. Muhammad Akram Sheikh, Sr. ASC
Mr. Azid Nafees, ASC assisted by
Syed Ahmad Hassan Shah, Ms. Natalia
Kamal and Sajeel Shehryar, Advocates
For Gulf & Sialkot
Syed Ali Zafar, ASC
Power:
Raja Zafar Khaliq, ASC
Raja Abdul Ghafoor, AOR
For Techno Sahuwal
Raja M. Anwar-ul-Haq, ASC
& Techno E Services:
For Walters Power:
Mr. Shahid Hamid, Sr. ASC
Mr. M. S. Khattak, AOR
For Pakistan Power:
Dr. Parvez Hassan, Sr. ASC
Mr. M. S. Khattak, AOR
For Reshma Power
Mr. Abdul Hafeez Pirzada, Sr. ASC
& Kamoki Energy:
Mr. Sikandar Bashir Mohmand, ASC
Mr. Mehmood A. Sheikh, AOR assisted by
M/s Hameed Ahmed and Mustafa Aftab
Sherpao, Advocates.
For Young Gen Power:
Sh. Zamir Hussain, Sr. ASC
For M/o Finance:
Mr. Muhammad Iqbal Awan, Addl. Secy
For FBR
Mr. Salman Siddique, Chairman FBR
Dates of hearing:
26-28 & 31 October, 1-4, 14-17 & 21-24
November and 12-14 December, 2011
…
J U D G M E N T
IFTIKHAR
MUHAMMAD
CHAUDHRY,
CJ
–
The
Constitution of the Islamic Republic of Pakistan mandates that State
shall exercise its powers and authority through chosen representatives
of the people. A democratic order in place, through the representatives
of people, being the members of Parliament, obligates the elected
HRC 7734-G/09
[RPPs case]
3
representatives to fulfill their commitments bestowed upon them under
the Constitution, and in their representative capacity, they are bound
to perform their functions honestly, to the best of their ability,
faithfully, in accordance with the Constitution and the law as well as
the Rules of the Assembly, and always in the interest of sovereignty,
integrity, solidarity, well being and prosperity of Pakistan. Such a
binding force of the Constitution commands them to ensure well being
and prosperity of Pakistan, so whenever they feel threat to the well
being of the people of Pakistan for any reason, they are bound to
preserve the same.
2.
Makhdoom
Syed
Faisal
Saleh
Hayat,
one
of
the
Parliamentarians of PML(Q) and its parliamentary leader in the
National Assembly, now holding the office of Federal Minister for
Housing & Works, through a press statement published in Daily
“Nation” dated 8.9.2009, urged this Court to take action in respect of
Rental Power Projects (RPPs) which, according to him, was just
another name of corruption. He said that he had raised the issue of
corruption in the award of RPPs before every forum, including the
National Assembly of Pakistan, but his voice was not attended to,
therefore, he had approached the Supreme Court for initiating suo
motu proceedings against all those who were involved in this massive
scam of US$ 5 billion, which was being skimmed from the pockets of
innocent people of this country. Makhdoom Syed Faisal Hayat was
asked to furnish evidence in support of allegations for further
examination of the matter. He submitted a detailed application dated
26.9.2009, wherein reiterating the allegations of corruption, he relied
upon certain documents of the PEPCO, GENCOs, WAPDA and Ministry
of Water & Power to prove his assertions. Thereafter, para-wise
HRC 7734-G/09
[RPPs case]
4
comments were called from WAPDA, which were submitted by M.D.
PEPCO, denying the allegations/charges of corruption. However, it was
emphasized that due to acute shortage of electric power in the
country, short term measures in the shape of RPPs for three to five
years were adopted pursuant to Rental Power Policy approved by
Economic Coordination Committee (ECC) of the Cabinet, Government
of Pakistan from time to time, inter alia, vide case No.ECC 135/9/2006
dated 16.8.2006. Similarly, the other stakeholders denied the
allegations of corruption.
3.
When the petition was pending for hearing, another
eminent Member of the National Assembly, namely, Khawaja
Muhammad Asif belonging to PML(N), vide CMA No.3100/2010, joined
the proceedings w.e.f. 21.10.2010.
LAW RELATING TO GENERATION AND TRANSMISSION OF
ELECTRICITY
4.
In 1994, the Private Power and Infrastructure Board (PPIB)
was created as “One Window Facilitator”, inter alia, with a view to
promote private sector participation in the power sector of Pakistan
and to facilitate investors in establishing private power projects and
related
infrastructure,
execute implementation
agreements
with
project sponsors and issue sovereign guarantees on behalf of
Government of Pakistan. On 16.12.1997, to provide for the regulation
of generation, transmission and distribution of electric power and
matters connected therewith and incidental thereto, the Regulation of
Generation, Transmission and Distribution of Power Act, 1997
(hereinafter referred to as the “the Act, 1997”) was promulgated.
Subsections (vi), (xi) and (xxvi) of section 2 of the Act, 1997,
respectively, define “Distribution”, “Generation” and “Transmission”
Companies. In 1998, Pakistan Electric Power Company (PEPCO) was
HRC 7734-G/09
[RPPs case]
5
incorporated under the Companies Ordinance, 1984 with a view to
improve the efficiency of the power sector, to meet customers’ electric
energy requirements on a sustainable and environmental friendly
basis, to stop load shedding, to construct new grid stations, to reduce
line losses, to minimize tripping and theft control, to revamp
generation units and to improve customer services, and develop an
integrated
automated
power
planning
system
for
generation,
transmission and distribution to ensure system stability, fault isolation
and upgrade relying, metering and tripping system at the level of
National Transmission and Distribution Company (NTDC) as well as
Distribution Companies (DISCOs).
5.
It may be stated that in Pakistan, electricity is produced
from hydel, oil, gas, coal and nuclear sources. Hydel and thermal
power generation was previously under the control of WAPDA. To
augment the generation capacity to meet demand and eliminate
inefficiencies due to WAPDA’s growth, demand suppression and high
tariff policy and proliferated theft, WAPDA's Power Wing was
restructured/segregated into twelve (12) distinct autonomous entities
under the Companies Ordinance 1984, viz., three generation, one
transmission and eight distribution corporate entities. Thus, electricity
generation from thermal sources is under the control of Generation
Companies (GENCOs) carved out of WAPDA, which are exclusively
owned by the Government of Pakistan. These companies have long
term projects called IPPs, spreading over a period of 25 to 30 years.
The electric power generated by GENCOs is delivered to NTDC, which
in turn, delivers the same to DISCOs. The DISCOs then sell it to the
consumers under the contracts of electric powers on specified terms.
HRC 7734-G/09
[RPPs case]
6
6.
It is to be noted that the most significant aspect of the
generation, transmission and distribution of the electricity is the
determination of tariff, which is done by a Regulatory Authority in
accordance with the provisions of the Act, 1997 and the Rules made
thereunder, as well as the Policy Guidelines issued by the Government
of Pakistan under section 31 of the Act, 1997 from time to time.
Importantly, the Policy should not be inconsistent with the Act, 1997.
Therefore, WAPDA, in principle, has no power to interfere with the
affairs of RPPs.
7.
Under section 3 of the Act, 1997, National Electric Power
Regulatory Authority (NEPRA) consisting of a Chairman and four
members, one from each province, to be appointed by the Federal
Government, was established. Section 7 of the Act, 1997 prescribes
powers and functions of the Authority as under: -
“Powers and functions of the Authority: (1) The Authority
shall be exclusively responsible for regulating the provision
of electric power services.
(2)
In particular and without prejudice to the generality
of the foregoing power, only the Authority, but subject to
the provision of sub-section (4), shall,
(a)
grant licences for generation, transmission and
distribution of electric power;
(b)
prescribe procedures and standards for investment
programmes
by
generation,
transmission
and
distribution companies;
(c)
prescribe and enforce performance standards for
generation, transmission and distribution companies;
(d)
establish
a
uniform
system
of
accounts
by
generation, transmission and distribution companies;
(e)
prescribe fees including fees for grant of licences and
renewal thereof;
(f)
prescribe fines for contravention of the provisions of
this Act; and
(g)
perform any other function which is incidental or
consequential to any of the aforesaid functions.
(3)
Notwithstanding the provisions of sub-section (2)
and without prejudice to the generality of the power
conferred by sub-Section (1) the Authority shall,
(a)
determine tariff, rates, charges and other terms and
conditions for supply of electric power services by
the
generation,
transmission
and
distribution
HRC 7734-G/09
[RPPs case]
7
companies
and
recommend
to
the
Federal
Government for notification;
(b)
review
organizational
affairs
of
generation,
transmission and distribution companies to avoid any
adverse effect on the operation of electric power
services and for continuous and efficient supply of
such services;
(c)
encourage uniform industry standards and code of
conduct for generation, transmission and distribution
companies;
(d)
tender advice to public sector projects;
(e)
submit report to the Federal Government in respect
of
activities
of
generation,
transmission
and
distribution companies; and
(f)
perform any other function which is incidental or
consequential to any of the aforesaid functions.
(4)
Notwithstanding anything contained in this Act, the
Government of a Province may construct power houses
and grid stations and lay transmission lines for use within
the Province and determine the tariff for distribution of
electricity within the Province.
(5)
Before approving the tariff for the supply of electric
power by generation companies using hydro-electric
plants, the Authority shall consider the recommendations
of the Government of the Province in which such
generation facility is located.
(6)
In performing its functions under this Act, the
Authority shall, as far as practicable, protect the interests
of consumers and companies providing electric power
services in accordance with guidelines, not inconsistent
with the provisions of this Act, laid down by the Federal
Government.
In terms of sections 15, 16 and 20 of the Act, 1997, licenses for
“Generation”, “Transmission” and “National Grid” are also to be
granted by the NEPRA. Under section 7 of the Act, 1997, NEPRA has
been empowered, inter alia, to establish uniform system of accounts in
respect of generation, transmission and distribution companies and to
determine tariff through competitive process in terms of the Guidelines
for Determination of Tariff for IPPs issued by the Ministry of Water and
Power in the month of November, 2005.
INSTALLED CAPACITY TO GENERATE ELECTRICITY BEFORE
INTRODUCING RPP
8.
Makhdoom Syed Faisal Saleh Hayat pointed out that as per
brochure on “Solicitation For Fast Track IPP and Rental Power Projects
HRC 7734-G/09
[RPPs case]
8
through International Competitive Bidding” issued in pursuance of the
decision taken in the Special Cabinet meeting in case No.59/08/2008
dated 14.05.2008, presently the total installed electricity generation
capability in the country was shown about 19478 MW, whereas as per
PEPCO supply and demand position for the year 2009 it is 12074 MW
and 17102 MW respectively in the months of March and September
2009 out of total generation against the peak demand of 14686 and
18110 MW as it has been shown in the chart presented by him along
with his petition. The stand taken by the petitioner has been
controverted by Khawaja Ahmad Tariq Rahim, learned counsel for the
respondents as according to him the projected demand of electricity
for the period 2010-2013 ranges between 19352 MW to 24126 MW. To
substantiate his plea, he has also relied upon the ADB report.
9.
It is important to note that the learned counsel for the
respondents has not disputed the contents of chart showing electricity
generation position as prepared in the year 2009. Similarly, the figures
quoted from ADB report about the higher demand on the growth
production would be 8% in 2009 to 7.5% in the year 2013. The figures
from the ADB report are as follows: -
2010
21838
2011
23476
2012
25185
2013
26978
As far as above noted figures are concerned, there is no need to
comment on the same because the contents of up to date generation
position have been prepared by PEPCO for the year of 2008-2009 and
onward whereas the projection of the increased demand by the ADB,
which is also not disputed relates to the year 2010 and onward. What
is important is that after having launched RPPs when there were
objections from all and sundry about the corruption in the matter,
HRC 7734-G/09
[RPPs case]
9
which were being adhered to, the Government of Pakistan in the
month of September, 2009 decided for the Rental Power Review by
means of the process of 3rd Party Audit and the assignment was
entrusted to ADB. It goes to establish that in the Special Cabinet
meeting held on 14.05.2008, a decision based on the presentation of
different Secretaries was taken. Summary of the meeting available on
this file does not show that the then Secretary, Water & Power, who
was primarily responsible under the Rules of Business, 1973 had put
up the case after doing proper homework. Thus, initially there was a
need of thorough probe into the RPPs by soliciting opinion of the
experts on the subject and also having taken into consideration the
benefit of the past experience relating to the year 2006 when the
Rental Power Projects were initiated by the then Government at the
locations known as Bhikki and Sharaqpur. Primarily, both these
projects could not prove a success.
10.
The Government/Executive being the custodian of the
national resources on behalf of the nation is bound to preserve and
protect the same by strictly adhering to the relevant laws,
conventions, experiences and have no authority to compromise with
the resources, which fall within the definition of property in terms of
constitutional provisions, belonging to general masses falling within
the ambit of Article 24 of the Constitution.
11.
Makhdoom Syed Faisal Saleh Hayat, with the assistance of
the charts which he had appended with his petition, persuaded us to
believe that without “Rental Power Plants” to generate additional
electricity, the existing generation capacity was sufficient to cater for
the current requirements, but without properly exploiting its existing
resources with a mala fide intention, process of RPPs were
HRC 7734-G/09
[RPPs case]
10
commenced. He referred to the energy policy issued in the year 2002
and stated that in the years 2004 to 2007, Letters of Intent (LOIs)
have been issued in respect of 34 out of 48 different projects for
generating electricity i.e. Hydel-13, Oil-5, Gas/Dual Fuel-10 and Coal-6
approximate capacity of each type of project being 2962, 1100, 1864,
3550 (total 9476 MW); and again in the years 2005 to 2007, LOIs
were issued for Oil-7, Gas/Dual Fuel-7 with expected capacity to
produce 1231, 1359 (total 2590 MW). In this way, capacity was to be
increased by 12066 MW (9476+2590).
12.
Learned counsel for the respondents, however, insisted
that on account of projected increase in the demand, the existing
capacity was not considered sufficient, therefore, to meet urgent
demand Rental Power Projects were considered to be the solution to
reduce day-to-day load-shedding. The argument so made by him
might be very convincing, but due to non-denial of the quoted facts
and figures relating to different projects and capability of generating
more electricity, it cannot be denied that PEPCO has sufficient
capability to increase its generation of electricity to meet the
requirements. Admittedly, the figures shown on the PEPCO website,
reference of which has been made during hearing of the case, were
against the stand taken by learned counsel for the respondents.
Perhaps the Authority finding no answer to the query raised by the
Court from time to time about the generating capability of electricity
stopped up-loading the figures of generation of electricity from
different sources i.e. Hydel, GENCOs, IPPs, etc. and for such reason on
06.10.2010 following order was passed by making the direction to the
IT In-charge of the PEPCO: -
“Petitioner Makhdoom Syed Faisal Saleh Hayat, during
arguments has pointed out that in the petition/letter sent
HRC 7734-G/09
[RPPs case]
11
to this Court he has quoted important figures downloaded
from official website of PEPCO in the year 2009 but later
on such figures have been removed from the website of
PEPCO. This statement so made by him seems to be true
as per our own I.T. system which has been confirmed in
Court by a responsible officer. Prima facie we are of the
opinion that the PEPCO for the reasons known to its
authority has removed these figures but retrieving of the
same is important for the just decision of the case,
therefore, we direct to the I.T. In-charge of the PEPCO to
appear in person in Court and place on record authentic
documents in respect of the entries mentioned in the
application copy of which is available with the learned
counsel for PEPCO and if readily is not available then he
should retrieve the same from the master server.”
Subsequent thereto the case remained pending but the figures were
not retrieved from the main server as per the report, which we have
obtained from the IT Department of this Court. The report of Data
Processing Manager is reproduced hereinbelow:-
“It is submitted that information regarding Power Generation &
Generation contribution i.e. Hydel, PEPCO, Thermal, IPPS &
Rental is 19.05.2011 no such information is available.
There is no detail regarding the generation of electricity by
PEPCO so far.”
At the same time, in view of the non-availability of the information
regarding generation of electricity by PEPCO on its website
(www.pepco.gov.pk), on 16.3.2012 the Registrar was directed to
procure the following information: -
(i)
Total generation capacity (Hydel, IPP, RPP, etc.);
(ii)
Total electricity generated for the last one year (Hydel,
IPP, RRP, etc.), if shortage, assigned reasons;
(iii)
Detail of IPPs, which are generating and not generating
electricity and the reasons for the same;
(iv)
Monthly/weekly average of production of each RPP;
(v)
Net demand of electricity for each month during the last
one year; and
(vi)
As to why PEPCO website is not being updated?
In response to above query, following details about the total installed
generation capacity and dependable capacity have been received:-
HRC 7734-G/09
[RPPs case]
12
1
2
DEPENDABLE CAPACITY
(MW)
MONTH
Total Generation
Capacity
/Installed
Capacity
(MW)
HYDEL
IPP'S
GENCO'S
RENTAL
TOTAL
SCP
Requirement
# (i)
(i)
Mar-11
20686
3850
8305
3580
323
16058
Apr-11
21021
4068
8295
3580
594
16537
May-11
21030
5519
8297
3580
594
17990
Jun-11
21030
5142
8300
3580
594
17616
Jul-11
21030
5649
8300
3580
594
18123
Aug-11
21030
6437
8300
3580
594
18911
Sep-11
21030
6673
8300
3580
594
19147
Oct-11
21030
6437
8300
3580
594
18911
Nov-11
21030
4240
8300
3580
594
16714
Dec-11
21030
4926
8300
3580
594
17400
Jan-12
21030
4255
8300
3580
594
16729
Feb-12
21030
5030
8300
3580
594
17504
Similarly, the detail of total electricity generated, viz., the net demand
and shortfall/load management was provided as under:-
3
4
5
Total Electricity Generated (MW)
SCP Requirement # (ii)
Net
Demand
of
Electricity
/ Peak
System
Demand
(MW)
Shortfall/
Load
Management
(MW)
MONTH
HYDEL
IPP'
S
GENCO'
S
Monthly
Av.
Producti
on of
RPPs
TOTA
L
HRC 7734-G/09
[RPPs case]
13
SCP
Requirement #
(i)
(iv)
(v)
Mar-11
3454
4741
1789
61
10045
14981
4936
Apr-11
4216
5923
1377
88
11604
15796
4192
May-11
5228
6931
1462
103
13724
17302
3578
Jun-11
5145
6790
2000
112
14047
18511
4464
Jul-11
5224
5636
1793
143
12796
18860
6063
Aug-11
5657
6632
1859
67
14215
18677
4462
Sep-11
5995
5197
1256
119
12567
18544
5977
Oct-11
4359
4109
1268
153
9889
17554
7665
Nov-11
3993
6647
1547
215
12402
14156
1754
Dec-11
3784
3760
1701
135
9380
14475
5095
Jan-12
2472
5498
1708
134
9812
13685
3873
Feb-12
4923
4830
1587
83
11423
14691
3268
Detail of power generated by IPPs under 1994 Power Policy during the
period from March 2010 to February 2012 is given below:-
SCP's Requirement # (iii), Detail of IPPs, which are generating not
generating electricity and the reasons for the same (Part-1)
Power Generated by IPPs under 1994 Power Policy
For the Period Mar, 2011 to Feb, 12
Sr.
No.
Plant Name
Fuel
Type
Installed
Capacity
(MW)
Depen
dable
Capaci
ty
(MW)
Mar-
11
Apr-
11
May-
11
Jun-
11
Jul-
11
Aug-
11
Sep-
11
Oct-
11
Nov-
11
Dec-
11
Jan-
12
Feb-
12
Average
Total
1
KAPCO
RFO-
Gas-
HSD
1,638
1,342
746
636
751
847
631
746
438
808
696
580
555
534
664
2
HUBCO
RFO
1,292
1,200
884
1,083
1,032
1,064
879
1,107
679
789
728
811
1,159
841
921
3
KEL
RFO
131
124
108
96
93
105
87
105
98
91
60
58
58
65
85
4
Lalpir Power
(Pvt.) Limited
RFO
362
350
112
260
152
247
248
211
202
284
56
140
189
163
189
5
Pak Gen
Power Limited
RFO
365
349
248
60
212
246
286
278
246
204
193
178
100
-
188
6
SEPCOL
RFO
117
110.47
46
24
40
39
40
42
50
42
29
32
28
20
36
7
Habibullah
Coastal
Gas
140
129.15
64
96
105
76
55
51
106
84
71
69
19
38
69
HRC 7734-G/09
[RPPs case]
14
8
FKPCL
Gas
157
151.20
135
126
142
142
144
144
98
106
152
155
154
144
137
9
Rousch
Gas
450
395
312
316
370
358
372
378
372
394
311
380
414
378
363
10
Saba
RFO
134
125.55
14
27
15
20
21
21
25
21
0
28
3
7
17
11
Japan Power
RFO
135
107.00
34
42
47
41
31
59
42
48
45
25
36
31
40
12
Uch Power
Gas
586
551.25
535
524
516
490
499
505
507
525
292
492
562
410
488
13
Altern Energy
Gas
31
26.54
26
25
28
26
27
26
26
29
29
0
-
0
20
14
Liberty Power
Gas
235
211.84
8
-
114
188
185
185
166
165
187
185
175
186
101
153
Sub. Total
5,773
5,172
3,263
3,429
3,691
3,885
3,506
3,841
3,052
3,610
2,848
3,122
3,463
2,732
3,370
15
CHASNUPP-
I
Nuclear
325
300
300
282
289
273
288
20
-
238
263
302
301
299
238
16
CHASNUPP-
II
Nuclear
340
300
-
134
216
233
270
227
289
275
294
206
284
303
227
17
Tavanir, Iran
-
39
30
32
32
30
32
30
31
31
31
29
28
29
30
Total
6,438
5,811
3,594
3,876
4,227
4,421
4,096
4,118
3,372
4,155
3,435
3,659
4,077
3,363
3,866
The reasons assigned for power shortages are as under:-
Requirements as per Serial Nos (ii) and (iii) of the of the
Directions of Hon’able Supreme Court of Pakistan
(ii)
Total electricity generated for the last one year
(Hydel, IPP,
RPP, etc.) if shortage, assigned
reasons.
(iii) Detail of IPPs, which are generating and not
generating electricity and the reasons for the same
Operational Constraints of the Power Generation &
Distribution System
1.
Diversion of gas, reduced power generation and
increased cost of generation whereas no tariff
increase allowed from FY 2003 to FY 2007, despite
steep increase in generation cost due to surge in oil
prices.
1.
Overdue rehabilitation of distribution network and
Public Sector Generation Companies (most of the
plants have been outlived) due to time and financial
constraints causing increase in distribution and
generation losses.
2.
Increased non payment of bills (collection issues,
including extra ordinary stay by the courts) and
Kunda Culture
3.
Mismatch between cost of supply and tariff triggered
birth of circular debt and adversely affected fuel
supplies to IPPs and GENCOs plants.
4.
IRSA releases water from dams exclusively as per
cultivation
requirement
and
not
for
power
requirement.
HRC 7734-G/09
[RPPs case]
15
Other Reasons:
5.
Public Sector was not allowed to add new capacity in
thermal since long time resulting in no capacity
additions during 2003-2008
6.
Quantum jump in power demand (7% to 14%) due
to:
Consumption led growth strategy of 2002-2008 –
influx of millions of household appliances.
Continuous increase in rural electrification since
2002 onwards
Increased demand for agri-tubewell loads – over
80,000 new connections.
7.
Extra high Load growth in urban areas (20%)
8.
Air-conditioning load exceeds 5000 MW and is being
added each year.
Following reasons were given by the PEPCO/PITC for not updating the
website: -
1.
PITC has been updating the information on website
on the basis of information provided by concerned
departments.
2.
Last information regarding news & media was
provided to PITC on September 2010 and uploaded
accordingly.
3.
The information regarding power situation has been
provided
by
PEPCO
media
cell
to
PITC
on
19/05/2011 which was instantly updated. Since then
PITC has not received any information.
4.
Information regarding power produced by IPPs &
Rental power is being provided by WPPo & CPPA and
updated till June 2011 (Cumulative July 10-June 11).
5.
PITC will make all efforts to get the updated
information from concerned departments and upload
on regular basis.
Besides the figures noted hereinabove, PEPCO provided following
information of power generation capability for Hydel plants, GENCOs
IPPs, to the ADB: -
PEPCO SUPPLY & DEMAND POSITION: 2008-2012
UPDATED IN MARCH 2009
2008-09
2009-10
Description
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
A.
(i)
(ii)
(iii)
Committed
Generation
Capability
Hydel
GENCOs
IPPs
3295
4314
6181
3863
4512
6197
4793
4660
6204
5035
4689
6615
5657
4788
6618
6026
4788
7205
5979
4792
7570
5036
4796
7763
5545
4861
7750
4183
4916
8402
Total (A)
13790 14572 15657 16339 17063 18019 18341 17595 18156 17501
B.
C.
Forced Outages
Maintenance
Reserves
889
827
913
589
931
303
960
154
972
18
1007
105
1029
210
1041
1178
1048
3364
1094
2431
D. Firm
12074 13070 14423 15225 16073 16907 17102 15376 13744 13976
HRC 7734-G/09
[RPPs case]
16
Generation
Capability (A-
B-C)
E. Peak Demand
14686 15899 17004 17824 17898 17936 18110 16453 14777 14931
F. Surplus/Deficit
Generation
(+/-)
-2612 -2829 -2581 -2599 -1825 -1029 -1008 -1077 -1033
-955
The above chart with the updated information about the supply and
demand position from 2008 to 2012 reproduced hereinabove and
latest information supplied during the hearing of the case suggest a
noticeable difference supplied by the PEPCO on different occasions.
Thus, no other inference can be drawn except that correct facts are
being concealed by the respondent PEPCO without any justifiable
reason. However, it strengthens the viewpoint of petitioner Makhdoom
Syed Faisal Saleh Hayat that RPPs have been introduced without any
feasibility study and it has left a big question mark on the
transparency of the project.
13.
It is to be noted that updated data so far received from
time to time, as is evident from the perusal of above documents,
makes it abundantly clear that no authentic and acceptable
information is available, therefore, the argument so raised by
Makhdoom Syed Faisal Saleh Hayat gets strengthened that without
undertaking any feasibility study, RPPs were launched in a haste. A
perusal of ADB report establishes that ever since the present
Government came into power in the month of March, 2008, country is
facing shortfall of electricity because of increase in number of
consumers of electricity day by day as the population is increasing, but
instead of pursuing long term projects like strengthening the already
existing sources of electricity generation including hydel, thermal
through GENCOs and IPPs through PEPCO, to meet the shortfall, the
idea of RPPs was resorted to. The statistics provided by PEPCO vide
letter dated 16.3.2012, reproduced hereinabove, also disclose the
HRC 7734-G/09
[RPPs case]
17
reasons on account of which IPPs are not generating/functioning to
their full capacity for the reasons noted hereinabove. Therefore, the
Government instead of launching Rental Power Projects, could have
conveniently strengthened the IPPs, which are already working and the
IPPs and hydel projects, which were likely to commence generation of
electricity in the year 2009-2010 as per following details: -
Project Name
Capacity in MW
Completion
Date
Attock Gen Power Project
165
7th April, 2009
Zorlu Wind Power Project
50
19th April, 09
Orient Power Project
225
May, 09
(delayed)
Atlas Power Project
225
June, 09
(Delayed)
Muridke (Sapphire)Power
Project
225
July, 09
(Delayed)
Fauji Mari Power Project
202
August,09
(Delayed)
Nishat Power Project
200
Nov, 09
Engro Power Project
227
Dec, 09
Total
1519
A cursory glance at the above comparative table shows that with the
interest and encouragement of PEPCO in the month of December,
2009, 1519 MW was likely to be available. Statedly, a good number of
hydel plants are likely to generate electricity. It is not known as to
whether any attention is paid by the PEPCO for the completion of the
same or not. Another important aspect, which can be gathered from
the data/statistics provided subject to authenticity of the same, at
present following RPPs are functioning:-
Monthly Average Production of Each RPP
SCP Requirement # (iv)
KARKEY
231.8
MW
COD
GULF
62
MW
COD
NAUDERO-
I 51 MW
COD
Reshma
201 MW
COD
Techno E-
Power
150 MW
COD
Total
Production
(MW)
MONTH
MW
MW
MW
MW
MW
Mar-11
0
61
0
0
0
61
Apr-11
31
57
1
0
0
88
May-11
41
61
1
0
0
103
HRC 7734-G/09
[RPPs case]
18
Jun-11
43
61
8
0
0
112
Jul-11
54
60
30
0
0
143
Aug-11
65
2
0
0
0
67
Sep-11
43
56
20
0.43
0
119
Oct-11
75
54
0
24
0
153
Nov-11
81
58
12
63
0
215
Dec-11
54
62
19
0
0
135
Jan-12
61
54
19
0
0
134
Feb-12
32
51
0
0
0
83
POLICY FOR RPPs
14.
We have inquired from the learned counsel of PEPCO,
GENCOs and WAPDA as well as worthy former Minister for Water &
Power, Raja Parvez Ashraf as to whether any policy was formulated
while adopting the phenomenon of rental power plants to generate
electric power, they pointed out that the concept and the rationale
behind the scheme of introducing Rental Power Plants in the country
was floated by the previous Government as a quick way to address
impending power shortages. References have been made by them to
the Cabinet decision bearing No.ECC-135/9/2006 dated 16.08.2006.
They also pointed out that the justification put forward by the then
Government in installing the plants was that “the rental plants are
expensive, however, given the urgency to have additional power
capacity before next summer as per WAPDA’s demand projections and
the long gestation period for new plants, renting of plant(s) appears to
be the only short term solution if shortfalls are to be met”. And the
summary of ECC dated 12.08.2006 was submitted to the Cabinet for
approval, which reads as under:-
“6.
Following
policy
guidelines
are
proposed
for
approval:-
(i)
Allow
renting
of
power
plant/plants
by
WAPDA/NPGCL as an emergency measure, subject to
HRC 7734-G/09
[RPPs case]
19
acceptance of tariff by NEPRA, and that WAPDA
should only rent as much power as is absolutely
necessary and which would be utilised with high load
factor for economic utilisation of capacity;
(ii)
Approve proposal at para 5 for provision of gas to
rented plant/plants; and
(iii)
Nearest possible location to the load centres of
Gujranwala, Faisalabad or Lahore to install the plant.
However, if it is necessary to locate the plant at
Multan then it should be ensured that there are no
transmission bottlenecks.
… … … … … … … … … … … … … … … … … … … … … … … … …
… … …
8.
Proposal at para 6 above be approved. Suggestion of
Planning Division should also be taken into account by
WAPDA/NPGCL.”
They were also of the opinion that under Rule 16(F) any case
pertaining to the generation of electricity and laying of inter-provincial
transmission lines was to be placed before the Cabinet and no sooner
it was approved, it would become the policy of the Government on a
particular subject, therefore, any decision taken in that behalf would
be deemed to be the policy. Learned counsel for WAPDA, PEPCO,
GENCOs, etc., has already referred to certain decisions of ECC and the
Cabinet, which have been reproduced hereinabove, however, the ECC
in its meeting dated 10.09.2008 directed that in case any of the
approved projects failed to achieve crucial milestones towards timely
project implementation as per agreements, then the projects would be
immediately cancelled with penalties and that the deficit power
generation capacity be expeditiously arranged through addition of
IPPs/RPPs, both solicited and unsolicited on fast track basis. Guidelines
by the ECC incorporated in this decision are reproduced herein below:-
a.
Proposals for rental power plants would be based on dual
fuel (Gas and RFO)/single fuel RFO and would be
implemented in shortest possible time.
b.
Rental Power Plants would be arranged for a period of 3+1
years.
c.
Efforts would be made that the tariff of rental power plants
is lower than the tariff allowed to IPPs based on similar
technology for their first ten years.
HRC 7734-G/09
[RPPs case]
20
d.
Mandatory storage of oil for rental power plants would be
for ten days.
e.
PEPCO would revaluate the sites for the rental power
plants on the basis of space for oil storage, transportation
of oil to the site, environmental aspects and power
evacuation etc.
f.
PEPCO would prepare a mid term revised forecast for
demand and supply of power and PPIB would provide
necessary input/data to PEPCO in respect of prospective
IPPs.
g.
Secretaries of Finance and Water & Power along with
Managing Director, PPRA would review the mechanism of
procurement to ensure that future delay is avoided and
Public Procurement Rules, 2004 are observed in letter and
spirit.
Above guidelines by the ECC along with other decisions of the ECC
referred to hereinabove, if for the sake of arguments are considered to
be the policy of the Government, then emphasis should be that such
guidelines (policy) have to be implemented in letter & spirit. Exception
to above guidelines is also possible to the extent of unsolicited RPPs,
which cast duty upon the Secretaries of Finance and Water & Power
along with Managing Director of PEPRA to review mechanism of
procurement to ensure that future delay is avoided and Public
Procurement Rules, 2004 are observed in letter & spirit.
POWERS
OF
JUDICIAL
REVIEW
TO
INTERFERE
IN
THE
GOVERNMENT POLICIES
15.
It is to be clarified that the Government of the day under
Article 29 read with Article 2A of the Constitution is bound to formulate
policies for the promotion of social and economic well being of the
people, which includes provision of facilities to the citizens for work
and adequate livelihood with a reasonable rest and leisure, etc.
Energy/electricity is essentially one of the significant facilities required
by the citizens for manifold purposes, namely, uplifting of their social
and economic status. Non-supply of electricity to the citizen regularly,
is tantamount to depriving them of one of the essentials of the life
including the security of economic activities, which are relatable to
HRC 7734-G/09
[RPPs case]
21
their fundamental rights protected under Articles 9 and 14 of the
Constitution. In the cases of Bank of Punjab v. Haris Steel Industries
(PLD 2010 SC 1109), Liaqat Hussain v. The Federation of Pakistan
(Constitution Petition No.50/2011), In Re: Human Rights Case
regarding fast food chain in F-9 Park (PLD 2010 SC 759), In Re: SMC
No.13/2009 (Case regarding Multi-Professional Housing Schemes)
(PLD 2011 SC 619) and Shehla Zia v. WAPDA (PLD 1994 SC 693),
Article 9 has been interpreted and its scope has been enlarged to each
and every aspect of human life. Therefore, whenever a policy is
framed with reference to uplifting the socio-economic conditions of the
citizens, object should be to ensure enforcement of their fundamental
rights.
16.
The Courts are not required to examine the policy as it has
been rightly urged by Raja Parvez Ashraf, former Minister of Water &
Power during whose tenure, in the meeting held on 27.03.2008,
decision was taken in the Cabinet for solicitation of Fast Track Power
Generation Projects to overcome the gap of 2200 MW between the
production and demand of electricity in the system till April, 2009.
Reliance on the case of BALCO Employees Union (Regd.) v. Union of
India (AIR 2002 SC 350) has rightly been placed by him. A 9-Member
Bench of this Court had also decided in the case of Watan Party v.
Federation of Pakistan (PLD 2006 SC 697) regarding power of Court to
examine the polices of Government. Relevant Paras therefrom are
reproduced hereinbelow: -
“57. The next question is in respect of the judicial review
of the policies of the Government. It is well settled that
normally in exercise of the powers of judicial review this
Court will not scrutinize the policy decisions or to
substitute its own opinion in such matters as held in
Messrs Elahi Cotton Mills ibid. Likewise in the case of Balco
Employees ibid, the Supreme Court of India observed as
follows:--
HRC 7734-G/09
[RPPs case]
22
"Process of disinvestments is a policy decision
involving complex economic factors. The Courts have
consistently refrained from interfering with economic
decisions as it has been recognized that economic
expediencies lack adjudicative disposition and unless
the
economic
decision,
based
on
economic
expediencies, is demonstrated to be so violative of
constitutional or legal limits on power or so
abhorrent to reason, the Courts would decline to
interfere. In matters relating to economic issues, the
Government has while taking a decision, right to
"trial and error" as long as both trial and error are
bona fide and within limits of authority."
This view is in line with this Court's view as given in Elahi
Cotton ibid. Similar view was taken by the Indian Supreme
Court in Delhi Science Forum v. Union of India (AIR 1996
SC 1356).
58. The parameters of judicial review were graphically
commented upon in Associated Provincial Picture Houses
Ltd. ibid which has been relied upon by counsel for both
sides where in the concluding paragraph the Court came to
the conclusion in the words of Lord Somervell as under: -
"I do not wish to repeat what I have said, but it
might be useful to summarize once again the
principle; which seems to me to be that the court is
entitled to investigate the action of the local
authority with a view to seeing whether it has taken
into account matters which it ought not to take into
account, or, conversely, has refused to take into
account or neglected to take into account matters
which it ought to take into account. Once that
question is answered in favour of the local authority,
it may still be possible to say that the local authority,
nevertheless,
have
come
to
a
conclusion
so
unreasonable that no reasonable authority could
ever have come to it. In such a case, again, I think
the court can interfere. The power of the court to
interfere in each case is not that of an appellate
authority to override a decision of the local authority,
but is that of a judicial authority which is concerned,
and concerned only, to see whether the local
authority have contravened the law by acting in
excess of the powers which Parliament has confided
in it. "
This view was further reiterated and the principle laid down
therein was followed in Nottinghamshire County Council v.
Secretary of State for the Environment [(1986) 1 All ER
199] wherein the Court observed as follows:
"The
law
has
developed
beyond
the
limits
understood to apply to judicial review as practiced by
HRC 7734-G/09
[RPPs case]
23
the courts in 1947. The ground on which the courts
will
review
the
exercise
of
an
administrative
discretion by a public officer is abuse of power.
Power can be abused in a number of ways: by
mistake of law in misconstruing the limits imposed
by statute (or by common law in the case of a
common law power) on the scope of the power; by
procedural irregularity; by unreasonableness in the
Wednesbury sense; or by bad faith or an improper
motive in its exercise. A valuable, and already
‘classical’; but certainly not exhaustive analysis of
the grounds on which courts will embark on the
judicial review of an administrative power exercised
by a public officer is now to be found in Lord
Diplock's speech in Council of Civil Service Unions v.
Minister for the Civil Service [1984] 3 All ER 935,
[1985] AC 374."
There is no cavil to the proposition being espoused by
learned Attorney General with reference to Peter Can's "An
Introduction to Administrative Law" 2nd Edition that the
Court while exercising power of judicial review may not
express opinions on polycentric issues requiring technical
expertise and specialized knowledge. In the instant case,
however, we are seized not with a polycentric issue as
such
but
with
the
legality,
reasonableness
and
transparency of the process of privatization of the project
under consideration i.e. PSMC. These are well established
basis for exercise of judicial review. Thus it is held that, in
exercise of the power of judicial review, the courts
normally will not interfere in pure policy matters (unless
the policy itself is shown to be against Constitution and the
law) nor impose its own opinion in the matter. However,
action taken can always be examined on the well
established principles of judicial review.”
In the light of the above dictum, there could be no cavil with the
proposition that as far as transparency in the implementation of the
policy, if available, the process of awarding contract is concerned, it
squarely falls within the jurisdiction of this Court available to it under
the Constitution and the power of judicial review. Reference may be
made to the cases of Iqbal Haider v. Capital Development Authority
(PLD 2006 SC 394), Pakistan Steels (PLD 2010 SC 759), HRC No.
4688/06 (PLD 2001 SC 619), Ramana Dayaram Shetty v. International
Airport Authority of India [(1979) 3 SCC 489]; Tata Cellular v. Union
of India [(1994) 6 SCC 651] = (AIR 1996 SC 11); Raunaq
HRC 7734-G/09
[RPPs case]
24
International Ltd. v. I.V.R. Construction Ltd. (AIR 2004 SC 4299) =
[(1999) 1 SCC 492]; Air India Ltd. v. Cochin International Airport Ltd.
[(2000) 2 SCC 617]; Reliance Energy Ltd. v. Maharashtra State Road
Development Corp. Ltd. [(2007) 8 SCC 1] and judgment dated
24.08.2009 of the Andhra Pradesh High Court in Nokia Siemens
Networks Pvt. Ltd. v. Union of India.
TRANSPARENCY OF CONTRACTS
17.
It is important to note that all the executive authorities are
bound to enter into contracts for supplies at the least expense to the
public exchequer. Most significant consideration for every department
of the Government must be the best economical mode of meeting the
public needs. Agreements for pecuniary considerations are against
public policy, as such, are void. Reference in this behalf may be made
to the case of Tool Company v. Norris [69 U.S. (2 Wall.) 45 (1864)],
wherein the Supreme Court of United States, as back as in 1864, has
held that all contracts for supplies should be made with those, and
with those only, who will execute them most faithfully, and at the least
expense to the government. Considerations as to the most efficient
and economical mode of meeting the public wants should alone
control, in this respect, the action of every department of the
government. No other consideration can lawfully enter into the
transaction, so far as the government is concerned. Such is the rule of
public policy, and whatever tends to introduce any other elements into
the transaction is against public policy. That agreements, like the one
under consideration, have this tendency is manifest. They tend to
introduce personal solicitation and personal influence as elements in
the procurement of contracts, and thus directly lead to inefficiency in
the public service and to unnecessary expenditures of the public funds.
HRC 7734-G/09
[RPPs case]
25
… … … it is sufficient to observe generally that all agreements for
pecuniary considerations to control the business operations of the
government, or the regular administration of justice, or the
appointments to public offices, or the ordinary course of legislation,
are void as against public policy, without reference to the question,
whether improper means are contemplated or used in their execution.
The law looks to the general tendency of such agreements, and it
closes the door to temptation, by refusing them recognition in any of
the courts of the country. Every action taken by the Government must
be in public interest and its action would be liable to be invalidated on
the touchstone of reasonableness and public interest and if it fails to
satisfy either test, it would be unconstitutional and invalid. Reference
in this behalf may be made to the case of R.D. Shetty v. International
Airport Authority of India (AIR 1979 SC 1628). Further, in the case of
Nagar Nigam, Meerut v. Al Faheem Meat Exports (Pvt.) Ltd. [(2007) 1
Supreme 704] it has been held as under:-
“The law is well-settled that contracts by the State, its
corporations, instrumentalities and agencies must be
normally granted through public auction/public tender by
inviting tenders from eligible persons and the notification
of the public-auction or inviting tenders should be
advertised in well known dailies having wide circulation in
the locality with all relevant details such as date, time and
place of auction, subject-matter of auction, technical
specifications, estimated cost, earnest money Deposit, etc.
The award of Government contracts through public-
auction/public tender is to ensure transparency in the
public procurement, to maximize economy and efficiency
in
Government
procurement,
to
promote
healthy
competition among the tenderers, to provide for fair and
equitable treatment of all tenderers, and to eliminate
irregularities, interference and corrupt practices by the
authorities concerned. This is required by Article 14 of the
Constitution. … … In our opinion this is an essential
requirement in a democracy, where the people are
supreme, and all official acts must be actuated by the
public interest, and should inspire public confidence.”
HRC 7734-G/09
[RPPs case]
26
In the case of Ramana Dayaram Shetty vs The International Airport
Authority of India (AIR 1979 SC 1628), the Court has held as under:-
“… … dealing with the public, whether by way of giving
jobs or entering into contracts or issuing quotas or licences
or granting other forms of largess, the Government cannot
act arbitrarily at its sweet will and, … … its action must be
in conformity with standard or norms which is not
arbitrary, irrational or irrelevant. The power or discretion
of the Government in the matter of grant of largess
including award of jobs, contracts, quotas, licences etc.,
must be confined and structured by rational, relevant and
non-discriminatory
standard
or
norm
and
if
the
Government departs from standard or norm in any
particular case or cases, the action of the Government
would be liable to be struck down, unless it can be shown
by the Government that the departure was not arbitrary,
but was based on some valid principle which in itself was
not irrational, unreasonable or discriminatory.”
In the case of Ram & Shyam Co. v. State of Haryana (AIR 1985 SC
1147), the Indian Supreme Court has held as under:-
“… … disposal of public property partakes the character of
a trust in that in its disposal there should be nothing hanky
panky and that it must be done at the best price so that
larger revenue coming into the coffers of the State
administration would serve public purpose viz. the welfare
State may be able to expand its beneficent activities by
the availability of larger funds. … … where disposal is for
augmentation of revenue and nothing else, the State is
under an obligation to secure the best market price
available in a market economy.”
In the case of Haji T.M. Hasan vs. Kerala Financial Corpn. (AIR 1988
SC 157), the Court observed that: -
“It is needless to state that the Government or public
authorities should make all attempts to obtain the best
available price while disposing of public properties. They
should not generally enter into private arrangements for
the purpose.”
As it has been noted hereinabove that no feasibility study was
undertaken by the previous Government during whose period
unsolicited RPPs were awarded to Alstom at Bhikki and General Electric
Power at Sharaqpur, inasmuch as, no material/documents have been
produced on record to show that both the Governments introduced the
HRC 7734-G/09
[RPPs case]
27
phenomenon of RPPs after due diligence. From reply submitted on
behalf of GENCOs as well as the former Minister for Water & Power,
impression is gathered that they have outrightly accepted the proposal
of RPPs without examining its merits and de-merits. In this behalf the
first special meeting of the Cabinet was held on 14.5.2008 wherein the
decision was taken for Fast Track Implementation of Power Generation
Projects to meet the demand and supply gap. As per the decision
contained in Package-B, Rental Power Plants of 200 to 300 MW were
approved. On the basis of said decision, advertisements were made
wherein bids were invited for setting RPPs, details whereof have been
mentioned hereinabove. Had there been due diligence before
approving above package, it would have seen the implication of the
billions of rupees by increasing down payment from 7% to 14%. As
per above advertisement, GENCO who had licence to generate
electricity and then to supply it to NTDC was not party in inviting bids.
18.
Internationally, the following factors have been considered
key features in procurement of public contracts: -
(1)
Upholding competition among firms;
(2)
Promoting best value for money;
(3)
Encouraging more firms to bid on work;
(4)
Maintaining openness and transparency in the
bidding process;
(5)
Executing contracts quickly;
(6)
Ensuring quality of goods and services; and
(7)
Meeting
other
obligations
required
for
federal
procurement.
19.
In this regard, it is to be noted that in section 5 of the
Public Procurement Regulatory Authority Ordinance, 2002, the
functions and the powers of the Authority have been defined,
according to which the Authority may take such measures and exercise
such powers as may be necessary for improving governance,
management, transparency, accountability and quality of public
HRC 7734-G/09
[RPPs case]
28
procurement of goods, services and works in the public sector. The
words ‘transparency’ and ‘accountability’ are of high importance and
cast a duty upon the Authority who had invited the bids to ensure
openness of the transaction without withholding any information. The
competition to establish transparency between the interested parties is
in fact the theme of the PEPRA Ordinance as well as the Rules framed
thereunder (Public Procurement Rules, 2004). The bidders have to
compete with each other by filing their respective bids, therefore,
while making procurement of an item like electricity through RPPs the
Authority is required to fix a reserved price while quoting lump sum
Rental Charges, Rental Rate and Reference Fuel Cost Components. In
absence of such reserved prices, there would not be transparent
competition and accountability of the bidders and procurers. In the
case of McManus v. Fortescue [(1907) 2 KB 1], it has been held by
Court of Appeal that in a sale by auction, subject to reserve price,
every offer/bid and its acceptance is conditional; the public is informed
by the fact, that the sale is subject to a reserve price; the auctioneer
has agreed to sell for the amount which the bidder is prepared to give
only in case that amount is equal to or higher than the reserve price;
the reserve price puts a limit on the authority of the auctioneer and he
cannot accept a price below the upset/reserve price. In the instant
case, neither the reserved price has been mentioned in the publication,
in pursuance whereof the bids were invited, nor such reserve price has
been disclosed in RFP. Inasmuch as, in advertisement made by PPIB,
except mentioning Rental Power Projects of 200 MW cumulative
capacity near Karachi, neither the sites were indicated nor the type of
fuel or technology of plant was mentioned for this purpose. As far as
unsolicited RPPS are concerned, there was no bidding process,
HRC 7734-G/09
[RPPs case]
29
therefore, following chart has been prepared regarding solicited
RPPs:-
A.
ICB conducted by PPIB
Name of RPP
Site
specification
Fuel type/
Technology
Make &
type of
machinery
Reserved
price
Karkey
Not
provided
Not specified
Not
specified
Not
provided
Gulf
Rental
Power
Not
provided
Not specified
Not
specified
Not
provided
Independent
Power
(Pvt.)
Ltd.
Not
provided
Not specified
Not
specified
Not
provided
Sialkot Rental
Power
Not
provided
Not specified
Not
specified
Not
provided
Reshma
Power
Not
provided
Not specified
Not
specified
Not
provided
Premier
Energy (Pvt.)
Ltd.
Not
provided
Not specified
Not
specified
Not
provided
Ruba Energy
Not
provided
Not specified
Not
specified
Not
provided
Consortium of
Tapal
Not
provided
Not specified
Not
specified
Not
provided
Walters
Power
International
Not
provided
Not specified
Not
specified
Not
provided
B.
ICB conducted by PEPCO
Name of RPP
Site
specification
Fuel type/
Technology
Make &
type of
machine
ry
Reserved
price
Techo E.
Power,
Sammundri
Road,
Faisalabad
Yes,
but
changed
later on
Yes
No
Not provided
Techno
Energy (Pvt.)
Ltd. Sahuwal,
Sialkot
Yes
Yes
No
Not provided
Guddu
Yes
Yes
No
Not provided
Young Gen
Yes
Yes
No
Not provided
The detail of RPPs regarding payment of advance, COD and present
status is given below: -
Name of RPP Advance
payment
COD
Advance
returned
or not
Present
status
of
RPP
HRC 7734-G/09
[RPPs case]
30
ICB CONDUCTED BY PPIB
Karkey
Yes
Not
achieved
within time
No
Functioning
Gulf
Rental
Power
Yes
Not
achieved
within time
No
Functioning
Independent
Power
(Pvt.)
Ltd.
No
Not
achieved
within time
----
No Machinery
at site
Sialkot Rental
Power
No
Not
achieved
within time
----
Not
functioning
Reshma
Power
Yes
Not
achieved
within time
Yes
Functioning
Premier
Energy (Pvt.)
Ltd.
No
Not
achieved
within time
----
Not
functioning
RUBA Energy
No
Not
achieved
within time
----
Not
functioning
Consortium of
Tapal
No
Not
achieved
within time
----
Not
functioning
Walters
Power
International
No
Not
achieved
within time
----
Not
functioning
ICB CONDUCTED BY PEPCO
Techo E.
Power,
Sammundri
Road,
Faisalabad
yes
Not
achieved
within
time/
Partial
COD
No
Not
functioning
Techno
Energy (Pvt.)
Ltd. Sahuwal,
Sialkot
yes
Not
achieved
within time
yes
Not
functioning/
No Machinery
at site
Guddu
yes
Not
achieved
within time
yes
Not
functioning
Young Gen
yes
Not
achieved
within time
yes
Not
functioning
UNSOLICITED
Techo E.
Power,
Sammundri
Road,
Faisalabad
(Extension)
No
Not
achieved
within time
----
Not
functioning/
No Machinery
at site
HRC 7734-G/09
[RPPs case]
31
Karkey
(Extension)
No
Not
achieved
within time
----
Not
functioning/
No Machinery
at site
Naudero-I
yes
Not
achieved
within time
No
Functioning
Naudero-II
yes
Not
achieved
within time
yes
Not
functioning
Abbas Steel
Group
No
Not
achieved
within time
----
Not
functioning/
No Machinery
at site
Thus, it is held that quoting the reserve price, allocating the sites,
down payments, etc., were the crucial factors to ensure competitive
bidding. Since, these were not mentioned in the advertisements, the
bidding process were rendered questionable. Resultantly, all the
transactions lacked transparency.
UNSOLICITED RENTAL POWER PROJECTS
20.
As per information provided by NEPRA, initially NTDC/CPPA
approached NEPRA for obtaining license to purchase power from RPPs.
NEPRA allowed this power purchase arrangement to NTDC/CPPA vide
letter No. NEPRA/R/PAR-11/CPPA-2006/6213-15 dated 27.07.2006.
Subsequently,
NEPRA
vide
letter
No.NEPRA/R/PAR-11/CPPA-
2006/6920-22 dated 09.10.2006 decided to withdraw the power
acquisition permission granted to CPPA for procurement of power from
RPPs and advised NPGCL as under: -
(i)
NPGCL to file an application for modification in their
license
under
NEPRA’s
Application
Modification
Procedure Regulations 1999.
(ii)
NPGCL to execute their PPA with CPPA in respect of
the current power generation and also include the
provision of additional power from rented power
plant.
(iii)
NPGCL to file their tariff petition in respect of
additional generation.
HRC 7734-G/09
[RPPs case]
32
Based on above advice of NEPRA, NPGCL approached NEPRA for
modification in generation license and signed RSCs, including
assignment, if any, with the RPPs.
21.
It has been admitted on behalf of PEPCO and GENCOs that
phenomenon of rental power projects to overcome the shortage of
electric power was introduced by the Government for the first time in
the year 2006, considering it to be a short term measure. Two
unsolicited rental contracts were executed with M/S Alstom for 136
MW at Bhikki and M/S General Electric Power for 150 MW at
Saharanpur respectively. The contract of Bhikki was awarded to
Alstom, and later on said company assigned it to M/S Pakistan Power
Resources (PPR) in pursuance of agreement dated 17.01.2007. Details
of the Bhikki project are as under: -
“BHIKKI POWER PROJECT
Place:
Bhikki, District Sheikhupura
Capacity:
136MW (gas based)
Rental term:
36 months
Contract amount:
USD 103,015,476
Mobilization Advance:
USD 7,211,083
Agreement date:
18 September, 2006
Rental revenue received:
USD 68,024,477
Rental revenue loss:
USD 34,990990
Date of Assignment
17 January, 2007
Effective Date
23 February 2007
COD Scheduled
23 June 2007
Achieved
Unit III 19 December, 2007
Unit II 22 January 2008
[Unit I 02 April 2008]
Expiry of Agreement:
22 June 2010”
22.
It is stated that the Bhikki and Sharaqpur RPPs were
approved by the ECC on 16.08.2006, which perhaps is not correct
statement of fact because ECC examined the matter vide case No.ECC-
135/9/2006 dated 16.08.2006 in respect of 150 MW power plant at
Piranghaib, Multan on rental basis and decided as under: -
Case No.ECC-135/9/2006
Dated: 16.08.2006
150
MW
POWER
PLANT
AT
PIRANGHAIB MULTAN ON RENTAL
HRC 7734-G/09
[RPPs case]
33
BASIS
DECISION
The Economic Coordination Committee (ECC) of the Cabinet
considered the summary dated 12th August 2006, submitted by the
Ministry of Water and Power on “150 MW Power Plant at
Piranghaib Multan on Rental Basis” and approved the proposals at
para 6 and 8 of the Summary.
The above decision was considered and approved by the Cabinet on
26.08.2006 and was conveyed by the Ministry of Water & Power,
Government of Pakistan to Chairman WAPDA, Lahore vide letter
No.PL-9(3)/2006.
23.
It may be noted that NPGCL sought permission from
NEPRA to enter into rental arrangements for three years commencing
from 100 days of the signing of contract between the parties for
enhancing installed generating capacity by 150 MW at Sharaqpur and
136 MW at Bhikki and further specified the rates of sale of electricity.
The NEPRA recorded its decision dated 15.12.2006 in Case
No.NEPRA/TRF-63/NPGCL-2006/7951-53,
which
is
reproduced
hereinbelow in extenso: -
“Subject: Decision of the Authority w.r.t. Tariff Petition
filed by Northern Power Generation Company
Ltd. (NPGCL) for Determination of Tariff for
Power
Plants
on
Rental
Basis
from
GE
Energy/Alstom
Power
(Case
No.NEPRA/TRF-
63/NPGCL-2006)- Intimation of Decision of Tariff
pursuant to Section 31(4) of the Regulation of
Generation, Transmission and Distribution of
Electric Power Act (XL of 1997)
Dear Sir,
Please find enclosed the decision of the Authority (4
pages) in Case No.NEPRA/TRF-63/NPGCL-2006.
2.
The determination is being intimated to the Federal
Government for the purpose of notification of Generation,
Transmission and Distribution of Electric Power Act (XL of
1997) and Rule 16(11) of the National Electric Power
Regulatory Authority Tariff (Standards and Procedure)
Rules, 1998.
3.
Please note that only Order of the Authority at para
9 of the determination relating to the Reference Tariff and
allowed adjustments & indexation needs to be notified in
the official gazette. The Order is reproduced for the
purpose of clarity and is attached herewith.
HRC 7734-G/09
[RPPs case]
34
DA/AS above.
Sd/- 15.12.2006
(Mahjoob Ahmad Mirza)”
Keeping in mind the fact that in respect of Rental Power Projects,
subsequent to issuance of guidelines, the NEPRA was practically made
ineffective to determine the electric charges as it was directed to
follow Paragraphs 1.9 and 1.10 of the Guidelines issued by the Federal
Government in the year 2005 in respect of IPPs. As far as question of
determination of tariff is concerned, it was noted in a summary put up
to the ECC on 07.02.2008 that efforts be made that the tariff of the
RPPs is in line with the tariff determined in respect of the IPPs based
on similar technology for their first 10 years, but it appears that the
tariff of the RPPs was much higher than that of the IPPs. The aforesaid
Paragraphs are reproduced hereinbelow: -
“1.9 Tariff through competitive process
The bidding process may be structured on either of
the following two options;
a)
bidding for a tariff
b)
Offering an up-front benchmark tariff and
bidders to quote a discount on the benchmark
price.
1.10 It is proposed that once a tariff has been arrived at
through competitive biddings based on either of the
processes mentioned at Para 1.9 above, the bidding
process be structured and administered by PPIB
(Ministry of Water and Power) in consultation with
the power purchaser (WAPDA/NTDC), Ministry of
Finance
and
NEPRA.
The
bidding
documents
(including various formula, formats, etc.) along with
evaluation criteria, be also finalized by PPIB in
consultation with the same agencies. The lowest
evaluated levelized tariff would be recommended to
the GOP for acceptance.”
24.
Despite restriction on determining the tariff by NEPRA, as
it has been noted hereinabove, fuel cost charge of Rs.2.7194 per kWh
delivered at Inter connection Bas bar in respect of Sharaqpur as well
as Bhikki was determined. As per above calculation, the Government
HRC 7734-G/09
[RPPs case]
35
had already paid approximately US $ 2.161 million (Rs.18.63 billion)
to these two RPPs as capacity and fuel charges. Thus, NPGCL (GENCO-
III) suffered huge losses in the years 2007, 2008 and 2009, with
regard to the RPPs in Block-I and Block-II, details whereof are given
hereinbelow: -
Annex-3
NORTHERN POWER GENERATION COMPANY LIMITED (GENCO-III)
Financial Impact on Account of CCP Tariff Determined Vs CPP Tariff
Demanded
CALCULATION OF CAPACITY
CHARGE
2007
2008
2009
Dependable Capacity (MW)
261.46
261.46
261.46
Capacity Purchase Price
Escalable Component:
Fixed O&M Cost:
____Mln. Rs.____
Rent for Rented Block-I
2,272.40
2,272.40
2,272.40
Rent for Rented Block-II
2,060.31
2,060.31
2,060.31
Guaranteed Heat Rate Bonus
261.54
261.54
261.54
Gas Pipelines Installations
83.12
-
-
General Establishment Cost
3.50
3.68
3.86
Administrative Cost
100.00
100.00
100.00
M&I/Overhauls
-
-
-
MEPRA Fees
8.50
2.30
2.30
Insurance
-
-
-
Depreciation (for ROA)
-
-
-
Duties etc.
442.00
-
-
Total Fixed O&M Cost
5,231.3670 4,700.2240
4,700.4078
CPP-FOM charge (Rs./kW/Month)
1,667.3318 1,498.0469
1,498.1055
CPP Determined By NEPRA
(Rs./kW/Month)
1,283.4851 1,283.4851
1,283.4851
CPP Tariff Difference
(Rs./kW/Month)
383.8467
214.5618
214.6204
Projected Loss per Month due to
less CPP Tariff Determined (Mln
Rs)
100.3621
56.1002
56.1155
Projected Loss per Year due to
less CPP Tariff Determined (Mln
Rs)
1,204.3452
673.2022
673.3860
25.
It is also to be noted that as the natural gas was to be
used for both these RPPs as the fuel and availability factors of both the
plants were 92% and both the projects i.e. GE-Sharaqpur 150 MW and
Alstom-Bhikki 136 MW, NPGCL generated (MKWH) 1515 and 816
respectively on account of plant factor average 39% and 26%
HRC 7734-G/09
[RPPs case]
36
comparing to availability factor 92%. Similarly, above facts and figures
show financial impact on account of CPP tariff determined by NEPRA
(Rs./kW/Month) and CPP-FOM charge (Rs./kW/Month). The availability
factor
efficiency
is
fully
evident
from
the
chart
reproduced
hereinabove. In a nutshell, due to tariff determination by the NEPRA
according to the available formula, considerable losses occurred to
NPGCL. Therefore, while going for further RPPs, the concerned
authorities ought to have taken into consideration that since these two
projects had already caused losses to the public exchequer, therefore,
it was not advisable to opt for generating electric power through RPPs.
26.
Raja Parvez Ashraf has placed on record a copy of
summary of ECC dated 17.08.2009 wherein it is stated that the
Ministry of Water & Power received a few unsolicited proposals offering
a reasonable tariff, which were compatible with the average RPPs’
tariffs received through ICBs and compliant with the ECC guidelines.
The efficiency and available standards for these power plants and the
financial models also matched the ICB projects. The detail of the
unsolicited proposals, attached with the said summary, is given
hereinbelow: -
Sr.
No.
Description
of project
Fuel
Capacity
(MW)
Rental
Charges
demanded
by Sponsor
Cents/kwh
Proposed
Rental
Charges
Cents/kwh
Remarks
1
Naudero-I
Gas
50
4.46
4.46
2
Naudero-II
Gas
51
4.46
4.00
Phase I financing
arranged and
project already
inaugurated by the
President.
Hard Area.
Medium size plant.
Overall Tariff
lesser as
compared to RFO
plants in the ICB
mode.
3
Sammundri
Road
RFO
150
3.90
3.75
Phase I being
completed on
HRC 7734-G/09
[RPPs case]
37
Extension
30.9.2009.
Proximately to load
centre and
economy of size.
4
Karkey
upgradation
RFO
222
5.98
5.60
Higher Project cost
being power ship/
barge mounted
and different
technology.
Very relevant for
Karachi
The Minister authorized the Secretary (Mr. Shahid Rafi) to submit the
summary, which sought approval of the ECC as under: -
(i)
Payment of 14% mobilization to IPP and GoP
sovereign guarantee as proposed at para-4 ante (not
relevant as far as the case in hand is concerned).
(ii)
Installation of 473 MW of unsolicited projects as
proposed at Para-5 ante.
In respect of Naudero-II, noted hereinabove, a petition for tariff
determination was filed by the CPGCL before NEPRA on 20.04.2010.
The NEPRA considered that the petitioner was guilty of non-compliance
of its directions, inasmuch as plant machinery was shifted from Guddu
to Naudero without prior approval of the Authority; the generation
tariff of RPP at Guddu was determined on lower side, while higher tariff
was claimed on the same machinery to be installed at Naudero;
advance payment had already been made against Guddu, which was
not returned; and again advance payment of 14% was made on
06.04.2010 against proposed new Naudero-II for the same machinery.
Therefore, the petition was declined by NEPRA.
27.
Naudero-II was sponsored by Walters Power International,
whereas Guddu Rental Power Project was sponsored by Pakistan Power
Resources, which had not so far been signed off. During the hearing of
the case, it was noticed that the total rental value in respect of Guddu
plant was determined at US$ 72.48 million against which 14% down
payment equal to US$ 10.15 million, 7% on 17.03.2008 and 7% on
HRC 7734-G/09
[RPPs case]
38
12.03.2009 had been made. But, when the plant was shifted from
Guddu to Naudero, again for the second time 14% advance payment
was made on 06.04.2010 to M/S Walters Power International. Prima
facie, it is a criminal act of extracting money from GENCOs on one
pretext or the other, otherwise knowing well that Pakistan Power
Resources had already obtained 14% advance payment, therefore, in
all fairness, the GENCOs’ authorities ought to have pointed out in clear
terms that as the said plant was not being installed at Guddu,
therefore, the advance payment of 14% ought to be returned. Be that
as it may, this Court, taking notice of this aspect of the matter, vide
order dated 08.12.2010 directed as under: -
“In response to order of this Court dated 07.12.2010 final
statements have been made on behalf of Pakistan Resources
(P.P.R.) and Walters Power International. The documents being
the negotiable instruments have been filed for effecting the
recovery of the outstanding
amount mentioned in the
statements. Learned counsel states that amount mentioned in
the above statement has been arranged and shall be returned to
Central Power General Company Ltd. During course of the day.
It is to be noted that according to learned counsel, the original
amounts have been paid by both the companies along with
markup upto date i.e. 08.12.2010.
2.
Mr. Abdul Malik Memon, C.E.O. of the GENCO is present
and he is required to conduct an inquiry/probe and submit a
report on the next date of hearing fixing responsibility upon the
officers/officials or the persons on whose instructions GENCO
agreed to make the payment to both the companies without
keeping facts and circumstances of the case in front of them.”
However, the requisite report after fixing responsibility upon the
concerned persons was not submitted.
28.
As far as unsolicited RPP of Techno E. Power, Sammundri
Road, Faisalabad is concerned, the same was allowed to continue in
view of the recommendations made in ADB’s report. As the machinery
HRC 7734-G/09
[RPPs case]
39
of Karkay-II (extension) was not brought at site and when NEPRA
proposed to take action because of non-achieving of COD, it was
informed that basically this project of 222 MW was to be installed at
Korangi, Karachi. Since the sponsor did not respond, therefore, neither
LOA was issued nor any RSC was signed. It may also be noted that
there was yet another unsolicited RPP known as Abbas Steel Group
and as there was no machinery at site and as no response was given
by the sponsor to the GENCO, therefore, LOA was not issued. The
advance payment in respect of Naudero-II sponsored by Walters
Power International had been recovered whereas no advance payment
had been made to Karkey-II as well as Abbas Steel Group.
29.
As far as Naudero-I is concerned, it is sponsored by Walter
Power International for a 5-year rental term, the location of the project
is in Sindh, its capacity is 51 MW, rental value has been determined at
US$ 80.42 million and 14% advance payment equal to US$ 11.26
million was made on 16.11.2009. This project could not achieve COD,
therefore, GENCO (CPGCL) encashed the performance guarantee of
US$ 255,000.
30.
Khawaja Muhammad Asif vehemently contended that the
unsolicited RPPs were awarded without adhering to the PPRA Rules.
The In-charge Minister of WAPDA and the Secretary, who had agreed
to accept the offer of the sponsors to allow them to generate electricity
without following rules in the year 2006 and subsequent thereto had
acted without jurisdiction and illegally and caused loss to the public
exchequer. Since the object for which the RPPs were allowed to be
installed was not achieved, therefore, not only the concerned
authorities who re-negotiated terms with them, but at the same time
the functionaries including the Ministers and others, who had allowed
HRC 7734-G/09
[RPPs case]
40
advance payments ought to be dealt with in accordance with the law
and the amounts be recovered from them with mark-up.
31.
Raja Parvez Ashraf, former Minister and his counsel Mr.
Wasim Sajjad, learned Sr. ASC admitted that during his tenure,
Naudero-I was installed pursuant to an unsolicited proposal in view of
the decision of ECC. He, however, explained that although procedure
of ICB was not followed, but complete evaluation of the project and its
technical and financial parameters on cost-plus basis were examined,
inasmuch as the NEPRA had determined tariff under section 7 of the
Act, 1997. Khawaja Ahmad Tariq Rahim, learned counsel supported
the contention raised by Mr. Wasim Sajjad, learned Sr. ASC on behalf
of former Minister.
32.
Mr. Shahid Hamid contended that the Authority had
decided in the first week of September, 2010 to sign off Guddu Power
Project. In the meantime, machinery had been imported, therefore, on
the request of WPI and PPR, this machinery was shifted to Naudero for
installation at WPI’s Naudero-II with permission of CPGCL. The sponsor
had offered to determine some reasonable rental rate, but such
request was turned down unlawfully. The WPI in good faith made offer
to install the machinery at Naudero-II within a period of six months
without receiving any payment till the COD was achieved. When the
review petition filed by GENCOs (CPGCL) was declined by NEPRA vide
order dated 10.03.2011 on the ground that the machinery was more
than 10 years old, WPI offered to install absolutely new machinery at
Naudero-II Project and also proposed revised amended contract with
CPGCL with no advance till COD was achieved and installation of new
machinery, to be purchased by WPI from GEP in Austria. As far as
acceptance of unsolicited proposal for Naudero-I is concerned, he
HRC 7734-G/09
[RPPs case]
41
contended that in view of the facts and circumstances, PEPRA Rule
42(c) permits direct contracting without adhering to follow the rules of
ICB, etc.
33.
Dr. Parvez Hassan, learned ASC appeared for Pakistan
Power Resources and argued that all the unsolicited proposals for RPPs
like Bhikki, Sharaqpur and Naudero-I are covered under Rule 42(3),
particularly, in view of the fact that NEPRA was authorized to
determine the rental value strictly in accordance with section 7, and
for such reason, no prejudice was likely to be caused to the general
public. Thus, legally it would be presumed that all unsolicited proposals
were transparent and in accordance with the Rules. Guddu Power
Project was awarded on the basis of ICB to the PPR. There were
certain defaults on the part of the CPGCL under the rental services
contract, thus liability for achieving COD entirely lies on CPGCL/NEPRA.
As gas to be used for the project was not available, therefore, it was
decided that the project should be signed off. Although the advance
payment has been returned, but to settle other disputes, a mediator
has been appointed. He categorically denied the allegations of
corruption and undue influence in obtaining the unsolicited RPPs. He
stated that the allegations made in this behalf by Mr. Faisal Saleh
Hayat and Khawaja Asif are false, frivolous, scandalous, vexatious and
mala fide.
34.
We have considered the arguments put forward by the
learned counsel for the parties. As it has been pointed out time and
again, with a view to achieving the goal of transparency in awarding
contract or in making procurement, open competition is prerequisite
under the PPRA Rules. The justification put forward by Mr. Wasim
Sajjad, Sr. ASC in his arguments noted hereinabove is that as the
HRC 7734-G/09
[RPPs case]
42
decisions have been taken by the ECC for awarding contract without
following the PPRA Rules, therefore, no mala fide or element of
corruption can be attributed to the parties to the contracts or to the
official functionaries. Suffice it to say, that since the ECC enjoys
Constitutional status, one of its functions is to review from time to
time the energy requirements, its effects and production and
investment. Essentially, ECC is bound to act in accordance with the law
of the land and the Rules. Thus, in presence of PEPRA Rules, it was
incumbent upon the Minister and the Secretary, Water and Power as
well as other functionaries not to have put up such a case before the
ECC in violation of the PEPRA rules. In the summary dated 17.3.2009,
it has not been mentioned that without following PEPRA rules,
unsolicited projects cannot be allowed. However, Mr. Shahid Hamid
stated that such procurement is covered under Rule 42(c) of the PPRA
Rules, which is reproduced hereinbelow:
“42. Alternative methods of procurements.-
A procuring
agency may utilize the following alternative methods of
procurement of goods, services and works, namely:-
…………………………………………………
(c)
direct contracting.- A procuring agency shall only
engage in direct contracting if the following conditions
exist, namely:-
(i)
the procurement concerns the acquisition of spare
parts
or
supplementary
services
from
original
manufacturer or supplier:
Provided that the same are not available from
alternative sources;
(ii)
only one manufacturer or supplier exists for the
required procurement:
Provided that the procuring agencies shall specify the
appropriate fora, which may authorize procurement
of proprietary object after due diligence; and
(iii)
where a change of supplier would oblige the
procuring agency to acquire material having different
technical specifications or characteristics and would
HRC 7734-G/09
[RPPs case]
43
result in incompatibility or disproportionate technical
difficulties in operation and maintenance:
Provided that the contract or contracts do not exceed
three years in duration;
(iv)
repeat orders not exceeding fifteen per cent of the
original procurement;
(v)
in case of an emergency:
Provided that the procuring agencies shall specify
appropriate fora vested with necessary authority to
declare an emergency;
(vi)
when the price of goods, services or works is fixed
by the government or any other authority, agency or
body duly authorized by the Government, on its
behalf, and
(vii) for purchase of motor vehicle from local original
manufacturers
or
their
authorized
agents
at
manufacturer’s price.”
35.
A perusal of the above rule suggests that the provision for
direct procurement without following procedure of fair competition was
not applicable in the case of unsolicited proposal for RPPs. As far as
the claim of learned counsel justifying the shifting of machinery from
Guddu to Naudero is concerned, no document/material has been
placed on record to indicate that permission for the same was granted.
Similarly, with regard to other unsolicited proposals for RPPs, no
material has been brought on record to canvass that there was no
mala fide. Therefore, having been left with no option except to believe
the arguments raised by Makhdoom Syed Faisal Saleh Hayat and
Khawaja Muhammad Asif that on account of such unsolicited
proposals, PEPCO and the concerned GENCOs had indulged in
corruption.
ROLE OF NEPRA
36.
The object and purpose of introducing NEPRA was to
regulate the provision of electric power services and to determine
tariff, rates, charges and other terms and conditions for supply of
HRC 7734-G/09
[RPPs case]
44
electric
power
services
by
the
generation,
transmission
and
distribution as per section 7 of the Act, 1997, which has been
reproduced in the preceding paragraphs. However, neither the process
was undertaken with due diligence nor the policy already in vogue
since 2006 onwards introduced by the previous Government for
running power plants to cater the requirements of shortage of
electricity was followed.
37.
It may be observed here that the NEPRA did not play its
due role in the process of RPPs, firstly for the reason, that bids were
invited on the basis of reference tariff of the fuel; secondly, the NEPRA
was directed to follow the guidelines already issued in respect of IPPs
(guidelines 1.9 and 1.10), which have already been reproduced
hereinabove, but in our opinion NEPRA being an independent
regulatory body had to perform its functions according to law. As per
prescribed procedure, NEPRA could not be oblivious of its duty of
determining tariff in accordance with the mandatory provisions of the
Act, 1997. It may be noted that as per section 7(3)(a) of the Act,
1997, NEPRA is exclusively responsible for determining tariff, rates,
charges and other terms and conditions for supply of electric power
services by the generation, transmission and distribution companies
and recommend to the Federal Government for notification. One of the
most important aspects of the case is that under section 7(6) of the
Act, 1997, the NEPRA is mandated to protect the interests of
consumers and companies providing electric power services in
accordance with the guidelines, not inconsistent with the provisions of
the Act, laid down by the Federal Government. Therefore, the NEPRA
cannot close its eyes and determine tariff contrary to the provisions of
the Act, 1997. Not only that, under section 31 of the Act, 1997 and
HRC 7734-G/09
[RPPs case]
45
Rule 17(2) of the National Electric Power Regulatory Authority (Tariff
Standards and Procedure) Rules, 1998, the NEPRA is required to lay
down procedures and standards for the purpose of determination of
tariff. One of the objects thereof is that the Authority should allow
preference for competition rather than regulation and adopt policy for
tariff determination in terms of rule 17(2) & (6) of the NEPRA Rules.
The NEPRA has not adopted the aforesaid procedures and standards in
the matter of RPPs. In the circumstances, it can only be inferred that
the NEPRA has been inoperative and inactive as far as RPPS are
concerned. When we inquired from the learned counsel as to why the
NEPRA has not asserted its decision in discharge of function assigned
to it, he had no satisfactory answer other than stating that in some of
the cases including the unsolicited projects, the NEPRA has followed
the said procedures and standards in determining tariff. We are not
satisfied with the arguments so advanced by him because the data
noted hereinabove indicates that in the case of Naudero-I, which was
an unsolicited project, apparently rates of electricity were determined
on the higher side. However, it might not be possible for the NEPRA to
discharge its functions because of the instructions and interference by
the Ministry of Water & Power, which had been issuing instructions
from time to time, but in any case, instead of following mandatory
provisions of the Act, 1997, the NEPRA ought not to have
compromised its position.
38.
Mr. Kamal Anwar, ASC assisted the Court as Amicus
Curiae. He submitted that advance payment was made to 9 RPPs,
namely, Karkey, Gulf Rental Power, Reshma Power, Techo Sammundri
Road Faisalabad, Techno Sahuwal Sialkot, Guddu, Young Gen,
Naudero-I
and
Naudero-II,
details
whereof
have
been
given
HRC 7734-G/09
[RPPs case]
46
hereinabove. None of them could achieve COD within time, on account
of which their contracts were signed off. Statedly, the bank guarantees
furnished on behalf of all the bidders have also been encashed. Out of
said RPPs, the advance payment was returned by Reshma, Techo
Sammundri Road Faisalabad, Techno Sahuwal Sialkot, Guddu, Young
Gen and Naudero-II. However, Karkey (231.8 MW), Gulf (62 MW),
Naudero-I (51 MW) and Reshma (201 MW), which are still functioning,
had achieved delayed COD. Mr. Muhammad Akram Sheikh, learned
counsel for Karkey contended that Karkay is the only foreign company
of brotherly country Turkey, which had invested in this country, but
when we inquired from him as to why favour was shown to the bidder
by making 7% advance payment prior to the decision of the Cabinet,
he had no answer.
Similarly, learned counsel appearing for Karkey could not
answer regarding the non-achieving of COD in time. He stated that on
account of force majeure, barge-mounted ship could not reach Karachi
within time. Without prejudice to the case so put up by the learned
counsel, we may point out that we do have respect for the brotherly
country, but as far as commercial activities between any bidder and
the Government owned companies are concerned, the matter is to be
examined strictly in the light of the relevant provisions of the
Constitution and the law. No plausible evidence has been brought on
record to substantiate the plea. In addition to it, the case of Karkay
also suffers from the irregularities and illegalities, which have been
noted in respect of all other cases. We, therefore, hold that the
contract was awarded to Karkey in a non-transparent manner.
39.
In all, 19 Rental Power Projects, namely, Pakistan Power
Resources, Guddu; Pakistan Power Resources, Piranghaib, Multan;
HRC 7734-G/09
[RPPs case]
47
Techno, Sammundri Road, Faisalabad; Techno Project, Sahuwal,
Sialkot; Young Gen, Faisalabad; Gulf Rental Power, Gujranwala;
Independent
Power
Limited;
Kamoki
Energy
Limited;
Karkey
Karadeniz, Karachi (Karakey-I); Premier Energy; Reshma Power
Generation, Manga-Raiwind Road; Ruba Power Generation, Manga-
Raiwind Road; Sialkot Rental Power, Eminabad; Walter Power
International, Karachi; Abbas Steel; Karkey Karadeniz, Karachi
(Karkey II); Techno-E-Power (Pvt.) Limited, Sammundri Road,
Faisalabad-II; Walter Power International, Naudero-I; and Walters
Power International, Naudero-II were proposed.
REPORT OF AUDITOR GENERAL
40.
The Auditor General of Pakistan, in the Audit Report on the
Accounts of Water and Power Development Authority for the Audit
Year 2009-2010 observed a number of illegalities and irregularities,
including pointing out that ECC in its decision bearing No.121/15/2009
approved the following four unsolicited projects: -
Sr.No.
Description of
Project
Fuel
Capacity
Rental charges
demanded
by
sponsor
Cents/kwh
Proposed
rental
charges
cents/kWh
1
Naudero-I
Gas
50 M.W
4.46
4.46
2
Naudero-II
Gas
51 M.W
4.46
4.00
3
Sammundri
Road
Extension
RFO
150 M.W
3.90
3.75
4
Karkey Up-
gradation
RFO
222 M.W
5.98
5.80
These projects were required to obtain approval of their proposed tariff
from NEPRA within minimum period prescribed.
THIRD PARTY EVALUATION BY ADB
41.
Admittedly, report was submitted by ADB wherein the
process of awarding contracts to supply the electric power to the
sellers,
partially
was
not
found
transparent.
Therefore,
the
Government of Pakistan, through Ministry of Water and Power
HRC 7734-G/09
[RPPs case]
48
accepted this report, which means accepting the omissions and
commissions, irregularities, illegalities, and negligence both civil and
criminal, committed during the process of award of RPPs at different
points of time. Thus, in view of objection of ADB, to whom the
Government itself appointed for the purpose of third party evaluation,
8 RPPs (1257 MW) were ordered to be vigorously pursued and 6 RPPs
were ordered to be reviewed in the light of the legal provisions before
proceeding further, whereas 5 RPPs not yet approved/signed were
ordered to be discontinued vide order dated 27.01.2010. The said 19
projects were reduced to 9 projects as per decision of the ECC/Cabinet
in the light of the ADB report, detail of which, as per the report of
Asian Development Bank (ADB) is as follows: -
Rental Power Project Status
No.
RPP Name
Net
Capacity
(MW)
Fuel
Type
Rental
Period
(Months)
Rental
Tariff at
60% Plant
Factor
(Cents/
kWh)
Estimated
COD
Down
Payment
Disbursed
Contracts
status
PEPCO ICB Projects
1
Pakistan Power
Resources,
Guddu
110
Low
BTU
gas
36
8.44
10-Feb
14%
Effective
2
Techno Rental
Power Project-I,
Sammundri,
Faisalabad
150
RFO
36
18.64
10-Jun
14%
Effective
3
Techno Rental
Power Project-II,
Sahuwal, Sialkot
150
RFO
48
18.7
10-Jun
7%
Effective
4
Young Gen
Power,
Faisalabad
200
RFO
36
15.59
10-Jun
14%
Effective
PPIB ICB Projects
5
Gulf Rental
Power,
Gujranwala
62
RFO
60
17.82
10-Feb
14%
Effective
6
Karkey
Karadeniz,
Karachi
(Karakey 1)
232
RFO
60
22.36
10-Apr
14.16%
Effective
7
Reshma Power
Generation,
Manga-Raiwind
Road
201
RFO
60
20.26
10-Mar
14%
Effective
Unsolicited Projects
8
Walter Power
International,
51
Gas
60
9.5
10-Jun
14%
Effective
HRC 7734-G/09
[RPPs case]
49
Naudero-I
9
Walters Power
International,
Naudero-II
50
Gas
60
10-Jun
NIL
Under
Process
The petitioners have vehemently contended that the process of award
of RPPs contracts was fraught with grave illegalities and irregularities
whereas the learned counsel appearing for the Government/
WAPDA/GENCOs
have
submitted
that
the
GENCOs
had
been
implementing the policies of Government to overcome the load-
shedding in the country on fast track basis as per approval of ECC as
well as the Federal Cabinet. In this regard, a detailed analysis of some
of the RPPs is undertaken hereinafter.
SOLICITED RPPs
DISCUSSION OF EFFECTIVE RPPs
(1) GUDDU
42.
With regard to 110 MW Guddu Rental Power Plant,
advertisement dated 07.07.2007 was floated. The eligibility criteria
provided in the advertisement were having similar experience for
minimum of 3 locations and net worth of not less than US$ 30 M (for
last 3 years). M/s Pakistan Power Resources (PPR) and M/s Progas
Pakistan Ltd. (PPL) offered tenders/bids. Both the bidders failed to
meet US$ 30 million net worth criterion. As such, the PEPCO, vide
letter dated 03.11.2007, rejected the same and ordered for re-
advertisement. The fresh advertisement was published on 11.11.2007,
wherein following deviations from first advertisement were made: -
(1)
Capacity of 100 MW was changed to 100-125 MW
with minimum efficiency of 33%.
(2)
Period 2 years was changed to 2, 3 or more.
(3)
Eligibility condition of having similar experience for
minimum of 3 locations was removed.
(4)
Condition of depositing Security of Rs. 10 M or $
0.17 M, was deleted.
HRC 7734-G/09
[RPPs case]
50
(5)
Condition of Penalties for non-availability, delay in
installation & commissioning or variation in heat
rate, was deleted.
(6)
Condition of providing Operational Guarantee worth
10% of Base Load Operation Cost for 2 years by the
bidder was deleted.
(7)
Process of price evaluation was changed.
(8)
Bidder’s responsibility to the extent of Operation and
Maintenance of equipment and Trouble free base
load supply of electricity was eliminated.
(9)
Bidder’s responsibility to the extent of Transportation
of equipment to and from the site was eliminated.
(10) Guarantee for providing 92% of gas fuel was
provided.
Subsequently, by a corrigendum/advertisement, the condition of
security deposit of Rs.10 million or US$ 0.17 million was inserted in
the
advertisement
dated
11.11.2007,
and
by
yet
another
corrigendum/advertisement dated 30.11.2007, the bid opening date
was changed from 01.12.2007 to 10.12.2007. Pursuant to the above
advertisements, 12 parties made requests for supply of sample
agreement, however, following three parties tendered their bids: -
(a) M/s Progas Pakistan Ltd.,
(b) M/s Pakistan Power Resources, and
(c)
M/s Pak Oman Investment Company Karachi.
The Evaluation Committee, through its report dated 01.01.2008, gave
the following recommendations: -
On the basis of evaluation criteria, the bid offered by
M/s Progas Pakistan Ltd. as Option-I (125 MV) is lowest
in tariff, on the basis of Lump sum Contract Price,
Rental Charges and Fuel Cost Component.
Only M/s Pak Oman Investment Company qualifies the
minimum US$ 30 million Net Worth, while others do
not.
M/s Progas has offered 125 MW at reduced load
operation, with other option of 135 MW at full load
offering an incentive in Rental Rates.
Rental Service Contract may be awarded to M/s Progas
Pakistan Ltd. for installation of 135 MW net capacity on
three rental years against their guaranteed availability
at 92% on gas fuel at proposed site of TPS Guddu at
132 KV level.
In this connection, it is proposed to relax minimum
criteria of US$ 30 million Net Worth.
HRC 7734-G/09
[RPPs case]
51
The bid offered by M/s Pakistan Power Resources was accepted on
03.02.2008 as under: -
Based on rental charges & guaranteed heat rates
offered by the bidders, the overall cost (US Cents 7.640
per kWh) offered by M/s Pakistan Power Resources is
lower as compared to the offer (US Cents 7.974 per
kWh) of the next higher bidder.
The rental value offered by M/s Pakistan Power
Resources, at (US 2.717 per kWh) was 13%, which was
lower than that of the rental (US Cents 3.133 per kWh)
for units of GE at Sheikhupura and PPR at Bhikki,
already in operation.
A penalty clause be included in the contract agreement
to
penalize
PPR
for
failing
to
achieve
the
specified/required COD.
It was unanimously agreed that offer by M/s Pakistan
Power
Resources
was
the
best
offer
and
was
accordingly approved. LOA may be issued and the
matter submitted to PEPCO, BOD for ratification.
Vide letter dated 06.08.2008, the offer of M/s PPR for setting up of
150 MW Rental Power Station was accepted and Advance Payment
Guarantees were provided to the seller. Vide letter dated 11.03.2008
permission was accorded to M/s Pakistan Power Resources, LLC to
enlarge/expand and continue operation of its Branch Office at Lahore.
On 23.02.2008, rental agreement was executed between Pakistan
Power Resources, LLC and Central Power Generation Company Ltd.
(CPGCL). On 11.12.2008, an amendment was made to the Rental
Agreement to the following effect: -
Changes were made in the mode of payment through
LC.
The CPGCL have no right to cancel the contract within
initial 8 months.
In case of termination of the agreement by CPGCL, the
buyer shall be entitled to outstanding rent of 36
months.
Maximum drawdown on SBLC during any one calendar
month will not exceed a sum of US$ 1,872,466.
On 05.03.2009, second amendment was made to the Rental
Agreement to the whereby following effect: -
HRC 7734-G/09
[RPPs case]
52
Requirement of confirmation of SBLC by a Financial
Institution in UK or USA in terms of clause 4.5(d) was
waived.
The seller waived the right to call the SBLC on account
of defaults of the Buyer, which had occurred prior to
issuance of SBLC.
Amount of SBLC as mentioned in section 4.5 was
reduced from 93% (US$ 67,408,766) to 86% (US$
62,334,988) of the contract price.
Down payment was increased from 7% to 14 %.
Some
amendments
were
made
in
the
capacity/operation of Units.
(2) PIRANGHAIB, MULTAN & SAHUWAL, SIALKOT
43.
For setting up a 250-300 MW RPP at Piranghaib, Multan on
base load operation for 2 years, advertisement was published on
11.10.2007. The eligibility criteria provided in the advertisement were
having similar experience for minimum of 3 locations; and Net worth
of not less than US$ 30 M (for last 3 years). By corrigendum dated
24.10.2007, the eligibility criterion requiring experience of providing
similar Rental Power facilities for minimum of three locations was
deleted. Later on, another corrigendum dated 29.10.2007 was issued
whereby bid submission/tender opening date was extended to
07.11.2007. The tenders were opened on 22.11.2007 wherein three
parties, namely, M/s Techno Engineering (Pvt.) Ltd., M/s Progas
Pakistan Ltd. and M/s Pakistan Power Resources submitted proposals.
The Rental Power Projects had to run on RFO and gas fuels. It was the
responsibility of buyer to provide gas when available, whereas, seller
was bound to arrange for RFO fuels. Specifications provided by Techno
Engineering Services Ltd. (Sahuwal, Sialkot) were S50MC-C7 MN
B&W; and by M/s Pakistan Power Resources (Piranghaib, Multan)
were 192 MW (net) at mean site conditions based on GE Gas Turbines
Generating Sets operable on RFO and gas fuels, of appropriate Make &
Size and configuration acceptable to the Buyer. The proposals were
HRC 7734-G/09
[RPPs case]
53
evaluated by an Evaluation Committee, which by means of its report
dated 11.12.2007 recommended for award of contract to M/s Techno
Engineering Services (Pvt.) Ltd. as Option-I. A Scrutiny Committee
constituted to scrutinize the bids, vide its report dated 04.01.2008
found that all the three bidders for the plant were financially non-
responsive because they had failed to meet US$ 30 million net worth
criterion. On re-invitation, fresh proposals were received from M/s
Techno Engineering Services and M/s Pakistan Power Resources. On
17.03.2008, the Board of Directors of PEPCO decided to split up the
project as under: -
150 MW RPP at Sahuwal, Sialkot
192 MW RPP at Piranghaib, Multan
Accordingly, on 24.03.2008, the Letters of Award were issued to M/s
Techno Engineering Services Islamabad and to M/s Pakistan Power
Resources respectively. RSCs were signed between the sellers and the
buyer. Subsequently, RPP at Piranghaib was signed off on 14.09.2010.
Extracts from such document have been reproduced in CMA 3992/11,
which are as follows: -
“4. Signing Off of Project
(1)
As per the minutes of the meeting held on 14
September 2010 in the Ministry of Water and Power, the
decision was taken at 5(vi) that Rental Power Multan is
allowed to be signed off “on mutually acceptable condition
between CPGCL and the sponsors”.
(2)
In its over-all settlement, PPR seeks the return of its
Advance Payment Guarantee, Performance Guarantee and
payment of US$1,001,771 in reimbursement of (a) its cost
of US$ 451,746 on Project engineering, (b) US$ 5,328 on
Performance Guarantee Charges, (c) US$ 77,143 on
Advance Payment Guarantee, (d) interest of US$ 267,494
on Performance Guarantee Charges and (e) US$ 200,000
paid to Bank Islami as advisory and management fee.”
HRC 7734-G/09
[RPPs case]
54
44.
In addition to that, the contract was signed between M/s
Techno Engineering Services (bidder) and Northern Power Generation
Company (NPGCL) being a licence holder for the generation of
electricity, although it had never invited bids for the supply of electric
power. Whereas, a contract being a bilateral document has to be
reduced into writing by means of an agreement enforceable by law
between the person who had made the proposal and the one who had
accepted the same, or those who had made an offer to do a particular
thing and accepted the same. Reference in this behalf may be made to
section 2(g) of the Contract Act, 1872, which provides that an
agreement enforceable by law is a contract. It seems that originally
Rental Power Project of Piranghaib was unsolicited, but subsequently
certain steps were taken purportedly to give an impression that it was
a solicited project based on ICB. The expression ‘unsolicited’ has been
used because while entering into contract with these companies, the
procedure laid down in the Public Procurement Rules, 2004 (PPR) was
not followed. Thus, requirements of International Competitive Bidding
(ICB) were not completed. Following further irregularities have been
committed in the award of the contract: -
(1)
The advertisement was contrary to Rule 12 of the Public
Procurement Rules, 2004, inter alia, for following reasons:-
(i)
No advertisement was made on the Authority’s
website in the manner and format specified by
regulation by Authority from time to time;
(ii)
No advertisement was made on the website of
PEPCO.
(2)
The original 250-300 MW RPP at Piranghaib, Multan was
split up for two different sites, one at Piranghaib, Multan
and the other at Sahuwal, Sialkot, which were awarded to
two different companies without any advertisement and
bid.
HRC 7734-G/09
[RPPs case]
55
(3)
As per section 4.5(a) of the Rental Services Contracts
(Sahuwal, Sialkot), executed between NPGCL and Techno
Engineering Services Ltd, the seller was eligible to obtain
in advance a down payment amounting to 7% of lump sum
contract price, however, a major change was brought
about vide amendment dated 11.06.2009 by increasing
the down payment to 14%. Similarly, the additional 7%
advance was also paid to M/s Pakistan Power Resources
(Piranghaib, Multan).
(4)
As per section 4.5(a) ibid, the seller was eligible to obtain
in advance the Down Payment amounting to 7 % of lump
sum contract price for the term of rental services contract
on submission of bank guarantee valid until 30 days after
the target commercial operation date. The provision of
bank guarantee of just 30 days for the whole rental term is
inadequate for in case of default by the seller the buyer
could get only that amount of total 7 % of which the seller
has furnished bank guarantee. Beyond the period of 30
days from the target operation date, the buyer could not
recover any amount as there was no bank guarantee for
the same.
(5)
As per clause (c) of section 4.5 ibid, the buyer was bound
to deliver to the seller an irrevocable letter of credit in the
amount equal to 36 monthly rental services fee payments,
however, vide amendment No. 2 dated 24.11.2009, the
SBLC
was
replaced
with
Government
of
Pakistan
Guarantee with a view to giving maximum benefit to the
seller.
(6)
As per LOA and the contract, the Seller were paid 7%
Advance before COD. In case of Techno E. Services Ltd.
Sahuwal, 7% advance amounting to US$11,550,000 and in
case of M/s Pakistan Power Resources (Piranghaib,
Multan), US$14,584,990 were paid. Bank guarantees were
obtained before making the payment. It was not covered
by the terms of the advertisement. Likewise, the provision
of standby letter of credit in favour of the seller was also
not in accordance with the advertisement.
HRC 7734-G/09
[RPPs case]
56
(7)
According to the Act, 1997, the bidders i.e. Techno E.
Power and Pakistan Power Resources were bound to obtain
generating licences, but it was decided that the buyers
would obtain said licences.
It is to be kept in mind that as far as the capacity charges are
concerned, the same were to be determined on the basis of bids, and
if there was no competition, then likelihood of quoting highest capacity
charges could not be overruled without knowing that what was the
efficiency of the machinery although vide letter dated 13.04.2009
NEPRA had stated that its life should not be more than 10 years.
45.
Apart from the signing off of Piranghaib RPP’s contract, the
fact remains that both these projects were handled by the concerned
authorities negligently, on account of which a huge loss had been
caused to the public exchequer. Detailed discussion regarding
unsolicited RPPs shall be undertaken subsequently, but primarily,
examination of these RPPs reveals how casually PEPCO and NPGCL had
dealt with the matter without considering their powers and jurisdiction,
which ultimately cast a burden on the citizens, individually and
collectively.
(3)
NISAHATABAD/SAMMUNDRI ROAD, FAISALABAD
46.
For setting up RPP of above 50 MW at Nishatabad,
Faisalabad, initially for two years, extendible for further one year,
advertisement dated 11.10.2007 was issued by Northern Power
Generation Company Ltd. (NPGCL), laying down the eligibility criteria
of having experience of providing similar Rental Power Facilities for
minimum of 3 locations and net worth of not less than US$ 30 million
(for last 3 years). Guaranteed availability of 88% on RFO fuel
(aggregate during the term) was required in the advertisement and
the date of commissioning was mentioned as 15.05.2008.
HRC 7734-G/09
[RPPs case]
57
47.
Vide corrigendum/advertisement dated 24.10.2007, the
eligibility criteria requiring “experience of providing similar rental
power facilities for minimum of 3 locations” was deleted from the
advertisement dated 11.10.2007. Vide corrigendum/advertisement
dated 29.10.2007, the date for submission/opening of bids was
extended
to
07.11.2007.
Vide
order
dated
03.11.2007
and
corrigendum/advertisement
dated
04.11.2007,
the
date
for
submission/opening was extended to 21.11.2007. In response to said
advertisements, 20 parties made requests for supply of sample
agreement, which was supplied. However, the following three parties
submitted their Bids:-
(a)
M/s Techno Engineering (Pvt.) Ltd., Islamabad,
(b)
M/s Progas Pakistan Ltd., Karachi, and
(c)
M/s Pakistan Power Resources, Lahore.
The Evaluation Committee gave its report on 01.01.2008 wherein
following recommendations were made: -
On the basis of evaluation criteria, the bid offered by
M/s Techno Engineering Services (Pvt.) Ltd. as Option-I
(MAN B&W) equipment is lowest in Total Tariff, on RFO
fuel, on the basis of Lump sum Contract Price, Rental
Charges and Fuel Cost Component.
Value of Total Tariff and Rental Charges remain same
for 3 and 4 years, therefore, 3 years Rental term is
recommended, which may be extended to 4th year as
per PEPCO power requirement.
The above Tariff components are worked out on the
basis of guaranteed availability, while the plant factor
on RFO operation is expected around 60% in a year.
All the bidders are not qualifying the minimum US$ 30
million Net Worth.
The bidder may be asked to achieve Commercial
Operation Date by 15.05.2008, otherwise the Rental
Period would be reduced.
Proposal of bidder for shifting of site from Nishatabad,
Faisalabad to Eminabad, Gujranwala may be considered
because there will be saving of 1.93% of Lump Sum
Contract Price, while power is also required in
Gujranwala region.
Award of Rental Services Contract is recommended at
the above Quoted Lump Sum Contract Price, for
installation/operation of 150 MW net capacity, on 3
HRC 7734-G/09
[RPPs case]
58
rental years basis, at proposed site of Eminabad,
Gujranwala at 132 kV voltage level.
Letter of Award (LOA) was issued to M/s Techno E. Services (Pvt.) Ltd.
on 22.01.2008 and amended LOA was issued on 22.01.2008. Advance
payment guarantees were provided to the seller, which were extended
for further periods through separate amendments. Approval for
amendment in sample rent agreement and authorization to sign
contract was obtained on 14.02.2008. Till 14.02.2008, the main site
area was mentioned as Nishatabad, Faisalabad, but for the first time
on 14.02.2008, while seeking approval for amendment in sample rent
agreement and authorization to sign contract, it was mentioned as
Sammundri Road, Faisalabad. After discussing the ADB Audit Report,
the project was approved by the Cabinet.
(4)
KARKEY KARADENIZ ELEKTRIK
48.
To set up RPPs of 200 MW cumulative capacity near
Karachi, advertisement dated 17.05.2008 was issued by PPIB following
the ICB procedure. Two bidders, namely, Karkey Karadeniz Elektrik
Uretim A.S. and Walters Power International fulfilled the requirements
of the RFP. Tariff determination was done on 21.10.2008, RSC was
signed on 05.12.2008 and advance payment of US$ 79.05 million was
made on 12.05.2009. The original COD was fixed as 14.08.2009,
which was first revised to 08.12.2009 and then to 07.04.2010.
However, since the RSC did not come into effect, no obligations or
rights accrued to either party thereunder. Amended & restated RSC
was signed on 23.04.2010 for a rental term of 5 years.
49.
In the invitation for bids published by the PPIB, the bidders
were required to quote rental charges and fuel cost component on
delivery of energy at reference fuel prices. In some of the
advertisements, exact location/sites were mentioned. For reference,
HRC 7734-G/09
[RPPs case]
59
the relevant portion of the advertisement dated 20.05.2015 in
pursuance whereof contract was awarded to Karkey Karadeniz is
reproduced hereinbelow: -
“Venture into Secure, Profitable & Promising Power Sector of Pakistan
INVITATION FOR BIDS
1200 MW Fast Track Private Power Projects
“Package B:
Rental Power Project(s) of 200 MW cumulative capacity near Karachi.
Capacity:
Rental power project(s) including barge-mounted plants of 200 MW
cumulative power generation capacity can be offered by the bidder(s).
One or more project proposals/bids will be considered, until the limit of
200 MW is attained.
Fuel/Type:
The bidders may offer projects of any multiple fuel (Residual Fuel
Oil/Gas/Liquified Natural Gas/Liquified Petroleum Gas), technology and
type.
Site: Near Karachi
Project commissioning:
Project(s) are required to be operational within six (06) months from
issuance of Letter of Award (LOA).
Term of Project(s):
The term of the project(s) would be 3-5 years.
Project Agreement:
The project agreement/contract for these projects would be in
accordance with those earlier executed by PEPCO for Rental Projects.
Evaluation Criteria:
For evaluation of bids and award under this package, similar approach
as that for Package-A would be followed, until cumulative capacity of
200 MW is reached.
Bidding Process Roadmap:
The interested party/parties will be registered with PPIB after
paying US$ 100 (or Pak Rs. 7000) for each Package and
purchase Request for Proposal (RFP) after making a non-
refundable payment of US$ 2,000 (Pak Rs.140,000) for each
Project. The registration process and sale of RFP will be
completed from 20th May to 19th June 2008.
The interested party/parties will submit complete bid in
accordance with the RFP along with a refundable Bid Bond @
US$ 1,000 per megawatt (MW) of proposed Gross (ISO)
Capacity of the Project and non-refundable bid evaluation fee of
US$ 20,000.
Payments to be made through Demand Draft/Pay Order drawn
in favour of PPIB, payable at a bank branch in Islamabad
Pakistan or through wire transfer.
PPIB reserves the right to reject any or all bids without
assigning any reason thereof.”
HRC 7734-G/09
[RPPs case]
60
The bidders gave their respective bids for rental charges and fuel cost
component on Proformas XII/XIII. In this behalf, contents of
Proformas No. XII & XIII, submitted by M/s Karkey are reproduced
hereinbelow: -
“ANNEX – B
Attachment 12 to the Bid Letter
Proforma XII
Bidder’s Offered Reference Tariff Table
Rental Power Project
Reference Tariff Table for Ranking Purpose
Year
Fuel
(¢ per kWh) x 1.2
Rental Rate
(¢ per kWh)
Total
(¢ per kWh)
1.
10,2323 x 1.2
6,3500
18,6288
2.
10,2323 x 1.2
6,3500
18,6288
3.
10,2323 x 1.2
6,3500
18,6288
4.
10,2323 x 1.2
6,3500
18,6288
5.
10,2323 x 1.2
6,3500
18,6288
Note:
1.
The calculation of Fuel Cost Component and Rental Rate
will be made according to the Proforma XIII
2.
For conversion of Fuel Cost Component from Pak Rs. To US
Cents, the conversion rate of 1 US$ = 62 Pak Rs. Shall be
used.”
“Attachment 13 to the Bid Letter
Proforma XIII
Pricing - Lump Sum Rental Charges, Rental Rate and Reference
Fuel Cost Component
a)
Pricing – Lump Sum Rental Charges for 60 Months Rental
Term.
HRC 7734-G/09
[RPPs case]
61
Description
Duration
(Months)
Lump Sum Rental
Charges (US$)
Rental
Services
of
the
Equipment including but not
limited
to
SELLERS’S
responsibilities mentioned in
the
Rental
Services
Contract:
Transport to/from Company
Site Mobilization and de-
mobilization Installation and
commissioning
Operation
and maintenance.
60 Months
(as per
applicable
Rental
Term)
$
599.575.966,20
(US
Dollars
Five
Hundred
Ninety-
nine
Million
Five
Hundred
Seventy
Five Thousand Nine
Hundred
Sixty-six
and
twenty
cents
only)
b)
Rental Rate
The Rental Rate 6,3500 US Cents/kWh based on the Lump Sum
Rental Charges given in the Table above is calculated using the
following formula:
Rental Rate (Cents/kWh) =
Lump Sum Rental Charges in US Dollars x 100
Net Capacity in MW x 1000 x Rental Term in years x number of hours
in year x Guaranteed Availability
Where:
Net Capacity of Rental Plant:
231.8 MW (net) at Mean Site
Conditions
Guaranteed Available of Equipment:
93%
No. of Hours in a year:
8760”
50.
The above rental charges for supply of energy per kWh
were quoted on the basis of reference value. It is pertinent to mention
that a buyer should always be interested to get installed a power
plant, which can produce more electricity. Obviously, the charges were
quoted purely on presumptive basis, as at the time of submitting bid
documents, no plan was available. Thus, there was no competition
between bidders as the competition would be possible, if the buyer
had fixed the reserved price and had also specified the make, model
and life of the plant. In view of such situation, NEPRA vide letter dated
13.04.2009, which is reproduced hereinabove, notified that old plants
having life of more than 10 years or plants which had completed
60000 operating hours would not be acceptable.
HRC 7734-G/09
[RPPs case]
62
(5)
GULF, EMINABAD, GUJARANWALA and INDEPENDENT
POWER (Pvt.) Ltd., GOJRA, FAISALABAD
51.
To set up a 100 MW IPP or above 50 MW RPP at any site in
Pakistan, advertisement dated 26.09.2008 was issued by PPIB. There
were no specific conditions regarding the capacity, type of fuel,
technology of plant, site, etc. In response to the said advertisement,
the following parties submitted bids: -
(a)
ALSTOM Power Rentals for 200 MW project near 220
kV Ludewala - Sargodha Grid Station.
(a)
Gulf Rental Power for 80.5 MW project adjacent to
132 kV Eminabad - Gujranwala Grid Station.
(b)
Independent Power Pvt. Ltd. for 220.97 MW project
near 132 kV Gojra - Faisalabad Grid Station.
The PPIB in its meeting held on 20.12.2008 approved processing of
Letter of Award (LOA) to Gulf. The NEPRA approved the tariff of Gulf
on 13.04.2009. LOA was issued to M/s Gulf Rental Power on
27.04.2008. Advance Payment Guarantees were provided to the seller
as such Advance payment was made on 19.09.2009. Original
commercial operation date (COD) was 31.12.2009 which was revised
to 29.04.2010 and the Project was commissioned on the said date.
52.
The Ministry of Water & Power vide letter dated
24.01.2009 forwarded the summary on fast track rental power
projects through ICB with respect to Gulf. NEPRA vide letter dated
18.02.2009 communicated its response. Relevant Para is given
hereunder: -
“(iii) However, it has been observed that due to poor
response from IPPs, PPIB is accepting more rental power
plants, which have considerably lower efficiencies. NEPRA
therefore recommends as follows:
(a)
The induction of rental power projects on furnace oil
with very lower thermal efficiency should be
discouraged.
The
present
induction
should
be
allowed for a limited time and further additions in the
system be made through life-cycle investment
analysis of the projects. This is extremely critical in
HRC 7734-G/09
[RPPs case]
63
view of the fuel cost component which forms a major
component of overall tariff.
(b)
While developing RFP for any future induction of IPPs
under ICB, the regulator should be kept on board.
(c)
During evaluation of bids, NEPRA’s earlier tariff
determinations should be considered as a reference.”
53.
The PPIB vide letter dated 24.01.2009 declared the above-
referred RPPs as qualified bidder, which was arrived at through ICB
and was advised to approach NEPRA for approval of the approved
tariff. Ministry of Water & Power vide letter dated 20.02.2009 advised
NEPRA to approve the approved tariff. The Authority considered that:
(i)
Acute power shortage in the country and recognizes the
importance of fast track projects and supports the
endeavor of the Ministry of Water & Power for induction of
additional power.
(ii)
Poor response from IPPs regarding bidding process due to
which PPIB had to accept more rental power plants with
lower efficiencies.
(iii)
Rental Tariff was accepted by GOP and denying approval in
the instant case would result in further delay the additional
power and would give wrong signal to the private
investors.
While granting approval of these rental projects on 13.04.2009 NEPRA
gave its observation in the said decision that though tariff arrived at
through competitive bidding is not subject to further review by NEPRA,
but the Authority still needs to consider the provisions of section
31(2)(a),(c)&(d) of the NEPRA Act, which require NEPRA to protect
consumers against monopolistic prices; to encourage efficiency in
licensees operations and quality of service and to encourage economic
efficiency in the electric power industry. Hence at the time of granting
the tariff in question, the NEPRA vide letter dated 13.04.2009
recommended that in future:-
(i)
The induction of rental power projects on furnace oil with
very low thermal efficiency should be discouraged. This
becomes even more critical in view of the fuel cost
component, which forms a major component of overall
tariff.
HRC 7734-G/09
[RPPs case]
64
(ii)
Before initiating ICB, the RFP should be got approved by
NEPRA.
(iii)
During
evaluation
of
bids
NEPRA’s
earlier
tariff
determinations be considered as reference.
(iv)
The rental power plants more than 10 years old or more
than 60,000 operating hours may not be accepted.
As per GENCO, the RSC with IPL was not signed and in the light of the
Cabinet decision dated 27.01.2010, the project was discontinued.
54.
From a perusal of the above facts, it is evident that
following grave irregularities were committed in the award of the
contract: -
(1)
No specific conditions were provided in the advertisement
regarding the capacity, type of fuel, technology of plant,
site, etc. The bidders were to finalize sites in coordination
with PEPCO. The project was to be commissioned within 6-
8 months from issuance of Letter of Award (LOA).
(2)
Eligibility criteria, as provided in the advertisements by
PRPCO, such as, having similar experience for minimum of
3 locations and Net worth of not less than US$ 30 M (for
last 3 years), was not provided.
(3)
The seller was eligible to obtain in advance a down
payment amounting to 7% of lump sum contract price,
however, a major change was brought about and
additional 7% advance was paid to Gulf Rental Power.
(4)
As per section 4.5(a) ibid, the seller was eligible to obtain
in advance the Down Payment amounting to 7 % of lump
sum contract price for the term of rental services contract
on submission of bank guarantee valid until 30 days after
the target commercial operation date. The provision of
bank guarantee of just 30 days for the whole rental term is
inadequate for in case of default by the seller the buyer
could get only that amount of total 7 % of which the seller
has furnished bank guarantee. Beyond the period of 30
days from the target operation date, the buyer could not
recover any amount as there was no bank guarantee for
the same.
HRC 7734-G/09
[RPPs case]
65
(5)
As per clause (c) of section 4.5 ibid, the buyer was bound
to deliver to the seller an irrevocable letter of credit in the
amount equal to 36 monthly rental services fee payments,
however, vide amendment No. 2 dated 24.11.2009, the
SBLC
was
replaced
with
Government
of
Pakistan
Guarantee with a view to giving maximum benefit to the
seller.
(6)
Tariff determination was done on 13.04.2009 and payment
of 7% advance in the sum of US$ 11.9 million was made
on 19.02.2009 before COD.
(7)
The original Commercial Operation Date was 31.12.2009
but the COD cannot be achieved as such the same was
revised to 29.04.2009 when COD was achieved.
(8)
The Project was to run on RFO and the NEPRA advised that
the induction of rental power projects on furnace oil with
very low thermal efficiency should be discouraged.
(9)
Rental tariff was approved by NEPRA on the ground that
tariff had already been accepted and denying approval
would result in further delay the additional power and
would give wrong signal to the private investors.
(6)
RESHMA, RAIWIND ROAD, LAHORE
55.
To set up above 50 MW RPP capacity at any site to be
finalized in coordination with PEPCO, advertisement dated 23.12.2008
was issued by PPIB following the ICB procedure. Ten bidders
participated in the bidding out of whom eight bidders were
recommended by the Evaluation Committee. The Committee also
observed that there was room for tariff reduction, hence quoted tariffs
may be negotiated with the bidders. The bid of Reshma Power was
approved
on
14.04.2009.
Tariff
determination
was
done
on
29.05.2009. RSC was signed on 06.09.2009. Advance payment of US$
55.27 million was made on 03.10.2009. The COD was fixed as
31.12.2009, which was not achieved, therefore, the advance payment
was returned. However, after the project achieved partial COD,
HRC 7734-G/09
[RPPs case]
66
permission was sought from the NEPRA, but the same was declined as
the proposal was against the agreed contractual terms.
LIFE OF RPPs
56.
Unfortunately, NEPRA specifications in respect of the life of
the power plants were not adhered to strictly. For example, the
machinery to be installed at Naudero, which was sought to be removed
from Guddu after it had been signed off was admittedly more than 10
years old, as such NEPRA had declined to grant necessary permission.
Similarly, in respect of Karkay power plant, Mr. Muhammad Akram
Sheikh, Sr. ASC asserted that 60% of the plant machinery was brand
new whereas the remaining 40% was only 3 years old. In addition to
it, during arguments it was pointed out that the said machinery was
more than 25 years old. Thus, contention raised by Makhdoom Syed
Faisal Saleh Hayat that no technical qualification/pre-condition was in
place to ascertain the quality, efficacy and optimum performance of
the imported plants as per international standards is correct.
UNIT COST PER KWh
57.
It is to be seen that RPPs are mostly based on RFO
(Residual Fuel Oil), HSFO and Gas. As far as RFO is concerned, its
prices are increasing day-by-day and the bidders were allowed to get
reference fuel price for RFO equal to Rs.26,000/- per metric ton ex-
Karachi without inland transportation cost and sales tax. The bidders
would workout inland transportation costs and base its fuel cost
component in the bid on delivered fuel price on site (Pak Rs.26,000/-
inland transportation cost) as well as fuel adjustment as per contract
and perhaps due to this reason, power plants based on RFO produced
electricity at a higher cost. To demonstrate this aspect of the case, we
may point out that during hearing of the case, respondents were called
HRC 7734-G/09
[RPPs case]
67
upon to submit details of RPPs operating at the relevant time to
ascertain unit cost per kWh. Accordingly, a chart was placed on record
for our perusal showing per unit cost, being charged from the
Government by Gulf, Karkay, Reshma and Walters Power (Naudero-I).
The details of each of the power plants are as under: -
Gulf Rental
Power
Karkey
Karadeniz
1
2
i
Contracted
Capacity-MW
62
231.8
ii
Contracted
Availability-MW
92%
93%
iii
Commercial
Operation Date-
COD
26.04.2010
13.4.2011
iv
Guaranteed Net
Electric Output-
kWh, per Month
of 30 Days
40,176,000
155,213,280
v
Daily guaranteed
Net Elect Output
1339,200
5,173,776
vi
Total Rent for 5
Years-USD
85,000,000
564,640,043
vii
Monthly Rent-
USD
1,415,667
9,410,667
vii
Daily Rent-USD
(30.42 Days in
Month
46,570
309,358
ix
Cents-Per kWh
3.4778 Rs-
3.03
5.98 Rs-
5.20
x
RFO Price-Rs Per
Kg (dated
11.10.11
applicable to
nearest IPP and
Genco) including
transportation
cost of each
68.00
61.66
xi
xi RFO
Consumption-per
Kwh-grams
234.99
244.00
Rs
Rs
Rs
Rs
Rs
Rs
Days
Date
kWh
Rent-
kWh
Fuel-
kWh
Unit
Cost-
kWh
kWh
Rent-
kWh
Fuel-
kWh
Unit
Cost-
kWh
1
26.10.11
1,245,466
3.253
15.98
19.23
2,762,600
9.74
15.05
24.79
2
25.10.11
1,246,261
2.251
15.98
19.23
3,035,900
8.87
15.05
23.91
3
24.10.11
1,248,457
3.245
15.98
19.22
3625,000
7.42
15.05
22.47
4
23.10.11
1,105,938
3.664
15.98
19.64
3,682,500
7.31
15.05
22.35
5
22.10.11
1,096,070
3.696
15.98
19.68
3,398,800
7.92
15.05
22.96
6
21.10.11
1,197,786
3.383
15.98
19.36
2,102,400
12.80
15.05
27.85
7
20.10.11
1,229,730
3.295
15.98
19.27
1,698,600
15.84
15.05
30.89
8
19.10.11
1,1150,542
3.521
15.98
19.50
1,62,000
16.54
15.05
31.59
9
18.10.11
1,245,197
3.254
15.98
19.23
932,300
28.87
15.05
43.91
10
17.10.11
1,219,752
3.322
15.98
19.30
897,200
30.00
15.05
45.04
11
16.10.11
1,230,098
3.294
15.98
19.27
850,100
31.66
15.05
46.71
12
15.10.11
1,126,913
3.595
15.98
19.57
785,500
34.26
15.05
49.31
13
14.10.11
1,222,272
3.315
15.98
19.29
822,600
32.72
15.05
47.76
14
13.10.11
1,262,320
3.210
15.98
19.19
864,600
31.13
15.05
46.17
15
12.10.11
1,201,690
3.372
15.98
19.35
911,500
29.53
15.05
44.57
16
11.10.11
1,198,484
3.381
15.98
19.36
876,500
30.71
15.05
45.75
17
10.10.11
1,101,726
3.678
15.98
19.66
849,100
31.70
15.05
46.74
18
09.10.11
1,218,411
3.325
15.98
19.30
832,900
32.31
15.05
47.36
19
08.10.11
1,291,849
3.136
15.98
19.18
846,000
31.81
15.05
46.86
20
07.10.11
1,476,273
2.744
15.98
18.72
885,900
30.38
15.05
45.43
21
06.10.11
1,479,693
2.738
15.98
18.72
2,454,000
10.97
15.05
26.01
22
05.10.11
1,476,375
2.744
15.98
18.72
919,100
29.28
15.05
44.33
23
04.10.11
1,471,224
2.754
15.98
18.73
1,722,400
15.63
15.05
30.67
24
03.10.11
1,393,148
2.908
15.98
18.89
1,207,700
22.29
15.05
37.33
25
02.10.11
1,372,433
2.952
15.98
18.93
1,109,700
24.25
15.05
29.30
26
01.10.11
1,387,320
2.920
15.98
18.90
787,700
34.17
15.05
49.21
HRC 7734-G/09
[RPPs case]
68
27
30.09.11
1,410,694
2.872
15.98
18.85
714,300
37.68
15.05
52.72
28
29.09.11
1,174,616
3.449
15.98
19.43
839,600
32.06
15.05
47.10
29
28.09.11
1,265,478
3.202
15.98
19.18
723,500
37.20
15.05
52.24
30
27.09.11
1,241,496
3.263
15.98
19.24
769,500
34.98
15.05
50.02
37,987,712
43,534,500
Average- MW
Produced
52.76
60.45
Average-MW
Required
52.76
215.57
31
26.09.11
1,410,222
2.873
15.98
18.85
793,700
33.91
15.05
48.95
32
25.09.11
1,473,520
2.750
15.98
18.73
991,300
27.15
15.05
42.20
33
24.09.11
1,452,493
2.789
15.98
18.77
970,900
27.72
15.05
42.77
34
23.09.11
1,466,412
2.763
15.98
18.74
1,219,000
22.08
15.05
37.12
35
22.09.11
1,220,807
3.3188
15.98
19.30
918,600
29.30
15.05
44.34
36
21.09.11
1,278,875
3.168
15.98
19.15
907,900
29.64
15.05
44.69
37
20.09.11
1,270,950
3.188
15.98
19.17
1,244,100
21.63
15.05
36.68
38
19.09.11
1,263,907
3.206
15.98
19.18
1,153,200
23.34
15.05
38.38
39
18.09.11
1,332,039
3.042
15.98
19.02
1,328,200
20.26
15.05
35.31
40
17.09.11
1,266,455
3.199
15.98
19.18
1,354,700
19.87
15.05
34.91
41
16.09.11
1,131,801
3.580
15.98
19.56
,1,290,600
20.85
15.05
35.90
42
15.09.11
1,210,123
3.348
15.98
19.33
1,031,300
26.10
15.05
41.14
43
14.09.11
1,293,702
3.132
15.98
19.11
1,020,600
26.37
15.05
41.42
44
13.09.11
1,285,529
3.152
15.98
19.13
1,232,400
21.84
15.05
36.88
45
12.09.11
1,455,252
2.784
15.98
18.76
1,236,500
21.77
15.05
36.81
46
11.09.11
1,502,209
2.697
15.98
18.68
1,561,000
17.24
15.05
32.29
47
10.09.11
1,468,461
2.759
15.98
18.74
1,282,300
20.99
15.05
36.03
48
09.09.11
1,467,458
2.761
15.98
18.74
1,300,000
20.70
15.05
35.75
49
08.09.11
1,412,664
2.868
15.98
18.85
1,183,400
22.74
15.05
37.79
50
07.09.11
1,440,554
2.813
15.98
18.79
1,065,900
25.25
15.05
40.30
51
06.09.11
1,462,116
2.771
15.98
18.75
921,200
29.22
15.05
44.26
52
05.09.11
1,418,116
2.857
15.98
18.84
856,400
31.43
15.05
46.47
53
04.09.11
1,421,350
2.851
15.98
18.83
813,000
33.10
15.05
48.15
54
03.09.11
1,146,095
3.535
15.98
19.51
843,200
31.92
15.05
46.96
55
02.09.11
1,318,673
3.072
15.98
19.05
861,200
31.29
15.05
46.33
56
01.09.11
1,313,364
3.085
15.98
19.06
813,900
33.07
15.05
48.11
57
31.08.11
1,400,965
2.892
15.98
18.87
844,100
31.89
15.05
46.93
58
30.08.11
1,418,241
2.857
15.98
18.84
1329,800
20.24
15.05
35.28
59
29.08.11
1,375,102
2.946
15.98
18.93
1,684,800
15.97
15.05
31.02
60
26.09.11
1,457,481
2.780
15.98
18.76
2,113,000
12.74
15.05
27.78
40,834,936
34,165,200
Average- MW
Produced
56.71
47.45
Average-MW
Required
55.80
215.57
Assumption
1-
Exchange
Rate
1USD=87
2-
Average Days in
a Month for
the calculation
of Rent in
Cents
30.42 Days
Reshma
Power
Water
Power
Naudero-I
3
4
i. Contracted
Capacity-MW
201.3
51
ii. Contracted
Availability-MW
90%
92%
iii. Commercial
Operation Date-COD
14.7.2011
iv. Guaranteed Net
Electric Output-kWh,
Per Month of 30
Days
130442400
33782400
v. Daily Guaranteed
Net Elect Output
4348080
1126080
vi. Total Rent for 5
Years-USD
394778489
80420000 NEPRA approved
vii. Monthly Rent-
USD
6579641
1340333
viii. Daily Rent-USD
(30.42 Days in Month)
216293
44061
ix. Cents-Per kWh
4.975 Rs-4.32
3.91 Rs-3.40 Vs RSA ~ 4.46/Rs-3.88
x. RFO Price-Rs Per
Kg (Dated 11.10.11
65.86
447 Gas-SPS Faisalabad
HRC 7734-G/09
[RPPs case]
69
applicable to
nearest IPP and
Genco)
including
transportation cost of
each
xi. RFO
Consumption-per
kWh-grams
238.53
9949 BTU/kWh-Heat Rate
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Days
Date
kWh
Rent-
kWh
Fuel-
kWh
Unit
Cost-
kWh
kWh
Rent-
kWh
Fuel-
kWh
Unit Cost-
kWh
1
26.10.11
1319664
0
15.71
15.71
383330
0
4.45
3833305
2
25.10.11
501712
0
15.71
15.71
383330
0
4.45
3833305
3
24.10.11
184657
0
15.71
15.71
383330
0
4.45
3833305
4
23.10.11
478675
0
15.71
15.71
383330
0
4.45
3833305
5
22.10.11
483842
0
15.71
15.71
383330
0
4.45
3833305
6
21.10.11
414615
0
15.71
15.71
383330
0
4.45
3833305
7
20.10.11
524012
0
15.71
15.71
383330
0
4.45
3833305
8
19.10.11
608000
0
15.71
15.71
383330
0
4.45
3833305
9
18.10.11
693000
0
15.71
15.71
383330
0
4.45
3833305
10
17.10.11
618280
0
15.71
15.71
383330
0
4.45
3833305
11
16.10.11
631310
0
15.71
15.71
383330
0
4.45
3833305
12
15.10.11
852830
0
15.71
15.71
383330
0
4.45
3833305
13
14.10.11
722340
0
15.71
15.71
383330
0
4.45
3833305
14
13.10.11
677043
0
15.71
15.71
383330
0
4.45
3833305
15
12.10.11
780632
0
15.71
15.71
383330
0
4.45
3833305
16
11.10.11
1032500
0
15.71
15.71
383330
0
4.45
3833305
17
10.10.11
912000
0
15.71
15.71
383330
0
4.45
3833305
18
09.10.11
519000
0
15.71
15.71
383330
0
4.45
3833305
19
08.10.11
71000
0
15.71
15.71
383330
0
4.45
3833305
20
07.10.11
0
15.71
15.71
383330
0
4.45
3833305
21
06.10.11
64190
0
15.71
15.71
383330
0
4.45
3833305
22
05.10.11
25415
0
15.71
15.71
383330
0
4.45
3833305
23
04.10.11
0
15.71
15.71
383330
0
4.45
3833305
24
03.10.11
0
15.71
15.71
383330
0
4.45
3833305
25
02.10.11
0
15.71
15.71
383330
0
4.45
3833305
26
01.10.11
0
15.71
15.71
357585
10.72
4.45
15.17
27
30.09.11
88000
0
15.71
15.71
500451
7.66
4.45
12.11
28
29.09.11
0
15.71
15.71
427360
8.97
4.45
13.42
29
28.09.11
34812
0
15.71
15.71
475348
8.06
4.45
12.51
30
27.09.11
0
15.71
15.71
501588
7.64
4.45
12.09
122375
29
22623
32
Average MW-
Produced
17.00
3.14
Average MW-
Required
181.17
47
Rs.
Rs.
Rs.
Rs.
Rs.
Rs.
Days
Date
kWh
Rent-
kWh
Fuel-
kWh
Unit
Cost-
kWh
kWh
Rent-
kWh
Fuel-
kWh
Unit Cost-
kWh
31
26.09.11
0
15.71
15.71
502584
7.63
4.45
12.07
32
25.09.11
0
15.71
15.71
329600
11.63
4.45
16.08
HRC 7734-G/09
[RPPs case]
70
33
24.09.11
0
15.71
15.71
505900
7.58
4.45
12.02
34
23.09.11
0
15.71
15.71
505940
7.58
4.45
12.02
35
22.09.11
0
15.71
15.71
499614
7.67
4.45
12.12
36
21.09.11
0
15.71
15.71
505968
7.58
4.45
12.02
37
20.09.11
0
15.71
15.71
505604
7.58
4.45
12.03
38
19.09.11
0
15.71
15.71
500992
7.65
4.45
12.10
39
18.09.11
152000
0
15.71
15.71
500116
7.57
4.45
12.02
40
17.09.11
0
15.71
15.71
259308
14.78
4.45
12.23
41
16.09.11
0
15.71
15.71
506320
7.57
4.45
12.02
42
15.09.11
34000
0
15.71
15.71
382276
10.03
4.45
14.47
43
14.09.11
0
15.71
15.71
443744
8.64
4.45
13.09
44
13.09.11
0
15.71
15.71
506260
7.57
4.45
12.02
45
12.09.11
0
15.71
15.71
482388
7.95
4.45
12.39
46
11.09.11
0
15.71
15.71
484192
7.92
4.45
12.36
47
10.09.11
0
15.71
15.71
502372
7.63
4.45
12.08
48
09.09.11
0
15.71
15.71
323168
11.86
4.45
16.31
49
08.09.11
0
15.71
15.71
506080
7.57
4.45
12.02
50
07.09.11
0
15.71
15.71
506204
7.57
4.45
12.02
51
06.09.11
0
15.71
15.71
506094
7.57
4.45
12.02
52
05.09.11
0
15.71
15.71
412550
9.29
4.45
13.74
53
04.09.11
0
15.71
15.71
498544
7.69
4.45
12.14
54
03.09.11
0
15.71
15.71
505920
7.58
4.45
12.02
55
02.09.11
0
15.71
15.71
505920
7.58
4.45
12.02
56
01.09.11
0
15.71
15.71
505752
7.58
4.45
12.03
57
31.08.11
0
15.71
15.71
499174
7.68
4.45
12.13
58
30.08.11
0
15.71
15.71
331256
11.57
4.45
16.02
59
29.08.11
0
15.71
15.71
383330
0
4.45
3833305
60
28.08.11
0
15.71
15.71
383330
0
4.45
3833305
186000
13029
840
Average MW-
Produced
0.25
18
Average MW-
Required
181.17
47
12423529 Saving
Rs.53.669 M
A perusal of the above chart shows that unit cost per kWh of electricity
procured from RPPs is exorbitantly on the high side and the electricity
so generated by above RPPs is then to be transmitted to NTDC, which
is responsible for its further supply to the consumers after adding
charges of overhead transmission and dispatch.
58.
The learned counsel appearing for Reshma stated that
after signing off the project, matter is under consideration of the
Cabinet to allow the sponsors to operationalize the project because
they have made a huge investment and the plant is producing
electricity without charging even fuel cost so far. However, it may be
observed that since we have examined the case of RPPs on the basis
of broad principle, therefore, in our considered opinion, the case of
Reshma also suffers from the same illegalities and irregularities on the
HRC 7734-G/09
[RPPs case]
71
basis of which it is not possible to conclude that the contract was
awarded in a transparent manner.
59.
As far as production of Karkay and Reshma is concerned, it
is evident from the table prepared by PEPCO, which is reproduced
hereinabove, that both plants are presently producing 48.33 & 14.57
MW against the agreement of producing 231 & 201 MW of electricity
respectively.
60.
It is to be noted that despite the fact that rental tariff is to
be determined by NEPRA, but it failed to discharge its functions in
terms of section 7 of the Act, 1997, inasmuch as there were clear
directions that tariff should be fixed at par with that of the IPPs, but
the tariffs of both the categories i.e. solicited and unsolicited were
fixed on the higher side.
RECOVERY FROM SAHUWAL, SIALKOT/SUMMUNDRI ROAD,
FAISLABAD
61.
Not only in the unsolicited RPPs, but also in some of the
other cases the sponsors of the RPPs had received the down payment
but in spite of that they had failed to achieve COD. In this behalf,
reference may be made to various cases, particularly, the case of
Techno-E Power Sahuwal, Sialkot, facts whereof have already been
mentioned hereinabove. Precisely, at this stage, it is to be noted that
without inviting fresh bids/following ICB procedure, 150 MW RPP at
Sahuwal, Sialkot, which was carved out of 250-300 MW RPP at
Piranghaib was dolled out to Techno E Power for four years at a rental
value of US$ 165 million and advance payment of US$ 11.55 million. It
was reported that no machinery was available on the site. Therefore,
vide letter No. CEO/MZG/Rental/13481-84 dated 24.12.2010 NPGCL
informed NEPRA that the RSC was not effective, therefore, the GENCO
should have recovered 7% advance payment already made along with
HRC 7734-G/09
[RPPs case]
72
further penalties prescribed in RSC. Similarly, in respect of another
RPP awarded by PEPCO following the ICB procedure to Techno-E
Power, Sammundri Road, Faisalabad for a period of three years, rental
value whereof was determined at US$ 135 million, 14% advance
payment of US$ 18.9 million was made 7% on 26.02.2008 and 7% on
01.04.2009, tariff was determined on 30.10.2009 and the COD was
135 days from LOA, which was revised to partial COD 30.06.2009 and
full COD 30.07.2009, and only partial COD for 60 MW was reportedly
achieved on 11.06.2010, but the NEPRA declined to recognize said
COD. It is further to be noted that in respect of M/s Techno E Power
Sahuwal, Sialkot, which had failed to import machinery, following
order was passed: -
“Therefore, Techno Sahuwal, whose case is also identical
with these three RPPs, is directed to deposit advance
amount with markup by tomorrow otherwise case shall be
registered with the F.I.A. because after receiving the
money for about more than two years no progress has
been shown and such practice cannot be allowed to
continue in the national interest. For this purpose case is
adjourned to 14th January, 2011 when the proprietor/Chief
Executive Officer of the said project is directed to remain
in attendance. Manager Askari Bank Blue Area Islamabad,
with whom guaranties are lying be also directed to attend
this Court along with record of load/advance granted to
Techno Sahuwal on the said date.”
62.
On 14.01.2011, Raja Anwar-ul-Haq, learned ASC appeared
and filed a statement that by 17.01.2011 advance money received by
Techno E. Power, Sahuwal would be returned with mark-up. On the
next date of hearing, learned counsel submitted that the payment was
to be made through a Pay Order, which was in the clearance process,
as such, case was adjourned to 18.01.2011, on which date, Raja
Anwar-ul-Haq
handed
over
two
Pay
Orders
(No.171838
for
HRC 7734-G/09
[RPPs case]
73
Rs.781,357,500/- and No.1701839 for Rs.300,892,500/-) to Ghulam
Mustafa Tunio, Chief Executive, GENCO.
63.
Raja Anwar-ul-Haq subsequently filed two miscellaneous
applications, i.e. CMAs No. 5002/2011 and CMA No. 4781/2011 with
the same prayer which reads as under: -
“Under the circumstances it is most respectfully prayed
that this August Court may graciously be pleased to pass
appropriate orders based on facts mentioned in the
body/grounds of instant petition and Site Status of the
plant/machinery submitted by NPGCL and may pass
direction to NPGCL/WAPDA to refund the Advance money
with markup received 7% Additional amount as per facts
beside payment of remained 7% Additional amount as per
RSC/Amendment and also to comply with notice of default
and to fulfill all terms and conditions of the contract in
order to enable that petitioner company to generate and
smooth functioning of the plant to produce and supply
electricity in Public interest.
Further prayed to Declare that the submitting of false
statement contrary to the facts regarding import of
machinery and plant in the name of NPGCL and storage at
WAPDA warehouse at site, is a case of abuse of official
powers and exercise of authority arbitrarily and with
ulterior motives and the concerned responsible of NEPRA
succeeded in obtaining favorable order from this August
Court on 13.01.2011 which caused heavy injury and loses
to the Petitioner Company and resulted in heavy
Miscarriage of justice and have been prima-facie guilty of
abusing of the process of this Court and are liable to be
prosecuted.”
64.
We have examined the pleas in both the applications and
subject to the illegalities and irregularities, which have been noticed in
the RPPs’ contracts, we are not inclined to issue contempt notice. It is
evident from the orders passed on different dates that at that time the
sponsors had not resisted the return of the down payment. Moreover,
without prejudice to the case of GENCOs or the Techno E. Power,
suffice it to observe that contempt proceedings are always drawn
when there is a violation of the Court order, or the authority of the
Court is undermined or ridiculed, etc. Thus, in absence of any such
allegations, both the applications are dismissed.
HRC 7734-G/09
[RPPs case]
74
65.
In respect of Techno E. Power, another CMA has been
filed, which indicates that a writ petition is pending on behalf of the
applicant (sponsor) before the High Court. This project has been
examined on the touchstone of the above illegalities and irregularities
in awarding the contract, and we are of the opinion that this
transaction has also not been undertaken transparently, therefore,
subject to all just exceptions, no order in favour of the applicant
(sponsor) can be passed.
RECOVERY FROM M/S YOUNG GEN
66.
It is to be noted that Khawaja Ahmed Tariq Rahim stated
that after the recovery of advance payment from Guddu and Naudero-
II, PEPCO had recovered US$ 1.26 billion from Ms Young Gen (a
solicited RPP) by getting encashed its bank guarantee during the
pendency of these proceedings on account of its failure to achieve COD
within the stipulated time.
FEASIBILITY STUDY
67.
The necessity in introducing the concept of RPPs is
apparent from the facts that in the year 2006 when the then
Government decided to adopt the phenomenon of rental power
projects, no feasibility study was carried out which is crucial because
study is based on the input of the experts on the subject to determine
whether or not the implementation of the project is advisable. It is well
known that feasibility study is based on the extensive research to
ascertain that what would be the impact of such a project in terms of
costs of the project, its results, future prospects, operational
implications, advantages and disadvantages, keeping in view the
situation like alleged shortage of electricity. The Government had
formulated energy policies in the years 1994-2002 on the basis
HRC 7734-G/09
[RPPs case]
75
whereof IPPs were installed, therefore, had the Government allowed
the experts on the subject of electric energy/power to examine merits
and demerits of introducing the RPP regime, it would have helped in
implementing the Rental Power Projects in a highly transparent
manner. It is a fact that during the previous regime, Rental Power
Projects
were
installed
at
Sharaqpur
and
Bhikki
on
the
recommendation of WAPDA. Though it is stated that tender notices
were issued in the newspapers, but no response was received,
however, copies of such notices have not been made available on
record. Further, it is alleged that decision to install RPPs was based on
the recommendations of ECC dated 16.08.2006 in the case No.ECC-
135/9/06, contents whereof have been reproduced hereinabove, but it
pertained to 150 MW at Piranghaib, Multan, and subsequent thereto
another project on the same site for 192 MW was approved contrary to
the PPRA Rules (detailed discussion has been made hereinabove) and
the same was signed off, which caused considerable loss to the public
exchequer.
68.
It is to be noted that when incumbent regime came into
power, a meeting was held in the Prime Minister Secretariat on
27.03.2008 wherein it was decided, inter alia, that PEPCO would
arrange installation of fast track Rental Power Projects of up to 1067
MW, which were subsequently increased to 2257 MW, but according to
the report of ADB, it was reduced to 1257 MW. Apparently, this
decision was taken without any feasibility study.
69.
When we talk about the importance of the feasibility study
it also includes that the Government would have ascertained as to
whether there is any necessity of rental power projects to enhance its
capacity when allegedly PEPCO already possessed sufficient capability
HRC 7734-G/09
[RPPs case]
76
to generate electricity as per existing installed capacity, from other
sources.
FINANCIAL ASSISTANCE
70.
Makhdoom Syed Faisal Hayat and Khwaja Muhammad Asif,
petitioners seriously questioned the transparency in awarding the
projects of RPPs and vehemently agitated that in terms of clause 2.3
of Request For Proposal (RFP) of Fast Track Rental Power Projects
through ICB, the bidders/sponsors were solely responsible for
financing of the projects, whereas, while issuing Letter of Award, they
were made eligible to obtain, in advance, a down payment in US
dollars equal to 7% of the lump sum contract price for the term of
Rental Services Contract on submission of a bank guarantee. This
condition was reiterated in clause 4.5(a) in Rental Services Contract.
In addition to it, another concession of provision of Standby Letter of
Credit in the amount equal to 36-60 monthly rental services fee
payments, as the case may be, in a form acceptable to the seller was
made and the term of the same was to be started with the commercial
operation date. Due to this reason, original terms and conditions had
changed financial situation in favour of sellers and without getting the
required results huge amount has been dolled out to them.
71.
Khwaja Ahmad Tariq Rahim, learned Sr. ASC and Raja
Parvez Ashraf, former Minister for Water & Power and his counsel Mr.
Wasim Sajjad, as well as other learned counsel, i.e., M/s Muhammad
Akram Sheikh, Ali Zafar and Raja Anwar-ul-Haq submitted that PEPRA
Rules were duly followed in awarding the projects to the sponsors and
the Asian Development Bank had not pointed out any violation of the
same. They further contended that as far as increase in down payment
from 7% to 14% is concerned, it is a norm and practice in
HRC 7734-G/09
[RPPs case]
77
international commercial contracts i.e. FIDIC, ICE, ENAA, etc. They
also explained that the previous Government had floated the idea of
RPPs to overcome the difficulties of the shortage of electricity, using
the same as a strategic tool and the present Government also
considered the same useful for the purpose of catering the
requirement of electricity for the general public.
72.
Khwaja Ahmad Tariq Rahim, Sr. ASC as well as the former
Minister further contended that as per Rental Service Contract the
power generation companies (GENCOs) were to deliver to the seller an
irrevocable Standby Letter of Credit (SBLC) for rental period of 36 to
60 months and subsequently it was realized that the foreign banks
were not willing to provide SBLC unless charges amounting to 35% of
total rental value for 5 years’ term were paid to the banks. Therefore,
Ministry of Water & Power in consonance with the RSC submitted
summary dated 11.10.2008 urging the Government to provide SBLC
for the Rental Projects, but the Ministry of Finance expressed its
inability to accept the proposal because of the financial constraints of
the Government at that time and financial meltdown worldwide. For
such reason, the Ministry of Finance headed by Mr. Shaukat Tareen
replaced the provision of SBLC with additional 7% mobilization
advance, which, after COD, was recoverable from the rental charges
each month to be paid to the consultants and under the circumstances
7% advance was secured by advance payment guarantee in the
equivalent amount, additional 7% was disbursed through security and
financial arrangements made by the Ministry of Finance through
banking consortium set up by them. Since the advance payments were
arranged by obtaining loans repayable with mark up, as such, a huge
amount has to be returned. Thus, argument of savings made by the
HRC 7734-G/09
[RPPs case]
78
Government on this account, as has been quantified at Rs.26 billion,
therefore, the step was clearly in the national interest is not
acceptable.
73.
It is to be seen that in view of the above discussion on the
question of responsibility of making arrangements by the bidders and
succeeding therein without altering the terms & conditions of the
advertisement, 7% down payment on the total rental value of 36 to 60
months was subsequently increased to 14% for extending financial
facilities, thus what would be its financial impact on the projects? It
may be noted that it was the responsibility of the sellers to finance the
projects at their own and also to pay withholding tax, customs duty
etc. to the Government on the import of the machinery in accordance
with law. However, the machinery was imported in the name of the
GENCOs/Government. In addition to it, payment of 6% withholding tax
was also deferred and in this manner, benefit of 14% + 6% = 20%
was given to the bidders without any legal justification. Similarly, the
machinery was allowed to be imported temporarily subject to getting
exemption from payment of customs duty. All these conditions, if
incorporated in the invitation for bids, would have encouraged more
competition amongst the bidders to come forward and participate in
the bidding process. Thus, in absence of competition between the
bidders, public exchequer sustained huge losses and was likely to
continue to suffer further losses in future, if curative measures are not
adopted.
74.
Surprisingly, RFP along with LOAs were issued by the PPIB,
whereas RSCs were executed between by GENCOs. As per Para 2.3 of
RFP, the bidders/sponsors were solely responsible for the financing of
the project and no incentive of down-payment was given on behalf of
HRC 7734-G/09
[RPPs case]
79
GENCOs. For the first time in the LOA incentive of 7% of down
payment was divulged by PPIB. In this very context, it is to be noted
that as per Paras 5.3 and 5.4 of the RSC, following extraordinary
facilities were also extended to the sellers:-
“4.5 Payment Terms and establishment of Letter of Credit-
a.
the SELLER is eligible to obtain in advance a Down Payment
amounting to US$ [_______] i.e. 7% of Lump Sum Contract
Price for the Term of the Rental Services Contract (the
“Down Payment”), on submission of a bank guarantee valid
until 30 days after the Target Commercial Operations Date,
in a form “A”. the aforesaid Down Payment amount of
US$[________]shall
be
deducted,
in
[36-60]
equal
installments of US$ [_______] each, from the monthly rent
payable to the SELLER by the Buyer. Buyer shall release 7%
Down Payment to be paid within ten (10) Days after
submission of Advance Payment Bank Guarantee by the
SELLER within five (5) days from the date of signing of this
Contract.
b. The Lump Sum Contract Price as defined in Section 4.1 less
the 7% Down Payment will be divided into [thirty six –sixty]
(36-60) equal installments (the “Monthly Rental Services
Fees”) . From and after the occurrence of Commercial
Operation Date, the SELLER shall submit an invoice to BUYER
for Monthly Rental Service Fee payment, on the 15th Day of
each Rental Month. Upon confirmation by BUYER of the
amount payable against such invoice net of any disputed
amount, if any, to the operating bank issuing the ‘Letter of
Credit’ the SELLER shall draw on the ‘Letter of Credit’, for
such confirmed amount as anytime on 30th Day or next
business Day thereafter, following the Day the invoice is
delivered to BUYER.”
75.
Initially, 7% down payment had to be made on contract
price for the term of Rental Service Contract, i.e. 36 to 60 months,
against a bank guarantee. We have to observe that transparency of
contract is not limited to the extent of following the PPR Rules as at
the same time it is also to be seen whether an unusual financial
concession is being given to the bidders due to which whole
complexion of the contract would be changed. Interestingly, as per
LOA issued by PPIB, there is no indication that which agency will
advance down payment of 7% as ultimately GENCOs had to arrange
this amount from banks on the basis of mark up. Legally GENCOs
could not be bound down to arrange payment of 7% down payment,
HRC 7734-G/09
[RPPs case]
80
as bids were not invited by GENCOs. No such concession was agreed
by GENCOs; inasmuch as the GENCOs had not issued LOA. Similarly,
in RFP on behalf of GENCOs such assurance was never given. Thus,
imposing such condition on GENCOs to accommodate bidders is
against the transparency of the contract. As far as status of GENCOs is
concerned, it is a government company but has its own entity and
perpetual seal, thus, inescapable conclusion can be drawn that
concession of financial assistance under the circumstances to bidder is
nothing but a favour which had made bid process as non-transparent.
76.
According to the report of Federal Board of Revenue, the
Ministry of Water & Power requested for exemption of customs duty on
temporary import of power generation plants and the request so made
by WAPDA was approved by the Cabinet. Subsequently this concession
was incorporated as part of the Financial Bill, 2008. Accordingly, the
machinery for Power Generation Plants was exempted from whole of
the customs duty by adding Entry No.49 in exemption notification
namely SRO No.567(1)/2006 dated 05.06.2006. In view of above
notification WAPDA has got cleared following Power Plants on availing
the concession of consumption on duty and taxes:-
(1)
Sammundri Rental Power Project (RPP).
(2)
Reshma Rental Power Project (RPP).
(3)
Gulf Rental Power Project (RPP).
(4)
Guddu Rental Power Project (RPP).
(5)
Naudero-I Rental Power Project (RPP).
(6)
Sahuwal Rental Power Project (RPP)
(7)
Karkay Rental Power Project (RPP).
(8)
Sheikhupura Rental Power Project (RPP) (Re-exported).
(9)
Bhikki Rental Power Project (RPP) (Re-exported.)
As per summary, the amount to be paid on the above plants comes to
approximately Rs.410,163,668/-,
which includes
customs
duty,
CED/FED as well as taxes. It has never been heard that in the business
of providing motorcars/machinery, etc., on rent, the providers are
HRC 7734-G/09
[RPPs case]
81
extended the concession to the extent noted hereinabove. Not only the
above concession, but as it has been noted during reply of the
arguments made on behalf of above respondents that the Finance
Minister due to non-providing Standby Letter of Credit, unilaterally
increased 7% down payment in the name of mobilization advance.
77.
It is to be noted that when the bidder has been made
responsible to make an arrangement for the finances, in absence of
any commitment, during the contracting period, what was the
necessity to increase 7% of Rental Value on the pretext that no foreign
bank was agreeing to issue Standby Letter of Credit. Providing of
Standby Letter of Credit, in fact, is making the payment in advance of
Rental Services Charges/fee which was to be adjusted for the whole
period, for which contract has been executed. It clearly indicates that
such clauses were incorporated with no intention except to extend
maximum financial benefit to the bidders. Raja Parvez Ashraf, former
Minister, however, explained that foreign banks were not willing to
confirm SBLC unless charges amounting to 35% of the total Rental
Value for 5 years term were paid to them. Arguments on behalf of the
respondents that in the interest of nation the conditions of the contract
were changed and under the advice of the then Finance Ministry
headed by Mr. Shaukat Tareen, the initiative for substitution of SBLC
with additional 7% mobilization advance, recoverable/adjustable from
the Rental Charges for each month was taken, seems to be unfounded.
As it has been explained hereinabove, bidders while submitting bids as
per the contents of RFP are required to furnish as many as 13
Proformas in Envelopes I and II. A careful perusal thereof indicates
that bidders never demanded for the concessions, which had been
extended to them voluntarily.
HRC 7734-G/09
[RPPs case]
82
78.
Next question for consideration is that how much amount
was paid to sponsors by way of 7% + 7% = 14%. Since there were a
lot of complaints of corruption in awarding contracts of RPPs against all
concerned, individually and collectively, therefore, Ministry of Finance
went for 3rd Party Evaluation/Audit and to achieve the object, ADB was
appointed to do the needful. The ADB report reveals that enhancement
of down payment from 7% to 14% could not be allowed without
inviting fresh biddings and changing the terms of the contract with a
view to ensuring fair competition amongst the bidders. We have
already emphasized on this aspect of the case, and we see no reason
to differ with the submission made by the petitioners that there were
illegalities committed by Government in making payment of 14%
advance
to
the
bidders,
particularly,
when
there
was
no
commitment/agreement at the time of notifying the bids/issuing RFPs.
Admittedly, this report was accepted and in pursuance thereof, 9 RPPs
were allowed to continue.
79.
It is to be seen that 14% advance amount paid to the
bidders on the basis of reference value runs into billions of rupees,
details whereof are as under: -
Name of RPP
Amount
of
advance
payment
Date of advance
payment
Techno, Sammundri
Road Faisalabad
US$ 18.96 M
26.02.2008 (7%)
01.04.2009 (7%)
PPR, Guddu, Sindh
US$ 10.15 M
17.03.2008 (7%)
12.03.2009 (7%)
Techno,
Sahuwal
Sialkot
US$ 11.5 M
04.06.2008 (7%)
Karkay Karadeniz
US$ 79.05 M
12.05.2009 (14%)
Young Gen, Satiana
Road, Faisalabad
US$ 15.56 M
29.05.2009 (7%)
23.06.2009 (7%)
Gulf,
Eminabad
Gujranwala
US$ 11.9 M
19.09.2009 (14%)
Reshma,
Raiwind
Road, Lahore
US$ 55.27 M
03.10.2009 (14%)
Walters, Naudero-I
US$ 11.26 M
16.11.2009 (14%)
Walters, Naudero-II
US$ 9.93 M
06.04.2010 (14%)
Total
US$ 223.58 M
HRC 7734-G/09
[RPPs case]
83
80.
The petitioners have contended that a meagre amount of
electricity is being generated through the medium of RPPs, although
billions of rupees have been spent on these projects. The learned
counsel appearing for the Government/WAPDA/PEPCO/GENCOs have
not been able to rebut the contention raised by the petitioners. It is an
admitted position that after spending billions of rupees in the shape of
7% to 14% down payment and exemption from payment of customs
duty as well as 6% withholding tax, against average cost of Rs.24/-
per unit kWh [Karkey: Rs.35/- to Rs.50/-; Gulf: Rs.18/- to Rs.19/- and
Naudero-I: Rs.12/- to Rs.19/-], only 120 MW electricity is being
generated by the RPPs and its cost is on a very high side and is not in
accordance with the provisions of section 7 of the Act, 1997 whereby
NEPRA is required to protect the interests of the consumers. Therefore,
RPPs’ mode of electricity generation has proved a total failure and
incapable of filling the gap in the demand and supply on a short term
basis. Further, this cost is not final, rather it is subject to fuel cost
component and other charges of overhead transmission payable to
NTDC, whereas it is the constitutional requirement that every action of
Governmental
authorities
should
be
aimed
at
socio-economic
development of the country. In this behalf, a chart showing average
production of electricity vis-à-vis the maximum capacity and the
advance payment is given below: -
Name of RPP
Total
Rental
Value /
Rental
Term (in
Years)
Monthly
Rental
Value
(M US$)
(in Pak Rs.
@ 80)
Maximum
Capacity
Average
Price at
Maximum
Capacity
US$
Average
Monthly
Production
MW
Monthly Price
per MW (US$)
KARKEY
231.8 MW
US$ 564.64
/5
US$ 9.41 M
Rs.752.85 M
231 MW
US$ 40,735
Rs.3.26 M
48.33
US$ 2,173,210
Rs.173.85 M
GULF
Eminabad,
Gujranwala
US$ 85.00
/5
US$ 1.42 M
Rs.113.6 M
62 MW
US$ 22,903
Rs.1.83 M
50.08
US$ 28,354
Rs.2.268 M
NAUDERO-I
51 MW
US$ 80.42
/5
US$ 1.34 M
Rs.107.2 M
51 MW
US$ 26,274
Rs.2.10 M
9.16
US$ 146,288
Rs.11.70 M
Reshma 201
MW
US$ 394.78
/5
US$ 6.58 M
Rs.526.37 M
201.3 MW
US$ 32,687
Rs.2.61 M
14.57
US$ 451,612
Rs.36.13 M
HRC 7734-G/09
[RPPs case]
84
Techno E-
Power
Sammundri
Road,
Faisalabad
US$ 135.00
/3
US$ 3.75 M
Rs.300.0 M
150 MW
US$ 25,000
Rs.2.0 M
0
--
Guddu
110 MW
US$ 72.48
/3
US$ 2.01 M
Rs.161.07 M
110 MW
US$ 18,272
Rs.1.46 M
--
--
Techno
Energy (Pvt.)
Ltd. Sahuwal,
Sialkot
US$ 165
/4
US$ 3.44 M
Rs.275.0 M
150 MW
US$ 22,933
Rs.1.83 M
--
--
Naudero-II
US$ 70.96 /
5
US$ 1.18 M
Rs.94.61 M
45 MW
US$ 26,288
Rs.2.10 M
--
--
Young Gen
200 MW
US$ 111.15
/
200 MW
--
--
Independent
Power (Pvt.)
Ltd.
US$ 432.21
/5
US$ 7.20 M
Rs.576.28 M
200 MW
US$ 36,000
Rs.2.88 M
--
--
Sialkot
Rental Power
US$ 112
/5
US$ 1.87 M
Rs.149.33 M
65 MW
US$ 28,789
M
Rs.2.30 M
--
--
Premier
Energy (Pvt.)
Ltd.
US$ 111.86
/5
US$ 1.86 M
Rs.149.15 M
57.8 MW
US$ 32,180
Rs.2.57 M
--
--
Ruba Energy
US$ 305.7
/5
US$ 5.09 M
Rs.407.60 M
155.5 MW
US$ 32,208
Rs.2.62 M
--
--
Consortium
of Tapal
US$ 143.90
/5
US$ 1.87 M
Rs.149.33 M
70 MW
US$ 26,714
Rs.2.14 M
--
--
Walters
Power
International
US$ 325.91
/5
US$ 5.43 M
Rs.434.55 M
325.9 MW
US$ 16,667
Rs.1.33 M
--
--
Techo E.
Power,
Sammundri
Road,
Faisalabad
(Extension)
US$ 135
/3
US$ 3.75 M
Rs.300.0 M
150 MW
US$ 25,000
Rs.2.0 M
--
--
Karkey
(Extension)
US$ 333
/5
US$ 5.55 M
Rs.444.0 M
222 MW
US$ 25,000
Rs.2.0 M
--
--
81.
Thus, all the Government functionaries, including the
Ministers for Water & Power holding charge from 2006 and onward up
to 2008 during whose tenure the RPPs were approved/set up, prima
facie,
violated
the
principle
of
transparency,
therefore,
their
involvement in getting financial benefits out of the same by indulging
in corruption and corrupt practices cannot be overruled in view of the
discussion made hereinabove. Consequently, they are liable to be dealt
with under the National Accountability Ordinance, 1999 by the NAB.
Similarly, all the functionaries of PEPCO, GENCOs and NEPRA along
with sponsors who had derived financial benefits from the RPPs
HRC 7734-G/09
[RPPs case]
85
contracts are, prima facie, involved in corruption and corrupt practices,
therefore, they are liable both for the civil and criminal action.
82.
In conclusion, it may be mentioned that Bhikki RPP was
paid Rs.8,698.46 million against 811.605 mkWh electricity whereas
Sharaqpur RPP was paid Rs.13,941.82 million against 1520.420 mkWh
electricity. As regards the RPPs set up since 2008, out of nine RPPs to
whom advance payments were made, six RPPs, namely, Techno
Sahuwal, Guddu, Reshma, Young Gen, Naudero-II and Techno
Sammundri have returned the advance payments in pursuance of
orders passed by this Court from time to time, whereas the advance
payments made to Karkey, Gulf and Naudero-I have not so far been
returned. Despite down payment of billions of rupees to the RPPs,
Karkey is generating 48.33 MW against capacity of 231 MW and
Naudero-I is generating 9.16 MW against capacity of 51 MW; whereas,
Gulf is generating 50.08 MW against capacity of 62 MW. Pakistan
Power Resources (Piranghaib, Multan) did not generate electricity at all
although down payment of US$ 14.58 million was made to it, which
has not been returned. Though Reshma has returned the down
payment, according to learned counsel, yet it is still functioning and
generating 15 MW only against capacity of 201.3 MW. Per unit cost of
electricity produced by the RPPs is on very high side, e.g., Karkey is
ranging from Rs.35/- to Rs.50/-; Gulf from Rs.18/- to Rs.19/- and
Naudero-I from Rs.12/- to Rs.19/- whereas as per decision of the ECC
dated 10.09.2008, efforts were to be made that the tariff of the RPPs
is lower than that of the IPPs based on similar technology for their first
10 years. Thus, in this manner, the decisions of the ECC have also
been violated blatantly. All the RPPs are collectively generating just
120 MW of electricity. Huge amount has been paid to Karkey, Gulf and
HRC 7734-G/09
[RPPs case]
86
Naudero-I and if they are allowed to continue for the left over term,
further huge amounts would be paid to them at the expense of the
public exchequer with no corresponding benefit to the consumers. As
already discussed in detail, while awarding contracts to RPPs,
particularly Gulf, Karkey, Reshma, Naudero-I, Naudero-II, Bhikki and
Sharaqpur grave illegalities and irregularities were committed, and
procedural lapses and deviations were made from mandatory legal
requirements and the same were entered in a non-transparent
manner.
83.
In pursuance of the orders passed by this Court from time
to time, a sum of Rs.8,689,224,000/- (rupees 8 billion 689 million 224
thousand) has been recovered from the RPPs on account of advance
payments and interest, whereas, proceedings for recovery of interest
amounting to Rs.445,496,000/- (rupees 445 million 496 thousand)
from Young Gen and the interest from Reshma, are still pending,
details whereof are given as under:-
S. No
Name of the
RPP/capacity
Amount
of
Advance
payment
and
date
Amount
recovered and
date
Interest
recovered
1.
TECHNO,
SAHUWAL/ 150
MW
Rs.782000000/-
on 04.06.2008
Rs.782000000/-
on 18.01.2011
Rs.298000000/-
2.
GUDDU / 110
MW
Rs.301058000/-
on 17.03.2008
Rs.405902000/-
on 12.03.2009
Rs.301058000/-
on 08.12.2010
Rs.405902000/-
on 04.12.2010
Rs.120000000/-
3.
RESHMA/ 201.3
MW
Rs.4576272000/-
on 03.10.2009
Rs.4576272000/
- on 18.11.2011
Notice served
4.
YOUNG
GEN/
200 MW
Rs.628686000/-
on 01.06.2009
Rs.630928000/-
on 23.06.2009
Rs.628686000/-
on 29.12.2010
Rs.630928000/-
on
Notice
for
recovery
of
Rs.445496000/-
served
on
08.01.2011
5.
NAUDERO-II/
50 MW
Rs.930942000/-
on 06.04.2010
Rs.930942000/-
on 08.12.02010
Rs.15436000/-
Total: Rs.8255788000/- Rs.433436000/-
HRC 7734-G/09
[RPPs case]
87
84.
Thus, in the light of the above facts and circumstances, we
hold as under: -
(i)
Prior to the introduction of RPPs, the system of generation
of electricity under the control and management of
Ministry of Water & Power, WAPDA, PEPCO, GENCOs, etc.,
had sufficient potential to produce more electricity, but
instead of taking curative steps for its improvement,
including clearance of circular debt of the IPPs or resorting
to other means of generation of electricity, billions of
rupees were spent on BHIKKI and SHARAQPUR RPPs,
which proved complete failure because the object could not
be achieved as the shortage of electricity persistently
continued, and yet more RPPs were installed;
(ii)
The
Federal
Government/WAPDA/PEPCO/GENCOs
had
failed to control pilferage of electricity from the system
because of bad governance and failure of the relevant
authorities to enforce the writ of the Government.
Therefore, the Government is required to improve the
existing
system
of
generation
and
transmission
of
electricity, by taking all necessary steps, including clearing
of circular debt, etc., so that electricity can be generated
to the maximum capacity;
(iii)
The contracts of all the RPPs – solicited and unsolicited,
signed
off
or
operational,
right
from
BHIKKI
&
SHARAQPUR
upto
PIRANGHAIB,
NAUDERO-I
&
NAUDERO-II were entered into in contravention of
law/PPRA Rules, which, besides suffering from other
irregularities, violated the principle of transparency and
fair and open competition, therefore, the same are
declared to be non-transparent, illegal and void ab initio.
Consequently, the contracts of RPPs are ordered to be
rescinded forthwith and all the persons responsible for the
same are liable to be dealt with for civil and criminal action
in accordance with law;
(iv)
On accepting the ADB’s report, 9 out of 19 RPPs were
allowed to operate, details whereof have been mentioned
hereinbefore. Subsequently, 6 out of 9 RPPs were
HRC 7734-G/09
[RPPs case]
88
discontinued either having been signed off or having failed
to achieve the target COD whereas remaining RPPs, i.e.,
KARKEY, NAUDERO-I and GULF are functioning, but
they are producing electricity much less than their
generation capacity, except GULF which is producing
electricity close to the agreed capacity. PPR (Piranghaib,
Multan) has not generated electricity at all, although
down payment was made to it, which has not been
returned. As far as RESHMA is concerned, though it
achieved partial COD, but the same was not accepted by
NEPRA. BHIKKI and SHARAQPUR were paid exorbitant
rentals in billions of rupees, but generation of electricity
was much below the agreed capacity;
(v)
The production from the RPPs is far below the maximum
capacity agreed between the parties as per the terms of
the RSCs, which is evident from the above charts. The cost
per unit kWh is also on the very high side. These RPPs
have not achieved target COD. The contracts of all these
RPPs are not transparent, as it has been discussed
hereinabove, therefore, the same are hereby ordered to be
rescinded forthwith;
(vi)
The Ministry of Finance, WAPDA, PEPCO as well as GENCOs
are responsible for causing huge losses to the public
exchequer, which run into billions of rupees by making 7%
to 14% down payments to, and purchasing electricity on
higher rates, from RPPs, therefore, steps are required to
be taken to effect recovery of the amounts with mark up
outstanding against the RPPs whose contracts have been
signed off or who had failed to achieve COD within the
stipulated time in terms of the performance guarantees;
(vii) The RPPs mode of generation of electricity has proved a
total failure and incapable of meeting the demand of
electricity on a short term basis. The cost of electricity so
produced is on very high side and is not commensurate
with the provisions of section 7 of the Act, 1997. As per
latest report, KARKEY and GULF are producing only 31 to
81 MW and 51 to 61 MW at an average cost per unit
kWh of Rs.35/- to Rs.52/- and Rs.18/- to Rs.19/-
HRC 7734-G/09
[RPPs case]
89
rupees respectively, as per information supplied in
October/November, 2011, which also are subject to
adjustment of fuel cost component and NTDC overhead
transmission charges on account of which prices are likely
to increase enormously. Thus, it is clear violation of the
rights guaranteed to the citizens in terms of Articles 9 & 24
of
Constitution
and
the
Regulation
of
Generation,
Transmission and Distribution of Power Act, 1997;
(viii) It is the constitutional requirement that every action of
Governmental authorities should be aimed at socio-
economic development of the country. In terms of
Constitution and Act, 1997, the NEPRA is mandated to
safeguard the interests of the consumers, but the
concerned officials of NEPRA failed to perform their duties
diligently;
(ix)
All the Government functionaries, including the Ministers
for Water & Power holding charge in 2006 and onward and
from 2008 to onward, during whose tenure the RPPs were
approved/set up and Minister as well as Secretary Finance
holding the charge when the down payment was increased
from 7% to 14%, prima facie, violated the principle of
transparency under Articles 9 & 24 of the Constitution and
section 7 of the Act, 1997, therefore, their involvement in
getting financial benefits out of the same by indulging in
corruption and corrupt practices cannot be overruled in
view of the discussion made hereinabove. Consequently,
they are liable to be dealt with under the National
Accountability Ordinance, 1999 by the NAB;
(x)
All the functionaries of PEPCO, GENCOs, PPIB and NEPRA
along with sponsors (successful bidders) who had derived
financial benefits from the RPPs contracts are, prima facie,
involved in corruption and corrupt practices, therefore,
they are also liable both for the civil and criminal action;
and
(xi)
The Chairman NAB is directed to proceed against all the
persons referred to in subparagraphs (iii), (ix) & (x) above
forthwith in accordance with law and submit fortnightly
progress report to Registrar for our perusal in Chambers.
HRC 7734-G/09
[RPPs case]
90
85.
Before parting with the judgment, we would like to place
on record our appreciation of the valuable assistance provided during
the hearing of the case by the learned counsel appearing for the
parties and learned Amicus Curiae.
The role of the petitioners, Makhdoom Syed Faisal Saleh
Hayat, Federal Minister for Housing & Works and Khwaja Muhammad
Asif, MNA is also laudable; they being the holders of public offices,
highlighted the instant scam of corruption and corrupt practices and
fulfilled their commitment to the Constitution as well as the general
public whose rights enshrined in Articles 9 and 24 of the Constitution
were being violated.
CHIEF JUSTICE
JUDGE
Announced in open Court on 2012
at Islamabad.
CHIEF JUSTICE
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J.
MR. JUSTICE CH. IJAZ AHMED
MR. JUSTICE GHULAM RABBANI
HUMAN RIGHTS CASES NO.8340, 9504-G, 13936-G,
13635-P & 14306-G TO 14309-G OF 2009.
(Applications by Tariq Aziz-ud-Din & others)
Tariq Aziz ud Din:
Applicant in HRC 8340/09
Nazir Ahmed Chaudhry:
Applicant in HRC 9504-G/09
Farkhanda Wasim Afzal:
Applicant in HRC 13635-P/09
Dr. Muhammad Aslam Khaki
Applicant in HRC 13936-G/09
Shahnaz S. Hamid:
Applicant in HRC 14306-G/09
Bilal Khan:
Applicant in HRC 14307-G/09
Bashir Ahmad Chowhan:
Applicant in HRC 14308-G/09
Saleem Ullah Khan:
Applicant in HRC 14309-G/09
For the applicants/
Mr. Muhammad Akram Sheikh, Sr. ASC
affectees:
Assisted by Mr. Sajeel Shehryar, Advocate
(on behalf of 69 officers)
Mr. M. Ikram Chaudhry, ASC
(on behalf of M. Hafeez of Foreign service)
Dr. Muhammad Aslam Khaki, ASC
(in HRC 9504-G & 13936-G/09)
Mr. Afnan Karim Kundi, ASC
(on behalf of Khurshid Anwar of Foreign service)
Mr. Haider Hussain, ASC
(on behalf of M. Saleem & Masood of Accounts
service)
Mr. Saleemullah Khan,
(in person in HRC 14309-G/09)
Nemo in HRC 14306-7/G of 2009
On Court notice:
Mr. Anwar Mansoor Khan, AGP.
For the Estt. Division:
Mr. Abdul Hafeez Pirzada, Sr. ASC
Mian Hassan Aurangzeb, ASC
Mr.M.S. Khattak, AOR
Mr. Ismail Qureshi, Secretary.
Mr. Munir Ahmed, Sr. JS.
Syed Mubashar Raza, JS.
For Foreign Office:
Mr. Ishtiaq H. Andrabi, Addl. Secy (A)
Mr. Shair Bahadur Khan, Legal Advisor
H.R.C. No. 8340-G/2009
2
Promoted Officers:
Mr.Athar Tahir, Mr.Naguibullah Malik,
(On court Notice)
Mr.Abdul Ghafar Soomro, Maj. ® Qamar Zaman,
Mr.Imtiaz Hussain Qazi, Mr.Ishtiaq Ahmed Khan,
Mr.Shahid Rashid, Mr.Nasir Mahmood Khan Khosa,
Mr.Javed Iqbal, Mr.Nazar Hussain Mahar, Mr.Junaid
Iqbal, Mr.M.Sami Saeed, Mr.Imtiaz Inayat Elahi,
Mr.Javed Mehmood, Mr.Ghulam Ali Pasha, Khawaja
Khalid Farooq, Syed Shabbir Ahmed, Mr.Tariq
Masood Khan Khosa, Dr.Wasim Kausar, Mr.Tariq
Saleem Dogar, Syed Jawed Ali Shah Bukhari,
Mr.Muhammad Zafeer Abbasi, Mr.Jaweed Akhtar,
Dr.Inamullah Khan, Mr.Khalid Idrees, Neelam S. Ali,
Mr.Abdul
Shafiq,
Mr.Ahmed
Mehmood
Zahid,
Mr.Batool Iqbal Qureshi, Mr.Ghulam Rasool Ahpan,
Mr.Gul
Muhammad
Rind,
Mr.Anisul
Hassnain
Musavi, Mr.Agha Sarwar Qizalbash, Mr.Ghalibuddin,
Mr.Ayub Tarin, Mr.Asif Usman Khan, Mr.Mansoor
Sohail, Mr.Haroon Shaukat. (all in person)
Dates of hearing:
10.11.09, 26.11.09, 7.1.2010, 20.1.2010, 26.1.2010,
28.1.2010, 29.1.2010 & 15.02.2010.
JUDGMENT
CH. IJAZ AHMED, J. Facts in brief, relevant for disposal of
instant HR Cases, are that one Mr. Tariq Aziz-ud-Din from the Foreign Service
Group, moved an application dated 6th November, 2009, addressed to Chief Justice
of Pakistan, stating therein that Government of Pakistan has made promotions of
officers of various occupational groups, including Foreign Service group to which
he also belong, from BS-21 to BS-22, in total violation of Constitutional basis and
principles of merit, seniority and fair play. He added in the application that the
competent authority has no arbitrary power under the law to pick and choose on
his whims although he sits as head of Selection Board. It is averred by him that in
this way his fundamental right to expect a fair career progression has been violated
as his juniors have been promoted while superseding him without any justification.
The application was registered as HR Case No. 8340-G/2009.
2.
Initially, the comments on the above said application were called
from the Secretary, Ministry of Foreign Affairs, Government of Pakistan,
however, ultimately the matter was ordered to be fixed in Court with notice to the
H.R.C. No. 8340-G/2009
3
Attorney General for Pakistan, Secretaries, Establishment & Foreign Affairs
Divisions, applicant and all those officers who had been superseded as well as to
the officers promoted by the Federal Government to be served through Secretary
Establishment. In the meantime, some of the other affectees also approached the
Court by way of filing separate applications, which were also registered as HR
Cases, titled above and clubbed together.
3.
Subsequently, Mr. Muhammad Akram Sheikh, Sr. ASC, Mr. M.
Ikram Chaudhry, ASC, Dr. Muhammad Aslam Khaki, ASC, Mr. Afnan Karim
Kundi, ASC and Mr. Haider Hussain, ASC appeared on behalf of the
applicants/officers who have not been promoted, whereas Mr. Abdul Hafeez
Pirzada, Sr. ASC appeared on behalf of Federation of Pakistan through
Establishment Division. Likewise, Mr. Anwar Mansoor Khan, Attorney General
for Pakistan appeared on Court’s notice. On the other hand the officers promoted
to BS-22 except few also appeared in response to the notices.
4.
Mr. Muhammad Akram Sheikh, Sr. ASC appearing on behalf of the
petitioners argued that:-
a)
In terms of Section 9(1)(b) and 9(2) of Civil Servants Act, 1973
[hereinafter referred to as ‘CSA, 1973’], the Civil Servants
(Appointment & Tenure of Post in BPS-22) Rules, 1993 [hereinafter
referred to as ‘CSR, 1993’] were framed but these rules were
rescinded on 4th April, 1998. In such situation, it is the responsibility
of the Government to frame rules with regard to terms and
conditions of the services of the Civil Servants in BS-22 and if there
is no rules or law made in this regard, then it is called exploitation,
within the meaning of Article 3 of the Constitution of Islamic
Republic of Pakistan, 1973 [hereinafter referred to as ‘the
Constitution’].
b)
Section 9(2) of the CSA, 1973, mandates that recruitment should be
made on merit, therefore, when merit comes, it excludes discretion.
[Reliance placed on Lahore Development Authority v. Shamim
H.R.C. No. 8340-G/2009
4
Akhtar (2003 MLD 1549) and Adil Hamid v. Azad Jammu and
Kashmir Govt. {1991 PLC (CS) 1195}].
c)
Despite framing of rules, if some discretion is left, it should be
structured discretion, based on seven instruments of structuring of
discretion and scope of that structuring of discretion is left only after
framing of rules in the manner prescribed.
d)
When a criterion is to be structured by rules then the only rules are
to be made applicable and nothing else and if no law or rules are
framed then the Judge made laws shall fill in the vacuum.
e)
Merit of course can be taken into consideration with respect to the
eligibility but eligibility does not militate against merit. [Reliance
placed on Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539),
Fazali Rehmani v. Chief Minister, NWFP (PLD 2008 SC 769) and
Tanvir Shaukat v. District & Sessions Judge, Narowal (2009
SCMR 764)].
f)
The promotion relates to the right to life of a civil servant because
depriving him from the ultimate glory of his service i.e. BS-22, for
which he had made sacrifices, would tantamount to scuttle of his
right to life in terms of Article 9 of the Constitution.
g)
There are neither any rules, guidelines nor compulsions, therefore,
the discretion of the Prime Minister, governing the transfers and
promotions to BS-22 would negate the entire Esta. Code. [Referred
to page 257 of the Esta. Code, 2007 Ed. (regarding Selection
Board)].
h)
Discretion vested in the competent authority is a sacred trust, which
is to be exercised with application of mind to ensure equality of
opportunity as envisaged in Article 2A of the Constitution. [Reliance
placed on Chairman RTA v. Pak. Mutual Insurance Co. (PLD
1991 SC 14), Director Food, NWFP v. Madina Flour and General
Mills (Pvt.) Ltd. (PLD 2001 SC 1), Chief Secretary Punjab v.
Abdul Raoof Dasti (2006 SCMR 1876), Abdul Wahab v.
Secretary, Govt. of Balochistan (2009 SCMR 1354) and Delhi
Transport Corpn. v. D.T.C. Mazdoor Congress (AIR 1991 SC
101)].
H.R.C. No. 8340-G/2009
5
He concluded his arguments by saying that the petitioners are claiming their right
guaranteed by the Constitution and policy of merit, which obliges the trustees of
the State powers i.e. the chosen representatives to exercise such power with all the
conditions prevalent between the trustee and beneficiary. He also referred to the
seniority list submitted by the Federal Government, demonstrating that the persons
having just few months’ service in BS-21 have been promoted whereas no reason
either for selection or rejection has been assigned.
5.
Mr. Afnan Karim Khundi, ASC appearing for some of the affectee
officers, while adopting the arguments of Mr. Muhammad Akram Sheikh, Sr.
ASC, added that:-
a)
An effort has been made by the Establishment Division in its
comments/reply to the applications of the affectee officers, to strike
some balance in terms of the Provincial representation in BS-22,
however, the Provincial quota is only applicable to appointments
initially made and not to be observed while making promotions, for
which the criterion is performance, service record and seniority.
b)
While making promotions, gender balance is being struck by the
Federal Government while picking up a person much below in the
seniority just because she is a lady. Consideration of gender is not a
criterion for promotion specially to the selection posts, where
promotions have to be made on merit alone.
c)
The promotions in question were made without assigning any
reasons regarding exercise of such discretion, which is in violation
of Section 24-A of the General Clauses Act.
6.
Mr. M. Ikram Chaudhry, learned ASC for one of the affectee officers, after
giving the service history of the petitioner, argued that:-
a)
The competent authority has to exercise the discretion in the public
interest with transparency, which lacks in the instant case. [Reliance
placed on Zia Ullah Khan v. Govt. of Punjab (PLD 1989 Lahore
554)].
H.R.C. No. 8340-G/2009
6
b)
When no reason has been assigned either for selection or rejection,
therefore, it precisely means that the rule of pick & choose was the
prime consideration and there is no transparency in the exercise of
discretion by the competent authority. [Reliance placed on Aman
Ullah Khan v. Federal Government of Pakistan (PLD 1990 SC
1092), Pak. Mutual Insurance Co.’s case (PLD 1991 SC 14) and Abu
Bakar Siddique v. Collector of Customs (2006 SCMR 705)].
He concluded his submissions while arguing that although seniority is not the only
consideration but it is to be observed to some extent, whereas, in instant case the
opportunity to be considered for promotion has not been provided to the petitioner.
7.
Dr. Aslam Khaki, ASC appeared on behalf of affectee officers, and
argued that:-
a)
Discretion must be based upon reasons but in the instant case, the
petitioners represented by him have not been considered rather
ignored, as such they have been condemned unheard against the
principle of audi alteram partem.
b)
When there is no law on a subject, the principles of natural justice
would be applicable.
c)
The competent authority was vested with powers to frame rules in
terms of Section 9 of CSA, 1973, but the same has not been done,
which shows the mala fide on its part.
d)
According to the injunctions of Islam as well as under Article 2A of
the Constitution and the principles of policy, everything should be
done on merit with justice. [Referred to the Holy Quran (Suah-e-Al-
Nisa verse 135)].
e)
Some of the persons, who were even not eligible for promotion
being not part of any occupational group and even not falling within
the category of civil servants, such as officers of National Assembly
and NLC, have been promoted in violation of rules and law.
H.R.C. No. 8340-G/2009
7
8.
Mr. Haider Hussain, ASC gave the service record of the petitioner
represented by him and argued that:-
a)
The discretion is bound by the rule of reasons, which must be guided
by law and must not be used in an arbitrary, vague and fanciful
manner. [Reliance placed on Zubair Ahmad v. Shahid Mirza (2004
SCMR 1747)].
b)
Civil servant has a right to be considered for promotion and similarly
to be disclosed the reasons for not being promoted. [Reliance placed
on Muhammad Zafeer Abbasi v. Govt. of Pakistan {2003 PLC
(CS) 503}].
c)
The four officers promoted in the occupational group of the
petitioner i.e. the Audit Department, even do not qualify for
promotion, as they had never served in BS-21 in that occupational
group.
9.
On the other hand Mr. Abdul Hafeez Pirzada, learned Sr. ASC,
appearing for the Federation of Pakistan, through Secretary Establishment
Division, argued that:-
a)
The material for promotions of all these officers was sent to the
Prime Minister in November, 2008 which contains the service record
of the entire 267 officers in Grade 21. This record remained with the
Prime Minister for consideration until September, 2009 (almost for a
period of 10/11 months), therefore, the competent authority has
made these promotions with due application of mind.
b)
This Court does not sit as a Court of appeal over the exercise of
power by a lawful authority as it has only to satisfy itself as to
whether the reducible minimum requirements of good governance
have been complied with or not, and the benefit of doubt, if any, will
go in favour of the validity of the action taken by the competent
authority and not against it. Onus, therefore, very heavily lies upon
the person coming to challenge that there has been a foul play in the
exercise of executive discretion.
H.R.C. No. 8340-G/2009
8
c)
The Officers who are working in BS-21 and have not been promoted
to BS-22, shall continue to be eligible for promotion to BS-22 in
future, therefore, there is no question of supersession.
d)
Originally only eight persons, who were not promoted, out of 213,
approached this Court, whereas a vast majority of them have not
come to the Court for the redressal of their grievance and some of
them have made the representation before the competent authority
for revisiting of their cases.
e)
In order to see whether the discretion has been exercised properly or
not by the competent authority, this Court has to scrutinize each and
every case individually in order to severe the good from the bad.
f)
The principles of seniority, fitness and aptness, as claimed by the
affectee officers, are not applicable in a case of promotion from BS-
21 to BS-22.
g)
The Rules were framed during the time of caretaker government by
virtue of SRO.1047(I)/1993 dated 23rd October 1993 in respect of
BS-22, which were rescinded in the year 1998 through notification
dated 4th April 1998 and since then the Judge made laws have taken
effect, therefore, the Court has to satisfy itself in favour of validity
of an action, rather than to strike it down, particularly when it will
affect a lot of innocent and deserving persons.
h)
The discretion exercised by the competent authority can only be
challenged on the grounds of illegality, bias or malice or mala fide,
and proceedings being corum non judice, but in the instant case at
the best, the question is of irrationality or lack of procedural
propriety, which even has not been substantiated at all by the
petitioner/affectee officers.
j)
The competent authority has exercised the discretion after
considering record of each person, with due application of mind,
though the satisfaction will not be the same as that of the Court but it
cannot be said that the competent authority has not applied its mind.
k)
Instant cases are not maintainable as the applicants have failed to
show as to how their right to life being a fundamental right is
H.R.C. No. 8340-G/2009
9
affected in view of the fact that they are only entitled to be
considered for promotion and even promotion is not a right,
especially when they will continue to be considered for promotion
every time when there are vacancies.
and
Apart from this right no other right has been pleaded or claimed. A
right to be considered for promotion cannot be equated with right to
life or right to access to justice, etc. under Articles 9 and 25 of the
Constitution. In absence of violation of any fundamental rights,
although the matter is of great public importance, this Court may not
exercise jurisdiction under Article 184(3) of the Constitution, as
these are individual grievances.
l)
Immediately prior to promotions, eleven Additional Secretaries from
BS-21 were acting as Secretaries holding independent Divisions,
whereas three Inspectors General of Police and three Chief
Secretaries were also working on acting charge basis, and their
performance was known to the competent authority, which was one
of the consideration for promotion.
m)
While making the promotion under challenge, the competent
authority had tried to maintain gender balance. [Referred to Articles
27(1) read with 34 and 37(f) of the Constitution].
n)
The competent authority has also tried to observe the quota while
making the promotions under challenge, as interpreted by this Court
in number of judgments to be the basic feature of the Constitution.
o)
When actions are taken in exercise of executive discretion, the
Courts of Appeal in England have introduced new element in the
doctrine of promissory estopple ‘of proportionality’. In future, this
Court would be called upon to judge such actions on the doctrine of
proportionality i.e. is the action proportionate to the requirement or
not. [Referred to Council for Civil Service Unions (CCSU) v.
Minister for the Civil Service [1984] 3 All ER 935 (administrative
actions subject to judicial review) and R. v. Secretary of State
[1985] 1 All ER 40 – [the doctrine of proportionality in the law of
estopple].
H.R.C. No. 8340-G/2009
10
p)
The grievance of the petitioner/affectee officers are personal in
nature and not that of public importance. [Reliance placed on All
Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004
SC 600)].
q)
Absence of rules will not render any action, otherwise lawfully
taken, to be unlawful. The words ‘necessary or expedient’ used in
Section 25 of CSA, 1973 are not mandatory but directory in nature.
r)
Although, the exercise of discretion by the competent authority is
subject to judicial review but the standard required for judicial
review will have to be different in case of civil servant, who is
already part and parcel of the State vis-a-vis the citizen who seeks
remedy against the Government.
s)
If the affectee officers are aggrieved from the order of promotion
under challenge, they should go and seek indivi dual remedy before
the competent forum and not through the instant proceedings.
He concluded his arguments while saying that according to his instructions, the
Government will frame rules with prospective effect in view of the fact that if the
rules are made retrospectively it will cause difficulties because some delegated
legislation creates rights ex post facto.
10.
In rebuttal Mr. Muhammad Akram Sheikh, Sr. ASC added with
respect to the question whether fundamental rights are involved or not, that it is
not the case of promoted or ignored employees, rather it is a case running the
Government in accordance with the Constitution and the Rules of Business.
According to him right to employment is a public undertaking as a fundamental
right, derivable from Article 9 of the Constitution. He referred to Pakistan Muslim
League (N) v. Federation of Pakistan (PLD 2007 SC 642) and Rule 5(10)(c),
15(2) & (4) of the Rules of Business. Lastly he referred to Sajjad Ahmed Javed
Bhatti v. Secretary, Establishment Division [2009 PC (CS) 981] whereby the
Service Tribunal directed the Establishment for framing of Rules.
H.R.C. No. 8340-G/2009
11
11.
Mr. Ikram Chaudhry, ASC placed on record extract from the
American Constitution (para 1 from page 12) on the point that whether the king is
the law or the law is the king. He also referred to the book Fundamental law of
Pakistan by A.K. Brohi to elaborate public policy and public interest.
12.
Mr. Afnan Karim Kundi, ASC argued that the admission made by
the counsel for the Federation of Pakistan to the effect that there is need to make
the rules as required by Section 9(1) of CSA, 1973, concedes our entire case as if
there is need to make rules now, then there was always need to have made rules
well in time. While referring to Rule 8-B of the Civil Servants (Appointment,
Promotion and Transfer) Rules, 1973, he added that the senior most officer should
be given the acting charge, therefore, the consideration prevailed upon the
competent authority that 17 officers were already functioning in BS-22 on acting
charge basis, conceded my case because the seniority is the determining factor for
promotion to BS-22.
13.
Mr. Anwar Mansoor Khan, learned Attorney General for Pakistan
made his submissions as under:-
a)
Section 9 of CSA, 1973 has two portions i.e. eligibility and how
selection is to be made. Section 9(1) provides firstly, the eligibility
for promotion having minimum qualification as may be prescribed,
in the cadre to which he belongs, and secondly the proviso provides
that promotion to the post of Secretary be made in the public
interest, therefore, every person in BS-21 will be eligible if he
possesses minimum qualification and distinction between this
promotion and normal promotion is in the ‘public interest’.
b)
Section 9(2) of CSA, 1973 emphasized upon the word ‘merit’ so the
eligibility for the purpose of promotion is not the sole consideration
as thereafter ‘merit’ will come. So all the persons are eligible and
merit is to be looked into amongst them. [Reliance placed on
Muhammad Yousaf v. Abdul Rashid (1996 SCMR 1297)].
H.R.C. No. 8340-G/2009
12
c)
Once a person comes within the ambit of Section 9(1) of CSA, 1973
then the factum of his being acceptable, appropriate, approved and
befitting will not be considered. [Reliance placed on Muhammad
Anis’s case Supra.
d)
The sole criterion for selection post is merit. [Reliance placed on
Ghuman Singh v. State of Rajasthan {(1971) 2 SCC 452}, State of
West Bengal v. Manas Kumar Chakrabarti (AIR 2003 SC 524)
and Union of India and others Versus Lt. Gen. Rajendra Singh
Kadyan and another {(2000) 6 SCC 698}.
e)
There is no dispute qua the power of this Court to review any order
passed by Executive. [emphasized upon the word ‘any’]. However,
if a person, who feels aggrieved from a particular order, unable to
show as to with what he is aggrieved and the reasons to which he is
aggrieved, then it will not be appropriate to throw away an order
passed by the executive, unless there is something so specific.
f)
In absence of rules, when there is complete practice for the past so
many years and it is continuing everyday, therefore, if the competent
authority has passed an order on the basis of custom and well known
principles regarding consistent departmental practice then malice or
mala fide cannot be attributed to it.
g)
For the past 60 years, whilst a promotion is made in BS-22, there has
not been a single occasion where a summary has been moved for
promotion and only the files are being sent to the Prime Minister,
who examines them and choose to pass an order. This custom and
practice has been followed in the instant case and has not been
deviated from.
h)
The competent authority has exercised its discretion properly,
keeping in view the settled principles of discretion.
j)
Section 9(3) of the CSA, 1973 places a restriction upon the
competent authority that the promotion to the post of BS-20 & 21
shall not be made without the recommendations of the Selection
Board, whereas, for promotion to the post of BS-22, there is no such
restriction and it is left on the ‘assessment’ of the competent
authority to select the person upon whom he has reasonable
H.R.C. No. 8340-G/2009
13
confidence, from those who are eligible, as such now the question of
seniority towards eligibility goes out, that is why the lawmaker has
omitted the word ‘BS-22’ from this Section.
k)
It is duty of the Court to interpret and explain the law; when we
expand the scope of a certain law, we have to remain within the
parameters of the law. If the Court ultimately came to the conclusion
that promotion to BS-22 had to be made in the same manner as
provided for BS-20 or 21, then the Court is expanding the scope of
law. [Referred to R (ProLife Alliance) v. BBC (2003) 2 All ER
977].
14.
Notices were also issued to the officers promoted to BS-22 to
provide them opportunity to appear and make submissions in support of their
cases. They appeared in-person on 12th & 15th February, 2010 and explained their
service profile and stated that vested rights had accrued to them vide impugned
notifications. According to them they were promoted purely on merit and they had
not exercised any political or other influence and the information of their
promotion was conveyed to them through news, release in electronic or print
media. It was their case that have un-blemished service record and lot of
experience to perform their duties in different capacities. During the service they
had secured higher education, passed the departmental examinations and courses
with distinction, therefore, they were promoted by the competent authority by
comparing their qualifications, experience, ability, eligibility with the officers who
were not promoted. Some of them stated, they were going to retire on attaining the
age of superannuation after availing the benefits of BS-22, therefore, justice
demands that notification should not be set-aside otherwise their reputation would
be damaged. The officers of the police group submitted that they belonged to
discipline force and Officer in BS-21 is equal to Major General and Officer in BS-
22 is equal to Lt. General, therefore, seniority is not a criterion and the competent
authority has discretion to promote any officer. They added that it would not be in
H.R.C. No. 8340-G/2009
14
the interest of justice and in case notifications are set aside, it would be difficult
for them to perform their duties, removing their badges of ranks and down grading
from BS-22 to BS-21.
15.
Since the cases are required to be decided on the basis of facts and
figures and not in vacuum, it is necessary to reproduce hereinbelow service record
of officers promoted and non-promoted from BS-21 to BS-22 along with relevant
details:-
a) List of Officers of the District Management Group (DMG) BS-21 Officers who
were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
1.
1
Mr. Muhammad Asadullah
Sheikh
01.12.1973
30.05.2009
Not promoted
2.
2
Syed Tanveer Abbas Jaffary
20.02.1976
11.08.2003
Not promoted
3.
3
Mr. Mohammad Athar Tahir
12.03.1977
11.08.2003
Promoted
4.
4
Mr. Shahid Hussain Raja
21.03.1977
20.07.2004
Not promoted
5.
5
Mr. Shaukat Hayat Durrani
21.03.1977
08.09.2003
Not promoted
6.
6
Mr. Neguib Ullah Malik
00.10.1973
20.07.2004
Promoted
7.
7
Mr. Asif Bajwa
21.03.1977
08.07.2004
Promoted
8.
8
Mr. Abdul Ghaffar Soomro
21.03.1977
06.08.2004
Promoted
9.
9
Capt.(R) Akhtar Munir Murwat
26.08.1974
19.09.2005
Not promoted
10.
10.
Syed Mohammad Hamid
20.02.1976
03.01.2006
Not promoted
11.
11
Qamar Zaman Major (R)
01.06.1982
19.09.2005
Prompted
12.
12
Mrs. Farkhanda Waseem Afzal
08.03.1978
24.09.2005
Not promoted
13.
13
Mr. Hassan Waseem Afzal
08.03.1978
24.09.2005
Not promoted
14.
14
Mr. Mohammad Javed Malik
08.03.1978
24.09.2005
Not promoted
15.
15
Mr. Hafeez-ur-Rehman
08.03.1978
24.12.2005
Not promoted
16.
16
Mr. Saeed Ahmad Khan
08.03.1978
14.10.2005
Not promoted
17.
17
Mr. Imtiaz Hussain Kazi
08.03.1978
26.10.2005
Promoted
18.
18
Mrs. Rukhsana Saleem
08.03.1978
19.09.2005
Promoted
19.
19
Mr. Ishtiak Ahmed Khan
08.03.1978
19.09.2005
Promoted
20.
20
Mr. Munawar Opel
08.03.1978
15.02.2006
Not promoted
21.
21
Mr. Tariq Yousuf
30.12.1974
08.11.2006
Not promoted
22.
22
Mr. Iqbal Ahmad Maj. (R)
28.06.1983
08.11.2006
Not promoted
23.
23
Shahibzada M. Khalid Maj. (R)
01.06.1983
20.10.2006
Not promoted
24.
24
Mr. Shahid Rashid
29.03.1979
08.11.2006
Promoted
25.
25
Mr. Nasir Mehmood Khan Khosa
29.03.1979
20.10.2006
Promoted
26.
26
Mr. Iftikhar Ahmed
29.03.1979
20.10.2006
Not promoted
27.
27
Mr. Shafiq Hussain Bokhari
29.03.1979
20.10.2006
Not promoted
28.
28
Mr. Abdul Wajid Rana
29.03.1979
20.10.2006
Not promoted
29.
29
Mr. Kamran Lashari
29.03.1976
02.01.2008
Promoted
30.
30
Mr. Javed Iqbal
29.03.1979
20.10.2006
Promoted
31.
31
Mr. Nazar Hussain Mehr
29.03.1979
20.10.2006
Promoted
32.
32
Mr. Fasi-ud-Din
29.03.1979
20.10.2006
Not promoted
33.
33
Kh. Muhammad Siddiq Akbar
29.03.1979
22.11.2008
Not promoted
34.
34
Mr. Junaid Iqbal Ch. Flt. Lt.
08.03.1980
07.11.2006
Promoted
35.
35
Mr. Muhammad Abbas Lt.
10.03.1980
08.11.2006
Not promoted
36.
36
Mr. Ahsanullah Khan
21.04.1977
27.08.2008
Not promoted
37.
37
Mr. Faridullah Khan
29.03.1979
02.01.2008
Not promoted
38.
38
Kh. Muhammad Naeem
10.07.1984
25.06.2008
Not promoted
39.
39
Prince Abbas Khan
10.07.1984
08.01.2008
Not promoted
40.
40
Maj. (R) Haroon Rashid
14.11.1984
02.01.2008
Not promoted
41.
41
Capt.(R) Ghulam Dastagir Akhtar
08.03.1980
02.01.2008
Not promoted
42.
42
Azhar Hussain Shamim
05.04.1980
02.06.2009
Not pro moted
H.R.C. No. 8340-G/2009
15
43.
43
Mr. Sohail Ahmed
05.04.1980
02.01.2008
Promoted
44.
44
Mr. M. Sami Saeed
05.04.1980
02.01.2008
Promoted
45.
45
Mr. Akhlaq Ahmad Tarar
05.04.1980
02.01.2008
Not promoted
46.
46
Mr. Attaullah Khan
05.04.1980
02.01.2008
Not promoted
47.
47
Mr. Javed Aslam
05.04.1980
02.01.2008
Not promoted
48.
48
Kazi Afaq Hussain
05.04.1980
02.01.2008
Not promoted
49.
49
Mr. M. Javed Iqbal Awan
05.04.1980
12.01.2008
Not promoted
50.
50
Mr. Shafqat Hussain Naghmi
05.04.1980
02.01.2008
Not promoted
51.
51
Mr. Muhmmad Arif Azim
05.04.1980
02.01.2008
Not promoted
52.
52
Mr. Muhammad Ayub Qazi
05.04.1980
02.01.2008
Not promoted
53.
53
Mr. Habibullah Khan Khattak
05.04.1980
27.08.2008
Not promoted
54.
54
Mr. Imtiaz Inyat Elahi
05.04.1980
02.01.2008
Promoted
55.
55
Mr. Javed Mahmood
05.04.1980
02.01.2008
Promoted
56.
56
Mrs. Viqar-un-Zeb
05.04.1980
02.01.2008
Not promoted
57.
57
Mr. Anwar Ahmad Khan
05.04.1980
04.01.2008
Not promoted
58.
58
Mr. Tauqir Ahmed
20.02.1976
26.06.2008
Not promoted
59.
59
Mr. Liaquat Ali
22.02.1976
26.06.2008
Not promoted
60.
60
Mr. M. Maqbool Ahmad Khan
05.04.1980
08.07.2008
Not promoted
61.
61
Mr. Ghulam Ali Shah
05.04.1980
26.06.2008
Promoted
62.
62
Mr. Ahmed Bakhsh Lehri
05.04.1980
25.06.2008
Promoted
63.
63
Mrs. Nargis Sethi
05.04.1980
26.08.2008
Promoted
b) List of Officers of the Police Service of Pakistan (PSP) BS-21 Officers who
were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
1.
1
Mr. Azhar Ali Farooqui
24.12.1971
30.04.2008
Promoted
2.
2
Mr. Muhammad Arshad Saeed
27.12.1972
24.11.2007
Not promoted
3.
3
Mr. Irfan Mahmood
23.12.1972
21.06.2003
Not promoted
4.
4
Syed Irshad Hussain
23.12.1972
22.10.2002
Not promoted
5.
5
Mr. Niaz Ahmad Siddiki
26.01.1973
11.11.2004
Not promoted
6.
6
Mr. Salahuddin Ahmed Khan Niazi
26.12.1972
24.09.2005
Not promoted
7.
7
Mr. Shaukat Ali Khan
01.12.1973
12.11.2005
Not promoted
8.
8
Mr. Israr Ahmad
31.12.1974
25.01.2007
Not promoted
9.
9
Mr. Muhammad Ejaz Akram
30.12.1974
25.01.2007
Not promoted
10.
10
Mr. Tahir Arif
30.12.1974
07.08.2008
Not promoted
11.
11
Mirza Muhammad Yasin
30.12.1974
19.12.2006
Not promoted
12.
12
Mr. Khalid Farooq
30.12.1974
25.01.2007
Promoted
13.
13
Mr. Muhammad Wasim
30.12.1974
25.01.2007
Not promoted
14.
14
Mr. Fayyaz Ahmed Mir
30.12.1974
25.01.2007
Not promoted
15.
15
Mr. Abdul Latif Khan
30.12.1974
01.03.2007
Not promoted
16.
16
Syed Shabbir Ahmed
30.12.1974
24.02.2007
Promoted
17.
17
Mr. Shaukat Hayat
10.01.1975
18.07.2007
Retired
18.
18
Mr. Rahoo Khan Brohi
30.12.1974
04.01.2007
Not promoted
19.
19
Mr. Akhtar Hussain Memon
17.02.1975
30.04.2008
Not promoted
20.
20
Mr. Tariq Masood Khan Khosa
20.02.1976
19.12.2006
Promoted
21.
21
Malik Muhammad Iqbal
20.02.1976
10.02.2007
Not promoted
22.
22
Mr. Iftikhar Ahmed
20.02.1976
19.12.2006
Not promoted
23.
23
Mr. Asif Nawaz
20.02.1976
10.02.2007
Not promoted
24.
24
Mr. Zahid Mahmood
20.02.1976
07.08.2008
Not promoted
25.
25
Mr. Fiaz Ahmed Khan
20.02.1976
16.01.2007
Not promoted
26.
26
Mr. Javed Iqbal
20.02.1976
07.08.2008
Promoted
27.
27
Mr. Zafar Ahmed Farooqi
20.02.1976
01.03.2007
Not promoted
28.
28
Mr. M. Azam Khan Maj.(R)
01.06.1982
26.04.2007
Not promoted
29.
29
Mr. Muhammad Habib-ur-Rehman
05.02.1976
26.04.2007
Not promoted
30.
30
Dr. Wasim Kausar
21.03.1977
26.04.2007
Promoted
31.
31
Mr. Abdul Majeed
21.03.1977
10.02.2007
Not promoted
32.
32
Mr. Tariq Saleem
30.12.1974
10.02.2007
Promoted
33.
33
Mr. Javed Noor
21.03.1977
10.02.2007
Promoted
34.
34
Mr. Aftab Sultan
21.03.1977
10.02.2007
Not promoted
35.
35
Mr. Fakharuddin
30.12.1974
07.08.2008
Not promoted
36.
36
Mr. Shamsul Hassan
21.03.1977
09.08.2008
Not promoted
37.
37
Mr. Humayun Raza Shafi
21.03.1977
01.06.2009
Not promoted
38.
38
Mr. Zafarullah Khan
21.03.1977
29.05.2009
Not promoted
H.R.C. No. 8340-G/2009
16
39.
39
Mr. Waseem Ahmed
09.09.1974
29.05.2009
Not promoted
40.
40
Syed Mohammad Saqlain Naqvi
23.06.1973
01.06.2009
Not promoted
41.
41
Wajid Ali Durrani
08.03.1978
15.06.2009
Not promoted
42.
42
Sayyed Jawed Ali Shah Bukhari
29.01.1974
29.05.2009
Promoted
c) List of Officers of the Secretariat Group BS-21 Officers who were
promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
1.
1
Mr. Humayun Ishaque Chohan
20.04.1974
06.07.2004
Not promoted
2.
2
Mr. Liaquat Ali Chaudhry
30.12.1974
25.11.2006
Not promoted
3.
3
Mr. Muhammad Zafeer Abbasi
20.11.1974
07.10.2006
Promoted
4.
4
Mr. Bashir Ahmed Chauhan
30.12.1974
07.10.2006
Not promoted
5.
5
Mr. Shaukat Nawaz Tahir
30.12.1974
07.10.2006
Not promoted
6.
6
Mrs. Hahnaz S. Hamid
30.12.1973
31.10.2006
Not promoted
7.
7
Mr. Jaweed Akhtar
(inducted in Sectt: Group from
NLC)
17.11.2007
17.11.2007
Inducted &
promoted on
the same day
8.
8
Mr. Irfan Nadeem Syed
20.02.1976
21.01.2008
Not promoted
9.
9
Mr. Inamullah Khan
30.01.1974
18.12.2007
Promoted
10.
10.
Mr. Fakhar Abbas Naqvi
25.03.1975
21.01.2008
Not promoted
11.
11
Mr. Khalid Idrees
30.12.1974
18.12.2007
Promoted
12.
12
Mrs. Neelam S. Ali
19.03.1975
29.12.2007
Promoted
13.
13
Mr. Zaid Usman
30.12.1974
16.05.2009
Not promoted
14.
14
Mr. Abdul Shafiq
22.03.1975
16.05.2009
Promoted
15.
15
Mr. Ali Akbar Bhurgri
26.05.1975
26.06.2008
Not promoted
16.
16
Mr. Attiq-ur-Rehman Malik
20.02.1976
18.12.2007
Not promoted
17.
17
Mr. Anwar Hafeez Khan
20.02.1976
00.10.2008
Not promoted
18.
18
Sheikh Anjum Bashir
20.02.1976
25.05.2009
Not promoted
19.
19
Raja Muhammad Ikramul Haq
20.02.1976
18.12.2007
Not promoted
20.
20
Mr. Ahmad Mahmood Zahid
20.02.1976
18.12.2007
Promoted
21.
21
Mrs. Batool Iqbal Qureshi
20.02.1976
18.12.2007
Promoted
22.
22
Mr. Fazal-i-Qadir
20.02.1976
18.12.2007
Not promoted
23.
23
Mr. Abdul Majid
30.12.1974
19.06.2008
Not promoted
24.
24
Mr. Shahid Latif Anwar
30.12.1974
11.06.2008
Not promoted
25.
25
Mr. Naeem Baig
30.12.1974
22.10.2008
Not promoted
26.
26
Mr. Sharshar Ahmed Khan
21.03.1977
29.11.2008
Not promoted
27.
27
Mr. Ghulam Rasool Ahpan
26.05.1975
28.05.2009
Promoted
28.
28
Syed Turab Haider Zaidi
20.02.1976
07.05.2009
Not promoted
29.
29
Mrs. Rukan Abdullah Shah Gardezi
06.12.1976
07.05.2009
Not promoted
30.
30
Mr. Ziauddin
17.02.1977
07.05.2009
Not promoted
31.
31
Mr. Moosa Raza Effendi
31.03.1977
07.08.2009
Not promoted
32.
32
Mian Mohammad Younus
21.03.1977
07.05.2009
Not promoted
33.
33
Mr. Zaeem Ahmed Chaudhry
21.03.1977
04.07.2009
Not promoted
34.
34
Miss Naheed Rizvi
21.03.1977
06.06.2009
Not promoted
35.
35
Mr.Muhammad Ahsan Akhtar Malik
21.03.1977
07.05.2009
Not promoted
36.
36
Mr. Sikandar Hayat Maken
21.03.1977
07.05.2009
Not promoted
37.
37
Ch. Mohammad Azam
21.03.1977
12.05.2009
Not promoted
38.
38
Mr. Muhammad Anwar Khan
30.10.1988
07.05.2009
Not promoted
39.
39
Mr. Khalid Ahmed Khan
21.03.1977
07.05.2009
Not promoted
40.
40
Mr. Ghul Mohammad Rind
21.03.1977
23.05.2009
Promoted
d) List of Officers of the Commerce & Trade Group BS-21 Officers who were
promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
1.
(not
provided)
Mr. Tariq Iqbal Puri
01.12.1973
(not provided)
Promoted
2.
2
Mr. Rahatul Ain
30.12.1974
07.01.2004
Not promoted
3.
3
Mr. Naved Arif
30.12.1974
29.12.2006
Not promoted
4.
4
Agha Zafar Mehdi Shah
09.10.1973
25.09.2009
Not promoted
H.R.C. No. 8340-G/2009
17
e) List of Officers of the Income Tax Group BS-21 Officers who were
promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
1.
1
Mr. Ihsan-ul-Haq
31.12.1974
14.10.2002
Not promoted
2.
2
Mr. Naseer Ahmad
31.12.1974
26.01.2005
Not promoted
3.
3
Mr. Muhammad Istataat Ali
30.12.1974
23.06.2006
Not promoted
4.
4
Mr. Khawar Khurshid Butt
30.12.1974
23.06.2006
Not promoted
5.
5
Mr. Masood Ali Jamshed
30.12.1974
23.06.2006
Not promoted
6.
6
Mr. Bilal Khan
30.12.1974
23.06.2006
Not promoted
7.
7
Mr. Muhammad Fiayaz Khan
20.01.1976
23.06.2006
Not promoted
8.
8
Mr. Qurban Ali
20.02.1976
11.03.2008
Not promoted
9.
9
Mr. Shahid Azam Khan
20.02.1976
23.06.2006
Not promoted
10.
10
Mr. Nazir Ahmad
20.02.1976
23.06.2006
Not promoted
11.
11
Mr. Anis-ul-Hasnain Musavi
16.03.1976
19.12.2007
Promoted
12.
12
Khawaja Shaukat Ali
21.03.1977
19.12.2007
Not promoted
13.
13
Mr. Asrar Raouf
12.03.1977
19.12.2007
Not promoted
14.
14
Agha Sarwar Raza Qazilbash
21.03.1977
19.12.2007
Promoted
f) List of Officers of the Pakistan Audit & Accounts Service BS-21 Officers who
were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
1.
1
Mr. Asif Mahmood Malik
01.12.1973
14.05.2002
Not promoted
2.
2
Mr. Javed Arif
01.12.1973
09.08.2004
Promoted
3.
3
Mr. Masud Muazaffar
30.121.1974
28.09.2005
Not promoted
4.
4
Mr. Yawar Zia
30.12.1974
28.09.2005
Not promoted
5.
5
Mr. Muhammad Ayub Khan Tarin
10.01.1975
30.09.2006
Promoted
6.
6
Mr. Shaukat Muhammad Lundkhaur
10.01.1975
15.12.2007
Not promoted
7.
7
Mr. Muhammad Anwar
30.12.1974
10.01.2008
Not promoted
8.
8
Mr. Muhammad Saleem
30.12.1974
15.12.2007
Not promoted
9.
9
Mr. Muzammil Tayeb Sultan
30.12.2007
15.12.2007
Not promoted
10.
10
Mr. Abdul Waheed Khan
20.02.1976
15.12.2007
Not promoted
11.
11
Mr. Jehangir Aziz
20.02.1976
02.05.2008
Not promoted
12.
12
Ms. Saseem Akhtar
20.02.1976
15.09.2008
Not promoted
13.
13
Mr. Sohail Ahmed
17.05.1976
30.04.2009
Not promoted
14.
14
Mr. Anees Marghub
20.02.1976
16.06.2008
Not promoted
15.
15
Shaikh Muhammad Awais
20.02.1976
16.06.2008
Not promoted
16.
16
Mr. Allah Bux Khan Kalyar
20.02.1976
30.04.2009
Not promoted
17.
17
Mr. Shah Nawaz Khan
20.02.1976
30.04.2009
Not promoted
18.
18
Syed Moazzam Hussain
20.02.1976
30.04.2009
Not promoted
19.
19
Mr. Ghalibuddin
30.12.1950
20.02.1976
Promoted
20.
20
Mr. Saeed Ahmed Panhwar
20.02.1976
11.05.2009
Not promoted
21.
21
Mr. Ejaz Ali Pirzada
20.02.1976
30.04.2009
Not promoted
22.
22
Rana Assad Amin
21.03.1977
30.04.2009
Not promoted
23.
23
Mr. Zahid Saeed
21.03.1977
30.04.2009
Not promoted
24.
24
Mr. Muhammad Junaid
21.03.1977
05.05.2009
Not promoted
25.
25
Mr. Muhammad Shafi
21.03.1977
30.04.2009
Not promoted
26.
26
Mr. Fahimullah Khattak
21.03.1977
12.05.2009
Not promoted
27.
27
Ms. Nasreen Mahdi
21.03.1977
12.05.2009
Not promoted
28.
28
Agha Talat Pervaiz
21.03.1977
30.04.2009
Not promoted
29
29
Mr. Asif Usman Khan
20.01.1954
21.03.1977
Promoted
g) List of Officers of the Information Group BS-21 Officers who were
promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
H.R.C. No. 8340-G/2009
18
1.
1
Mr. Fazal-ur-Rehman Malik
30.12.1974
04.03.2004
Not promoted
2.
2
Mr. A.S. Abbasy
30.12.1974
30.09.2005
Not promoted
3.
3
Mr. I.N. Abbasi
26.05.1975
27.05.2009
Not promoted
4
4
Mr. Mansoor Suhail
21.03.1977
15.05.2009
Promoted
h) List of Officers of the Foreign Service Group BS-21 Officers who
were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
1.
1
Mr. Iftikhar H. Kazmi
20.02.1976
09.06.2008
Not promoted
2.
2
Mr. Ashraf Qureshi
21.03.1977
20.07.2004
Not promoted
3.
3
Ms. Humaira Hassan
21.03.1977
24.04.2007
Not promoted
4.
4
Ms. Raana Rahim
08.03.1978
24.04.2007
Not promoted
5.
5
Mr. Khurshid Anwar
08.03.1978
20.07.2004
Not promoted
6.
6
Mr. Tariq Azizuddin
01.08.1975
10.09.2005
Not promoted
7.
7
Mr. M. Khalid Khattak
20.02.1976
10.09.2005
Promoted
8.
8
Mr. Akhtar Tufail
08.03.1978
10.09.2005
Not promoted
9.
9
Mr. M. Haroon Shaukat
08.03.1978
24.04.2007
Promoted
10.
10
Mr. Zamir Akram
02.07.1978
10.09.2005
Promoted
11.
11
Mr. Muhammad Hafeez
08.03.1978
11.12.2007
Not promoted
12.
12
Mr. Masood Khalid
29.03.1979
24.04.2007
Not promoted
13.
13
Mr. Mian Gul Akbar Zaib
29.03.1979
24.04.2007
Not promoted
14.
14
Ms. Kausar Ahsan Iqbal
20.02.1976
09.06.2008
Not promoted
15.
15
Ms. Atiya Mahmood
29.03.1979
11.12.2007
Not promoted
16.
16
Mr. Sanaullah
24.06.1979
11.12.2007
Not promoted
17.
17
Ms. Fauzia Sana
29.03.1979
11.12.2007
Not promoted
18.
18
Mr. Jalil Abbas Jilani
29.03.1979
11.12.2007
Promoted
19.
19
Mr. Rizwanul Haq Mahmood
29.03.1979
11.12.2007
Not promoted
20.
20
Mr. M. Masood Khan
05.04.1980
-
Promoted
i) List of Officers of the National Assembly Secretariat Group BS-21 Officers
who were promoted vis -à-vis who were not promoted to BS-22 Posts on or after 04.09.2009.
Sr.#
Seniority
Position
in BS-21.
Name of the Officer
Date of Joining
Date of
Notification of
promotion to
BS-21
Remarks
1.
1
Mr. Moeen-ul-Islam Bokhari
Ex-Cadre
Not available
Promoted
16.
It would also be advantageous to highlight civil servant’s structure
since promulgation of Government of India Act, 1935 till the law framed under
Article 240 of the Constitution. The Federal system of Government initially was
introduced in Indo-Pak sub-Continent through Government of India Act, 1935 and
the spirit of this Act was retained in the Constitutions of 1956 and 1973, thus our
present Constitution is Federal in nature under which the areas of responsibilities
of the Federation and the federating units have been precisely defined; they have
to exercise their legislative and executive authorities within those limits. The
concept of All Pakistan Services was introduced in 1935. Section 263 of the
Government of India Act, 1935 provided that:-
H.R.C. No. 8340-G/2009
19
“If an agreement is made between the federation and one or
more Provinces, or between two or more Provinces, for the
maintenance or creation of a service common to the
Federation and one or more Provinces or common to two or
more Provinces, or for the maintenance or creation of the
post, the function whereof are not restricted to the affairs of
the Federation or one Province, the agreement may make
provision that the Governor General or any Governor or any
Public Service Commission, shall do in relation to that
service or post anything which would under the provision of
this chapter be done by the Governor or the Provincial Public
Service Commission if the service or post was a service or
post in connection with the affairs of one Province only”.
A careful perusal of above Section reveals that the independence of the Provinces
has not been curtailed by the Federal Government. Further more, it was left to the
discretion of the Provinces to agree to such an arrangement or not, not only with
the Federation but also between the Provinces and it was in pursuance of one such
agreement that All Pakistan Services were created and came to be regulated under
the CSP (Composition and Cadre) Rules 1954. According to these rules certain
posts in connection with the affairs of the Provinces were to be filled by Members
of All Pakistan Service and these posts were determined in the form of a Schedule
to the rules. The legal effect of this arrangement was that 30% of the superior
posts encadred for the CSP were reserved for the PCS and in this way the posts
were created as a result of an agreement between the Governor General of
Pakistan and the Governors of the Provinces. Thereafter Constitution of 1956
under Articles 179 to 183 and subsequently Constitution of 1962 under Articles
174 to 179 provided constitutional protection to civil services but the same was
withdrawn first time at the time of framing of Constitution of 1973 in terms of
Article 240 and it was provided that the terms and conditions of civil service shall
be determined by an Act of the Parliament or the Provincial Assembly. As such,
Civil Servants Act, 1973 was passed to regulate the service conditions of the
H.R.C. No. 8340-G/2009
20
Federal Government Employees. Similarly in accordance with the administrative
reforms announced on 20th August, 1973, the classes were abolished and a grading
system was introduced at all levels of administration, Federal as well as Provincial
and the rules known as Change in Nomenclature and Abolition of Classes Rules
were enforced by the Federal and Provincial Governments in 1974, separately.
The effect of these changes was that at the time of re-organization of the CSP
Cadre, all the posts were encadred for the DMG and the Secretariat Group, which
are the successors to the CSP.
17.
The trichotomy of power delicately placed in the Constitution cannot
be disturbed as it grants power to each organ to perform in its allotted sphere. The
subject of appointments to service of the Federation and conditions of service has
specifically been mentioned in Article 240 of the Constitution which reads as
under:
Article 240: -Subject to the constitution, the appointments to and the
conditions of service of persons in the service of Pakistan shall be
determined:-
a)
in the case of the services of the federation, posts in connection with
the affairs of the federation and all Pakistan services by or under Act
of Majlis-e-Shoora (Parliament) ; and
b)
…………………………………….
18.
As per the command of above provision of the Constitution, CSA,
1973 was promulgated. Its section 9 mainly deals with promotions up to BS-21,
procedure whereof has been laid under Appointment, Promotion and Transfer
Rules, 1973. It would not be out of context to note that presently rules are not
available for promotion to the selection grade i.e. from BS-21 to BS-22; although
in the year 1993, vide SRO. 1047 (I)/1993 dated 23rd October, 1993, such rules
were framed but those were rescinded on 4th April, 1998. In absence of any rules
for promotion to BS-22, reliance has to be placed on section 9 (2) clauses (a) & (b)
of the CSA, 1973, according to which in case of selection post, selection has to be
H.R.C. No. 8340-G/2009
21
made on the basis of merit and in the case of non-selection post on the basis of
seniority-cum-fitness. It may not be out of context to note that under sub section
(3) of section 9, promotion to posts in BS-20 and 21 and equivalent shall be made
on the recommendations of a Selection Board. Therefore, while examining the
case under consideration no other criterion has to be taken into consideration
except merit. As it is noted hereinbefore that there are no rules for promotion to
selection post of grade-22 meaning thereby that competent authority may exercise
discretion which has to be structured in view of the principles laid down in the
Judge made Law by full application of mind. Reference at this stage has to be
made to the case of Aman Ullah Khan and others V. The Federal Government of
Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990
SC 1092), relevant para therefrom reads as under:-
“Wherever wide-worded powers conferring discretion exist, there
remains always the need to structure the discretion and it has been
pointed out in the Administrative Law Text by Kenneth Culp Davis
(page 94) that the structuring of discretion only means regularizing
it, organizing it, producing order in it so that decision will achieve
the high quality of justice. The seven instruments that are most
useful in the structuring of discretionary power are open plans, open
policy statements, open rules, open findings, open reasons, open
precedents and fair informal procedure. Somehow, in our context,
the wide worded conferment of discretionary powers or reservation
of discretion, without framing rules to regulate its exercise, has been
taken to be an enhancement of the power and it gives that impression
in the first instance but where the authorities fail to rationalise it and
regulate it by Rules, or Policy statements or precedents, the Courts
have to intervene more often, than is necessary, apart from the
exercise of such power appearing arbitrary and capricious at times”.
19.
The above principles are being consistently reiterated in the cases of
Chairman, Regional Transport Authority, Rawalpindi V. Pakistan Mutual
Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), Director Food,
H.R.C. No. 8340-G/2009
22
N.W.F.P. and another V. Messrs Madina Flour & General Mills (Pvt) Ltd. & 18
others (PLD 2001 SC 1), Chief Secretary Punjab and others V. Abdul Raoof Dasti
(2006 SCMR 1876), Abdul Wahab and another V. Secretary, Government of
Balochistan and another (2009 SCMR 1354) and Delhi Transport Corporation V.
D.T.C. Mazdoor Congress and others (AIR 1991 SC 101). In the case of Abdul
Wahab (ibid), this Court while dealing with the subject of structuring of discretion
observed as follows:-
“Discretionary power conferred on government should be exercised
reasonably and subject to existence of essential conditions, required
for exercise of such powers within the scope of law. All judicial,
quasi judicial and administrative authorities while exercising
mandatory or discretionary jurisdiction must follow the rule of fair
exercise of power in a reasonable manner and must ensure
dispensation of justice in the spirit of law. Seven instruments that
are the most useful in structuring of discretionary power are open
plans, open policy statement, open rules, open findings, open reason,
open precedents and fair informal procedure. Power to exercise
discretion would not authorize such authorities to act arbitrarily,
discriminately and mala fide. They have to act without any ulterior
motive”.
20.
The above principles of structuring of discretion actually has been
derived from the concept of rule of law which, inter alia, emphasize that action
must be based on fair, open and just consideration to decide the matters more
particularly when such powers are to be exercised on discretion. In other words,
the arbitrariness in any manner is to be avoided to ensure that the action based on
discretion is fair and transparent. The Indian Supreme Court in the case of Delhi
Transport Corporation (ibid), while examining a proposition of law, in view of
facts of the case mentioned therein concerning removal of an employee under
H.R.C. No. 8340-G/2009
23
Regulation 9 (b), where opportunity of hearing was not to be provided before
taking action, made the following observation:-
“Any action taken without any modicum of reasonable procedure
and prior opportunity always generates an unquenchable feeling that
unfair treatment was meted out to the aggrieved employee. To
prevent miscarriage of justice or to arrest a nursing grievance that
arbitrary, whimsical or capricious action was taken behind the back
of an employee without opportunity, the law must provide a fair, just
and reasonable procedure as is exigible in a given circumstances as
adumbrated in proviso to Art.311(2) of the Constitution. If an
individual action is taken as per the procedure on its own facts its
legality may be tested. But it would be no justification to confer
power with wide discretion on any authority without any procedure
which would not meet the test of justness, fairness and
reasonableness envisaged under Arts. 14 and 21 of the Constitution.
In this context it is important to emphasise that the absence of
arbitrary power is the first essential of the rule of law upon which
our whole constitutional system is based. In a system governed by
rule of law, discretion, when conferred upon executive authorities,
must be confined within defined limits. The rule of law form this
point of view means that decisions should be made by the
application of known principles and rules and, in general, such
decisions should be predictable and the citizen should know where
he is. If a decision is taken without any principle or without any rule
it is unpredictable and such a decision is the antithesis of a decision
taken in accordance with the rule of law. (See Dicey – “Law of the
Constitution” – 10th Edn., Introduction cx). “Law has reached its
finest moments”, stated Douglas, J. in United States v. Wunderlich,
(1951) 342 US 98, “when it has freed man from the unlimited
discretion of some ruler………Where discretion is absolute, man has
always suffered”. It is in this sense that the rule of law may be said
to be the sworn enemy of caprice. Discretion, as Lord Mansfield
stated it in classic terms in the case of John Wilkes “means should
discretion be guided by law. It must be governed by rule, not by
humour; it must not be arbitrary, vague and fanciful,” as followed in
H.R.C. No. 8340-G/2009
24
this Court in S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703:
(AIR 1967 SC 1427)”.
21.
Learned counsel for Federation emphasized that the competent
authority (the Prime Minister of Pakistan) has exercised discretion justly and fairly
following the recognized principles set out in the judgments relied upon by the
learned counsel appearing on behalf of the petitioners and he has been authorized
in this behalf to make a statement before the Court that before issuing the
notifications of the promotion of some of the officers, he had gone through their
service record thoroughly and in this behalf their personal files remained under his
consideration for months together and ultimately he decided their cases with due
application of mind and as the decision so taken does not suffer from illegality,
bias or malice or malafide as well as coram-non-judice, therefore, interference is
not called for.
22.
However, we have failed to persuade ourselves to agree with the
learned counsel for many reasons including;
Firstly, as per Rule 15 (2) of the Rules of Business, it is mandatory that a
case should be submitted to the Prime Minister for his orders based on self-
contained, concise and objective summary stating the relevant facts of the
points for decision prepared on the same lines as those prescribed in these
rules for a summary of the Establishment etc. Before us, the Secretary,
Establishment pointed out that there is no practice prevailing for the last
about 60 years for forwarding the cases of promotion from BS-21 to BS-22
and subject to the availability of the vacancies the Prime Minister calls for
the files for promoting officers and notification is issued of his/their
promotion on receipt of directions from the Prime Minister by the
Establishment Division and in the instant case, too, the past practice was
followed; to say, unhesitatingly that mandate of relevant rules was ignored.
Conversely speaking, there is admitted non-adherence to the Rules of
H.R.C. No. 8340-G/2009
25
Business. The Secretary, Establishment sent files without any forwarding
letter and the cases of all the officers totaling 267 were not sent in terms of
aforesaid Rules of Business.
In the cases of Zahid Akhtar v. Government of Punjab through Secretary,
Local Government and Rural Development, Lahore and 2 others (PLD
1995 SC 530), Federation of Pakistan through Secretary, Planning &
Development Division, Islamabad v. Muhammad Akram & others (1995
SCMR 1647) & Aman Ullah Khan and others v. The Federal Government
of Pakistan through Secretary, Ministry of Finance, Islamabad and others
(PLD 1990 SC 1092), it has been held that due weight is required to be
given to the Rules of Business which have got constitutional sanction
whereas, in the instant case, the mandate of law has uncondonably been
violated. It may be stated that adopting such arbitrary procedure, not only
in-justice has been caused to officers who are otherwise senior and also
have better case on merit as is evident from what follows in next paras but
they have been deprived because there was nothing as the circumstances
reflect, in black and white before the competent authority. This fact brings
the case in the area where the discretion so exercised by the competent
authority cannot be said to be in consonance with the well known principle
of fair play as the cases of the officers who were not promoted their files
were not before him, along with self-contained note by the Secretary
Establishment in terms of the aforesaid Rules of Business.
Secondly; to ensure justice and openness in view of rule of law it becomes
obligatory upon the competent authority to decide each case on merit taking
into consideration the service record of the officers BS-21 who were
eligible for promotion to BS-22. This aspect of the matter requires
application of mind based on consideration and determination of merit in
the light of the material explicitly showing as to why the officers who have
H.R.C. No. 8340-G/2009
26
been left out were not found to be competent/below merit in comparison to
those promoted to BS-22. Such consideration of the case and determination
of merit for parity of treatment becomes all the more necessary and in
absence of considering the candidature of the left out officers it would
alone be tantamount to pick and choose essentially leading us to hold that
there was no transparency in the exercise of discretion by the competent
authority. Reference in this behalf can be made to the cases of Aman Ullah
Khan (ibid), Chairman, Regional Transport Authority, Rawalpindi (ibid)
and Abu Bakar Siddique (ibid). For the sake of convenience, relevant para
from the last mentioned judgment is reproduced hereinbelow:-
“It is fundamental principle that an authority enjoying the
discretionary powers, exercises the same without any
guideline but at the same time such authority must not
exercise the discretion in an arbitrary and capricious manner.
It may not be obligatory for the concerned authority to
exercise the discretion in a particular manner but exercise of
such power in an unreasonable manner is not proper and in
such a case the order passed in discretionary jurisdiction is
not immune from judicial review of the superior courts. It is,
however, only in exceptional circumstances in which a power
is conferred on a person by saying that he may do a certain
thing in his discretion but from the indication of the relevant
provisions and the nature of the duty to be done, it appears
that exercise of power is obligatory. This is an accepted
principle of law that in a case in which the statute authorizes a
person for exercise of discretion to advance the cause of
justice, the power is not merely optional but it is the duty of
such person to act in the manner it is intended”.
Thirdly; without going deep into the merits of the case of the petitioners
and other left out officers, from the relevant facts concerning their seniority
position, date of promotion in grade-21 etc, on a cursory glance one can
infer that discretion has also not been exercised reasonably in ignoring their
H.R.C. No. 8340-G/2009
27
cases. Mr. Muhammad Akram Sheikh, learned counsel while explaining the
case of such officers emphasized that in no manner it could be said that
these officers had merit with legitimacy for their promotion to grade-22.
According to him, most of them were in grade-21 much before some of the
promotees who succeeded in getting promotion in grade-21 in the year
2008-09 but were promoted in the same year to grade-22. A particular
reference in this behalf was made to the officers, namely, Mr. Kamran
Lashari, Mr. Sohail Ahmed, Mr. M. Sami Saeed, Mr. Imtiaz Inayat Elahi,
Mr. Javed Mehmood, Mr. Ghulam Ali Shah, Mr. Ahmed Bakhsh Lehri and
Mrs. Nargis Sethi whose names appear at serial Nos.29, 43, 44, 54, 55, 61,
62 & 63 respectively in the seniority list of the DMG occupational group.
Whereas the officers namely, Mr. Shahid Hussain Raja, Mr. Shaukat Hayat
Durrani, Capt. (R) Akhtar Munir, Syed Muhammad Hamid, Mrs.
Farkhanda Waseem Afzal, Mr. Hassan Waseem Afzal, Mr. Muhammad
Javed Malik, Mr. Hafeez-ur-Rehman and Mr. Saeed Ahmed Khan etc. of
the same occupational group are shown in seniority list at serial Nos.4, 5,
9, 10, 12, 13, 14, 15 & 16, and were the officers promoted in BS-21 much
before them but without assigning any reason they were not considered for
promotion. Mr. Akram Sheikh, Sr. ASC stated and so we reiterate the
principle that promotion is not a right but an officer deserves that his case
should be considered for promotion in accordance with law. Had the
competent authority considered their cases and informed the reasons for not
promoting them probably they would have not grieved to complain the non-
adherence to the rule of law and their suffering on that count. At this
juncture, it may be stated that Mr. Abdul Hafeez Pirzada learned counsel
for Federation, though, emphasized that “there is no question of
supersession because the officers who are working in BS-21 and have not
been promoted to BS-22 would continue to be eligible for promotion
H.R.C. No. 8340-G/2009
28
(emphasis provided), this argument goes in favour of the officers who have
not been promoted because there is no question mark on their eligibility and
fitness and since there is no reason available on record to deprive them of
their deserved position, contention of Mr. Muhammad Akram Sheikh
learned counsel and others that discretion has not been exercised
reasonably, so also the principles set out to structure the discretion in the
judgments cited hereinabove, has not been followed rendering the whole
exercise in pursuance of which the aggrieved petitioners have been
deprived of the promotion is not sustainable, seems to be tenable. In
addition to it, once the argument of learned counsel for the federation in
respect of non-supersession of the left out BS-21 officers is accepted then
we feel no difficulty in concluding that selection on merit would take place
after assessment of all relevant consideration including competence and
good service record. It is correct that the interpretation of the word ‘merit’
includes eligibility as well as academic qualifications [Miss Abida
Shabqadar v. Selection Committee (1989 SCMR 1585)]. It is equally
important to highlight another important principle that when promotion is
to be made to a selection post it needs to be purely on merit. However, in
case there is a tie qua meritorious past record, credibility and confidence
among the officers then seniority would play its role [State of West Bengal
v. Manas Kumar Chakrabarti (AIR 2003 SC 524)]. The Federation in
parawise comments or through its learned counsel had not pointed out that
the affectee officers were lacking above criteria in any manner in
comparison to the promoted officers, therefore, their cases were not
considered for promotion to BS-22. Actually, in the instant case, the
difficulty seems to have arisen on account of the fact that the Establishment
Division did not apprise the competent authority and in that all the cases for
promotion from BS-21 to BS-22 were not submitted in consonance with the
H.R.C. No. 8340-G/2009
29
provisions of relevant Rules of Business highlighting their service record,
academic qualification etc. We feel that the competent authority holding an
exalted office needed to be assisted properly by the concerned Secretary
explaining the concerned case of each of the officer and then leaving to its
discretion to exercise on the principles of rule of law, which does not seem
to have been done.
Having accepted that the left out officers were eligible for
promotion, yet not promoted and juniors promoted, it would amount to
glaring violation of the command of Article 4 of the Constitution according
to which it is an inalienable right of individual to be dealt with in
accordance with law. When we make reference of the expression of the
‘Law’ we mean section 9 sub-section 2 clauses (a) and (b) of the CSA,
1973 and in absence of rules for promotion from BS-21 to BS-22, the word
‘merit’ has to apply in the light of principles highlighted hereinabove and
following them, no room is left to make distinction between the officers
who have been promoted and not promoted though eligible. Even
accepting, for the sake of arguments, that the officers who were promoted
to BS-22, were enjoying, save seniority, the same position as that of the left
out, we fail to understand as to why they were not considered for promotion
particularly, when they happened to be senior to them. In such situation the
principle noted hereinabove, that when the officers are considered for
promotion having equal merit and eligibility, then the seniority would play
a decisive role and ought to have been adhered to, shall prevail. In this case
that principle, factually, has not been followed, rather it would appear that
the cases of both types of officers have not been measured in the same scale
to follow the dictates of Article 4 of the Constitution, the rule of law as well
as the due process of law.
H.R.C. No. 8340-G/2009
30
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. 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 instant matter, looking in view of the reply filed by
the Establishment Division and the argument advanced by the learned counsel on
behalf of Federation, no attempt at all has been made to bring the cases of
promoted officers under any reasonable classification. Relevant principles relating
thereto have been highlighted hereinbefore.
23.
At this juncture, it would not be out of context to make reference to
the contention raised by learned Attorney General for Pakistan who placing
reliance on section 9 (2) of CSA, 1973, emphasized that the eligibility for the
purpose of promotion is not the sole consideration as thereafter merit will come,
therefore, according to him, all the persons are eligible and their promotion is to be
based on merit amongst themselves. He placed reliance on Muhammad Yousaf v.
Abdul Rashid (1996 SCMR 1297). We have no cavil with the proposition
discussed therein but on posing a question to ourselves i.e. whether the cited
judgment confers arbitrary powers upon the competent authority to side track the
principle of structured discretion, rule of law, due process of law, equality before
law and the criteria highlighted in the Judge made Law noted hereinabove and
finding that the provisions of Article 4 and 25 of the Constitution have not been
adhered to, surely, we could not get affirmative answer to persuade ourselves that
fate of the officers be left entirely to the discretion of the competent authority.
Thus the argument so advanced by the learned Attorney General could be
H.R.C. No. 8340-G/2009
31
acceptable only if it comes up to the well-established principles for exercising the
discretion highlighted in the judgments noted hereinabove.
24.
Learned Attorney General has also relied upon Ghuman Singh v.
State of Rajasthan {(1971) 2 SCC 452}, State of West Bengal v. Manas Kumar
Chakrabarti (AIR 2003 SC 524) and Union of India and others v. Lt. Gen.
Rajendra Singh Kadyan and another {(2000) 6 SCC 698}. These judgments need
not be discussed in view of the discussion hereinbefore as the Indian Supreme
Court has also not favoured the exercise of discretionary powers without following
the seven instruments envisaged in various judgments of this Court
25.
We have seen the lists relating to the seniority etc. of both the
officers (promoted and non promoted) placed before us by the Establishment
Division and have also heard the learned counsel for parties as well as promoted
officers, who appeared in person and find ourselves in agreement with Mr. Abdul
Hafeez Pirzada, learned counsel appearing for the Federation that the affectee
officers have not been superseded not finding anything on record that they were
ineligible, we see no reason as to why they, majority of whom are seniors as per
the seniority list of their occupational groups, were not promoted. With due
deference to the competent authority, we are constrained to note that proper
assistance which was mandatory to be provided to it by the Establishment Division
under the Rules of Business, to enable it to exercise discretion fairly and justly,
has not been rendered. Record produced before us reflects that two officers,
namely, Mr. Jaweed Akhtar and Mr. Moeen-ul-Islam Bokhari from Secretariat
Group & National Assembly Secretariat Group, respectively, were promoted. Of
these two promoted officer, Mr. Jaweed Akhtar, was working in NLC and was
inducted on 7.11.2009 in Secretariat Group, on the same day was promoted to
BS-21 and then awarded promotion in BS-22 considering him to be an officer of
Secretariat Group and almost same was the position of Mr. Moeen-ul-Islam
H.R.C. No. 8340-G/2009
32
Bokhari. What could else be the example of non-application of mind and non-
adherence to the rule as well as the due process of law.
26.
Learned Attorney General and learned counsel for the Federation
also emphasized that majority of officers of BS-21 who now have been promoted
to BS-22 were holding acting charge of different divisions as Secretaries, etc. and
competent authority had an opportunity to watch their performance, therefore, it
had rightly considered them for promotion as against the left out officers whose
performance, though not said to be blemished, could not be watched. We are not
impressed with these arguments for, legally speaking, appointment on acting
charge basis does not confer any vested right for regular promotion, as is evident
from Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973 reproduced below:-
“8-B (1) Where the appointing authority considers it to be in the
public interest to fill a post reserved under the rules for departmental
promotion and the most senior civil servant belonging to the cadre or
service concerned who is otherwise eligible for promotion does not
possess the specified length of service the authority may appoint him
to that post on acting charge basis.
(2) *[Omitted].
(3) In the case of a post in basic pay scales 17 to 22 and equivalent,
reserved under the rules to be filled by initial appointment, where the
appointing authority is satisfied that no suitable officer drawing pay
in basic pay scale in which the post exists is available in that
category to fill the post and it is expedient to fill the post, it may
appoint to that post on acting charge basis the most senior officer
otherwise eligible for promotion in the organization, cadre or
service, as the case may be, in excess of the promotion quota.
(4) Acting charge appointment shall be made against posts which are
likely to fall vacant for a period of six months or more. Against
vacancies occurring for less than six months, current charge
H.R.C. No. 8340-G/2009
33
appointment may be made according to the orders issued from time
to time.
(5) Appointment on acting charge basis shall be made on the
recommendations of the Departmental Promotion Committee or the
Central Selection Board, as the case may be, save in the case of post
in basic pay scale 22 and equivalent.
(6) Acting charge appointment shall not amount to appointment by
promotion on regular basis for any purpose including seniority.
(7) Acting charge appointment shall not confer any vested right for
regular promotion to the post held on acting charge basis.”
A careful perusal of the above rule reflects that in case where the appointing
authority is satisfied that no suitable officer is available to fill the post and it is
expedient to fill the same, it may appoint to that post on acting charge basis the
most senior officer otherwise eligible for promotion in the cadre or service as the
case may be. In the instant case, the officers who were holding the post on acting
charge basis were not all senior to those of affectee officers and moreover it is
quite evident that even in their cases, holding the acting charge under whatever
circumstances, shall not confer any vested right for regular promotion.
27.
It was further contended by the learned Attorney General that Chief
Executive/competent authority was to select his team with the object in view to
ensure the good governance in the country. Suffice to observe as is pointed out
hereinabove, as well, that posting a junior officer to hold the charge of a senior
post, ignoring seniors who are eligible for promotion, does not advance the object
of achieving good governance because the rules framed on the subject, noted
hereinabove, are not redundant in any manner, therefore, same need to be
respected and followed accordingly. It is a settled principle of law that object of
good governance cannot be achieved by exercising discretionary powers
unreasonably or arbitrarily and without application of mind but objective can be
H.R.C. No. 8340-G/2009
34
achieved by following the rules of justness, fairness and openness in consonance
with the command of the Constitution enshrined in different articles including
Articles 4 and 25. Once it is accepted that the Constitution is the supreme law of
the country, no room is left to allow any authority to make departure from any of
its provisions or the law and the rules made thereunder. By virtue of Articles 4 and
5 (2) of the Constitution, even the Chief Executive of the country is bound to obey
the command of the Constitution and to act in accordance with law and decide the
issues after application of mind with reasons as per law laid down by this Court in
various pronouncements [Federation of Pakistan through Secretary, Establishment
Division v. Tariq Pirzada (1999 SCMR 2744)]. It is also a settled law that even
Chief Executive of the country is not above the Constitution [Ch. Zahur Ilahi v.
Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383)]. It is the duty and obligation of the
competent authority to consider the merit of all the eligible candidates while
putting them in juxta position to find out the meritorious amongst them otherwise
one of the organs of the State i.e. Executive could not survive as an independent
organ which is the command of the Constitution. Expression ‘merit’ includes
limitations prescribed under the law. Discretion is to be exercised according to
rational reasons which means that; (a) there be finding of primary facts based on
good evidence; and (b) decisions about facts be made for reasons which serve the
purposes of statute in an intelligible and reasonable manner. Actions which do not
meet these threshold requirements are considered arbitrary and misuse of power
[Director Food, NWFP v. M/s Madina Flour and General Mills (Pvt) Ltd. (PLD
2001 SC 1)]. Equally, discretionary power conferred on Government should be
exercised reasonably subject to existence of essential conditions, required for
exercise of such power within the scope of law. All judicial, quasi judicial and
administrative authorities must exercise power in reasonable manner and also must
ensure justice as per spirit of law and seven instruments which have already been
referred to above regarding exercise of discretion. The obligation to act fairly on
H.R.C. No. 8340-G/2009
35
the part of the administrative authority has been evolved to ensure the rule of law
and to prevent failure of justice [Mansukhlal Vithaldas Chauhan v. State of Gujrat
{1997 (7) SCC 622}].
28.
We may observe here that it is not the case of few individuals who
have been promoted or left out, the questions for consideration raised in this case
are of far-reaching effect. Essentially, under the trichotomy of the powers, the
Executive (Bureaucracy) has to play the most important role for well being of
general public. Although, they are not representing any class of masses but whole
structure of the government depends upon the efficient and competent officers
who matter in making policies which are ultimately approved by the Ministers etc.
and if for this purpose the selection of officers is made following the principle to
determine the merit are not employed, the running of government on the basis of
good policies would ultimately affect the general public as in this matter it is no
body’s case that the officers who have been left out are not eligible for promotion
to BS-22. Thus they stand at par with those who have been promoted and
depriving them to enjoy the higher status of a civil servant would indirectly affect
smooth functioning of the government on account of despondency developed
amongst the officers, who always have stood by law and worked hard but
ultimately are deprived of their legitimate right of promotion.
29.
Needless to observe that when we talk about the public interest and
the welfare of the State, we definitely have in our minds the concept of rule of law
as well as access to justice to all as is enshrined in our Constitution.
30.
Learned counsel for the Federation and Attorney General for
Pakistan were of the opinion that as few persons have approached this Court by
sending Misc. applications which have been treated petition under Article 184 (3)
of the Constitution whereas majority of the officers have accepted the decision,
therefore, for this reason petitions may be dismissed directing the aggrieved party
to avail legal remedy permissible under the law, instead of invoking constitutional
H.R.C. No. 8340-G/2009
36
jurisdiction of this Court. Reliance was placed on All Pakistan Newspapers
Society and others v. Federation of Pakistan and others (PLD 2004 SC 600). We
are not impressed with this argument; as well, for the judgment cited by the
learned counsel for the Federation is not relevant to the issue involved because the
exercise of discretion contrary to settled principles has not only affected the left
out officers but has left a far-reaching adverse effect upon the structure of civil
servants – be in the employment of the Federal or the Provincial Governments,
autonomous and semi-autonomous bodies, etc. – and if the decision of the
competent authority under challenge is not examined keeping in view the
Constitutional provisions and the law as well as the judgments on the subject, the
competent and efficient officers who have served honestly during their service
career, would have no guarantee of their future service prospects. Consequently,
such actions are also likely to affect the good governance as well as framing of
polices in the welfare of the public and the State. Therefore, to assure the public at
large, more particularly the civil servants in this case that their fundamental rights
will be protected, this Court is constrained to exercise jurisdiction under Article
184(3) of the Constitution.
31.
It is contended by the learned counsel appearing for the Federation
that the officers who have been promoted to BS-22 by the competent authority had
been promoted following the provisions of Articles 27 (1), 34 and 37 (F) of the
Constitution as an effort has been made to maintain gender balance. It may be
noted that according to service structure of different occupational groups, no
concession can be extended to any officer in respect of any appointment on the
ground only for race, religion, caste, sex, residence or place of birth. Thus Articles
27, 34 and 37 (f) of the Constitution have no application to the facts and
circumstances of the instant case. According to clause (2) of the Article 25 of the
Constitution, there shall be no discrimination on the basis of sex alone, thus
H.R.C. No. 8340-G/2009
37
considering an officer on the basis of sex shall be violation of the mandate of the
Constitution.
32.
Mr. Abdul Hafeez Pirzada learned counsel for the Federation was
also of the opinion that reference of rules on the subject will not render any action
otherwise lawfully taken to be unlawful because in section 25 of CSA, 1973, law
giver has used the word ‘necessary’ or ‘expedient’ for carrying out the purpose of
this Act are not mandatory but directory in nature. There is no need to go into this
discussion because we have already emphasized that in absence of the rules, the
competent authority had a legal commitment to exercise discretion while making
the selection of the officers on merit in BS-22 following the settled principles
highlighted in the Judge made Law, discussed in detail hereinabove. At the cost of
repetition, it is to be noted that the question in issue came up under consideration
in Sajjad Javed Ahmed Bhatti v. Secretary, Establishment Division [2009 PLC
(C.S.) 981] wherein respondents Federation of Pakistan, etc. were well advised to
prescribe guidelines for promotion to BS-22 and to facilitate the exercise of
discretionary powers fairly, judiciously without favour and discrimination. The
said case was decided on 14-1-2007 but, regretfully said, the Federation neither
filed any petition there-against before this Court nor framed rules in terms of the
directions therein.
33.
As it has been observed, hereinabove, that on 23rd October, 1993,
vide SRO. 1047 (I)/1993 in respect of promotion to BS-22 Rules were framed, but,
subsequently the same were rescinded in the year, 1998. Although, these rules are
no more in the statute books but the competent authority/Chief Executive while
considering the promotions could have used them as guidelines to ensure just and
fair and non-discriminatory treatment to the officers of BS-21 who had legitimate
expectancy to be promoted to BS-22 as there is no question mark on their
eligibility and it is also the case of the Federation itself that non promotion would
not be tantamount to supersede them. However, in view of the statement of Mr.
H.R.C. No. 8340-G/2009
38
Abdul Hafeez Pirzada learned counsel for the Federation, referred to hereinabove
regarding the framing of rules with retrospective effect, we observe that it would
be in all fairness and to streamline the procedure of promotion to the selection
grade from BS-21 to BS-22 and also to avoid unjustness, arbitrariness etc. the
rules shall be framed by the competent authority as early as could be possible.
34.
Before parting with the judgment, we may observe that good
governance is largely dependent upon the upright, honest and strong bureaucracy
particularly in written Constitution wherein important role of implementation has
been assigned to the bureaucracy. Civil service is the back bone of our
administration. The purity of administration to a large extent depends upon the
purity of the services. Such purity can be obtained only if the promotions are
made on merit in accordance with law and Constitution, without favouritism or
nepotism. It is a time tested recognized fact that institution is destroyed if
promotions/appointments are made in violation of law. It will, in the ultimate
result, paralyze automatically. The manner in which the instant promotions in the
Civil Services have been made, may tend to adversely affect the existence of this
organ. Honesty, efficiency and incorruptibility are the sterling qualities in all fields
of life including the Administration and Services. These criteria ought to have
been followed in the instant case. Fifty-four persons were promoted in complete
disregard of the law causing anger, anguish, acrimony, dissatisfaction and
diffidence in ranks of services which is likely to destroy the service structure. No
doubt petitioners/affectee officers had no right to be promoted yet in accordance
with section 9 of the CSA, 1973, they were, at least, entitled to be considered for
promotion. The right contemplated under section 9 supra is neither illusionary nor
a perfunctory ritual and withholding of promotion of an officer is a major penalty
in accordance with the Civil Servants (Efficiency and Disciplinary) Rules, 1973,
therefore, consideration of an officer for promotion is to be based not only on the
relevant law and the rules but also to be based on some tangible material relating
H.R.C. No. 8340-G/2009
39
to merit and eligibility which can be lawfully taken note of. According to Article 4
of the Constitution the word “law” is of wider import and in itself mandatorily cast
the duty upon every public functionary to act in the matter justly, fairly and
without arbitrariness.
35.
For the foregoing reasons:
(a)
Listed petitions are accepted as a consequence whereof, notifications
No.41/317/2009-E-I,
41/343/2009-E-I,
41/321/2009/E-I,
41/318/2009/E-I, 41/319/2009/E-I, 41/344/2009/E-I, 41/341/2009/E-
I, 41/320/2009/E-I, 41/345/2009/E-I, 41/346/2009/E-I, PF(190)E-
5/DMG,
41/328/2009/E-I,
41/329/2009/E-I,
41/322/2009/E-I,
41/330/2009/E-I,
41/331/2009/E-I,
PF(208)E-5/DMG,
41/332/2009/E-I,
PF(218)E-5/DMG,
PF(229)E-5/DMG,
41/334/2009/E-I,
PF(224)E-5/DMG,
41/336/2009/E-I,
41/335/2009/E-I, PF(245)E-5/DMG, 41/339/2009/E-I, PF(257)E-
5/DMG, PF(262)E-5/DMG, 41/338/2009/E-I, 41/340/2009/E-I,
21/1/2009-E-I,
12(178)/80-E.3(Police),
12(285)/80-E.3(Police),
12(242)/80-E.3(Police),
12(251)/80-E.3(Police),
12(267)/80-
E.3(Police),
12(279)/80-E.3(Police),
12(285)/80-E.3(Police),
12(288)/80-E.3(Police), 12(309)/80-E.3(Police), 41/342/2009/E-I,
44/1/2009-E-I, 41/325/2009/E-I, 41/326/2009/E-I, 41/323/2009/E-I,
41/327/2009/E-I, 41/324/2009/E-I dated 4th September, 2009 and
Notification No. PF(227)/E-5(DMG) dated 10th September, 2009 are
hereby set-aside and declared to be of no legal consequences.
(b)
The Chief Executive/competent authority may consider the cases of
all the officers holding the posts of BS-21 afresh in view of the
observations, made hereinabove.
(c)
The officers who have been promoted to BS-22 in pursuance of
above referred notifications, which now have been declared of no
H.R.C. No. 8340-G/2009
40
legal effect, shall not be entitled for the benefit, perks and privileges,
if any.
(d)
It would be appreciated that to ensure fairness and justness, the
Rules rescinded on 4th April, 1998 are re-enacted accordingly.
(e)
Parties are left to bear their own costs.
Chief Justice
Judge
Judge
Islamabad
Announced on 28-04-2010
J.
“A.Rehman:
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE TARIQ PARVEZ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE AMIR HANI MUSLIM
INTRA COURT APPEAL NO. 1 OF 2012
[Against the order dated 02.02.2012 passed by
this Court in Criminal Original No. 06/2012]
Syed Yousaf Raza Gillani
Prime Minister of Pakistan
…
APPELLANT
VERSUS
Assistant Registrar
Supreme Court of Pakistan & another
...
RESPONDENTS
For the appellant:
Mr. Aitzaz Ahsan, Sr. ASC
Mr. M.S. Khattak, AOR
Respondents:
Not represented.
Date of hearing:
09.02.2012
-.-.-
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – Attention
of Barrister Aitzaz Ahsan, who is instructed by Mr. M.S. Khattak, AOR
was drawn towards the following questions of law, which according to
them arise for consideration in the instant appeal:-
Questions 45, 51 & 52
45.
Could a Prime Minister who undid the draconian action of a
military dictator (of arresting judges of the superior courts,
including the Hon’ble Chief Justice and his children) even
ICA No. 1/2012
2
before he had taken oath as Prime Minister, be presumed to
have contemplated committing contempt?
51.
Whether it is not ironic that a Prime Minister who released
the detained judges should be sent to prison, or sentenced
otherwise, by the judiciary?
52.
Can the duly elected Prime Minister of Pakistan not even
expect to be dealt with in a manner similar to real, actual
and blatant contemners of the variety that:
Sacked the superior courts and their judges in November
2007;
Expressly and brazenly flouted the historic order dated
November 3, 2007;
Arrested the judges of the superior courts along with
their children members of their families, detained and
continued to hold them captive for prolonged periods;
Promulgated and/or applied and administered anti-
judiciary laws such as the PCO and the Judges, Oath of
Office Order;
Unleashed brutal state violence on Members of the Bar
(as officers of the Court) and other citizens of Pakistan
seeking the reinstatement of the sacked judges;
But have yet to be formally charged and indicted for their
patently criminal actions?
They were further apprised that the questions reproduced hereinabove
were phrased in such a manner, which should not have been recorded
by the appellant who is the incumbent Prime Minister of Pakistan and is
supposed to possess highest moral values being the constitutional head
and the impression is being created as if the judiciary as a whole is
being influenced on account of alleged favourable actions done by him
for its members by performing the acts noted therein. Therefore it is
tantamount not to embarrass the Court, but the appellant himself as he
ought not to have claimed relief or presumed that some relief should be
given to him for such action. The learned counsel appearing on his
ICA No. 1/2012
3
behalf, however, stated that these questions were framed with a view
to show respect and deference to the judiciary and in no manner it
should be considered that perhaps the judiciary is being influenced for
any purpose. However, under instructions received from the learned
AOR of the appellant, he stated at the bar that the above questions be
deleted from the pleadings.
2.
On having considered the request of the learned counsel
and also considering that the above questions are being required to be
deleted under instructions from the appellant through his AOR, we
accede to the request so made. Consequently, questions No. 45, 51
and 52 are deleted from the pleadings.
3.
Similarly, in the CMAs wherever these questions have been
repeated shall be deemed to have been deleted under instructions
received by the learned counsel for the appellant through his AOR.
4.
Mr. Aitzaz Ahsan, Sr. ASC is continuing with his
arguments, which are not likely to be concluded in the course of the
day. It is already 4.00 p.m., as such the case is adjourned for
10.02.2012.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.
MIAN SHAKIRULLAH JAN, J.
JAWWAD S. KHAWAJA, J.
ANWAR ZAHEER JAMALI, J.
KHILJI ARIF HUSSAIN, J.
TARIQ PARVEZ, J.
MIAN SAQIB NISAR, J.
AMIR HANI MUSLIM, J.
Islamabad, the
9 February, 2012
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ.
MR. JUSTICE JAVED IQBAL
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE SARMAD JALAL OSMANY
MR. JUSTICE AMIR HANI MUSLIM
INTRA COURT APPEAL NO. 3 OF 2011
Mr. Justice Hasnat Ahmed Khan
…
APPELLANT
INTRA COURT APPEAL NO. 4 OF 2011
Mr. Justice Syed Shabbar Raza Rizvi
…
APPELLANT
VERSUS
Federation of Pakistan/State
…
RESPONDENT
For the appellants:
Dr. A. Basit, Sr. ASC.
Mr. Arshad Ali Chaudhry, AOR
Respondent:
Not represented.
Date of hearing:
18.02.2011
…
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - Listed appeals
filed on behalf of Justice Hasnat Ahmed Khan and Justice Syed
Shabbar Raza Rizvi have been fixed before this Special Bench in
pursuance of request made on their behalf by their learned counsel.
He has concluded his arguments.
ICA 3 & 4-2011
2
2.
Immediately thereafter, Mr. S.M. Zafar, learned Sr. ASC
and other learned counsel present in Court have informed that against
the same judgment few other appeals have been filed, therefore, it will
be appropriate that all the cases are clubbed and disposed of together,
after hearing them. It is to be noted that on the request for hearing of
the case made by the learned counsel appearing for the appellants,
instant Bench was constituted. No other request for fixation of the
other cases was received by the office within time; therefore, the
same were not fixed along with these appeals. Be that as it may, in
the interest of justice, we consider it appropriate to allow the learned
counsel appearing in other appeals to make application for hearing of
their cases before this Bench today till 2:30 p.m. and on receipt of
such application for urgent hearing, the cases shall be fixed on
21.02.2011 before this Bench.
3.
The Registrar has put up following note: -
“The Worthy Registrar, Peshawar High Court informed me
that Mr. Justice Jehanzeb Rahim passed an order on
17.02.2011 in his Chambers to issue contempt notices to
some Hon. Judges of the Supreme Court, even though no
such contempt proceedings were pending in the Peshawar
High Court. However, the Hon. Chief Justice, Peshawar
High
Court
initially
took
up
the
matter
on
the
administrative side and passed an order on the same day
saying that the order is passed in vacuum, hence need not
be acted upon by the office. That today this matter was
examined on the judicial side by a 3-member bench, which
set aside the said order.”
It seems that the persons whose cases are pending before the
4-Member Bench of this Court, instead of obeying the orders of the
Court have started making attempts to undermine the authority of the
Hon’ble Judges of this Court, particularly the Hon’ble Members of the
Bench and have issued notices to all of them to appear, as has been
done by Justice Jehanzeb Rahim of the Peshawar High Court,
according to the note reproduced hereinabove. Although the order
ICA 3 & 4-2011
3
passed by him has been set aside by the Peshawar High Court on the
judicial side, but in order to preserve and protect the dignity and
respect of the Hon’ble Judges of the Bench seized with the matter as
well as other Judges of this Court, and in order to ensure that system
of administration of justice and honour of this institution including High
Courts and District Courts is preserved, we are constrained to pass
order that all the six Judges, namely, Syed Shabbar Raza Rizvi, Hasnat
Ahmed Khan, Syed Hamid Ali Shah and Syed Sajjad Hussain Shah
(Lahore High Court), Justice Ms Yasmeen Abbasey (High Court of
Sindh), Justice Jehanzeb Rahim (Peshawar High Court) and Justice
Sayed Zahid Hussain (Supreme Court) shall not pass any such order
against the Members of the Bench or the Judges of the Supreme
Court, and if any such order is passed by them, the same shall have
no legal or binding effect upon this Court as well as any other
functionaries in the country and shall be deemed to be an order, which
is not in existence at all.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.
JAVED IQBAL, J.
MIAN SHAKIRULLAH JAN, J.
TASSADUQ HUSSAIN JILLANI, J.
MIAN SAQIB NISAR, J.
SARMAD JALAL OSMANY, J.
AMIR HANI MUSLIM, J.
Islamabad,
February 18, 2011
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
INTRA COURT APPEALS NO.4, 6, 8, 9, 18, 19, 21 TO 23
OF 2017 AND 2 OF 2018
(Against the judgment dated 29.3.2017 of this Court
passed in Crl.O.Ps.No.33, 60, 55 and 62/2017)
AND
CRIMINAL MISC. APPLICATIONS NO.43 TO 45 OF 2018
(Applications for impleadment)
AND
CRL. REVIEW PETITIONS NO.42, 68 AND 523 OF 2017
(On
review
of
this
Court’s
judgments
dated
29.3.2017/28.3.2017 passed in Crl.O.P.60/2017 and
C.M.A.687/2017)
AND
CIVIL MISC. APPLICATION NO.3347 OF 2017 IN CIVIL
REVIEW PETITION NO.NIL OF 2017 IN CIVIL MISC.
APPLICATION NO.687 OF 2017
(Permission to file and argue review petition - On review of
this
Court’s
judgment
dated
28.3.2017
passed
in
C.M.A.687/2017)
AND
CRIMINAL ORIGINAL PETITIONS NO.138, 96, 121 TO
127, 132, 139, 167 AND 217 OF 2017, 4 OF 2018, 92
OF 2017, 152 OF 2016, 104 AND 214 OF 2017
(Non-compliance of Court’s order)
AND
CRL. MISC. APPLICATIONS NO.1002 AND 937 OF 2017
(Applications for impleadment)
I.C.A.4/2017:
Akhter Umar Hayat Lalayka Vs. Mushtaq Ahmed
Sukhaira & others
I.C.A.6/2017:
Manzoor Ahmed Vs. Mushtaq Ahmed Sukhaira
and others
Intra Court Appeals No.4 of 2017 etc.
-: 2 :-
I.C.A.8/2017:
Awais Malik and others Vs. Mushtaq Ahmad
Sukhera and others
I.C.A.9/2017:
Awais Malik and others Vs. Mushtaq Ahmad
Sukhera and others
I.C.A.18/2017:
Mansoor Naji Vs. Mushtaq Ahmed Sukhaira and
others
I.C.A.19/2017:
Malik Muhammad Sabir Vs. Mushtaq Ahmed
Sukhera
I.C.A.21/2017:
Muhammad Sarwar Awan Vs. Mushtaq Ahmed
Sukhaira and others
I.C.A.22/2017:
Muhammad Ashraf Chadder Vs. IGP, Punjab and
others
I.C.A.23/2017:
Mian Shafqat Ali Vs. Capt. (R) Zahid Saeed and
others
I.C.A.2/2018:
Muhammad Haseeb Vs. Muhammad Amin Vans
and others
Crl.M.A.43/2018:
Impleadment application on behalf of Tahir
Maqsood, DSP, CTD, Lahore
Crl.M.A.44/2018:
Impleadment application on behalf of Zulfiqar Ali
Virk, Inspector
Crl.M.A.45/2018:
Impleadment application on behalf of Malik
Muhammad Nawaz, Inspector
Crl.R.P.42/2017:
Province of Punjab through Chief Secretary,
Punjab Vs. Awais Malik and others
Crl.R.P.68/2017:
Kafayat Ullah Bajwa Vs. I.G. Police, Punjab
Crl.R.P.523/2017:
Mrs. Nasim Chaudhry Vs. Inspector General of
Police/Provincial Police Officer, Punjab Lahore
C.M.A.3347/2017:
Jamil Ahmed Vs. Government of Punjab through
Secretary etc.
Crl.O.P.138/2017:
Jamil Ahmed Vs. Capt. (R) Zahid Saeed and
others
Crl.O.P.96/2017:
Zafar Iqbal and others Vs. Azhar Hameed
Khokhar etc.
Crl.O.P.121/2017:
Fida Hussain Vs. Usman Khattak and others
Crl.O.P.122/2017:
Muhammad Shahbaz Vs. Usman Khattak and
others
Crl.O.P.123/2017:
Muhammad Shahbaz Vs. Usman Khattak and
others
Intra Court Appeals No.4 of 2017 etc.
-: 3 :-
Crl.O.P.124/2017:
Muhammad Zaman Vs. Usman Khattak and
others
Crl.O.P.125/2017:
Muhammad Ashraf Chadder Vs. Capt. Zahid
Saeed and others
Crl.O.P.126/2017:
Khalid Farooq Khan Vs. Capt. Zahid Saeed and
others
Crl.O.P.127/2017:
Mian Shafqat Ali Vs. Capt. Zahid Saeed and
others
Crl.O.P.132/2017:
Yousaf Ali Vs. Israr Abbasi and another
Crl.O.P.139/2017:
Shaikh Muhammad Arshad Latif Vs. Major (R)
Azam Suleman and another
Crl.O.P.167/2017:
Abdul Majid and others Vs. Khalil Ahmed and
others
Crl.O.P.217/2017:
Athar Naveed Vs. Sultan Azam Temuri
Crl.O.P.4/2018:
Rana Mansoor Ahmad Khan Vs. Capt. (R) Zahid
Saeed, Chief Secretary
Crl.O.P.92/2017:
Mansoor Naji Vs. Mushtaq Ahmed Sukhaira and
others
Crl.O.P.152/2016:
Mansoor Naji Vs. Mushtaq Ahmed Sukhaira and
others
Crl.O.P.104/2017:
Khalid Mahmood Afzal, DSP Vs. Syed Tahir
Shahbaz and others
Crl.O.P.214/2017:
Abdul Majid and others Vs. Muhammad Akbar
Harifal and others
Crl.M.A.1002/2017:
Impleadment application on behalf of applicant
namely Muhammad Sarwar Awan
Crl.M.A.937/2017:
Impleadment application on behalf of applicant
namely Shahid Pervaiz
For the appellant(s)/
applicant(s)/petitioner(s):
Malik Muhammad Qayyum, Sr. ASC
(In I.C.As.4 & 18/2017)
Khawaja Haris Ahmed, Sr. ASC
Syed Rifaqat Hussain Shah, AOR
(In I.C.As.8, 9 & 17/2017)
Mr. Talat Farooq Sheikh, ASC
Mr. Maqbool Hussain Sheikh, ASC
Ch. Akhtar Ali, AOR
(In I.C.As.6, 21, 22 & 23/2017)
Mr. S. A. Mehmood Khan Sadozai, ASC
(In I.C.A.19/2017)
Intra Court Appeals No.4 of 2017 etc.
-: 4 :-
Mr. Muhammad Ahsan Bhoon, ASC
(In I.C.A.2/2018)
Nemo
(In Crl.M.As.43 to 45/2018)
Mr. Shakeel-ur-Rehman Khan, A.G. Punjab
Mr. Waseem Mumtaz Malik, Addl.A.G.
(In Crl.R.P.42/2017)
Mr. Qamar-uz-Zaman, ASC
(In C.R.P.523/2017)
In person
(In C.M.A.3347/2017)
In person
(In Crl.R.P.68/2017)
Mr. Talat Farooq Sheikh, ASC
(In Crl.O.Ps.125, 126, 127, 139/2017 & 4/2018,
Crl.M.A.1002/2017)
Mr. M. Bashir Khan, ASC
(In Crl.O.P.132/2017)
Mr. Qausain Faisal, ASC
(In Crl.O.P.217/2017)
Mr. Mushtaq Ahmed, ASC
(In Crl.O.Ps.121 to 124/2017)
Mr. Aziz Ahmed Malik, ASC
(In Crl.O.P.96/2017)
Malik Muhammad Qayyum, Sr. ASC
(In Crl.O.Ps.92/2017 & 152/2016)
Mr. Muhammad Faiz Ahmed Cheema, ASC
(In Crl.O.P.214/2017)
Malik Azmatullah Kasi, ASC
(In Crl.O.P.167/2017)
Nemo
(In Crl.O.P.104/2017)
Nemo
(In Crl.M.A.937/2017)
For the respondent(s):
Mr. Makhdoom Ali Khan, Sr. ASC
(For respondent No.5 in I.C.As.4,6,8,18,21 & 23/2017)
Nemo
(In Crl.R.P.42, 68 & 523/2017, C.M.A.3347/2017 &
Crl.O.P.138/2017)
On Court’s notice:
Syed Nayyar Abbas Rizvi, Addl.A.G.P.
Mr. Shakeel-ur-Rehman Khan, A.G. Punjab
Mr. Saif-ul-Murtaza, AIG Legal (For IGP Punjab)
Rana M. Ashraf, SO (Police) Home Deptt. Pb.
Date of hearing:
21.2.2018
Intra Court Appeals No.4 of 2017 etc.
-: 5 :-
JUDGMENT
Mian Saqib Nisar, CJ:- The titled cases, which we intend to
decide through this consolidated judgment, pertain to the following three
categories:
i.
Intra Court Appeals (ICAs) against the judgment
dated 29.03.2017 reported as Interim Report by AIG
Legal for I.G, Punjab (2017 SCMR 868);
ii.
Criminal Original Petitions (Crl.O.Ps) for violation of
the judgment dated 30.12.206 reported as Shahid
Perviaz Vs. Ejaz Ahmad (2017 SCMR 206), and orders
dated 08.12.2016 & 26.01.2016; and
iii.
Review Petitions (Crl.R.P/C.R.P) against judgment
dated 29.03.2017 reported as Interim Report by AIG
Legal for I.G, Punjab (2017 SCMR 868).
2.
All these matters stem out of the judgments of this Court
reported as Contempt Proceedings against Chief Secretary, Sindh
(2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh
(2015 SCMR 456). Through the former judgment inter alia the
practice/concept
of
out
of
turn
promotions
was
declared
unconstitutional, being against Fundamental Rights as enshrined in the
Constitution of the Islamic Republic of Pakistan, 1973. Through the
latter judgment the Review Petitions filed by the aggrieved persons were
dismissed by this Court. Copies of both these judgments were ordered to
be sent to the Chief Secretaries of all the Provinces as well as the
Secretary, Establishment Division, Islamabad with the direction to
streamline the civil service structure in line with the principles
enunciated in the aforesaid judgments. On 26.01.2016, while hearing
Civil Appeal No. 184-L of 2013 (Regional Police Officer Gujranwala and
another Vs. Ejaz Ahmad and others), wherein the issue of anti-dated
Intra Court Appeals No.4 of 2017 etc.
-: 6 :-
seniority of a police official was involved, this Court observed that the
directions issued by this Court through the above mentioned two
judgments delivered in the year 2013 and 2015 were not being complied
with, especially in the Punjab Police Department. Relevant para
therefrom reads as under:-
“3.
The learned Additional Advocate General,
Punjab, states that the Punjab Government has started
implementing judgments of this Court reported as
Contempt Proceedings Against Chief Secretary Sindh
(2013 SCMR 1752) and Ali Azhar Khan Baloch Vs.
Province of Sindh (2015 SCMR 456) and till date
substantial portion of seniority of the Police personnel
has been re-fixed. We must record our displeasure over
the inaction on the part of the Punjab Government for
the directions issued by this Court in 2013 and 2015.
We expect that all out of turn promotions granted either
to the police personnel on gallantry award or otherwise
shall be undone within four weeks from today and their
seniority be re-fixed with their batch mates in terms of
the directions contained in the aforesaid judgments. Out
of turn promotions ranging from Constable to any
gazetted officers shall be streamlined in terms of the
aforesaid two judgments. On completion of the exercise,
the I.G Police Punjab, Home Secretary, Punjab and Chief
Secretary, Punjab, shall submit compliance report with
the Assistant Registrar of this Court for our perusal in
Chambers. This order shall be communicated to the I.G,
Punjab, Home Secretary, and Chief Secretary, Punjab,
for
their
information
and
compliance
and
non-
compliance of this judgment shall expose the concerned
officials to contempt proceedings.”
3.
The above mentioned order of this Court dated 26.01.2016
was challenged by the employees of the Punjab Police Department
through Civil Review Petition No. 49 of 2016 etc. inter alia on the ground
Intra Court Appeals No.4 of 2017 etc.
-: 7 :-
that their out of turn promotions were earned by the acts of gallantry/
bravery during the performance of duties and they were promoted under
Section 8-A of the Punjab Civil Servants Act, 1974, read with Rule 14-A
of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974. These Review Petitions were heard by a Bench of five
Honourable judges of this Court and after giving opportunity of
exhaustive hearing to all the petitioners therein, these Review Petitions
alongwith other connected applications were dismissed vide judgment
dated 30.12.2016 (By majority of 4 to 1), and is reported as Shahid
Pervaiz Vs. Ejaz Ahmed (2017 SCMR 206).
4.
In Para 111 of Shahid Pervaiz’s case (supra), it was inter
alia observed that the cases wherein ‘out of turn promotion’ was granted
to individuals, pursuant to the judgments of the High Court, Service
Tribunal and the Supreme Court, “shall remain intact unless reviewed”.
The relevant portion of the said Para No. 111 reads as under:-
“111. Yet another anomalous consequence of this
argument is that while two identical provincial laws are
enacted and acted upon and one province repeals the
law while the other continues with its operations.
Subsequently, the vires of the law that continues on the
statute books is examined by the Court and its
provisions have found to be inconsistent with the
Constitution or Fundamental Rights with the result that
the benefits conferred or availed thereunder, unless
protected
by
the
category
of
past
and
closed
transaction, have to be reversed and its deleterious
effects undone. This category, quite obviously, consists
of the cases wherein ‘out of turn promotion’ was
granted to individuals, pursuant to the judgments of the
High Court, Service Tribunal and the Supreme Court.
They shall remain intact unless reviewed.”
Intra Court Appeals No.4 of 2017 etc.
-: 8 :-
5.
Moreover,
while
dismissing
the
said
Review
Petitions/Applications, compliance report was also directed to be
submitted by the concerned authorities, within one month for perusal in
Chambers. This exercise was directed to be completed within a period of
one month. Para 143 of Shahid Pervaiz’s case (supra), wherein these
observations were made is also being reproduced hereunder for ease of
the reference:-
“143. For the aforesaid reasons, all the listed Review
Petitions and the Applications are dismissed. The I.G.P,
Punjab, the Home Secretary, Punjab, and the Secretary,
Establishment Division, are directed to comply with the
judgment, by fixing the seniority of all the Police Officers
who were given out of turn promotion along with their
batch-mates, as if they were never given out of turn
promotion. However, the orders of withdrawal of out of
turn promotion passed by the Department/Competent
Authority shall be recalled against the Police Officers
who had earned out of turn promotions, pursuant to the
judgments of superior Courts/Service Tribunals, as
discussed in paragraph 111 of this judgment. For the
purpose of compliance of this judgment, necessary
D.P.C/Board, as the case may be, shall be immediately
held without further loss of time and a compliance
report be submitted to the Registrar of this Court for our
perusal in Chambers. This exercise shall be completed
within a period of one month. The Advocate General,
Punjab, and the learned Attorney General for Pakistan
shall communicate the directives of this Court to the
relevant authorities.”
6.
In pursuance of the above directions, compliance report was
submitted by the Inspector General of Police, Punjab (IGP) wherein, the
IGP looked into each case of out of turn promotion after issuance of
notices to all concerned and decided each case individually. The out of
turn promotions given through the judgments of Court/ Tribunal were
Intra Court Appeals No.4 of 2017 etc.
-: 9 :-
also withdrawn and de-notified. However, the Home Department,
Government of Punjab took a contrary view and objected to it (this action
by the IGP) on the premise that under Para 111 read with Para 143 of
Shahid Pervaiz’s case (supra), there was an absolute protection afforded
to such employees and their out of turn promotions could not be
withdrawn. Against this withdrawal of out of turn promotion(s) various
police employees again approached this Court by filing Criminal Original
Petitions (Contempt Petitions) and various C.M.As, claiming, inter alia,
that the IGP could not review their cases of out of turn promotions,
which were already protected by this Court through the judgment in
Shahid Pervaiz’s case (supra) in Para 111 whereby this Court had
observed that the out of turn promotions granted to individuals pursuant
to the judgments of High Court, Service Tribunal and the Supreme Court
shall remain intact unless reviewed. These Criminal Original Petitions
alongwith applications were disposed of vide judgment dated 29.03.2017
in the terms that the view point of the Inspector General of Police, Punjab
was correct and the officers should be de-notified in terms of the
speaking orders passed by the Inspector General of Police, Punjab. This
judgment dated 29.03.2017 is reported as Interim Report by AIG Legal
for I.G. Punjab, Home Department, Govt. of Punjab and Inspector
General of Police, Punjab respectively (2017 SCMR 868).
7.
After the judgments dated 30.12.2016 in the case of Shahid
Pervaiz (Supra) and 29.03.2017 Interim Report by AIG Legal for I.G,
Punjab (Supra), certain aggrieved persons have now again approached
this Court by filing Intra Court Appeals, Review Petitions, Civil Review
Petition and Criminal Original Petitions. Moreover, some other
applications for impleadment as party have also been filed, which will
follow the fate of the main cases in which they are filed. Some other
petitioners have also invoked the contempt jurisdiction for violation of
Intra Court Appeals No.4 of 2017 etc.
-: 10 :-
orders dated 26.01.2016 and 08.12.2016 passed by this Court which we
will discuss in the later part of this judgment. The police officials/officers
from the Province of Balochistan have also invoked the contempt
jurisdiction (Crl.O.P.No.167 and 214/2017) for non-implementation of
orders dated 26.01.2016 and 30.12.2016 passed by this Court in the
Province of Balochistan.
8.
The brief facts and relevant service profiles of the
appellants/petitioners, who have claimed that the withdrawal of their out
of turn promotions was against the judgments of this Court referred to
above, are as under.
I.C.A 4/2017 in Crl.O.P 33/2017 (Akhtar Umer Hayat Lalayka Vs.
Mushtaq Ahmed Sukhaira & others)
9.
It was pleaded before us that Umer Hayat Lalayka was
serving as Inspector in the Punjab Police and when he was posted at
Police Station Piplan, Mianwali he displayed exemplary courage in an
encounter with highly desperate elements including Ahmed Nawaz
Barbari, who was killed by the appellant by putting his own life at risk.
For this act of gallantry, he was recommended for out of turn promotion
as Deputy Superintendent of Police (DSP) by the Superintendent of Police
(SP), Mianwali to the Deputy Inspector General (DIG) on 27.07.1993. But
he was denied the out of turn promotion by the Inspector General of
Police (IGP), whereafter he approached Lahore High Court by filing Writ
Petition No. 2445/1995, which was accepted on 03.12.1996. CPLA
No.656/1995 was filed by the Government of Punjab before this Court
against the said order, which was dismissed as being barred by time,
however, the compatriots of the appellant filed CPLA No.1446-L/1997,
which was dismissed on 18.04.1998 holding that the appellant was
entitled to the out of turn promotion due to his act of gallantry. The
Intra Court Appeals No.4 of 2017 etc.
-: 11 :-
Review Petition against this order was also dismissed by this Court on
08.07.1998. It is further pleaded that vide Notification dated 17.10.1997,
appellant was promoted from the post of Inspector to DSP and now
whilst he was serving as D.I.G Police, his out of turn promotion from the
post of Inspector to DSP has been withdrawn vide Notification dated
17.02.2016, in pursuance of the judgments of this Court in the cases of
Contempt proceedings against Chief Secretary Sindh (2013 SCMR 1752)
and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456).
I.C.A 6/2017 in Crl.O.P 33/2017 (Manzoor Ahmed Vs. Mushtaq
Ahmed Sukhaira and others)
10.
It was pleaded before us that the appellant in ICA No.6/2017
namely, Manzoor Ahmed was appointed as Constable in the Punjab
Police Department on 17.01.1987. He was granted out of turn promotion
as Head Constable w.e.f 30.04.1990 in recognition of his performance in
arresting five notorious criminals in Chiniot. Then he was granted out of
turn promotion as Assistant Sub-Inspector (ASI) w.e.f 18.10.1993.
Thereafter, he was granted out of turn promotion as (Sub-Inspector) SI
w.e.f 05.01.2001. He filed departmental representation requesting ante-
dated promotion to the rank of SI w.e.f 22.12.1996 citing and relying
upon the case of out of turn promotion of one Hussain Haider, S.I. His
departmental representation was rejected on the ground that the benefit
extended to Hussain Haider, SI had also been withdrawn by the IGP,
therefore appellant’s claim had become infructuous. He filed Service
Appeal No. 908/2005 before the Punjab Service Tribunal (PST), which
was disposed of with the direction to the departmental authorities to
consider his case on merits. But his case was considered and rejected by
the department. He again filed CMA No.789/2012 in Appeal No.
908/2005, which was rejected by the PST and decision of the department
Intra Court Appeals No.4 of 2017 etc.
-: 12 :-
was upheld. On 30.04.2007, he was granted regular promotion to the
rank of Inspector. Now his promotions to the ranks of Head Constable
and then ASI, SI and Inspector have been withdrawn and after re-fixation
of his seniority his status is now ASI w.e.f 12.08.2004.
I.C.A 8 and 9/2017 in Crl.O.P 33/2017 (Awais Malik and others Vs.
Mushtaq Ahmad Sukhera and others)
11.
There are eight appellants in these ICAs. It was pleaded
before us that Appellant No. 1 namely, Awais Malik joined the Punjab
Police Department as ASI on 22.06.1982 and thereafter, he was
promoted as SI on 22.08.1987 and subsequently promoted as Inspector
on 27.08.1995. On 18.01.1997, he suffered injuries in a bomb blast,
which took place in the premises of the Sessions Court, in which the
Chief of a banned outfit and fifteen officers lost their lives. It was pleaded
that in view of his excellent performance, the appellant was
recommended for out of turn promotion as DSP, by the then IGP, Punjab,
under section 8-A of the Punjab Civil Servants Act, 1974, read with Rule
14-A of the Punjab Civil Servants (Appointment and Conditions of
Service) Rules, 1974, which recommendation was not executed,
therefore, the Petitioner filed Writ Petition before the Lahore High Court.
The learned High Court disposed of the Writ Petition of the Petitioner
with the direction to issue formal notification of promotion of the
Petitioner as DSP. Thereafter, the Department approached this Court
through CPLA Nos.443 and 584-L of 2001, which were dismissed on the
ground of limitation. After dismissal of the Petitions of the Department by
this Court, the Petitioner made a representation to the Home Secretary,
Punjab, and eventually he was given out of turn promotion as DSP w.e.f.
18.01.1997 i.e. the date of incident and in due course he has been
promoted as SP.
Intra Court Appeals No.4 of 2017 etc.
-: 13 :-
12.
It was next pleaded that Appellant No. 2 namely, Ijaz Shafi,
joined the Punjab Police Department as ASI in the year 1982 and he was
promoted as SI on 09.09.1986. Due to his exceptional courage and
outstanding performance shown in elimination of Wazir Khshk, a
notorious Sindhi Dacoit, and recovering the entire looted amount, his
name was admitted in List “F” as Inspector on 14.05.1992. But he was
denied his regular promotion. He approached PST and vide judgment
dated 21.03.2000 he was given ante-dated confirmation as Inspector
w.e.f 06.04.1993. Pursuant to his representation before the competent
authority regarding his seniority, he was given promotion as Inspector
w.e.f 07.10.1990 instead of 14.05.1992 vide order dated 29.01.2003.
Thereafter, in another incident, owing to his daring and persistent efforts
and team work, the entire network of Lashkar-e-Jhangvi, involved in
various cases of sectarian terrorism, was broken and the Governor of
Punjab on a visit to Vehari on 04.04.2002 appreciating the performance
of the team was pleased to announce one step promotion to the members
of the team and the appellant was to be promoted as DSP, but his
promotion was deferred by the Provincial Selection Board in its meeting
held on 08.01.2004. Thereafter, he filed Writ Petition No. 1257/2005
before the Lahore High Court which was disposed of on 14.07.2005
having borne fruit and he was promoted as DSP w.e.f 02.02.2007.
Thereafter, due to his representation to the Home Department, Punjab
his date of promotion was changed to 13.03.2002 instead of 02.02.2007.
He was then promoted as SP on regular basis vide Notification dated
31.01.2012.
13.
It was next pleaded that the Appellant No. 3 namely,
Muhammad Umer Virk joined the Police Department as ASI on
31.03.1985 and thereafter, he was promoted to the rank of Sub-
Inspector on 01.11.1990. Pursuant to his outstanding performance, he
Intra Court Appeals No.4 of 2017 etc.
-: 14 :-
was promoted as Inspector. Thereafter, again on account of gallantry
performance in an operation at Thokar Niaz Beg, Lahore he was
recommended for promotion to the rank of DSP. However, these
recommendations did not materialize and he filed Writ Petition No.
17232/1997 before the Lahore High Court which was allowed and he
was directed to be treated at par with those who had participated in the
operation. The Department assailed the said order before this Court by
filing CPLA No. 1226-L/1998, which was dismissed being barred by time,
vide order dated 09.09.1998. Thereafter, the appellant filed contempt
petition before the High Court for implementation of its orders which was
disposed of as he was promoted as DSP by the Department. Now the
appellant is serving as SP w.e.f 30.12.2007.
14.
Appellant No. 4, namely, Rana Shahid Pervaiz was appointed
as ASI on 04.03.1984 in the Punjab Police; he was promoted as SI on
05.07.1987 and then as Inspector on 05.03.1990. In the year 1996, while
he was posted as SHO Hanjarwal, he participated in an operation for the
arrest of notorious outlaws Mujahid @ Musa and others, who were
involved in the murder of deceased Mureed Abbas Yazdani. The accused
were alleged to have started indiscriminate firing at the time of Fajar
Prayer in Masjid Alkhair at Multan, which resulted in the murder of
many people and injuries to others. It was pleaded that as a corollary of
this gallant performance, he was recommended for promotion as DSP,
but not promoted hence he approached the Lahore High Court, by filing
Writ Petition No. 28879 of 1997, with the prayer that he may also be
given out of turn promotion like the other members of the raiding party.
This Writ Petition was clubbed with an identical Writ Petition No. 8147 of
1998, and both were allowed and the learned High Court directed the
Respondent-Department to grant one step out of turn promotion to the
appellant. However, the Department did not accept the decision of the
Intra Court Appeals No.4 of 2017 etc.
-: 15 :-
High Court and approached this Court through Civil Appeal No. 259-L of
2000, which was dismissed on the ground of limitation. It was pleaded
that on dismissal of Appeal of the Government by this Court on the
ground of limitation, the relevant committee was formed under section 8-
A of the Punjab Civil Servants Act, 1974 read with Rule 14-A of the
Punjab Civil Servants (Appointment and Conditions of Service) Rules,
1974 which also recommended out of turn promotion of the appellant
and thus he was granted one step out of turn promotion as DSP, vide
Notification dated 24.05.2001, with a rider that he would be allowed to
wear the rank of DSP subject to the condition that his substantive
promotion would be allowed in due course after his seniors got
promotion. It was further pleaded that against the above condition, the
appellant filed another Writ Petition before the Lahore High Court, which
was allowed and it was directed that as a civil servant is entitled to
promotion from the date he performed his duties as recognized by section
8-A ibid, therefore, the condition incorporated in the Notification dated
24.05.2001 was in violation of section 8-A ibid. The Department filed
CPLA before this Court, which was dismissed. After dismissal of the
Petition of the Department by this Court, the appellant made a
representation to the Government and accordingly he was given out of
turn promotion vide Notification dated 16.08.2007, w.e.f 24.10.1996.
Now he is working as SP.
15.
It was next pleaded that Appellant No. 5 namely, Mr.
Muhammad Usman Anwar joined the Punjab Police Department on
23.05.1988 as ASI and then was promoted as SI on adhoc basis w.e.f
29.05.1991. He filed departmental representation before IGP for his
confirmation as ASI and promotion as SI on regular basis w.e.f
22.08.1990 instead of 29.05.1991. No decision was made on his
representation, as such he filed Appeal No. 929/1995 before the PST,
Intra Court Appeals No.4 of 2017 etc.
-: 16 :-
which was allowed and it was observed that the appellant should be
confirmed as ASI and promoted as officiating Sub-Inspector w.e.f
22.08.1990 (instead of 29.05.1991) i.e. from the date of the act of
gallantry performed by him and he should be confirmed as Sub-Inspector
w.e.f 22.08.1990. Then due to change in the law, the judgment of the
PST became ineffective and due to his seniority the appellant became
eligible for further promotion. He submitted representation for his
admission in List “F” and promotion as Inspector w.e.f 16.11.1995. His
representation was rejected and he filed Appeal before the PST which was
allowed on 15.04.2008 and he was directed to be confirmed as Inspector
w.e.f 16.11.1995. Subsequently, a seniority list was issued, wherein his
date of appointment as Inspector was not shown as 16.11.1995,
therefore, he filed Writ Petition No. 9780/2014 before the Lahore High
Court, which was allowed on 24.04.2014 and respondents were directed
to show the seniority of the appellant w.e.f 16.11.1995 as already
declared by the PST in its judgment dated 15.04.2008. Against this
judgment CPLA No. 820-L/2014 was filed by the government before this
Court, which was dismissed and thereafter, Review Petition No. 9/2015
was also dismissed by this Court.
16.
It was further pleaded that the Appellant No. 6 namely,
Naeem-ul-Hassan Babar joined the Police department on 10.03.1981 as
ASI and thereafter, he was promoted as SI on 04.12.1985 and further
promoted as Inspector on 08.04.1991. He was promoted as DSP vide
Notification dated 29.04.1998 with immediate effect, in recognition of his
extraordinary performance and exemplary courage in securing the arrest
of hardcore sectarian terrorists of Lashkar-e-Jhangvi namely Nadeem
alias Deemi and Muhammad Ali alias Ashfaqa. He filed representation
with the Home Department, Government of Punjab for his promotion
from the date of the act of gallantry i.e 04.08.1997. His representation
Intra Court Appeals No.4 of 2017 etc.
-: 17 :-
was not decided by the department, so he filed Writ Petition No.
4816/2007 before the Lahore High Court, wherein on 13.05.2008 the
Court directed that an appropriate order preferably before next date of
hearing should be passed in his representation pending before the
department. Thereafter, on 21.06.2008 the Writ Petition was disposed of
by observing that the “Learned Additional Advocate General submits that
representation filed by the petitioner has been accepted. Perhaps for the
said reason, the petitioner is no more interested in following-up this
petition. Disposed of accordingly.” He was promoted as SP w.e.f
31.01.2012.
17.
It was next pleaded that Appellant No. 7 namely Jamat Ali
Bokhari, joined the Punjab Police Department as ASI on 08.03.1982 and
was promoted to the rank of SI on 12.01.1985 and then promoted as
officiating Inspector on 15.11.1990. On 14.03.1998 he was granted out
of turn promotion as DSP and allowed to wear the rank of DSP on the
condition that his substantive promotion would be allowed in due course
after his seniors got promotion. He filed departmental representation
which was not decided and he then approached Lahore High Court by
filing Writ Petition No. 1848/2007, which was disposed of on 22.04.2008
as having borne fruit, because the department had promoted him.
Thereafter, appellant was promoted as SP w.e.f 31.01.2012.
18.
It was also pleaded that the Appellant No. 8 namely Karamat
Ullah Malik, joined the Punjab Police Department as ASI on 07.11.1988,
was promoted as SI on 12.02.1991 and then promoted as Inspector on
05.05.1996. During his posting as Inspector on 05.03.1998 he arrested
notorious Lashkar-e-Jhangvi terrorist namely Aziz Gujjar and also
arrested the kidnapper of Dr. Bashir Ahmad, a renowned Neurosurgeon.
On account of these achievements the then Chief Minister, Punjab on
06.03.1998 announced his one-step promotion from the rank of
Intra Court Appeals No.4 of 2017 etc.
-: 18 :-
Inspector to DSP. Thereafter, he was again recommended for out of turn
promotion on account of an encounter with Abdul Rauf alias Googa
Sheesh Naag and notorious outlaws. On account of delay in his
promotion he filed Writ Petition No. 4483 of 2006 before the Lahore High
Court and during pendency of this Writ Petition he also filed
C.M.No.539/2008 praying for decision of already filed departmental
representation for his ante-dated promotion as DSP. Directions were
passed in the Writ Petition for disposal of his departmental
representation. Thereafter, his departmental representation was accepted
on 21.06.2008 and on 30.06.2008 the Court was pleased to dispose of
the said Writ Petition as having borne fruit. It was also pleaded that on
account of his gallantry, the President of Pakistan was also pleased to
confer upon him the President Police Medal on 12.10.2007. Later on, he
earned his regular promotion as SP vide Notification dated 03.07.2015.
I.C.A 18/2017 in Crl.O.P 33/2017 (Mansoor Naji Vs. Mushtaq Ahmed
Sukhaira and others)
19.
It was pleaded before us that the Appellant Mansoor Naji,
Inspector in the Punjab Police, while posted in FIA on deputation on
28.08.1998, smashed a gang of smugglers and recovered 5 Kg heroine
from a passenger. DG, FIA on 21.05.1999 recommended his accelerated
promotion as DSP in view of his excellent performance and the two
employees of FIA, who were deputed with him during the said incident
were given out of turn promotion by the FIA, but the appellant was not
promoted. He approached PST by filing Service Appeal No. 1788/2004
which was accepted on 27.12.2004. Although he was promoted as SP on
his own turn but when his appeal was accepted by the PST, then he was
granted ante-dated promotion w.e.f 24.06.1998 and on that basis his
seniority was re-fixed. His seniority was affirmed in the C.P.No.1486-
Intra Court Appeals No.4 of 2017 etc.
-: 19 :-
L/2007 filed before this Court. It was further pleaded that apart from the
judgment of the PST, there were two decisions of this Court in
C.P.No.1486/2007 dated 15.07.2009 and C.A.No.293/2008 dated
08.09.2008 in favour of the appellant and he was entitled to the
protection granted by the judgment dated 30.12.2016 in Shahid
Pervaiz’s case (supra).
I.C.A 19/2017 in Crl.O.P 55/2017 (Malik Muhammad Sabir Vs.
Mushtaq Ahmed Sukhera)
20.
It was pleaded that the Appellant Malik Muhammad Sabir
was appointed in the Punjab Police Department in the year 1980 and
when in the year 1993 he was Sub-Inspector and not promoted with his
batch-mates, he filed an appeal before the PST, which was accepted on
27.03.2000, by holding that he should be promoted along-with his
batch-mates. Then he was promoted from Sub-Inspector to Inspector.
Later on in the year 2009 he was promoted as DSP as a matter of
routine.
I.C.A 21/2017 in Crl.O.P 33/2017 (Muhammad Sarwar Awan Vs.
Mushtaq Ahmed Sukhaira and others)
21.
It was submitted that the Appellant Muhammad Sarwar
Awan was appointed as ASI in the year 1998 and was promoted as
officiating Sub-Inspector in the year 1991. Later on, he was
recommended for one step out of turn promotion as Inspector under
section 8-A (supra) read with Rule 14-A (ibid), which was not
implemented, therefore, the Petitioner filed Writ Petition No.8147 of
1998, which was allowed, by judgment dated 22.06.1996. However, the
Department challenged the judgment of the learned High Court before
this Court through Civil Petition No.226-L of 2000, which was dismissed,
vide judgment dated 26.04.2000. In the intervening period, the Petitioner
Intra Court Appeals No.4 of 2017 etc.
-: 20 :-
was promoted as DSP and now has been reverted to the post of
Inspector.
I.C.A 22/2017 in Crl.O.P 33/2017 (Muhammad Ashraf Chadder Vs.
IGP, Punjab and others)
22.
It was next pleaded before us that the Appellant in ICA No.
22/2017, Muhammad Ashraf Chadder, joined the Punjab Police
Department as ASI on 20.07.1986. He was granted out of turn promotion
from the post of ASI w.e.f 07.10.1989, but it was withdrawn by the
competent authority, which was challenged by the appellant through
Writ Petition No. 8588/2008 before the Lahore High Court and the same
was allowed on 20.11.2008. Thereafter, the out of turn promotion of the
appellant was confirmed on 01.07.2009 and he was deemed to be
promoted from that date. His date of promotion/confirmation as Sub-
Inspector was modified as 07.10.1989 from 21.07.1998. Then he was
promoted as Inspector in routine and also granted promotion as DSP.
Now his out of turn promotion as SI has been withdrawn by the
Department and he has been reverted back to the post of Inspector.
I.C.A 23/2017 in Crl.O.P 33/2017 (Mian Shafqat Ali Vs. Capt (R)
Zahid Saeed and others)
23.
The appellant in ICA No. 23/2017 namely Mian Shafqat Ali
(Hockey Player) joined the Punjab Police Department on 22.12.1990 as
temporary ASI, on the basis of Sports Policy and was confirmed w.e.f
12.06.1993. He was promoted as Sub-Inspector on 24.10.1993 and
confirmed w.e.f 25.10.1995. He filed representation before IGP for
promotion to the rank of officiating Sub-Inspector w.e.f 01.05.1991 i.e
the date of victory at the National Junior Hockey Championship. He also
filed
representation
before
Addl.IGP
seeking
ante-dated
promotion/confirmation as SI w.e.f 01.05.1991 instead of 24.10.1993
Intra Court Appeals No.4 of 2017 etc.
-: 21 :-
which was refused. Thereafter, he filed Appeal No. 1149/2007 before the
PST, which was disposed of on 20.02.2008 and the department was
directed to decide his representation. He was granted out of turn
promotion/confirmation as Inspector w.e.f 17.10.2009 but later on his
date of promotion was revised and he was promoted as Inspector w.e.f
22.10.1997. Now his out of turn promotion as ASI, confirmation as ASI,
ante-dated out of turn promotion as SI and promotion to the rank of
Inspector have been withdrawn by the department.
I.C.A 2/2018 in Crl.O.P 62/2017 in C.R.P 89/2016 (Muhammad
Haseeb Vs. Muhammad Amin Vans and others)
24.
It was pleaded before us that the Appellant in ICA No.
2/2018 Muhammad Haseeb Anjum was appointed as Constable in the
year 1980 and in due course he was promoted as Head Constable (HC)
and on 26.12.1990 he was promoted temporarily as ASI. He was
confirmed as ASI in the year 1998 and was then promoted from the date
of appointment as temporary ASI. He filed a representation before the
department, which was rejected vide order 07.04.2006 thereafter, he filed
appeal before the PST, which was allowed vide order dated 13.10.2006
and
he
was
granted
promotion
from
the
date
of
his
confirmation/appointment which has now been withdrawn by the
department.
Crl.O.P.96/2017 (Zafar Iqbal and others Vs. Azhar Hameed Khokhar
and others)
25.
It was pleaded before us that the Petitioners in these
contempt petitions were never promoted out of turn on the basis of
gallantry rather they were promoted in accordance with the Rule 13.6 (2)
of the Police Rules, 1934 as they stood either first or second in order of
merit in the training. Their grievance is that their cases pending before
the Punjab Service Tribunal may be decided expeditiously.
Intra Court Appeals No.4 of 2017 etc.
-: 22 :-
Crl.O.P 121/2017 (Fida Hussain Vs. Usman Khattak and others)
26.
It was pleaded before us that the petitioner in Crl.O.P
121/2017, namely Fida Hussain was appointed as Constable on
08.10.1990 and thereafter, he passed the lower class course in the year
1995. He approached PST through Appeal No. 2678/2008 for ante-dated
promotion, which was accepted on 30.03.2010 and the department was
directed to consider him for anti-dated promotion as ASI and SI w.e.f the
date when his juniors were granted the same benefit and then he was
given anti-dated promotion w.e.f 12.07.1993 in pursuance of PST
Judgment dated 30.03.2010. He passed training Intermediate Class
Course in the year 2008 and was promoted as ASI on 12.08.2008 and
was then promoted as Sub-Inspector on 05.01.2012. Now he has been
reverted to the rank of Head Constable.
Crl.O.P 122 /2017 (Muhammad Shahbaz Vs. Usman Khattak)
27.
The petitioner in Crl.O.P 122/2017 namely, Muhammad
Shahbaz was granted promotion in pursuance of the judgment of PST
dated 17.05.2012 in Service Appeal No. 48/2011, whereby the
department was directed to consider his case for promotion and
confirmation as ASI w.e.f 18.07.1998 and S.I w.e.f 26.11.2004. The
department approached this Court by filing CPLA No. 2094/2012, which
was disposed of on 28.02.2013 having become infructuous as the
department had considered him for promotion.
Crl.O.P 123 /2017 (Muhammad Shahbaz Vs. Usman Khattak)
28.
The petitioner in Crl.O.P 123/2017 namely, Muhammad
Shahbaz joined the Punjab Police Department as Constable and then
was granted out of turn promotion as Head Constable in recognition of
his good performance w.e.f 13.07.1993 and thereafter he filed Service
Intra Court Appeals No.4 of 2017 etc.
-: 23 :-
Appeal before Punjab Service Tribunal for ante-dated promotion to the
rank of ASI/SI being senior in rank to some other officials and his Appeal
was accepted by Punjab Service Tribunal vide judgment dated
28.05.2010. He was given ante-dated promotion to the rank of ASI w.e.f
18.07.1998 and then promoted as SI w.e.f 26.11.2004.
Crl.O.P 124 /2017 (Muhammad Zaman Vs. Usman Khattak and
others)
29.
The petitioner in Crl.O.P 124/2017 namely, Muhammad
Zaman was appointed as Constable on sports basis on 19.03.1995. On
winning Gold Medal in National Games, 1995 he was promoted as Head
Constable w.e.f 30.04.1995. On winning Gold Medal in National Games,
1998 he was again promoted to the rank of ASI w.e.f 27.04.1998 on
sports basis. He was then sent for Intermediate Class Course on
acceptance of Service Appeal No. 1131/2007 by the PST vide judgment
dated 15.04.2008. After qualifying the Intermediate Class Course, his
case for confirmation in the rank of ASI, admission of name to promotion
list “E” and promotion to the rank of Officiating SI was considered by the
DPC. On recommendation of DPC he was granted confirmation in the
rank of ASI w.e.f 07.04.1998 i.e. the date of promotion on sports basis,
he was admitted to promotion list “E” w.e.f 04.08.2009 and further
promoted to the rank of Officiating S.I w.e.f 04.08.2009.
Crl.O.P 125/2017 (Muhammad Ashraf Chadder Vs. Capt. Zahid Saeed
and others)
30.
Crl.O.P 125/2017 has been filed on behalf of the petitioner
Muhammad Ashraf Chadder against the judgment dated 30.12.2016 i.e.
Shahid Pervaiz’s case (supra). He has also filed ICA No. 22/2017
against judgment dated 29.03.2017 reported as Interim Report by AIG
Legal for I.G, Punjab (supra). The detail of his service profile is given in
the ICA 22/2017 above and need not be repeated.
Intra Court Appeals No.4 of 2017 etc.
-: 24 :-
Crl.O.P 126/2017 (Khalid Farooq Khan Vs. Capt. Zahid Saeed and
others)
31.
Crl.O.P 126/2017 has been filed on behalf of petitioner
Khalid Farooq Khan. It was pleaded that he joined the Punjab Police
Department as Constable on 24.10.1989. On the basis of ‘family claim’ in
the year 1993, the petitioner was promoted as Head Constable w.e.f
08.08.1993 on ad-hoc basis, keeping in view the services rendered by his
elder brother late Sub-Inspector Mushtaq Ahmad, who breathed his last
on duty, while serving in Karachi and was declared as “Shaheed”. It was
pleaded that in the year 1994-1995, the petitioner underwent Lower
Class Course and was enlisted in list “E” on 08.09.1998 and then was
enlisted in list ‘C” on 01.02.1995 and then in list “D” in the year 2002.
He was granted promotion as ASI on 08.09.1998 in routine and then as
SI in the year 2007. The petitioner claimed that he should have been
appointed initially as ASI on the basis of family claim, therefore, he filed
Service Appeal No. 1853/2006 which was allowed on 15.12.2006 in
which it was inter alia held that the petitioner should have been granted
promotion as ASI form the date his next junior and others were
promoted. Thereafter, he was promoted by the order of PST, which was
got implemented by filing Writ Petition No. 11383/2007 before the
Lahore High Court. He was granted promotion as ASI w.e.f 08.09.1998 as
per entitlement on family claim basis and Sub-Inspector w.e.f
04.12.2004.
Crl.O.P 127/2017 (Mian Shafqat Ali Vs. Capt. Zahid Saeed and
others)
32.
Crl.O.P 127/2017 has been filed on behalf of the petitioner
Mian Shafqat Ali for violation of the judgment dated 30.12.2016 reported
as Shahid Pervaiz (supra). He has also filed ICA No. 23/2017 against
judgment dated 29.03.2017 Interim Report by AIG Legal for I.G, Punjab
Intra Court Appeals No.4 of 2017 etc.
-: 25 :-
(Supra). The detail of his service profile is given in the ICA 22/2017 above
and need not be repeated.
Crl.O.P 132/2017 (Yousaf Ali Vs. Israr Abbasi and another)
33.
It was pleaded that in the year 2003 when the petitioner was
working as Head Constable in Rawalpindi, there was an attack on the
President of Pakistan in Rawalpindi. He identified and arrested the
accused and due to this performance on 26.05.2005 the DIG granted
him shoulder promotion as ASI, but no seniority or salary of ASI was
given to him, thereafter on 05.07.2011 after six years his shoulder
promotion was withdrawn. He filed Service Appeal before the PST, which
was accepted on 19.07.2012. The Department approached this Court by
filing CPLA against this decision, which was dismissed by this Court and
his rank was restored. Now again w.e.f 03.10.2016, he has been reverted
to the rank of Head Constable.
Crl.O.P 139/2017 (Shaikh Muhammad Arshad Latif Vs. Major (R)
Azam Suleman and another)
34.
Crl.O.P 139/2017 was filed on behalf of petitioner Shaikh
Muhammad Arshad Latif. It was pleaded that he joined the Police
Department as ASI in the year 1984. He was confirmed as such in the
year 1989 and was promoted as SI in the same year. He was confirmed
as SI in 1991 and admitted to list “F” in the year 1993. He was
considered for out of turn promotion as Inspector and back dated
confirmation as SI. He was promoted as Inspector on officiating basis
w.e.f 17.10.1990 in view of the recommendations made for his
accelerated promotion. He filed Service Appeal No. 2128/2005 before the
PST which was accepted on 19.07.2006 and the competent authority was
directed to consider him for confirmation as ASI from the date of his
appointment and it was further directed that he should also be
Intra Court Appeals No.4 of 2017 etc.
-: 26 :-
considered for ante-dated benefits provided his service record during the
period of probation as ASI had remained satisfactory and if the seniority
of anyone essentially senior to him was not compromised. He filed
W.P.No.12998/2012 before the Lahore High Court, for implementation of
order of PST dated 19.07.2006 and for confirmation as Inspector w.e.f
04.04.1991, which was disposed of on 24.11.2015 due to the fact that
the judgment had been complied with as he was considered for
promotion and his case was rejected, but in pursuance of some other
judgment he was again considered for promotion and promoted as DSP.
Now he has been reverted to the post of Inspector.
Crl.O.P 4/2018 (Rana Masroor Ahmad Khan Vs. Capt. (R) Zahid
Saeed, Chief Secretary)
35.
It was pleaded that the Petitioner Rana Masroor Ahmad
Khan joined the Punjab Police Department as ASI on 13.03.1983. He was
promoted as Sub-Inspector on 03.10.1986 and thereafter, granted out of
turn promotion as Inspector on 08.10.1989, which was withdrawn and
he was promoted as confirmed Inspector w.e.f 14.06.1991 and then vide
Notification dated 30.04.1997 he was promoted as DSP. He filed Service
Appeal No. 2583/2005 before the Punjab Service Tribunal for anti-dated
seniority, which was allowed vide judgment dated 11.03.2008 and the
petitioner was deemed to be promoted from the year 1997. Thereafter,
the department approached this Court through Civil Appeals No. 627 to
631 & 1753/2008 against the petitioner and other employees of the
Department assailing the judgment rendered by the PST dated
11.03.2008; the said Appeals were dismissed by this Court on
18.05.2009 having become infructuous and the order was got
implemented by filing Writ Petition No. 25940/2010 before the Lahore
High Court, which was disposed of on 10.05.2012 having fructified. The
Intra Court Appeals No.4 of 2017 etc.
-: 27 :-
petitioner was promoted as SP on 10.05.2012 and now stands reverted to
the post of DSP.
Crl.R.P.68/2017 (Kafayat Ullah Bajwa Vs. IGP, Punjab)
36.
Kafayat Ullah Bajwa (in person) was promoted as Inspector
w.e.f 20.12.1991 due to his participation and gallant performance in a
police encounter, which took place in the area of P.S Bhikki, District
Sheikhupura on 20.12.1991, wherein one DSP and a Constable were
martyred and four proclaimed offenders were killed. He was confirmed as
Sub-Inspector due to a decision of this Court reported as Inspector-
General of Police, Lahore Vs. Qayyum Nawaz Khan (1999 SCMR 1594),
wherein it was settled that the date of confirmation cannot be other than
the date of promotion. Therefore, he was granted date of confirmation as
07.10.1990 instead of 20.12.1991. During the interregnum period he
was also promoted as DSP w.e.f 05.08.2005. He approached PST, Lahore
by filing Service Appeal No.604/2008, which was accepted vide judgment
dated 09.06.2009, but it was not implemented. Therefore, for its
implementation he filed Writ Petition No. 3862/2010 before the Lahore
High Court which was accepted on 25.05.2010. The said judgment
attained finality when CPLA filed by the department before this Court
was dismissed on the point of limitation. It was pleaded that when he
was not being considered for promotion by the competent authority, he
filed contempt petition before the Lahore High Court and it was in
pursuance of that contempt petition that he was promoted from the rank
of DSP to that of SP w.e.f 10.05.2012. He has been reverted to the post of
DSP vide notification dated 28.06.2016.
C.R.P 523/2017 in CMA. 687/2017 (Mrs. Nasim Chaudhry Vs.
IGP/Provincial Police Officer, Punjab, Lahore)
Intra Court Appeals No.4 of 2017 etc.
-: 28 :-
37.
It was pleaded that the petitioner Mrs. Nasim Chaudhry was
originally appointed as Sub-Inspector on 27.11.1986 and was confirmed
on 01.07.1987 and in due course she became officiating Inspector on
27.11.1991 after five years. She was confirmed as Inspector on
20.11.1992. In the year 1993, she was given ante-dated seniority w.e.f
1988 on account of some outstanding action/ gallant act on her part
when she had arrested some desperado in 1988. However, in 1997 the
ante-dated seniority given in the year 1993 was withdrawn. Meanwhile
DPC was held for promotions as DSP but she was not considered for the
promotion. She approached the Punjab Service Tribunal and it was
observed by the PST that she should be promoted along-with her juniors
and she had not superseded anyone. IGP filed CPLA No.1617-L/1997
before this Court, which was dismissed on 15.04.1999. The petitioner
approached Lahore High Court for implementation of the orders of this
Court and in the contempt petition learned High Court vide order dated
27.09.1999 directed that the petitioner should be given promotion, but
the IGP again approached this Court by filing Petition against the order
dated 27.09.1999. This Court dismissed the petition vide order dated
20.10.1999 which is reported as Ziaul Hassan Vs. Naseem Chaudhry
(2000 SCMR 645). Finally on 02.11.1999 the petitioner was promoted as
DSP. Now in pursuance of judgments of this Court the Department has
withdrawn her promotion as DSP and she has been reverted to the post
of Inspector w.e.f 2014.
C.M.A 3347/2017 in C.R.P Nil/2017 in C.M.A 687/2017 in
C.R.P.51/2016 (Jamil Ahmed Vs. Capt. (R) Zahid Saeed and others)
38.
It was pleaded that the Petitioner Jamil Ahmed was
appointed as ASI in the year 1998. Being instrumental in causing arrest
of wanted terrorists, he was granted out of turn promotion in the year
1991 as Sub-Inspector and then out of turn promotion as Inspector in
Intra Court Appeals No.4 of 2017 etc.
-: 29 :-
the year 1998, under Section 8-A ibid. It was further pleaded that even in
the year 1999, the Petitioner was recommended for out of turn promotion
as DSP, which recommendation was not considered, therefore, he filed
numerous writ petitions and Contempt Applications before the Lahore
High Court and eventually he was promoted as DSP on 20.09.2010. It
was pleaded that after an observation made by this Court vide order
dated 26.01.2016, in Civil Appeal No.184-L of 2013, the Petitioner has
been relegated to the post of ASI.
39.
Khawaja Haris Ahmad, learned Sr.ASC, appeared for the
appellants in ICA Nos. 8, 9 & 17/2017 and Crl.M.A.937/2017 in Crl.O.P
104/2017. He contended that the issue of out of turn promotions was
first taken up in the case of Contempt Proceedings against the Chief
Secretary Sindh (2013 SCMR 1752) and two things which come into
focus in the said judgment are: i) the manner in which out of turn
promotions were granted alongwith the legal frame work which governed
them in the province of Sindh; and ii) that the concept of out of turn
promotions
was
declared
unconstitutional
being
against
the
Fundamental Rights of others whose smooth promotion was hampered.
He next contended that in the Review Petition of this case i.e. Ali Azhar
Khan Baloch Vs. Province of Sindh (2015 SCMR 456), again the concept
of out of turn promotions was considered and while considering the issue
of retrospective application of the judgment the cut-off date of 1994 given
in the earlier judgment i.e Contempt Proceedings against the Chief
Secretary (Supra) was left open. He next submitted that the present
appellants filed Review Petitions before this Court, in light of the laws
applicable to the Province of Punjab, but ultimately their Review Petitions
were dismissed by this Court vide judgment dated 30.12.2016 in Shahid
Pervaiz’s case (supra) inter alia on the ground that the law of out of turn
Intra Court Appeals No.4 of 2017 etc.
-: 30 :-
promotions was unconstitutional and any person who had benefited from
it, could not be allowed to continue taking that benefit. He also
contended that two exceptions were created in the said judgment of
Shahid Pervaiz (supra) i.e. i). the persons who had retired or died; and ii).
as per 111 of the said judgment, the employees who got their out of turn
promotions in pursuance of some judgments, whether of the Service
Tribunal, High Court or the Supreme Court, were protected unless their
cases were reviewed.
40.
He next submitted that in pursuance of this judgment dated
30.12.2016, the IGP, Punjab as well as Home Department, Punjab
undertook an exercise and made a report regarding persons whose out of
turn promotions were to be protected and then there arose the difference
of opinion between the IGP and the Home Department, Punjab. The first
difference was that the Home Department was of the view that all those
who had any judgment in their favour had absolute protection but the
IGP went into greater details and stated that if some judgment was
passed on the ground that the petitioner was being discriminated against
in comparison to some other employee who had been granted out of turn
promotion (without having any judgment in his favour) and now when
that other person was no longer protected, therefore, the out of turn
promotions of those petitioners (having judgments in their favour) also
could not be protected as the very basis of the judgment(s) i.e
discrimination stood removed. He submitted that the other factor which
was taken into consideration by the Home Department and not agreed to
by the IGP, Punjab was the fact that seven out of the eight appellants
had already been encadred and had become Superintendent of Police
(SP) in the normal course and now they were part of the Police Service of
Pakistan (PSP) which was not a matter, wherein the jurisdiction lay with
Intra Court Appeals No.4 of 2017 etc.
-: 31 :-
the IGP, as the Home Department had to move the Establishment
Division for withdrawal of their out of turn promotion. He went on to
submit that once a Police officer becomes DSP he is part of the Provincial
cadre and then a Provincial Selection Board has to be convened to
consider whether he is fit to be promoted as SP and when he becomes SP
then he becomes part of the Police Service of Pakistan.
41.
He also contended that in the given circumstances, the
appellants took this protection as an absolute protection. Moreover, in
each and every order passed by the Service Tribunal/Courts, whether
decided on merits or otherwise, their rights were protected. Therefore, in
terms of the judgment in the case of Shahid Pervaiz’s case (supra) itself,
their cases were protected. He next contended that in Shahid Pervaiz’s
case (supra) mainly two sets of Criminal Original Petitions (Contempt
Petitions) were filed. In first set the petitioners were those who had
judgments of judicial fora in their favour; and in the second set were
Petitioners who sought implementation of the above mentioned
judgment.
42.
The learned counsel, after referring briefly to the Service
Profiles of all the eight appellants, further contended that the law itself
had provided for the out of turn promotions and Section 8-A was inserted
in the Punjab Civil Servants Act, 1974 on 08.11.1987 through an
amendment and then correspondingly on 09.02.1989 Rule 14-A was also
introduced in the Punjab Civil Servants (Appointment and Conditions of
Service) Rules, 1974. He further contended that section 8-A ibid provided
for promotion in case of exceptional and extra ordinary performance on
the basis of gallantry and honesty etc., but this section was omitted on
17.10.2006 and similarly, Rule 14-A ibid was also omitted through a
Notification dated 02.11.2007. The learned counsel next contended that
neither the appellants/petitioners were instrumental in enacting this law
Intra Court Appeals No.4 of 2017 etc.
-: 32 :-
nor did they have any role in its omission. Furthermore, all of the
appellants/petitioners before this Court earned their out of turn
promotions whilst this law was intact and even in the report of the IGP
Punjab, there is no indication whatsoever that the promotion granted to
any of the individuals before this Court was against the law or in breach
of any rule. Learned counsel also submitted that when the Review
Petitions were dismissed by this Court vide Judgment dated 30.12.2016
in Shahid Pervaiz’s case (supra), the five member bench protected past
and closed transactions through a saving clause. He claimed that the
present appellants/petitioners fall in that saving clause as provided in
para 111 of the judgment in Shahid Pervaiz’s case (supra).
43.
He further submitted that the appellants/petitioners are
exceptional police officers and there is no element of fake/illegal police
encounters, manipulation or corruption on their part. They have also
won awards and medals. He went on to argue that it was the law of the
land in terms of Article 4 of the Constitution of Pakistan and there is long
chain of judgments of this Court, starting from the case of Capt. (Retd).
Abdul Qayyum v. Muhammad Iqbal (PLD 1992 SC 184) to Farhat Abbas
Vs. Inspector General (2009 SCMR 245), wherein the law of out of turn
promotions has been upheld. In all these cases the out of turn
promotions were either upheld or the departmental authorities were
directed to act according to law and grant the out of turn promotions to
the employees and the Service Tribunal/ High Court/this Court never
decided the merits, suitability or fitness of the employees. Moreover, he
contended that most of these cases were decided mainly on two grounds;
firstly, that if once the out of turn promotion was announced under the
valid law and the procedure was followed then the concerned authorities
had to abide by that and the petitioners could not be denied the out of
Intra Court Appeals No.4 of 2017 etc.
-: 33 :-
turn of promotion; and secondly, when the other employees were given
out of turn promotions then claimants were also held entitled.
44.
His next contention was that in terms of Article 189 of the
Constitution, the judgments of this Court are binding on all other Courts
and it was for the first time in the case of Muhammad Nadeem Arif v.
Inspector General of Police (2011 SCMR 408), that the concept of out of
turn promotions was declared against the Constitution and Islam, but
even in this Judgment the out of promotion was not set-aside. He then
referred to the case of Ghulam Shabbir v. Muhammad Munir Abbasi (2011
PLC (C.S.) 763), to substantiate that the law on the point of out of turn
promotions was never struck down, despite observing it unconstitutional
and against the injunctions of Islam and it was only so done in the case
of Contempt proceedings against Chief Secretary Sindh (2013 SCMR
1752) on 12.06.2013, but none of the above referred judgments were
either recalled or specifically discussed and held to be per incuriam.
45.
He next argued that certain exceptions were created by the
Court itself in Shahid Pervaiz’s case (supra), e.g. in para No. 111 the
judgments of judicial fora were protected; in para No. 119 an exception
was created to save retired/ dead employees; and in Para No. 143 this
Court observed that “the orders of withdrawal of out of turn promotion
passed by the Department/Competent Authority shall be recalled against
the Police Officers who had earned out of turn promotions, pursuant to the
judgments of superior Courts/Service Tribunals, as discussed in
paragraph 111 of this judgment”. He next referred to para No. 123 of
Shahid Pervaiz’s case (supra) regarding past and closed transactions
wherein it was observed that:-
“123. We are clear in our view that the issue of past
and
closed
transaction
(except
what
has
been
concluded in paragraph 111) does not arise in the
instant case as we have already declared void ab initio
Intra Court Appeals No.4 of 2017 etc.
-: 34 :-
the legislative instruments that provided for out of turn
promotions.”
The learned counsel contended that nowhere in the
judgment were the legislative instruments declared void ab initio, and if
these legislative instruments had been void ab initio then why were the
exceptions created?
46.
He then submitted that both in terms of Articles 4 and 189
of the Constitution of Pakistan sanctity and certainty is attached to the
orders of the Court. When law is made by the legislature, thereafter
interpreted and declared by this Court and followed by the department
then the rights of the parties should be protected. He also contended that
in these cases the out of turn promotions were granted 15-20 years prior
to the striking down of this law. There will be no judgment on the merits
of the out of turn promotions because the law had itself provided that the
recommendations made for out of turn promotion would be placed before
the Selection Board, for its determination and only thereafter, the out of
turn promotion would be granted. He next submitted that the judgments
rendered by the Courts are mostly those, wherein the out of turn
promotions in the first instance were provided, promised and/or being
processed, but thereafter, were either withheld or delayed or the IGP was
transferred and the next IGP, who followed, thought differently.
47.
Khawaja Haris Ahmad, learned Sr.ASC also contended that
the phrase “in pursuance of” as used in para 111 of Shahid Pervaiz’s
case (supra) should be given concrete meaning, because through this
phrase a saving clause was created for the employees who had judicial
verdicts in their favour and in most of the Notifications while granting
out of turn promotions under the orders of Service Tribunal /Court this
phrase has been used. He next contended that when the judgment dated
Intra Court Appeals No.4 of 2017 etc.
-: 35 :-
30.12.2006 was delivered by the five member bench then nothing could
be added or subtracted in that judgment but this Court through
judgment dated 29.03.2017 reported as Interim Report by AIG Legal for
I.G, Punjab (supra) while upholding the view point of IGP added
something new which was not there in the main judgment. He further
submitted that while considering interim report of IGP, a Bench
consisting of two Hon’ble Judges also passed an order dated 14.02.2017,
wherein certain additional observations were made which were not there
in the original order. He added that this Court vide judgment dated
30.12.2016 had directed that the seniority of all those having earned out
of promotion be fixed with their batch-mates, but in the order dated
14.02.2017 reference was also made to the earlier judgments of this
Court and the compliance of all those judgments was sought by
observing that in no case would out of turn promotions be upheld, so it
was an addition to the judgment dated 30.12.2016 rendered in the case
of Shahid Pervaiz’s case (supra). He also contended that although the
judgment dated 29.03.2017 itself clarifies that this Court is not reviewing
the judgment dated 30.12.2016, but in essence the judgment was
reviewed.
48.
Adding to the above contention the learned counsel next
submitted that the other ground on which the judgment dated
29.03.2017 was passed, was that these cases could be reviewed because
these matters do not fall within the jurisdiction of the High Court under
Article 212, and the employees should have approached the Service
Tribunal and these orders of the High Court are nullity in the eyes of law.
This according to the learned counsel was an additional reason given for
denying the out of turn promotions. He also contended that this was not
a case of promotion in terms of eligibility, rather it was case of fitness &
suitability and it has been held by the Courts that fitness and suitability
Intra Court Appeals No.4 of 2017 etc.
-: 36 :-
does not come within the jurisdiction and domain of the Service
Tribunal.
49.
Learned Counsel next submitted that the orders passed by
the IGP for withdrawal of the out of turn promotions are not the speaking
orders for the reason that he also took into account the order of this
Court dated 14.02.2017, whereby this Court had directed that the earlier
judgments of this Court be adhered to and since the judgment in Shahid
Pervaiz’s case (supra), which had created exceptions, was not referred to
in the order dated 14.02.2017 of this Court, therefore, the IGP was made
to follow and implement the earlier judgments, which was against the
mandate of Shahid Pervaiz’s case (supra) and an addition in the main
judgment.
50.
He lastly submitted that the appellants have been enjoying
these offices for a long period of time and are not responsible for
whatever benefit they have gained or acquired through out of turn
promotions. They approached the Courts of law and the Courts granted
them the benefit of an out of turn promotion. Now it is a matter of
human dignity that their rights may be protected as they are going to be
adversely affected. While concluding his arguments he prayed that as in
Para 119 of Shahid Pervaiz’s case (supra) dead and retired employees
were saved by creating an exception, in the same lines, keeping in view
the spirit of Articles 9 and 14 of the Constitution of Pakistan, an option
to retire may be given to these persons within a reasonable period of
time.
51.
Malik Muhammad Qayyum, learned Sr.ASC appeared in ICA
Nos. 4 & 18/2017 on behalf of Appellants Akhtar Umer Hayat Lalayka
and Mansoor Naji respectively. He has also appeared in Crl.O.P.Nos.92
and 152/2016 filed on behalf of Mansoor Naji. The learned counsel after
giving the service profile of both appellants contended that in the
Intra Court Appeals No.4 of 2017 etc.
-: 37 :-
judgment dated 30.12.2016 rendered in Shahid Pervaiz’s case (supra)
an exception was created by this Court itself and the out of turn
promotions earned through judicial orders were protected and this
exception should be implemented,. He also contended that the out of
promotions already granted were to be protected under the principle of
past and closed transactions and these past and closed transactions
could not be hit by some new interpretation and now by way of changing
the interpretation the benefit of out of turn promotion earlier granted,
under the valid law at that time and thereafter validated through
judgments, could not be taken away especially by the judgments in
which the appellants were not a party, despite the fact that section 8-A
supra was omitted in the year 2006. Regarding doctrine of past and
closed transactions he referred to the cases of Income Tax Officer Karachi
v. Cement Agencies (PLD 1969 SC 322), Pir Baksh and another v.
Chairman Allotment Committee (PLD 1987 SC 145). He further added that
if an exception is correctly created then there is no need to review it. The
learned counsel lastly submitted that the appellant Mansoor Naji did not
want to exercise the option of retirement. However, Umer Hayat Lalayka
wanted to exercise the option of retirement, if it was so provided.
52.
Mr. Tallat Farooq Sheikh, ASC appeared for appellants in
ICA Nos. 6, 21, 22 & 23/2017 on behalf of appellants Manzoor Ahmed,
Muhammad Sarwar Awan, Muhammad Ashraf Chadder and Mian
Shafqat Ali, respectively. He has also appeared in Criminal Original
Petition Nos. 125, 126, 127, 139/2017 & 4/2018 on behalf of petitioners
namely Muhammad Ashraf Chadder, Khalid Farooq Khan, Mian Shafqat
Ali, Shaikh Muhammad Arshad Latif and Rana Mansoor Ahmad Khan,
respectively. The learned counsel submitted that the promotions of the
appellants/petitioners were protected in light of Para 111 of Shahid
Pervaiz’s case (supra). He further added that Khalid Farooq Khan was
Intra Court Appeals No.4 of 2017 etc.
-: 38 :-
never granted out of turn promotion and his promotion as Head
Constable was based on a family claim as his brother was martyred,
while serving as SI in the Sindh Police, therefore the same could not be
withdrawn. He further submitted that the out of turn promotion granted
to Rana Masroor Ahmad Khan had already been withdrawn, therefore,
the Department had violated the judgment dated 30.12.2016. He also
contended that the out of turn promotions granted through the
judgments of the Service Tribunal / Courts were protected under Para
111 of Shahid Pervaiz’s case (supra) and Article 264(c) of the
Constitution which provided that the rights accrued under a repealed law
would not be affected. He has also prayed that contempt proceedings be
initiated against the Respondents for not implementing the judgment of
this Court in Shahid Pervaiz’s case (supra) in its letter and spirit.
53.
Mr. S.A Mehmood Khan Saddozai, ASC appeared on behalf
of Malik Muhammad Sabir appellant in ICA 19/2017 and submitted that
in the year 1993, when appellant was Sub-Inspector and not promoted
with his batch-mates, he filed appeal before the PST which was accepted
on 27.03.2000, by holding that he should be promoted alongwith his
batch-mates. Then he was promoted from Sub-Inspector to Inspector.
Later on in the year 2009 he was promoted as DSP as a matter of
routine. The learned counsel contended that the appellant never got out
of turn promotion and now the department had reverted him under the
garb of implementation of judgments of this Court. He added that the
appellant was inducted in 1980 in the police department and now having
36 years of service, he was on the verge of retirement.
54.
Mr. Ahsan Bhoon, learned ASC appeared for the appellant
Muhammad Haseeb Anjum in ICA No. 2/2018 and submitted that the
appellant was appointed as Constable in 1980 and in due course he was
promoted as Head Constable and on 26.12.1990 he was promoted
Intra Court Appeals No.4 of 2017 etc.
-: 39 :-
temporarily as ASI. He was confirmed as ASI in 1998 and was then
promoted from the date of appointment as temporary promotion. He filed
a representation before the department, which was rejected vide order
07.04.2006 thereafter, he filed an appeal before the PST which was
allowed vide order dated 13.10.2006 and he was granted promotion from
the date of his confirmation/appointment which has now been
withdrawn by the department.
55.
The learned counsel contended that during the hearing of
these matters earlier, IGP was directed to submit a report of all those
cases which were protected by Court orders and in response to that
direction, the IGP had filed a list of 129 persons whose cases were
protected, as falling in the exception created by para 111 in Shahid
Pervaiz’s case (supra) and the name of the petitioner was present in that
list.
He
further
submitted
that
the
appellant
had
filed
Crl.O.P.No.62/2017 against the judgment dated 30.12.2016, which was
dismissed vide judgment dated 29.03.2017. Now he has filed this ICA
against the judgment dated 29.03.2017.
56.
Mr. Aziz Ahmed Malik, learned ASC appearing for the
petitioners in Crl.O.P No. 96 of 2017 submitted that the petitioners in
this case were never promoted out of turn on the basis of gallantry rather
they were promoted in accordance with the Rule 13.6 (2) of the Police
Rules, 1934 as they stood either first or second in order of merit in
training. He further submitted that the petitioners had earlier
approached this Court by filing review petition (C.R.P.No.285/2016 in
C.A.No.184-L/2013) against the order of this Court dated 26.01.2016
which was disposed of by this Court in the following terms:
“We have heard the learned ASCs for the review
Petitioners. Their prime contention is that the judgment
under review dated 26.01.2016, and the ratio of other
two judgments in the case of Contempt Proceedings
Intra Court Appeals No.4 of 2017 etc.
-: 40 :-
against Chief Secretary Sindh (2013 SCMR 1752) and
Ali Azhar Khan Baloch vs. Province of Sindh (2015
SCMR 456), was not at all applicable or attracted in
their cases, however, through different Orders, they
have been non-suited by the departmental authority,
solely on this account.
2.
When confronted with this position, Mr. Kamran
Adil, AIG (Legal), Punjab, states that the departmental
authority will be ready to examine such contentions of
the petitioners in case representations are made in this
regard.
3.
With the above statement, the learned ASCs for
the review petitioners are satisfied, but they request for
some fixed time frame to avoid inordinate delay in such
exercise.
4.
In view of the above, these petitions are disposed
of with the observation that in case representations are
made by the petitioners before the competent authority,
that shall be heard and disposed of as expeditiously as
possible.”
The learned counsel next contended that the petitioners had
approached the departmental authorities in light of the above
observations, but as their representations did not receive any positive
response, they approached the PST and now their matters are pending
before the said forum. He further submitted that he will be satisfied if
directions are given for decision of these cases expeditiously before the
said forum.
57.
Mr. Mushtaq Ahmed, ASC appeared on behalf of petitioners
in Crl.O.P.No.121 to 124/2017 and contended that the petitioners were
protected under Para 111 of Shahid Pervaiz’s case (supra) and the
respondents have committed contempt of this Court by not implementing
the judgment dated 30.12.2016 and the petitioners despite having
Intra Court Appeals No.4 of 2017 etc.
-: 41 :-
judicial orders in their favour have been reverted/ demoted, therefore,
contempt proceedings be initiated against the Respondents.
58.
Mr. Qausain Faisal, learned ASC appeared for the petitioner
in Crl.O.P.No.217/2017 and contended that the appellant’s case was
protected under para 111 of Shahid Pervaiz’s case (supra) as the
petitioner had a judgment of the PST dated 28.02.2008 in Appeal No.
2549/2007 in his favour, whereby he was granted seniority as confirmed
Inspector w.e.f 21.04.1999 which was implemented and the said
judgment having not been assailed before any higher fora had attained
finality and was protected under the principle of past and closed
transaction. He prayed that contempt proceedings be initiated against
the Respondents for not implementing the judgment of this Court in
Shahid Pervaiz’s case (supra) in its letter and spirit.
59.
Yousaf Ali appeared in person in Crl.O.P.No.132/2017 and
submitted that his case was also protected as having been decided upto
the level of this Court and now when he has been reverted to the rank of
Head Constable, the department has committed contempt of the
judgment of this Court. He has prayed that contempt proceedings be
initiated against the Respondents for not implementing the judgment of
this Court in Shahid Pervaiz’s case (supra) in its letter and spirit.
60.
Mr. Shakil-ur-Rehman Khan, learned Advocate General
Punjab through Crl.R.P. No.42/2017 seeks review of judgment dated
29.03.2017 reported as Interim Report by AIG Legal for I.G, Punjab
(supra), whereby the view point of IGP, Punjab was considered as correct
as against that of the Home Department, Government of Punjab which
was of the view that all the persons having judicial decisions in their
favour were protected by the judgment of this Court in Shahid Pervaiz’s
case (supra). The learned law officer contended that when this Court in
Para Nos. 111 & 143 of Shahid Pervaiz’s case (supra) had directed that
Intra Court Appeals No.4 of 2017 etc.
-: 42 :-
the cases decided by the judicial forums will not be opened and will be
treated as past and closed, then how could the executive authority i.e.
IGP, Punjab review the judgments passed by the judicial fora? He next
submitted that although the Government of Punjab had no cavil with the
implementation of the judgment, but the remarks in Para 17 of the
judgment dated 29.03.2017 Interim Report by AIG Legal for I.G, Punjab
(Supra), may be expunged, wherein this Court was pleased to observe
that:
“17.
….…….However, now before us the Home
Department and the learned AG have taken a complete
u-turn and support the very same out of turn promotions
that were earlier opposed by them of the pretext of the
judgment in the Shahid Pervaiz case.”
61.
Kafayat
Ullah
Bajwa
appeared
in
person
in
Crl.R.P.No.68/2017 in Crl.O.P.No.60/2017. He seeks review of the
judgment dated 29.03.2017. He submitted that his case was protected
under Para No. 111 read with Para No.143 of the judgment dated
30.12.2016 and the three member Bench could not withdraw the
protection given by Para 111 in Shahid Pervaiz’s case (supra) by
endorsing the view point of IGP.
62.
Mr. Jamil Ahmed appeared in person in the two petitions i.e.
C.M.A.No.3347/2017 in C.R.P.No.Nil/2017 in C.M.A.No.687/2017 in
C.R.P.No.51/2016 and Crl.O.P.No.138/2017. Through the first one
which is an impleadment application, wherein after being impleaded he
seeks review of the judgment of this Court dated 29.03.2017 in the case
of Interim Report by AIG Legal for I.G, Punjab (Supra), whereas, through
the second one he has invoked the contempt jurisdiction of this Court
alleging that contempt of judgment dated 30.12.2016 has been
committed. He has submitted that the three member bench of this Court
Intra Court Appeals No.4 of 2017 etc.
-: 43 :-
vide judgment dated 29.03.2017 could not review the judgment dated
30.12.2016 passed by 5-Member Bench and moreover the IGP Punjab
had no authority whatsoever, under the law to review the orders of this
Court as the out of turn promotions earned through judicial orders were
protected under Para 111 of Shahid Pervaiz’s case (supra). He also
contended that the then IGP Punjab committed contempt of this Court
by not protecting his out of turn promotion and the IGP could not sit in
appeal over the judgment of this Court and review a matter which was
already decided by the High Court and protected through the judgment
of this Court. He prayed that contempt proceedings be initiated against
the Respondents for not implementing the judgment of this Court in
Shahid Pervaiz’s case (supra) in letter and spirit.
63.
Mr. Makhdoom Ali Khan, learned Sr.ASC appeared on behalf
of Respondent No.5 in ICA Nos.4, 6, 8, 18, 21 and 23 of 2017. He
contended that the main line of arguments before this Court by the
appellants / petitioners (in the Intra Court Appeals or the Contempt
Petitions) has been the gallant record of the appellants/petitioners and
that they were deservedly promoted out of turn. According to the learned
counsel this argument was already considered in Shahid Pervaiz’s case
(supra) and rejected and against that judgment no Review or Intra Court
Appeal is pending before this Court, therefore, that judgment has become
final. Learned counsel referred to Para 118 of Shahid Pervaiz’s case
(supra) relevant part of which is reproduced hereunder:
“118. The contention of the learned Counsel that the
effect of the aforesaid judgments which declares the
concept of out of turn promotion unconstitutional cannot
be extended to apply retrospectively on the cases where
law granting out of turn promotions was omitted, is
without force…………….. Thus, there is neither any
reason in principle nor any precedent which bars the
Intra Court Appeals No.4 of 2017 etc.
-: 44 :-
Courts from examining the provisions of a repealed
statute in a case pending before it on the touchstone of
its inconsistency with the provisions of the Constitution
or the Fundamental Rights, as enumerated in the
Constitution.”
Mr. Makhdoom Ali Khan, learned Sr.ASC next contended that the
argument regarding prospective or retrospective application of the
judgment and the principle of past and closed transactions was also
considered and rejected with a few carve outs and it was observed by this
Court that the officers, who are presently serving the department cannot
seek shelter under the doctrine of past and closed transactions. He
further submitted that this view of the Court was in line with the case of
Pensionary benefits of Judges reported as Application by Abdul Rehman
Farooq Pirzada v. Begum Nusrat Ali Gonda (PLD 2013 SC 829). Moreover,
he added that the learned Bench itself observed that there were two
carve outs from the principle of past and closed transactions and the
retrospective application of the judgment. These carve outs were the
employees who had retired or died. He relied on Para No. 119 of the
judgment in the Shahid Pervaiz’s case (supra).
64.
The
learned
counsel
next
contended
that
regarding
employees who are still in service, there was a further carve out in the
judgment and it was observed that the cases decided by the Service
Tribunal/Courts would be protected unless reviewed. He pointed out that
the cases decided by the Service Tribunal /Courts were mostly decided
on the basis of limitation and there were no orders on the merits of the
cases. He further contended that these cases decided by the judicial
forums were either decided on the ground of discrimination or merely
disposed of without discussing the merits of the case on the ground that
the petition/appeal had borne fruit as during pendency of the matter, the
Intra Court Appeals No.4 of 2017 etc.
-: 45 :-
employee was promoted out of turn by the department itself. He also
contended that the cases which were decided on the basis of
discrimination were again divided into two parts i.e. One, the cases
wherein the persons were granted out of turn promotion on the basis of a
gallant act in the same incident; and second, the cases wherein the
appellants were relying on each other’s case. He also added that in one
case all that the Service Tribunal said was to decide the case on merits
and nothing further, so all these cases did not belong to the category,
which could be said to be protected by a Court order.
65.
He further contended that when the report of IGP, Punjab
came up before the three member bench then there were two options i.e.
either the IGP had the power or did not have the power to review. In
either case it would end up giving meaning to the words “they shall
remain intact, unless reviewed”. The meaning which the 3-Member Bench
of this Court placed on this phrase was that the review had to take place
at the departmental level and this was the interpretation of the Bench
given in the judgment dated 29.03.2017.
66.
He lastly, contended that now even this Court can Suo Moto
review the matter and remove the exception given in Para 111 read with
Para 143 of the judgment dated 30.12.2016, whereby the out of turn
promotions granted in pursuance of any judicial order were protected. He
added that the Court would be absolutely justified to review it on account
of three reasons:
i. These cases were decided on the basis of discrimination with
some other person/officer and those persons themselves
have now been reverted;
ii. In some of the cases there was no protection given at all
because the matter was disposed of due to the reason that
the petition had borne fruit or it was directed that the case
should be decided on merits by the department; and
Intra Court Appeals No.4 of 2017 etc.
-: 46 :-
iii. The cases pertaining to the Sports category were never part
of the carve out either in para 111 or 119 of Shahid
Pervaiz’s case (supra).
The learned counsel while concluding has prayed that these
cases may be dismissed with costs.
67.
We have heard learned counsel for the parties and perused
the record with their able assistance.
68.
First of all we would like to deal with the argument of past
and closed transactions, which is the core issue in the instant matter. In
Shahid Pervaiz’s case (supra), this argument was also raised and
considered, wherein it was inter alia observed that:-
“116. As to the claim that the out of turn promotions are
covered by the doctrine of past and closed transaction,
the infirmity of the argument is self-evident. Sometimes
there are wrongs without individual victims while in
other cases there are identified individual victims. The
brunt of out of turn promotions is always borne by the
individual officers who were bypassed due to out of
turn promotions. The damaging effect on the careers of
deserving officers who suffered due to these out of turn
promotions continue during service and even after
retirement in terms of pensionary benefits. If the
beneficiaries of this illegal exercise are reverted to the
positions to which they would have been entitled to, on
their respective merit and promotion, on their turn, this
would immediately open up vistas of promotion for
those deserving officers who were earlier bypassed due
to out of turn promotions.
117. In the light of the rules and principles laid down
by this Court, we with respect are not inclined to agree
with the proposition that vested rights that were created
under a law subsequently declared unconstitutional by
this Court have attained finality under doctrine of past
and closed transaction, and that they are immune from
Intra Court Appeals No.4 of 2017 etc.
-: 47 :-
the application of the aforementioned judgments of this
Court. We have maintained that vested rights are
generated only under
a valid
and uncontested
instrument of law. An instrument that was still born or
treated by this Court as non est is barred from creating
any vested rights, let alone being protected under the
doctrine of past and closed transactions. We believe
that it is our duty to protect the rights and interests
created under a law and also to deny the enjoyment of
rights created under an invalid law. In the instant case,
the Petitioners are claiming the protection of rights that
were created under a law that has failed to pass the
test of constitutionality, as determined by this Court;
hence, they cannot take the plea of past and closed
transaction.”
However, in Para 111 it was further observed that, “……the cases
wherein ‘out of turn promotion’ was granted to individuals, pursuant to
the judgments of the High Court, Service Tribunal and the Supreme
Court. They shall remain intact unless reviewed.”
69.
Similarly, other argument advanced by the learned counsel
for the parties was that the out of turn promotions were earned when
section 8-A ibid was a valid law, and the rights created under the said
law are protected in light of Article 264(c) of the Constitution, moreover,
it was not the fault of the appellants/petitioners that they were promoted
out of turn, so they have vested rights which need to be protected. This
argument was also considered in Shahid Pervaiz’s case (supra), and it
was observed that:-
“118. The contention of the learned Counsel that the
effect of the aforesaid judgments which declares the
concept of out of turn promotion unconstitutional cannot
be extended to apply retrospectively on the cases where
law granting out of turn promotions was omitted, is
without force. Insofar as the issue of examining the
Intra Court Appeals No.4 of 2017 etc.
-: 48 :-
provisions of a repealed statute is concerned, such an
exercise is carried out by Courts in routine in the context
of section 6 of the General Clauses Act, as well as
Article 264 of the Constitution of Pakistan. Whenever
any right, obligation, privilege or liability acquired,
accrued or incurred under the repealed law is raised,
the Courts are necessarily required to examine the
provisions of the repealed statute. Thus, there is neither
any reason in principle nor any precedent which bars
the Courts from examining the provisions of a repealed
statute in a case pending before it on the touchstone of
its inconsistency with the provisions of the Constitution
or the Fundamental Rights, as enumerated in the
Constitution. Any other conclusion would lead to the
absurd consequences that while the statute remains on
the statute book, the Courts can examine its vires but
once it was repealed by a subsequent statute, its effect,
even if ex facie inconsistent with the Constitution or
Fundamental Rights goes beyond the realm of judicial
review. If such were the effect of repeal, then all that
would be required to create a protected class of
legislation is promulgation of patently unconstitutional
statutes creating rights in favour of certain interested
persons which though completely destructive of the
Fundamental Rights of others, stood protected behind
an impenetrable wall by the mere repeal of the statute
through such unconstitutional Act. Such would not only
be a fraud upon the statute but would be completely
destructive of the rule of law and constitutional
governance. Thus, there is no reason which compels the
Court to sustain such an absurd proposition. As and
when a repealed statute is invoked or raised in support
of any claim, right, office or act, before the Court, the
Court would always be entitled to examine its validity
on the touchstone of the Constitution and Fundamental
Rights. We have not been able to discover any instance
from our own history as well as that of other legal
systems with entrenched judicial review on the
Intra Court Appeals No.4 of 2017 etc.
-: 49 :-
touchstone of the Constitution, where the Courts have
refrained from examining the vires of the statute on the
mere ground that at the time of review such law stood
repealed by a subsequent statute.”
70.
With respect, we do not agree with the learned counsel for
the appellants/ petitioners that the exception created in Para 111 read
with Para 143 in the judgment of Shahid Pervaiz’s case (supra), is an
absolute one. It was observed that “the cases wherein ‘out of turn
promotion’ was granted to individuals, pursuant to the judgments of the
High Court, Service Tribunal and the Supreme Court. They shall remain
intact unless reviewed.” The Court in judgment dated 29.03.2017 has
taken the word “Review” in its general meaning, whereby the
Department/ IGP could also re-examine the individual cases. Seen from
another angle if we take it to mean that the review was to take place by
the judicial authorities then this itself would be contrary to the judgment
itself. In Para 119, it was observed that the employees who are still in
service cannot seek refuge in the doctrine of past and closed transaction.
It was held that:-
“119. ……………the case of an employee who had
enjoyed an out of turn promotion pursuant to a law
found to be ultra vires the Fundamental Rights, who
now stands retired and or died, it would constitute a
past and closed transaction inasmuch as it would be a
futile exercise to re-open the case of such an employee.
On the other hand, employees who were so promoted
under such a statute and who continue to remain in
service, would be liable to be restored to the position
that existed prior to the benefit conferred under the
statute found inconsistent with Fundamental Rights.
Indeed, once a statute has been declared as being
unconstitutional for any reason, all direct benefits
continuing to flow from the same are to be stopped.
Intra Court Appeals No.4 of 2017 etc.
-: 50 :-
Reference in this behalf may be made to the case of Dr.
Mobashir Hassan v. Federation of Pakistan (PLD 2010
SC 265)…..”
71.
When the very concept of out of turn promotion was declared
to be unconstitutional then the exception created in Para 111 could not
be said to be extended to the in service employees whether they had any
judicial verdict in their favour or not. They were not protected under the
doctrine of past and closed transaction as observed above. Moreover, no
such protection was provided in the cases of Contempt Proceedings
against the Chief Secretary Sindh (Supra) and Ali Azhar Khan Baloch
(Supra), which were required to be followed by all the provinces to
streamline the civil service structure. It would not be justified if any such
benefit were to be extended to the employees of the Punjab Police.
Although no one has sought review of this exception and the judgment in
Shahid Pervaiz’s case (supra) was already passed under the review
jurisdiction. Second review is barred by law and no party can now
approach this Court for a second review, however, this Court has
absolute power to re-visit its earlier judgments/orders by invoking its
Suo Motu Jurisdiction under Articles 184(3), 187 or 188 of the
Constitution. This Power is not dependant upon an application of any
party and it was so held in the case of Khalid Iqbal Vs. Mirza Khan
(PLD 2015 SC 50), in the following words:-
“12. The question of maintainability of the 2nd
Criminal Review Petition on the ground that this Court
has to do complete justice by invoking Article 187(1) of
the Constitution is also misconceived. The provisions of
Article 187(1) cannot be attracted in the present case,
as this Court has already recorded findings against the
petitioner by the Judgment dated 28-2-2001, against
which review was also dismissed and there was no ‘lis’
pending before this Court warranting exercise of its
Intra Court Appeals No.4 of 2017 etc.
-: 51 :-
jurisdiction under Article 187(1) of the Constitution,
besides Rule 9 of the Order XXVI of the Supreme Court
Rules, bars 2nd Review Petition. There is a distinction
between right of a party to approach the Court and
jurisdiction of the Court to do complete justice on its
own. Once this Court has finally determined the right of
the petitioner in the judgment dated 28-2-2001, holding
him guilty, the petitioner through 2nd Review Petition,
cannot re-agitate it. If such a Review Petition is allowed
to be entertained, it will land in a situation where
findings of this Court against a party will never attain
finality.
13.
This, however, does not mean that the jurisdiction
of this Court is barred by any restriction placed by the
Constitution; there is no Article in the Constitution which
imposes any restriction or bar on this Court to revisit its
earlier decision or even to depart from them, nor the
doctrine of stare decisis will come in its way so long as
revisiting of the judgment is warranted, in view of the
significant impact on the fundamental rights of citizens
or in the interest of public good. ... …
On perusal of the paragraphs referred to hereinabove,
we can safely reach a conclusion that this Court has
absolute powers to re-visit, to review and or to set aside
its earlier judgments/orders by invoking its Suo Motu
Jurisdiction under Articles 184(3), 187 or 188 of the
Constitution. The Powers of this Court to exercise its
inherent jurisdiction under the above referred Articles of
the Constitution are not dependant upon an application
of a party.”
The same view has been reiterated in a recent judgment dated
5.1.2018 passed in the case of Syed Shabbar Raza Rizvi Vs.
Federation of Pakistan (Const.P.No.1/2016).
Intra Court Appeals No.4 of 2017 etc.
-: 52 :-
72.
The acts of gallantry in no way justify out of turn
promotions. However, in order to increase the morale of the police
personnel, we support the proposition that on exhibiting exceptional acts
of gallantry, they should be given awards and rewards on merits and this
concept is in line with the spirit of Article 259 (2) of the Constitution.
73.
The contention of Khawaja Haris Ahmad, learned Sr.ASC
that in Para No. 123 of Shahid Pervaiz’s case (supra) this Court had
wrongly observed that “we have already declared void ab initio the
legislative instruments that provided for out of turn promotions.” because
nowhere in the earlier judgment was such a declaration made, is also
without force. Suffice it to say that in Para 104 of Shahid Pervaiz’ Case
(Supra), it was observed that:
“104. Through the successions of its orders, this Court
has consistently maintained the unconstitutionality,
and the consequential nullity of the instruments
providing for the out of turn promotion.”
Moreover, in Para 129 of the judgment of Ali Azhar Khan Baloch’s
case (supra), this Court was pleased to observe that when any legislative
instrument is declared unconstitutional, the effect of such declaration is
that such legislative instrument becomes void ab initio. The relevant part
of Para 129 is being reproduced hereunder:
“129. ……………….. Now, it is a settled law of this Court
that no right or obligation can accrue under an
unconstitutional law. Once this Court has declared a
legislative instrument as being unconstitutional, the
effect of such declaration is that such legislative
instrument becomes void ab initio, devoid of any force of
law, neither can it impose any obligation, nor can it
expose anyone to any liability.”
Intra Court Appeals No.4 of 2017 etc.
-: 53 :-
74.
Regarding the Sports Policy it has already been observed in
Shahid Pervaiz’s case (supra) that this policy to the extent of
accelerated promotions is not sustainable, being violative of “the
provisions of Punjab Civil Servants Act, 1974, and the rules framed
thereunder, and which Act itself is created pursuant to the provisions of
Articles 240 and 242 of the Constitution”. However, it was further
observed in the said judgment that “it would be open to the government to
frame rules providing a Sports Group within police in order to encourage
and incentivize sports, which will not form part of the regular police force.
In other words, the members of Sports Group shall not be assigned field
posting, but will be restricted to their specialized Group.” We are in
agreement with these observations.
75.
As far as the Review Petition filed by the Advocate General
Punjab for expungement of remarks in Para 17 of the Interim Report by
AIG Legal for I.G, Punjab (2017 SCMR 868) is concerned, it is clear that
the Court had rightly observed in judgment dated 29.03.2017 that “It
should also not be lost sight of that the competent authority/the IG had
decided not to grant out of turn promotion to the officials/officers who then
went to court/tribunal. At that juncture the Government of Punjab had
resisted these cases, but, had belatedly filed appeals before this Court
against the orders/judgments granting out of turn promotions. However,
now before us the Home Department and the learned AG have taken a
complete u-turn and support the very same out of turn promotions that
were earlier opposed by them on the pretext of the judgment in the Shahid
Pervaiz case….”. The learned Advocate General Punjab has placed no
material on record to show that such observations were incorrect rather
he has objected to the words “u-turn” used in these observations. These
words were used in their common meaning and when there is no denial
Intra Court Appeals No.4 of 2017 etc.
-: 54 :-
of the fact that the petitions/appeals filed by the Government of Punjab
were mostly dismissed by this Court on the point of limitation, therefore,
we do not find any reason to expunge these remarks.
76.
Keeping in view the above we hold as under:-
i.
The exception, created in para No.111 of the Shahid
Pervaiz’s Case (Supra) read with para No.143 thereof,
wherein the protection was extended to the category of
cases “wherein ‘out of turn promotion’ was granted to
individuals, pursuant to the judgments of the High
Court, Service Tribunal and the Supreme Court”, is
hereby withdrawn by exercising Suo Moto Review
Jurisdiction;
ii.
The Intra Court Appeals filed against judgment dated
29.03.2017 and the Criminal Original Petitions filed
for violation of judgment dated 30.12.2016 are
dismissed. Furthermore, the Review Petitions filed
against
judgment
dated
29.03.2017
are
also
dismissed. As the main cases have been decided
hereinabove, the applications for impleadment as party
are dismissed;
iii.
The Criminal Original Petition No. 96/2017 filed for
violation of order dated 08.12.2016 is disposed of with
the direction that the Punjab Service Tribunal shall
proceed to decide the cases of the petitioners pending
before it expeditiously, preferably within a period of
two months of the decision of this case;
iv.
It would be open to the government to frame rules
providing a Sports Group within the police in order to
encourage sports but it will not form part of the
regular police force and the members of Sports Group
shall not be assigned field posting, and will only be
restricted to their specialized Group; as already
observed in Shahid Pervaiz’s case (supra);
Intra Court Appeals No.4 of 2017 etc.
-: 55 :-
v.
The I.G.P, Punjab, the Home Secretary, Punjab, and
the Secretary, Establishment Division, are directed to
comply with the judgment, by fixing the seniority of all
the Police Officers/Officials who were given out of turn
promotions along with their batch-mates, as if they
were never given out of turn promotion;
vi.
For the purpose of compliance of this judgment,
necessary D.P.C/Board, as the case may be, shall be
immediately
held
and
a
compliance
report
be
submitted to the Registrar of this Court for our perusal
in Chambers within a period of one month. The
Advocate General, Punjab, and the learned Attorney
General for Pakistan shall communicate the directives
of this Court to the relevant authorities.
77.
Before parting with this judgment, we acknowledge the
assistance rendered by all the learned counsels for the parties and the
learned Law Officer on the issue at hand.
78.
Criminal Original Petitions No.167 and 214 of 2017 relate to
the province of Balochistan, wherein it has been complained that the
judgments of this Court dated 26.01.2016 and 30.12.2016 have not been
implemented in letter and spirit in the Province of Balochistan. The same
are, therefore, separated and office is directed to fix them before the
appropriate Bench.
CHIEF JUSTICE
JUDGE
JUDGE
JUDGE
JUDGE
Announced in open Court
on 13.5.2018 at Islamabad
Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Sardar Tariq Masood
Mr. Justice Amin-ud-Din Khan
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Syed Hasan Azhar Rizvi
Ms. Justice Musarrat Hilali
Mr. Justice Irfan Saadat Khan
1. I.C.A.5/2023 IN Const.P.24/2023
2. I.C.A.6/2023 IN Const.P.24/2023
3. I.C.A.7/2023 IN Const.P.25/2023
4. I.C.A.8/2023 IN Const.P.24/2023
5. I.C.A.9/2023 IN Const.P.26/2023
6. I.C.A.10/2023 IN Const.P.26/2023
7. I.C.A.11/2023 IN Const.P.30/2023
8. I.C.A.12/2023 IN Const.P.35/2023
9. I.C.A.13/2023 IN Const.P.27/2023
10. I.C.A.14/2023 IN Const.P.24/2023
11. I.C.A.15/2023 IN Const.P.35/2023
12. I.C.A.16/2023 IN Const.P.26/2023
13. I.C.A.17/2023 IN Const.P.24/2023
14. I.C.A.18/2023 IN Const.P.30/2023
15. I.C.A.19/2023 IN Const.P.25/2023
16. I.C.A.20/2023 IN Const.P.25/2023
17. I.C.A.21/2023 IN Const.P.28/2023
18. I.C.A.22/2023 IN Const.P.25/2023
19. I.C.A.23/2023 IN Const.P.30/2023
20. I.C.A.24/2023 IN Const.P.26/2023
21. I.C.A.25/2023 IN Const.P.28/2023
Shuhada Forum, Balochistan through its Patron in
Chief, Nawabzada Jamal Raisani, Quetta Cantt. and
others
…Appellants
Versus
Justice (R) Jawwad S. Khawaja and others
…Respondents
For the Appellants:
Mr. Mansoor Usman Awan, AGP
Ch. Aamir Rehman, Addl. AGP
Malik Javed Iqbal Wains, Addl. AGP
Raja Muhammad Shafqat Abbasi, DAG
Mr. Khalid Ishaq, AG, Pb
Mr. Baleegh-uz-Zaman Chaudhry, Addl. AG, Pb
Malik Waseem Mumtaz, Addl. AG, Pb
Mr. Khurram Shahzad, Addl. AG, Pb
Mr. Ayaz Khan Swati, Addl. AG, Balochistan
Khawaja Haris Ahmad, Sr. ASC
Mr. Yaser Aman Khan, ASC
Mr. Shumail Butt, ASC
Mr. Sikandar Bashir Mohmand, ASC
Mr. Tariq Aziz, AOR
ICAs 5-25/23
2
Mr. Jawaid Masood Tahir Bhatti, AOR
Syed Rifaqat Hussain Shah, AOR
Ms. Imrana Parveen Baluch, AOR
Mr. Zahid Yousaf, AOR
Mr. Anis Muhammad Shahzad, AOR
For the Respondents:
Sardar M. Latif Khan Khosa, Sr. ASC
Ch. Aitzaz Ahsan, Sr. ASC
Mr. Abid S. Zuberi, ASC
Mr. Faisal Siddiqui, ASC
Mr. Salman Akram Raja, ASC
Mr. Salahuddin, ASC
Ms. Bushra Qamar, ASC
Mr. M. Arif Ansari, ASC
Syed Ali Imran, ASC
Ms. Samia Faiz Durrani, ASC
Mr. Rafaqat Islam, ASC
Sardar Shahbaz Ali Khosa, ASC
Mr. Muqtadar Akhtar Shabbir, ASC
Mr. Uzair Karamat Bhandari, ASC
(via video link from Lahore)
Date of Hearing:
13.12.2023
O R D E R
These Intra Court Appeals filed under Section 5 of the Supreme Court (Practice
and Procedure) Act, 2023 are directed against the impugned Order dated
23.10.2023 passed by the learned bench of this Court in Constitution Petition
Nos.24, 25, 26, 27, 28, 30 & 35 of 2023, whereby, for detailed reasons to be
recorded later, the aforesaid Constitution Petitions were decided in the
following terms:
“ORDER OF THE COURT
For detailed reasons to be recorded later, and subject to such
amplification and/or explanation therein as is considered
appropriate, these petitions are decided in the following terms:
i. It is hereby declared by Mr. Justice Ijaz ul Ahsan, Mr. Justice
Munib Akhtar, Mr. Justice Sayyed Mazahar Ali Akbar Naqvi and
Mrs. Justice Ayesha A. Malik that clause (d) of subsection (1) of
Section 2 of the Pakistan Army Act, 1952 (in both of its sub
clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act
are ultra vires the Constitution and of no legal effect.
ii. Without prejudice to the generality of the foregoing the trials
of civilians and accused persons, being around 103 persons who
were identified in the list provided to the Court by the learned
ICAs 5-25/23
3
Attorney General for Pakistan by way of CMA No.5327 of 2023 in
Constitution Petition No.24 of 2023 and all other persons who
are now or may at any time be similarly placed in relation to the
events arising from and out of 9th and 10th May, 2023 shall be
tried by Criminal Courts of competent jurisdiction established
under the ordinary and / or special law of the land in relation to
such offences of which they may stand accused.
iii. It is further declared that any action or proceedings under
the Army Act in respect of the aforesaid persons or any other
persons so similarly placed (including but not limited to trial by
Court Martial) are and would be of no legal effect.
iv. Mr. Justice Yahya Afridi reserves judgment as to para (i)
above, but joins the other members of the Bench as regards
paras (ii) and (iii)”
2. The learned counsel for the appellants argued, inter alia, that on
09.05.2023, numerous military installations and establishments throughout
the country faced targeted attacks for which several First Information Reports
(FIRs) were lodged at different Police Stations. Initially, in some FIRs, the
offences covered under the Pakistan Army Act, 1952 (“Army Act”) were not
mentioned, but subsequently the said offences were also added for the trial of
the accused persons. According to the learned counsel, 103 persons have been
found to be involved in the offences under the Army Act, and were taken into
custody in accordance with law and procedure. It was further contended that
the detailed reasons in support of the short order have not been released by the
learned bench so far, but keeping in mind the urgency, and to avoid the rigors
of limitation, the present Intra Court Appeals have been filed without prejudice
to the right of filing amended memo of appeals upon the detailed reasons being
released. It was further averred that, in the light of sub-clause (a) to clause (3)
of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973
(“Constitution”), the laws relating to members of the Armed Forces for the
purpose of ensuring the proper discharge of their duties or the maintenance of
discipline among them are not susceptible to be adjudged on the touchstone of
the Fundamental Rights as contained in the Constitution. It was further
contended that while declaring clause (d) of sub-section (1) of Section 2 of the
Army Act (in both of its sub-clauses (i) and (ii)), and sub-section (4) of Section
59 of the said Act as ultra vires the Constitution, the learned bench has
deviated from the ratio of the judgment rendered by this Court in Brig. (Retd.)
F. B. Ali's case (infra) whereby the provisions of the Army Act were declared
intra vires the Constitution, hence there was no justification for holding clause
(d) of sub-section (1) of Section 2 of the Army Act (in both its sub-clauses (i)
and (ii)), and sub- section (4) of Section 59 of the said Act ultra vires the
ICAs 5-25/23
4
Constitution. It was further argued that the courts under the Army Act do not
form part of the judicial hierarchy contemplated by Articles 175 and 203 of the
Constitution and, as such, neither the provisions of clause (3) of Article 175 of
the Constitution, nor those of Article 203 are applicable to, or have any
relevance to the said Courts. It was further contended that the process of trial
under the Army Act is consistent with the recognized principles of criminal
justice as held in Brig. (Retd.) F. B. Ali's case (PLD 1975 SC 506), Shahida
Zahir Abbasi's case (PLD 1996 SC 632), and the majority judgment of this
Court rendered in the case of District Bar Rawalpindi case (PLD 2015 SC
401). It was further contended that clause 2 (d) was inserted into the Army Act
vide Section 2 of the Defence Services Laws Amendment Ordinance, 1967
which is protected under Article 268 of the Constitution. It was further argued
that due to the striking down of the law in question by dint of the impugned
order, no action can be taken against the hardcore criminals and terrorists
involved in the attacks on army installations and/or against the martyrdom of
innocent civilians and personnel of the armed forces who are devoting and
sacrificing their precious lives to combating the menace of terrorism. He further
argued that even in the present situation, no action can be taken against the
persons accused of espionage. In the end, all the counsel for the appellants
collectively requested that the impugned Order may be suspended till further
orders, because the detailed reasons have not been released.
3. Although it is the first date of hearing and no notice has been issued to the
respondents, some of the respondents are represented by their counsel who
addressed their preliminary arguments. They have insisted that the detailed
reasons be allowed to be released by the learned bench of this Court before the
passing of any interim order(s) in these Intra Court Appeals, but it is an
admitted position that the detailed reasons have not been released hitherto to
expound and amplify the reasons for striking down the law in question.
4. Issue notice to the respondents for a date that may be fixed by the office in
the third week of January 2024. Office is further directed to append the
detailed reasons, if released by the learned bench initially seized of the matter,
on the next date of hearing.
CMAs No.10534 to 10551 of 2023
Notice. Since the appellants have raised various questions of law which require
consideration, therefore till the next date of hearing, with the majority of five to
ICAs 5-25/23
5
one (the latter being Musarrat Hilali-J, who only issued notice on the stay
applications and main appeals), the operation of the impugned Order striking
down clause (d) of subsection (1) of Section 2 of the Army Act (in both of its sub
clauses (i) & (ii)), and subsection (4) of Section 59 of the said Act as being ultra
vires the Constitution, is suspended subject to the condition that no final
judgment shall be passed against the 103 accused persons by the Military
Courts.
The Civil Misc. Application No.10514/2023 filed by respondent No.1 in
ICA.No.5/2023 for reconstitution of bench and Civil Misc. Application
No.10522/2023 filed by respondent Nos.1 to 5 in ICA No.10/2023 for
broadcasting/live streaming of the Court proceedings of the instant Intra Court
Appeals will be heard on the next date of hearing.
Sardar Tariq Masood, J.
Amin-ud-Din Khan, J.
Muhammad Ali Mazhar, J.
Syed Hasan Azhar Rizvi, J.
Musarrat Hilali, J.
Irfan Saadat Khan, J.
ISLAMABAD
13th December, 2023
“Approved for reporting”
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IN THE SUPREME COURT OF PAKISTAN
(Appellate jurisdiction)
Present:
Mr. Justice Mian Saqib Nisar, HCJ
Mr. Justice Umar Ata Bandial
Mr. Justice Ijaz ul Ahsan
Mr. Justice Sajjad Ali Shah
Mr. Justice Munib Akhtar
Intra Court Appeal No. 07 of 2018 in
Criminal Original Petition No, 09 of 2018
(Against the order dated 2.8.2018 passed by this Court
in Crl. Original Petition No. 09 of 2018)
Talal Ahmed Chaudhry.
… Appellant(s)
VERSUS
The State.
… Respondent(s)
For the Appellant(s)
:
Mr. Kamran Murtaza, Sr. ASC a/w
Talal Ahmed Chaudhry.
For the Respondent(s)
:
Ch. Aamir Rehman, Addl. Attorney General.
Date of hearing
:
09.10.2018
ORDER
Sajjad Ali Shah, J. Through the instant appeal under Section 19 of
the Contempt of Court Ordinance, 2003, the appellant has impugned the order of
this Court passed by a three-Member Bench whereby the appellant, after being put
to trial, was convicted under Sections 3 and 5 of the said Ordinance of 2003 and
was sentenced to suffer imprisonment till the rising of the Court with a fine of
Rs.100,000/-.
2.
Briefly, the appellant who at the relevant time was ‘Minister of State’
of the ruling Party PML(N), in his public speeches delivered on 24.1.2018 and
27.1.2018 duly telecast by different television channels, made the following
derogatory remarks against the Supreme Court and its Judges:-
’’
: ىو � ��ا24.01.2018
ىر�� ل�:
� ںو�آ � ں� legitimacy
�ز ب��� ہو � ےد � �ر ������ ہو �� � ں� � ىد
� �ر��� � ن���� � � �� � ت� � �� � �آ � � � �ر ������ ۔� ىد �
I.C.A. No.7/2018
2
� � �
� ������ ۔� ہر � �ر ������۔� � � �ز ������ � ‘‘
’’ : ىو � �27.01.2018
ب� � ىر�� ل� � � � � ن � �ا�ا�:
��ا� �ا� � � � � �� � سا ۔� سا �� ود ۔�� � � ۔��ا� �ا� � � ��� ں�
��� � رود ��ا ��� ں� ۔� �� �� � � � � ��ا� جآ � �� � ��� � �
� سا �� � نا �� زا� ں� ،� �� ے� ��� � وا � � � ں�و � ہرادا �وا ا���� � ��
زا� ےو �� ، � �� ��ا � ح� سا � ۔� �د � ف�ا � ۔و� ������ � ل� � ��ا�
� �� زا� � � �� �� ���زو � � سا روا ے� �� زا� ��� � ىد� �د �
۔۔۔۔۔۔ ۔� � �� � روا �� � �ا‘‘
3.
Through a formal note the Registrar of this Court brought the
contents of the afore-stated speeches to the attention of the Hon’ble Chief Justice of
Pakistan. The Hon’ble Chief Justice initiated Suo Moto proceedings in Contempt of
Court in terms of Article 204 of the Constitution of Islamic Republic of Pakistan,
1973 and directed to place the matter before a Bench of this Court for hearing
accordingly.
4.
Consequently the appellant was issued a show cause notice on
10.2.2018 to which he responded on 22.2.2018 by filing a written response which
was considered by the Court on 8.3.2018. After finding the same to be
unsatisfactory, a formal charge was framed which was read over to him on
15.3.2018 to which he pleaded “not guilty” and thereafter he was put to trial.
5.
The prosecution examined only one witness namely Haji Adam son
of Haji Sahib Khan, Director General (Monitoring) Pakistan Electronic Media
Regulatory Authority (PEMRA) who produced a letter, transcript and CD
containing video clips as Exhibits: P-1, P-2 and P-3. The witness, thereafter, was
duly cross examined by Mr. Kamran Murtaza Sr. ASC for the appellant. Thereafter
the statement of the appellant under Section 342 Cr.P.C. was also recorded. The
appellant, however, denied examination under oath according to Section 340(2)
Cr.P.C. The appellant thereafter produced five witnesses in his defence namely,
I.C.A. No.7/2018
3
Asrar Ahmed Khan as DW-1, Musaddiq Malik as DW-2, Muhammad Tahir as
DW-3, Atta Muhammad as DW-4 and Imtiaz Khan as DW-5. These witnesses were
duly cross examined by the Additional Attorney General for Pakistan. After
completion of evidence and hearing the parties, the appellant was convicted and
sentenced as mentioned above.
6.
Mr. Kamran Murtaza learned Sr. ASC appearing for the appellant
submitted that the appellant deeply regrets his words and submits an unconditional
apology if the utterances on 24.1.2018 and 27.1.2018 amounted to contempt of this
Court. It was contended that the Courts had always shown magnanimity and
restraint in taking stern action against alleged contemnors. Therefore, since the
appellant has thrown himself at the mercy of this Court and begged pardon, a
similar treatment ought to be given to him by setting aside his sentence which in
fact has disqualified him under Article 63(1)(g) by debarring him from taking part
in politics for a period of five years. Mr. Kamran Murtaza while citing the
judgment of this Court in Contempt proceedings against Imran Khan, Chairman,
Pakistan Tehreek-i-Insaf (PLD 2014 SC 367) contends that in the said case this
Court has held that proceedings of such nature are to be viewed on the golden
principles of forgiveness, remission and pardon enshrined in Islam, which is one of
the hallmarks of the Islamic system of dispensation of justice. A prudent
Qazi/Judge entrusted with the onerous task of dispensation of justice is supposed to
be composed and cool minded so as to tactfully deal with such petty notions and
remarks, which might have been made in good faith or due to a slip of the tongue.
Moreover, just and fair remarks made unconsciously or under the tide of
momentary emotions, in somewhat harsh language, are not to be readily taken in
the negative sense, but as means for soul-searching and improvement in the system.
Learned counsel further relied on paragraph 5 of the judgment of this court
delivered in the case of Riaz Hanif Rahi vs. Saeed-uz-Zaman Siddiqui (2011 SCMR
948) wherein it was observed that where a personal opinion is not derogatory to the
I.C.A. No.7/2018
4
judiciary and the viewpoint does not ridicule the judiciary, all fair comments are
rather a healthy sign of the public reposing trust owed to its judicial system. He
further referred to the case of General (Retd.) Mirza Aslam Baig (PLD 1993 SC
310) to contend that the Court in this case was of the view that though contempt
was established, severe admonition and reprimand was sufficient to retrieve the
honor and dignity of the Court and the purpose and object of the law of contempt
stood satisfied. Lastly, counsel relied on the case of Habibul Wahab Elkheiri vs.
Khan Abdul Wali Khan and 4 others (PLD 1978 SC 85) and contended that in
similar circumstances Mr. Abdul Wali Khan had made very offensive remarks but
the Court had considered his statement in the context in which it was made and
came to the conclusion that he had no intention of maligning the Court or
attributing motives to any of the Judges. His apology was accepted, and it was held
that the dignity and the authority of the Court has been duly vindicated and that it
was not necessary to proceed any further in the matter. Mr. Kamran Murtaza, in the
circumstances, contends that the appellant had no intention of maligning the Courts
or ridiculing any of the Judges through utterances made on 24.1.2018 and
27.1.2018, therefore, in view of the principles laid down by this Court in the
referred judgments, the appellant ought to be forgiven and pardoned.
7.
Before we examine the submission and the worth of the apology so
tendered, we would like to reiterate the consistent view of this Court that the real
object and the ultimate purpose in the mind of the Court while initiating contempt
proceedings is not to afford protection to the judges from imputation to which they
might be exposed personally as individuals or to satisfy the ego of a judge by
punishing such person, instead, it is to maintain and strengthen the confidence of
the public in general and the litigants, in the Court and to vindicate the honor and
dignity of the Court to ensure that the administration of justice is not diminished or
weakened. On the other hand, it is also true that Courts in the matter of contempt
tend to show grace and magnanimity towards the alleged contemnor in cases where
I.C.A. No.7/2018
5
the contemnor without justifying his action/statement shows his repentance,
remorse and at the earliest opportunity submits an unconditional apology by
throwing himself at the mercy of the Courts. However, this is not a rule of thumb
and cannot be applied to every case as an apology tendered does not automatically
purge the contemnor of the contempt and may not necessarily be accepted unless
the Court from the surrounding circumstances is satisfied about the bona fide of the
contemnor.
8.
Coming to the submission on the issue in hand, it has not been
disputed or denied before us that the offending words uttered by the appellant in his
speeches made on 24.01.2018 and 27.01.2018, the gists whereof have been
reproduced above, were prejudicial to the integrity and independence of the
judiciary of Pakistan and surely detrimental to the safe administration of justice
beside tending to bring this Court and the judges of this Court into disrespect and
ridicule. It is important to note that the case law referred to by the learned counsel
for the appellant in order to plead that the Courts in contempt proceedings have
always been showing magnanimity and restraint and avoid taking any stern action
against the alleged contemnor who begs an apology by throwing himself at the
mercy of the Court pertain to instances where this Court has come to the conclusion
that the offending words/speech were made in good faith without any intention of
scandalizing the Court or to bring its judges into disrespect, contempt or to abuse
the judiciary but were made to project a genuine issue, however the selection of
words in projecting their point of view was improper. It is, therefore, important that
before we consider the apology tendered at the appellate stage and that too orally
through an advocate, the circumstance in which the derogatory and insulting
remarks against the judges of this Court and the judiciary as an institution were
made be examined.
9.
It is very important to note that the offending speech was made by the
appellant after this Court had pronounced its verdict in the case of Imran Ahmed
I.C.A. No.7/2018
6
Khan Niazi vs. Muhammad Nawaz Sharif (PLD 2017 SC 692) and had declared that
Mian Muhammad Nawaz Sharif the then Prime Minister of Pakistan was not honest
in terms of Section 99(f) of the Representation of the People Act, 1976 (ROPA)
and Article 62(1)(f) of the Constitution and, therefore, disqualified to be a Member
of the Parliament, soon thereafter some of the Members of the ruling party (PML-
N) in order to show their allegiance with Mian Muhammad Nawaz Sharif started a
campaign of maligning the Office of the Hon’ble Chief Justice of Pakistan and the
Judges of this Court in public gatherings and on electronic media. The appellant
being one such firebrand speaker has deliberately and intentionally in the stated
background, through the stated utterances, attacked the integrity and independence
of the judiciary to please and support his leader with the sole intent to ridicule and
lower the respect and to shake the confidence of people at large from the safe
administration of justice. This conduct compelled the Court to initiate contempt
proceedings against him for undermining the authority, integrity and independence
of this Court. The tenor and content of the speech of the appellant clearly shows
that it was designed and worded to scandalize the Court and to bring the Hon’ble
Judges of this Court into hatred, ridicule or contempt. In the circumstance, the
utterance made by the appellant can by no stretch of imagination be termed as
bona-fide or to highlight a genuine issue to earn him a lenient view in the light of
the dicta laid down by this Court in the cases referred to by the learned ASC for the
appellant.
10.
Besides, an apology consists of acknowledgement of commission of
contempt and an unequivocal expression of regret for such commission whereas in
the instant case the appellant throughout has been trying to justify his offending
statement by taking different pleas and even the apology so tendered was in case
his justification with regard to the offending statement was not accepted.
Unfortunately we see neither genuine remorse nor sincerity on the apology which
in the instant case is being used by the Appellant to get out of a difficult situation
I.C.A. No.7/2018
7
that he finds himself in for having used intemperate and contemptuous language
against the highest Court of the country and the Judges.
11.
Additionally, the apology so tendered on behalf of the appellant
cannot be accepted as it does not meet the requisite criteria laid down by a five-
Member Bench of this Court in the case of Syed Masroor Ahsan and others vs.
Ardeshir Cowasjee and others (PLD 1998 SC 823) which has been followed in a
number of cases including Baz Muhammad Kakar and others vs. Federation of
Pakistan through Ministry of Law & Justice and others (PLD 2012 SC 923) and
Ch. Iftikhar Ahmed, IG Islamabad and others vs. the State (2018 SCMR 1385)
consisting of the same number of Judges, in the following terms:-
“96. It is, therefore, quite apparent that if apology is tendered it
would not automatically purge the contemnor from the contempt
and may not necessarily be accepted unless the Court from
surrounding circumstances is satisfied about his bona fides. The
acceptance or rejection of apology, therefore, depends upon the
volume and nature of contempt allegedly committed. However,
prepondered view revolves around the bona fides of the
contemnor and satisfaction of the Court about genuineness of the
apology being tendered.
97. Some of the fundamentals for accepting the apology can be
enumerated as:
(a) The apology must be offered at the earlier stage of the
contempt proceedings and may not be postponed till fag-
end of the proceedings.
(b) The apology must be unconditional, unreserved and
unqualified.
(c) The apology should not only appear but must also
satisfactorily represent sincere and genuine remorse and
should not be half-hearted or mere formality.
(d) The contemnor should not endeavour to justify his
conduct”.
I.C.A. No.7/2018
8
12.
In the circumstances, notwithstanding the fact that the apology
tendered by the appellant does not meet the required standard laid down by this
Court or lacks bona fide, we are of the view that the contempt committed by the
appellant is so grave that the apology is not sufficient to purge the contempt.
13.
On merits, learned counsel for the appellant, without denying or
disputing the contents of the speeches as reproduced above, contends that the
proceedings initiated on the basis of such utterances are in gross violations of
Article 19 of the Constitution which guarantees freedom of speech to the citizen.
Therefore, the appellant should not be punished under the Ordinance of 2003.
14.
The right to freedom of speech and expression as guaranteed under
Article 19 of the Constitution admittedly is not absolute, unlimited or unfettered but
subject to reasonable restrictions imposed by the law and one such restriction so
imposed is in relation to the contempt of Court. The protective cover so provided to
freedom of speech and expression cannot be stretched to cover a speech, comment
or publication which may tend to influence, impede, embarrass or obstruct the
administration of justice, scandalizes the Court and brings the Hon’ble Judges of
this Court into hatred, ridicule or contempt. The argument justifying offending
remarks used against the judiciary by taking the shield of freedom of speech and
expression as guaranteed under Article 19 of the Constitution was considered and
turned down by the three-Member Bench of this Court in the order impugned by
holding that:-
“It is undeniable that every citizen has been conferred right of
freedom of speech and expression and such right has been
conferred in Article 19 of the Constitution, which is one of the
fundamental right provided in Para-II of the Constitution.
However, such freedom of speech and expression given to every
citizen has been made subject to reasonable restrictions imposed
by law in the interest of the glory of Islam or the integrity,
security or defence of Pakistan or any part thereof, friendly
relations with the foreign States, public order, decency or
I.C.A. No.7/2018
9
morality, or in relation to contempt of Court, [commission of] or
incitement of an offence. Thus it is apparent that contempt of
Court is one of the law to which the fundamental right of every
citizen to freedom of speech and expression has been subjected
to. In exercising the fundamental right of freedom of speech and
freedom of expression, if a citizen impinges upon and
transgresses the reasonable restrictions of law of contempt of
Court, he will make himself culpable and liable to be proceeded
against under the contempt of Court Law. The rationale of
imposition of conditions on freedom of speech and expression as
underlined by the Constitution itself is that the citizens while
exercising such right have to maintain decency and decorum and
not in a manner, which will infringe upon the rights of other
citizens or transgress the mandate of law in relation to the
working of State Institutions. Further the rationale of making of
law of contempt by the Constitution itself and by promulgation of
the Ordinance is as a matter of public policy to secure the law of
the land which it is the duty of the Court to uphold and to secure
the judges and the Court from being scandalized into hatred or
ridicule. The contempt law thus is meant basically to maintain
the efficacy of the Courts of justice and to secure public
confidence in the administration of justice”.
15.
The reasoning reproduced above appears to be in consonance with the
consistent view of this Court taken by a five-Member Bench in the case of Syed
Masroor Ahsan (supra), again followed in number of cases including in the case of
Baz Muhammad Kakar (supra), in the following terms:-
“Fundamental
rights
wherever
exercised,
impose
corresponding restrictions for ensuring protection of collective
benefit and safety including preservation of the society and its
morals. Absolute liberty of an individual for doing what he
pleases even with regard to innocent matters can sometimes be
detrimental. Therefore, object of the exercise of rights should be
subservient to common good. Observations made in Atkin v.
Children Hospital (1923) 261 US 555) can be referred. Bare
perusal of Article 19 of the Constitution postulates reasonable
I.C.A. No.7/2018
10
restraints whereby citizen while exercising his right of freedom
of speech or expression and freedom of Press is prohibited to
conduct himself in any manner which may violate security or
defence of Pakistan or part thereof, or could affect friendly
relations with Foreign States, in the same way citizen under
freedom clause is bound to ensure that his freedom does not
strike against public order, decency or morality or provisions
regarding contempt of Court. The right of freedom further
prohibits incitement of citizen for committing any offence.
Therefore, owning the responsibility of honouring the dictates
of Constitution the Supreme Law of the country firmly embodied
in Article 19 of the Constitution, every citizen while making
speech, expressing himself or causing publication in the press is
obligated to refrain from all such acts which may be calculated
to constitute contempt of Court. For emphasis we may impress
upon normal circumstance, which under the Constitution
disdains
immoral,
indecent,
anti-State,
or
un-Islamic
Publications, expressions or speeches. It equally creates an
obligation for the citizen, while exercising his right to ensure
that his comment with regard to conduct of a Judge or the
Court should not be violative of law. From scrutiny of the
precedent case-law and all relevant factors coupled with
fundamental rights, the Authors of editorial/articles, Publishers,
Editors of newspapers or journals or Advocates have bounden
duty to avoid from using strikingly pungent language which
smacks of loud bitterness or aimed at emitting intemperate
expression
or
abnormal
understanding
suggesting
scandalization of the Court or cause obstruction to the
impartial administration of justice”.
16.
Examining the offending speeches on the touch stone of the law laid
down by this Court in the judgments cited above, we are of the considered view
that the offending speeches impinge upon and transgress the bench mark of
reasonable restriction imposed by the Constitution itself as well as the law on the
subject. The appellant in fact has crossed the boundary of decency and morality by
a calculated move with an aim to obstruct and diminish the administration of justice
I.C.A. No.7/2018
11
and, therefore, he cannot be allowed to escape the consequences by pleading
freedom of speech and expression.
17.
It was next contended that the charge so framed was defective as it
did not contain the contents of the public speeches dated 24.1.2018 and 27.1.2018
and, therefore, no punishment could be imposed upon the appellant on the basis of
such defective charge. The contention needs examination of the record which
reflects that the contents of the offending speeches were brought to the notice of the
Hon’ble Chief Justice by the learned Registrar of this Court on 1.2.2018 through a
written note. The Hon’ble Chief Justice of Pakistan on the same day constituted a
Bench and directed the Office to list the matter for hearing on 6.2.2018.
Accordingly notices were issued. The appellant effected appearance on 6.2.2018
when the Court examined the transcript of the offending speeches dated 24.1.2018
and 27.1.2018 made by the appellant and after finding the speeches derogatory,
initiated proceedings under Article 204 of the Constitution read with Section 5 of
the Ordinance of 2003 and directed issuance of show cause notice. In consequent to
the show cause notice, appellant effected his personal appearance on 13.2.2018 and
requested for time to engage a counsel. The matter was adjourned to 19.2.2018 and
on that date the appellant’s counsel sought time to furnish response to the show
cause notice and ultimately furnished such response on 22.2.2018. Per record, when
the case had came up for hearing on 26.2.2018, the appellant himself appeared and
on his request, he was allowed to examine the transcript containing contemptuous
speeches which was already annexed with the paper books supplied to him. Again
on 6.3.2018 when the case came up for hearing, the learned Sr. ASC for the
appellant stated that though he has gone through the transcript of the offending
speeches but he has not been provided a compact disk wherein such offending
speeches were recorded. The C.D. (Compact Disc) was accordingly provided to the
appellant and the matter was adjourned to 8.3.2018. On the said date, the response
submitted by the appellant was examined and the matter was placed for framing of
I.C.A. No.7/2018
12
charge on 14.3.2018. The charge was accordingly framed and read over to the
appellant which specifically stated the making of offending speeches by the
appellant on 24.1.2018 and 27.1.2018.
18.
No doubt the contents of the speeches were not reproduced in the
charge but it is not the case that the appellant was misled or prejudiced on account
of such omission. We have even repeatedly asked the appellant who was present in
person as well as his counsel about the prejudice if any caused to the appellant on
account of not detailing the speeches in the charge. However, they were not able to
point out any prejudice caused to the appellant as throughout the appellant knew
the derogatory utterances made by him leading to the initiation of the instant
proceedings. Additionally, the appellant in his statement under Section 342 Cr.P.C.
was confronted and his response was sought on the derogatory utterances. Though
he admitted that he made such statement in his speech and press talk but according
to him, these were edited and do not contain reference to the context. However, no
explanation was provided as to the editing or the context in which such derogatory
utterances were made. Even the C.D. containing the audio and visual recording of
the derogatory speeches was played in open court to seek a possible explanation
from the appellant, however, the appellant or his counsel had no answer but to take
refuge of seeking an unconditional apology. The apology patently lacks remorse
and sincerity and is being tendered to avoid consequences without showing lack of
intent to malign the Court or any of the Hon’ble Judges. The contemnor has tried to
explain away and justify his actions and has tendered an apology only as a matter
of abundant caution and as a fall back. Such an apology cannot be accepted.
Further, it has been settled by this Court in a number of cases, that since there is no
yardstick available to fix the essential factors which a charge must contain,
therefore, an omission or defect in charge which does not mislead or prejudice the
right of the accused could be regarded as material and made the basis to vitiate a
trial on the ground of error or omission in framing charge, it does not even make a
I.C.A. No.7/2018
13
case of remand. Reference can readily be made to the case of Nadir Shah vs. the
State (1980 SCMR 402), S.A. K. Rehmani vs. the State (2005 SCMR 364), M
Younus Habib vs. the State (PLD 2006 SC 153) and Malik Muhammad Mumtaz
Qadri vs. the State (PLD 2016 SC 17). The argument, therefore, fails.
19.
Additionally, the record reflects that the appellant in his Section 342
Cr.P.C. statement refused examination under oath to show his bona fide and to explain
what exactly he meant by such utterances. At this juncture, we may reiterate that the
proceedings for contempt of Court are sui generis in their nature and being unique and one
of a kind, contain some elements of both civil and criminal trial. Therefore, the principle
of criminal trial that the burden of proof barring few exceptions never shifts to the
accused, has hardly any application. In such cases once the prosecution has brought on
record all the incriminating and contemptuous material attributed to the alleged contemnor
and confronted to him while recording his statement under Section 342 Cr.P.C., then the
burden shifts to the alleged contemnor to prove his innocence by showing his bona
fide and proving that the offending statement was never meant to undermine the
authority or obstruct/embarrass the administration of justice. The appellant has
failed miserably in discharging that burden. The impugned order takes note of all
pleas and defences taken by the Appellant and gives elaborate reasons for
discarding the same. The learned counsel for the Appellant has not been able to
show any legal, procedural or jurisdictional defect, error or flaw in the impugned
order that may warrant any interference in the impugned order.
20.
In the end, it was halfheartedly contended that the list of the witnesses
provided by the prosecution did not contain the summary/gist of the evidence to be
adduced by such witness, however, the learned counsel could not point out any statute
or case law in support of his contention. To our mind, the only law which
requires mentioning of gist/summary of facts against the name of every witness
which he would depose is Section 7(2) of the Family Court Act, 1964 which
provides that the plaint to be accompanied by a Schedule giving the number of
witnesses intended to be produced in support of the plaint, the name and addresses
I.C.A. No.7/2018
14
of the witnesses and brief summary of the facts to which they would depose. This
being a provision of Special Law and of course is applicable to the category of
cases provided therein. Even the study of case law on the subject would show that
the requirement laid down by Section 7(2) of the Act 1964 is only directory in
nature as instead of providing penal consequences for its non-compliance, it
specifically through second proviso empowers the Court to permit the parties to call
any witness at any later stage if the Court considers that the evidence of such
witness is in the interest of justice.
21.
For the foregoing reasons, this Intra Court Appeal is found meritless
and, therefore, dismissed.
Chief Justice
Judge
Judge
Judge
Judge
Islamabad
October 09, 2018
Approved for reporting
A. Rehman/
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ.
MR. JUSTICE JAVED IQBAL
MR. JUSTICE MIAN SHAKIRULLAH JAN
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE SARMAD JALAL OSMANY
MR. JUSTICE AMIR HANI MUSLIM
INTRA COURT APPEAL NO. 9 & 10 OF 2011
Abdul Hameed Dogar, former Judge/CJP …
APPELLANT
(ICA 9/2011)
Mr. Justice Sayed Zahid Hussain
…
APPELLANT
(ICA 10/2011)
INTRA COURT APPEALS NO. 3, 4, 6 TO 8 & 11 OF 2011
Mr. Justice Hasnat Ahmed Khan
…
APPELLANT
(ICA 3/2011)
Mr. Justice Syed Shabbar Raza Rizvi
…
APPELLANT
(ICA 4/2011)
Mr. Justice Syed Hamid Ali Shah
…
APPELLANT
(ICA 6/2011)
Mr. Justice (R) Iftikhar Hussain Chaudhary…
APPELLANT
(ICA 7/2011)
Mr. Justice Syed Sajjad Hussain Shah
…
APPELLANT
(ICA 8/2011)
Justice Mrs. Yasmin Abbasey
…
APPELLANT
(ICA 11/2011)
VERSUS
Federation of Pakistan/State
…
RESPONDENT
For the appellants:
Raja Muhammad Ibrahim Satti, Sr. ASC
(ICA 9/2011)
Mr. Ejaz Muhammad Khan, AOR (absent)
For the appellants:
Mr. S.M. Zafar, Sr. ASC
(ICA 10/2011)
Raja Abdul Ghafoor, AOR
For the appellants:
Dr. A. Basit, Sr. ASC
(ICA 3 & 4/2011)
Mr. Arshad Ali Chaudhry, AOR
ICA 3 /2011 ETC
2
For the appellants:
Syed Raza Kazim, Sr. ASC
(ICA 6/2011)
Mr. G.N. Gohar, AOR (absent)
For the appellants:
Dr. Khalid Ranjha, Sr. ASC
(ICA 7/2011)
Mr. Mehmood A. Sheikh, AOR
For the appellants:
Sh. Zamir Hussain, Sr. ASC
(ICA 8/2011)
Mr. Ejaz Muhammad Khan, AOR (absent)
For the appellants:
Raja Abdul Ghafoor, AOR
(ICA 11/2011)
On Court’s notice:
Maulvi Anwar-ul-Haq
Attorney General for Pakistan
Respondent:
Not represented
Date of hearing:
03.03.2011
…
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – By Intra Court
Appeals No. 9 & 10 of 2011 filed under section 19 of the Contempt of
Court Ordinance, 2003, appellants Justice (Retd.) Abdul Hameed
Dogar and Justice Sayed Zahid Hussain have questioned the legality of
the order dated 02.02.2011 passed by a Bench of this Court in
Criminal Original Petitions. The concluding paragraph therefrom reads
as under: -
“Let the cases now be fixed for framing of charge against
the
aforesaid
respondents
on
21.02.2011.
The
respondents, if they so desire, appear on that date to
enter their plea on the charge(s) framed. In the
alternative, they may, if they choose, enter their pleas
through counsel who are duly instructed.”
Mr. Justice Sayed Zahid Hussain, Judge of the Supreme Court, after
filing the appeal realized that he had taken oath under a
misunderstanding on 03.11.2007, when a 7 – Member Bench of the
Supreme Court had passed a restraint order to block imposition of
unconstitutional rule in the country, inter alia, directing as follows: -
ICA 3 /2011 ETC
3
“(i)
Government of Pakistan, i.e. President and Prime
Minister of Pakistan are restrained from undertaking
any such action, which is contrary to Independence
of Judiciary;
(ii)
No judge of the Supreme Court or the High Courts
including Chief Justice(s) shall take oath under PCO
or any other extra-Constitutional step;
(iii)
Chief of Army Staff, Corps Commanders, Staff
Officers and all concerned of the Civil arid' Military
Authorities are hereby restrained from acting on PCO
which has been issued or from administering fresh
oath to Chief Justice of Pakistan or Judges of
Supreme Court and Chief Justice or Judges of the
Provincial High Courts;
(iv)
They are also restrained to undertake any such
action, which is contrary to independence of
Judiciary. Any further appointment of the Chief
Justice of Pakistan and Judges of the Supreme Court
and Chief Justices of High Courts or Judges of
Provinces, under new development shall be unlawful
and without jurisdiction.”
2.
Mr. Justice Sayed Zahid Hussain admittedly had taken oath
in violation of above order of this Court and now after having regretted
opted for retirement and addressed a letter to the President of
Pakistan in this behalf. Copy thereof was also endorsed to the
Registrar of this Court. The competent authority has acceded to his
request as is evident from the contents of the notification dated
01.03.2011, issued by the Government of Pakistan, Ministry of Law
and Justice, which reads as under: -
“In exercise of the powers conferred by Article 179 of the
Constitution of Islamic Republic of Pakistan, the President
is pleased to allow retirement to Mr. Justice Sayed Zahid
Hussain, Judge of Supreme Court of Pakistan with
immediate effect in terms of Paragraph 15 of the Supreme
Court Judges (Leave, Pension and Privileges) Order,
1997.”
3.
Mr. S.M. Zafar, learned Sr. ASC for appellant Mr. Justice
Sayed Zahid Hussain, now retired, has filed an application under Order
XXXIII, rules 5 & 6 of the Supreme Court Rules, 1980, wherein besides
mentioning the different dates on which Justice Sayed Zahid Hussain
ICA 3 /2011 ETC
4
had taken oath as an Additional Judge, as a Judge and as Chief Justice
of the Lahore High Court, and thereafter as a Judge of the Supreme
Court, already referred to in the judgment of this Court in Sindh High
Court Bar Association's case (PLD 2009 SC 879), it is categorically
stated that “he is extremely sorry for having taken oath on
03.11.2007 under a misunderstanding and has regretted for
the same”. The learned counsel submitted that Mr. Justice Sayed
Zahid Hussain, for the sake of the dignity and respect of the Institution
of Judiciary, has sacrificed his four years’ service as a Judge of the
Apex Court and henceforth he would be no more adorning the Bench,
as the notification of his retirement has already been issued, therefore,
while exercising jurisdiction available to this Court to decide not to
proceed against a person facing the charge of contempt who offers
regrets, the proceedings against him be terminated.
4.
The learned Attorney General for Pakistan, after having
gone through the notification of retirement of Justice Sayed Zahid
Hussain and the contents of the application containing statement of
regrets for taking oath on 03.11.2007 stated that regrets so expressed
by him may be accepted, particularly keeping in view that he had
stood retired and was no more the Judge of this Court.
5.
It may be observed that in a case of contempt of Court like
the one in hand all that the Court is required to be satisfied is that the
dignity and authority of the Court by flouting its judgments/orders are
not put at stake. The law of contempt is primarily intended to ensure
that the majesty of the law is upheld and the dignity of the Institution
of Judiciary, which is a most important pillar of the State, is protected
and it also restores confidence of the general public in the due and
proper administration of justice in the country. Indeed, Courts are
ICA 3 /2011 ETC
5
vested with an extraordinary jurisdiction to punish a person for
committing contempt of Court, and armed with a powerful weapon,
but the same is to be exercised/used judiciously and sparingly
depending upon the facts and circumstances of each case. However,
with reference to instant case, it needs to be emphasized that on
03.11.2007, a 7 – Member Bench of this Court passed a restraint order
not only to save the dignity of the judiciary, but also to protect
Constitution as it is the duty of Judges of Superior Courts who have
taken oath to preserve and protect it. Thus, it was all the more
necessary for the Judges of the Superior Courts to respect the order in
all circumstances. However, Mr. Justice Sayed Zahid Hussain having
realized that he had taken oath under a misunderstanding has
regretted for his action and decided to quit in the larger interests of
the Institution and he would not be adorning the Bench. Therefore, we
accept the request so made by him. Consequently, appeal (ICA No. 10
of 2011) is allowed and proceedings for contempt of Court to his
extent pending before a Bench of this Court are terminated.
6.
Now, turning towards the case of Justice (Retd.) Abdul
Hameed Dogar, mentioning of the facts in detail may not be necessary
in view of the judgment of this Court in Sindh High Court Bar
Association's case wherein this Court has declared that Justice (Retd.)
Abdul Hameed Dogar, in view of violation of order dated 03.11.2007
noted above, was never a constitutional Chief Justice of Pakistan and
all the appointments of the Judges made in consultation with him were
declared to be unconstitutional. For reference, relevant portion from
the short order/judgment is reproduced hereinbelow: -
“(ii) it is declared that the office of the Chief Justice of
Pakistan never fell vacant on November 3, 2007 and as a
consequence thereof it is further declared that the
appointment of Mr. Justice Abdul Hameed Dogar as the
ICA 3 /2011 ETC
6
Chief Justice of Pakistan was unconstitutional; void ab
initio and of no legal effect.”
“(iii) since Mr. Justice Abdul Hameed Dogar was never a
constitutional Chief Justice of Pakistan, therefore, all
appointments of Judges of the Supreme Court of Pakistan,
of the Chief Justices of the High Courts and of the Judges
of the High Courts made, in consultation with him, during
the period that he, unconstitutionally held the said office
from 3.11.2007 to 22.3.2009 (bath days inclusive) were
declared to be unconstitutional, void ab initio and of no
legal effect and such appointees shall cease to hold office
forthwith.”
7.
It is pertinent to mention here that against the above
judgment review petitions were also filed, which have been dismissed
in Justice Khurshid Anwar Bhinder’s case (PLD 2010 SC 483).
Subsequent thereto, notices for contempt of Court were issued to
Justice (Retd.) Abdul Hameed Dogar and others. He contested the
proceedings and ultimately a Bench of this Court decided to proceed
against him for contempt of Court as is evident from the concluding
paragraph of the order dated 02.02.2011, reproduced hereinabove.
Thus, instant appeal has been filed.
8.
Mr. Muhammad Ibrahim Satti, learned Sr. ASC appeared
and placed on record a statement under the signature of Justice
(Retd.) Abdul Hameed Dogar, which is reproduced hereinbelow in
extenso: -
“STATEMENT OF MR. JUSTICE (RETD) ABDUL
HAMEED DOGAR (APPELLANT)
With all humility and humbleness at my command, it is
submitted
that
under
abrupt,
unexpected
changes,
confusion, misconception and misunderstanding, the order
dated 3.11.2007 could not be complied which is highly
regretted with repentance and sorrow. I stood retired on
21.3.2009 and not enjoying good health. It is humbly
requested that, in view of my ailment, the explained
scenario, for which I am really sorry, my regrets may very
kindly be accepted and notice of contempt may please be
ICA 3 /2011 ETC
7
withdrawn for which I shall highly obliged and place myself
at the mercy of Court.
Sd/-
(Abdul Hameed Dogar)
Appellant
02.03.2011”
9.
The learned counsel has submitted that Justice (Retd.)
Abdul Hameed Dogar has already retired on 21.03.2009, he is no more
a Judge of this Court, he is not enjoying good health and while feeling
sorry and expressing regrets he has stated that he could not comply
with the order dated 03.11.2007 under confusion, misconception and
misunderstanding. Besides, he has placed himself at the mercy of the
Court, therefore, his regrets may be accepted and his appeal may be
disposed of accordingly.
10.
The learned Attorney General for Pakistan, on having gone
through the statement noted hereinabove has stated that as Justice
(Retd.) Abdul Hameed Dogar has placed himself at the mercy of the
Court, therefore, on account of the realization that he ought to have
complied with the aforesaid order, the request so made by him may be
accepted.
11.
We have considered the request made before us vide
statement reproduced hereinabove and have also gone through the
judgments of this Court in the cases of Sindh High Court Bar
Association and Justice Khurshid Anwar Bhinder. We are of the opinion
that as against the past practice, the order dated 03.11.2007 was
passed by a 7 – Member Bench for the first time in the history of this
Court whereby Judges of Supreme Court and High Courts including
Chief Justices of High Courts were restrained not to take oath under
PCO or any other extra-constitutional act with a view to block the
imposition of martial law and abrogation of the Constitution as it has
ICA 3 /2011 ETC
8
already been clarified hereinabove, as the dignity and respect of the
Institution of Judiciary are to be guarded first of all by its own
members. Admittedly, Justice (Retd.) Abdul Hameed Dogar violated
the order dated 03.11.2007 as it is evident from the conclusion drawn
by this Court in the case of Sindh High Court Bar Association (ibid).
However, in the case of Justice (Retd.) Abdul Hameed Dogar much
water has already flown under the bridges, during course whereof all
the actions taken by the then Chief of Army Staff had been declared
unconstitutional including appointment of Judges of Supreme Court
and High Courts. Reference may be made to the case of Justice
Khurshid Anwar Bhinder (ibid). At this stage, Mr. Justice (Retd.) Abdul
Hameed Dogar has regretted for his actions and has also thrown
himself at the mercy of the Court. In the case in which helplessness
has been shown by a person facing contempt proceedings has
persuaded us to exercise jurisdiction of contempt sparingly. We accept
appeal (ICA No. 9 of 2011) and terminate the contempt proceedings
against him too. However, no exception of whatsoever nature shall be
claimed by him in respect of observations made in the Sindh High
Court Bar Association's case as well as in Justice Khurshid Anwar
Bhinder’s case.
12.
M/S Raza Kazim, Khalid Ranjha and Sh. Zamir Hussain,
learned counsel for Justice Syed Hamid Ali Shah, Justice Iftikhar
Hussain Chaudhry and Syed Sajjad Hussain Shah, appellants in ICA
No. 6, 7 & 8 of 2011 have submitted that they may be allowed two
weeks’ time to take instructions from the appellants in view of the
orders/observations made hereinabove.
13.
Mr. Ali Zafar, learned ASC who is representing Justice Ms.
Yasmin Abbasey, appellant in ICA No. 11 of 2011 is not present. Mr.
ICA 3 /2011 ETC
9
Raza Kazim, learned ASC submitted that instead of dismissing the
appeal in default, the same may also be adjourned in the interest of
justice along with other appeals. Adjourned to 21.03.2011.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.
JAVED IQBAL, J.
MIAN SHAKIRULLAH JAN, J.
TASSADUQ HUSSAIN JILLANI, J.
MIAN SAQIB NISAR, J.
SARMAD JALAL OSMANY, J.
AMIR HANI MUSLIM, J.
Islamabad,
March 3, 2011
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Faisal Arab
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.105 of 2020
(Against judgment dated 17.03.2020 passed by the
Islamabad High Court Islamabad in Criminal
Revision No.20 of 2019)
Mufti Kafayat Ullah
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s):
Mr. Mir Afzal Malik, ASC
Ch. Akhtar Ali, AOR
For the State:
Niazullah Niazi,
Advocate General, Islamabad
with M. Anwar I.O. Margallah.
Date of hearing:
04.06.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.-Mufti Kafayat Ullah,
petitioner, was tried by a Magistrate at Islamabad for murderous
assault on his estranged wife Mst. Sabiha (PW-1) as well as brother-in-
law Abdul Majeed (PW-2) in District Court premises on 8.2.2013 where
they confronted him after proceedings before a Family Judge. It is
alleged that soon after the adjournment of proceedings in a suit filed by
the complainant seeking dissolution of her marriage, the petitioner
confronted them in the parking lot and attempted repeated fire shots,
both luckily stuck in the chamber; the witnesses with the assistance of
a police official on duty snatched the gun while he took to the heels,
shadowed by his brother Shafiullah. Vide judgment dated 17.12.2018,
the learned Magistrate returned a guilty verdict; convicted under
Jail Petition No.105 of 2020
2
section 324 of the Pakistan Penal Code, 1860, he was sentenced to six
months RI with a fine of Rs.5000/- or to undergo one month SI in
default thereof, pre-trial period inclusive. Learned Sessions Judge
(West) Islamabad vide judgment dated 27.2.2019 dismissed the appeal;
recourse to the High Court met with no better fate vide judgment dated
17.3.2020, vires whereof, are being assailed on a variety of grounds
ranging from a cooked up accusation by inimical witnesses to an
inherently self-destructive charge, clamouring for interference by this
Court. The motion is contested by the learned Law Officer on the
ground of unanimity of finding of guilt by the three tribunals.
2.
Heard. Record perused.
3.
Going by complainant’s narrative, the petitioner twice
attempted fire shots and a miracle shielded the family and it was
during this process that the petitioner was subdued and disarmed with
the assistance of an unnamed police officer. Story of unusual failure of
an assault, allegedly preconcerted, is resting upon word of mouth alone
with inherent missing links; the Investigating Officer who recorded
crime report at the spot did not secure missed bullets therefrom nor he
associated the police official, who according to the witnesses while
being in the line of duty, intervened to snatch the gun; he is
conspicuous by his absence both at the spot as well as witness-box.
Inclusion of petitioner’s brother Shafiullah in the array for being in the
community of intention evinces desires oblique and suspect with
inevitable reflections in the retrospect. According to note of police
proceedings, the complainant with her brother Abdul Majeed, upon
arrival of Fakhar Abbas ASI (PW-3) presented a .30 caliber pistol with
five live bullets in the magazine; seizure does not qualify the riders of
Article 40 of the Qanun-e-Shahadat Order, 1984 so as to be received as
corroboration of a story that otherwise runs counter to the case set up
in the crime report.
Given the persisting animosity, it would be unsafe to maintain the
conviction on the basis of a script, inherently flawed. Petition is
converted into appeal and allowed; impugned judgments are set aside
and the appellant is acquitted of the charge. These are the reasons of
our short order of even date, reproduced below:
“For reasons to follow, this petition is converted into
appeal and allowed; conviction and sentence
recorded by the learned trial Court, affirmed by the
Appellate Court and the High Court are set aside.
Jail Petition No.105 of 2020
3
The appellant shall be released forthwith if not
required to be detained in any other case.”
Judge
Judge
Judge
Islamabad, the
4th June, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmed Malik
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
JAIL PETITIONS NO.10 AND 50 OF 2016
(Against the Judgment dated 26.10.2015 passed by
Lahore High Court, Lahore in Cr.A. No.215-J/2010)
Muhammad Shahbaz Ali Khalid
(in Jail Petition No.10/2016)
Shujat Ali alias Tikka
(in Jail Petition No.50/2016)
…Petitioner(s)
Versus
The State
…Respondent
For the petitioner(s):
Mr. Muhammad Junaid Akhtar, ASC
For the State:
Mirza Abid Majeed,
Deputy Prosecutor General, Punjab
Date of hearing:
2.10.2019.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Muhammad
Shahbaz Ali Khalid and Shujat Ali alias Tikka, while travelling in a
public vehicle, were intercepted on 3.6.2009 within the precincts of
Police Station Essakhel, District Mianwali; the former had deceitfully
clad himself in a veil, however, exposed on search, with a suicide vest
wrapped around his body; the explosive weighed 15 kilograms; Shujat
Ali was found carrying five leads along with detonators and electric
fuses; upon indictment, they claimed trial, culminating into their
convictions under Section 4 read with Section 5-A of the Explosive
Substances Act, 1908 read with Section 7(g) of the Anti Terrorism Act,
1997; Shahbaz Ali Khalid was additionally convicted under Section
419 of Pakistan Penal Code for impersonating himself as a female;
they were sentenced to imprisonment for life with forfeiture of their
Jail Petitions No.10 and 50/2016
2
properties, Muhammad Shahbaz Ali Khalid with extra tag of three
years Rigorous Imprisonment on the third count; their appeals met
with no better fate in the High Court on 26.10.2015 albeit with
reduction of imprisonment for life imposed upon Shujat Ali alias Tikka
to ten years R.I.; as per report of Superintendent, High Security
Prisons, Sahiwal dated 28.9.2019, he has since been released after
serving out his sentence, however, since his property has been ordered
to be confiscated, fate of his petition is also being decided alongside
the present petition.
2.
Learned counsel for the petitioners has assailed the
impugned judgment on a variety of grounds; he emphatically stressed
prosecution’s failures ranging from omissions on vital aspects of the
case, non-association of independent witnesses admittedly available at
the spot to an inclusive expert report to conclusively establish lethality
of the contraband. The learned Law Officer has faithfully defended the
convictions and sentences consequent thereupon.
3.
Heard.
4.
The very genesis of the case is somewhat intriguing,
inasmuch as, the crime report sans some important details without
any plausible explanation; registration number of the vehicle wherein
the petitioners travelled is conspicuously missing, in absence whereof,
interrupted journey is relegated into a suspect detour. Similarly, crime
report is also silent on the names of driver and cleaner of a public
vehicle, if at all, the petitioners were surprised therein. Despite an
extensive search, police have not been able to retrieve the tickets, a
surer means within the realm of possibility, to establish petitioners’
journey with the contraband. Muhammad Shahbaz Ali Khalid’s
interception, attired in feminine garments by the male personnel in the
presence of public without a lady constable, that too, per chance,
without prior information is a story that may not find a buyer.
Prosecution’s reliance on the statement of Auliya Khan (PW-3) as an
expert to establish explosive potential of the contraband is beside the
mark in the face of admission by the witness that he was not an expert
in the field and as such hardly in a position to drive home the charge.
Imprisonment for life is quite a span and an accused cannot be
deprived of best portion of his life on slipshod, incoherent and suspect
Jail Petitions No.10 and 50/2016
3
evidence even in cases with heinous contours. In the totality of
circumstances, prosecution case cannot be viewed as entirely free from
doubt and, thus, it would be unsafe to maintain the conviction.
Consequently, these petitions are converted into appeals and allowed;
the impugned judgment is set aside; the appellants are acquitted from
the charge. Shahbaz Ali Khalid, appellant shall be released forthwith,
if not required in any other case.
Judge
Judge
Judge
Islamabad
2nd October, 2019
Not approved for reporting
Ghulam Raza/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.112 of 2017
(Against judgment dated 30.1.2017 passed by the
Lahore High Court Lahore in Criminal Appeal No.8 of
2012 along with M.R. No.7 of 2012)
Javed Ishfaq
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Safdar Hussain Tarrar, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
N.R.
Date of hearing:
06.07.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Indicted for homicide,
Javed Ashfaq, petitioner herein, claimed trial along with six others
before a learned Additional Sessions Judge at Wazirabad; they were
arrayed in the backdrop of shifting of an electric transformer in the
village that disrupted power supply to the annoyance of co-villagers,
lined up into two groups that clashed at the site, 6:00 p.m. on
2.7.2010; both suffered injuries, opined to have been caused with blunt
weapons with the exception of Noor Muhammad, deceased, 70, fatally
trapped by petitioner’s solitary shot in the abdomen with a
corresponding exit. Receipt of injuries suffered by the accused failed to
weigh with the police to set up a counter-version and the accused faced
trial without recourse to a private complaint. The petitioner was alone
to receive a guilty verdict with death sentence, altered into
imprisonment for life by the High Court vide impugned judgment dated
30.1.2017.
2.
Learned counsel for the petitioner contends that evidence
disbelieved qua majority of the accused cannot haul up the petitioner
without independent corroboration, according to him, hopelessly
lacking; that the crime report is completely silent on the injuries
suffered by no less than five accused, a suppression spelling out an
incident incompatible with the details mentioned in the crime report;
Jail Petition No.112 of 2017
2
that there exists a clear conflict between ocular account and medical
evidence as presence of blackening around the wound belies the inter
se distance mentioned in the crime report as well as site plan; it is next
argued that the deceased, in his late seventies, was done to death by
his own clan to hush up the mischief.
3.
Heard.
4.
With no previous bad blood, shifting of an electric
transformer, with power breakdown, rocked an otherwise peaceful
neighbourhood in the sizzling heat of the season and in this backdrop
initial receipt of injuries, established during the course of investigation
to have been caused by clubs, etc. has to be viewed in the peculiar
background of the incident. This appears to be a reason for absence of
the injured from the witness box; worst casualty was the deceased, hit
by petitioner’s shot as the clash graduated more violent and, thus, in
the given circumstances acquittal of the co-accused by the trial Court
in the absence of the injured from both sides has been an option wisely
preferred by the learned trial Judge; acquittals do not extenuate
petitioner’s culpability for additional reasons as well; the police declined
to entertain the counter version and the accused by their own choice
considered institution of private complaint as a futile exercise. A
bipartisan suppression appears to be the predominant cause behind
the acquittal of co-accused with roles trivially different, thus, by itself
does not pave way for the petitioner to escape consequences of his
individual criminal act, otherwise established beyond doubt. In the
circumstances, plea of indivisibility of evidence is not available to the
petitioner. It was held by this Court in the case of Syed Ali Bepari v.
Nibaran Mollah and others (PLD 1962 SC 502)“…..the Court must not be
deterred by the incompleteness of the tale from drawing the inferences
that properly flow from the evidence and circumstances”, a view re-
affirmed in the case of Ali Raza alias Peter and others Vs. The State and
others (2019 SCMR 1982).
Hypothesis of conflict between ocular account and medical
evidence, inordinately agitated to highlight presence of burning around
the entry aperture is without foundation as well. According to site plan
(Ex.PU), the petitioner fired fatal shot from point ‘B’ standing in a
window that hit the deceased at point ‘A’. According to Masood Ahmed
Bhatti (PW-12), the inter se distance between two points is four feet
and, thus, presence of blackening around the entry wound is not
surprising; the relevant portion of the cross-examination is reproduced
below:
Jail Petition No.112 of 2017
3
“It is incorrect to suggest that according to
the scaled map the distance between point
‘A’ and point ‘B’ is 12 feet. Volunteered that
it is four feet.”
Burning/blackening, though a predominant factor to determine
distance inter se the assailant and the victim, nonetheless, is not the
conclusive indicator; it depends upon factors more than one i.e. quality
of munition and process of combustion that may possibly vary the
impact of combusted gun powder; a smudging shot may cause
deceptive appearance as well, therefore, in the absence of other
qualifying evidence, hypothesis of inter se distance cannot be
constructed with empirical exactitude on the presence of burning alone
(Parikh’s Text Book of Medical Jurisprudence and Toxicology, 1989
Edition, Pages 280/282). Even otherwise, site plan has never been
considered as a substantive piece of evidence nor any benefit may be
extracted therefrom unless the witnesses are duly confronted with the
purported anomaly or discrepancy therein; no such attempt has been
undertaken by the defence.
Ocular account has been furnished by Zafar Ullah (PW-7) and
Fazal Ahmed (PW-8); they are in tune with each other on all the salient
features of the case as well as details collateral therewith; they have no
axe to grind to point their fingers on the petitioner alone, in a situation
that cropped up with no past strings. Defence version that
apprehending death of the injured, the deceased, in his late seventies,
related in first degree with the complainant, was executed by his own
kith and kin to fabricate a counter version is a story that being most
preposterous would hardly find a buyer.
Despite strenuous efforts, learned counsel for the petitioner has
not been able to point out any flaw, discrepancy, legal or factual, calling
for interference with the conclusions concurrently drawn by the Courts
below. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
6th July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO. 148 OF 2022
(On appeal against the judgment dated
15.02.2022 passed by the Lahore High Court,
Rawalpindi Bench in Criminal Revision No.
205/2021)
Muhammad Usman
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Mr. Junaid Iftikhar Mirza, ASC
Mr. Anis Muhammad Shahzad, AOR
For the State:
Ch. Muhammad Sarwar Sidhu, Addl. P.G.
Date of Hearing:
11.04.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Muhammad Usman
along with co-accused was tried by the learned Judicial Magistrate, Section
30, Kahuta, District Rawalpindi pursuant to a case registered vide FIR No. 201
dated 18.07.2017 under Sections 324/337-F(v)/34 PPC at Police Station
Kahuta, District Rawalpindi for attempting to take life of the complainant and
his wife. The learned Trial Court vide its judgment dated 17.05.2021
convicted the petitioner as under:-
i)
Under Section 324 PPC
To suffer rigorous imprisonment for five years and to pay fine
of Rs.50,000/-. In case of default of payment of fine, the
petitioner shall undergo SI for a term of three months.
ii)
Under Section 337-F(v) PPC
To pay Daman amounting to Rs.50,000/- to injured Qudrat
Hussain. The amount of Daman was directed to be paid in lump
sum.
Benefit of Section 382-B Cr.P.C. was also given to the petitioner.
JAIL PETITION NO. 148 OF 2022
-: 2 :-
2.
The co-accused of the petitioner was also convicted and
sentenced on various charges. In appeal the learned Additional District Judge,
Rawalpindi while acquitting the co-accused, maintained the conviction of the
petitioner and the same was upheld by the learned High Court vide
impugned judgment pursuant to Criminal Revision filed by the petitioner. The
prosecution story as given in the judgment of the learned Additional District
Judge reads as under:-
“4.
Briefly stated the facts of the prosecution case are that Qudrat
Hussain complainant/PW-1 moved complaint EX.PA before the police
claiming therein that the accused persons came to his house for affecting
compromise between Muhammad Usman accused and daughter of
complainant who are husband and wife. In the meanwhile the accused
persons became furious, the accused Ghulam Qadir made fire shot on the
son of complainant which was missed. The accused repeated the fire which
hit the wife of the complainant on left thigh and then Muhammad Usman
after snatching the pistol made fire shot to the complainant which hit him
on left elbow joint and then the witnesses rescued them and requested the
accused persons who thereafter fled away, hence the case.”
3.
After completion of the investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. The prosecution in order to
prove its case produced ten witnesses. In his statement recorded under
Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all the
allegations leveled against him. However, he neither appeared as his own
witness on oath as provided under Section 340(2) Cr.P.C in disproof of the
allegations leveled against him nor produced any evidence in his defence.
4.
At the very outset, learned counsel for the petitioner
contended that the petitioner has been falsely involved in this case against
the actual facts and circumstances. Contends that the ocular account in this
case is coming from a source which is related and it does not inspire
confidence to sustain conviction of the petitioner. Contends that the
prosecution witnesses of the ocular account are at variance on salient
features of the prosecution version, as such, the same cannot be made basis
to sustain conviction of the petitioner. Contends that the pistol allegedly
recovered from the petitioner was not sent to the Forensic Science
Laboratory, therefore, the recovery is inconsequential. Contends that the
JAIL PETITION NO. 148 OF 2022
-: 3 :-
learned High Court did not take into consideration the above aspects of the
matter, therefore, the impugned judgment may be set at naught. In the
alternative, learned counsel contended that the sentence of the petitioner
may be reduced to what he has already undergone.
5.
On the other hand, learned Law Officer vehemently opposed
this petition on the ground that the eye-witnesses had no enmity with the
petitioner to falsely implicate him in this case and the medical evidence is
also in line with the ocular account, therefore, he does not deserve any
leniency from this Court.
6.
We have heard learned counsel for the parties at some length
and have perused the evidence available on the record with their able
assistance.
7.
A bare perusal of the record shows that the unfortunate
incident, wherein the complainant and his wife sustained injuries, took place
on 18.07.2017 at 10:30 pm. The injured were firstly taken to Tehsil
Headquarter Hospital where the matter was reported to the Police through
written complaint and thereafter the FIR was lodged on the same day at
11:30 pm i.e. just after one hour of the occurrence. Thus, it can safely be said
that FIR was lodged with promptitude. Promptness of FIR shows truthfulness
of the prosecution case and it excludes possibility of deliberation and
consultation. The ocular account in this case has been furnished by Qudrat
Hussain, complainant (PW-1), Rukhsana Bibi (PW-2) and Muhammad Zaheer
(PW-3). These prosecution witnesses were subjected to lengthy cross-
examination by the defence but nothing favourable to the petitioner or
adverse to the prosecution could be brought on record. These witnesses have
given all necessary details of occurrence qua the date, time, place, name of
accused, name of witnesses, manner of occurrence, kind of weapon used in
the occurrence, the locale of injuries and the motive of occurrence. These
PWs remained consistent on each and every material point inasmuch as they
made deposition according to the circumstances surfaced in this case,
therefore, it can safely be concluded that the ocular account furnished by the
prosecution is reliable, straightforward and confidence inspiring. The medical
JAIL PETITION NO. 148 OF 2022
-: 4 :-
evidence available on the record further corroborates the ocular account so
far as the nature, time, locale and impact of the injuries on the person of
injured is concerned. Qudrat Hussain, complainant (PW-1) had received
injury at the hands of the petitioner. The testimony of this injured PW as well
as the stamp of injuries on his person clearly proves his presence at the place
of occurrence. Qudrat Hussain (PW-1) and Mst. Rukhsana Bibi (PW-2) were
the inmates of the house where the occurrence took place, therefore, both
these witnesses were the most natural witnesses. In the present case, the
eye witnesses, one of whom had received injuries by the petitioner, have
spoken consistently and cogently in describing the manner of commission of
the crime in detail. The testimony of an injured eyewitness carries more
evidentiary value. During the course of proceedings, the learned counsel
contended that there are material discrepancies and contradictions in the
statements of the eye-witnesses but on our specific query he could not point
out any major contradiction, which could shatter the case of the prosecution.
Although, the weapon of offence i.e. a pistol was recovered from the
petitioner but as the same was not sent to the Forensic Science Laboratory,
therefore, the recovery is inconsequential. To prove the motive part of the
prosecution story, the witnesses of the ocular account appeared in the
witness box and deposed against the petitioner. The perusal of the record
reflects that the defence did not seriously dispute the motive part of the
prosecution story. In these circumstances, there is sufficient evidence
available on the record to sustain conviction of the petitioner. However, so
far as the sentence of 05 years is concerned, we are of the view that the
occurrence took place at the spur of the moment without there being any
pre-meditation on the part of the petitioner. The complainant himself stated
that his daughter was married with the petitioner and due to strained
relations she was living in her parents’ house for the last one month. The
petitioner came there to convince her and to take her to his house. They also
had taken meal there. However, subsequently a quarrel took place between
the parties, which resulted in the commission of the crime. The injured
Qudrat Hussain only sustained one firearm injury and the petitioner did not
repeat the same. The locale of the injury suggests that the petitioner had no
intention to kill the injured. The petitioner has already suffered most of his
JAIL PETITION NO. 148 OF 2022
-: 5 :-
sentence. In this view of the matter, while maintaining the conviction of the
petitioner under Sections 324/337-F(v) PPC, the sentence of 05 years RI
awarded to him under Section 324 PPC is reduced to the period which he has
already undergone. During the course of arguments, learned counsel for the
petitioner had prayed that petitioner is a poor person and cannot pay the
Daman amount in one go, therefore, requested for installments of the
Daman amount. Section 337-Y(2) PPC provides that “in case of non-payment
of daman, it shall be recovered from the convict and until daman is paid in full
to the extent of his liability, the convict may be kept in jail and dealt with in
the same manner as if sentenced to simple imprisonment or may be released
on bail if he furnishes security equal to the amount of daman to the
satisfaction of the Court.” In this view of the matter as we have already
reduced the sentence of the petitioner to what he has already undergone,
keeping him behind the bars for the indefinite period till the payment of
Daman would not be in the interest of justice. We, therefore, direct that the
petitioner may be released subject to his furnishing surety equal to the
amount of Daman to the satisfaction of the learned Trial Court. The learned
Trial Court is directed to grant one year’s time to the petitioner for payment
of Daman amount, which would be payable in equal installments. However, it
is made clear that in case of any default in payment of monthly installment,
the petitioner shall be taken into custody and dealt with in accordance with
law.
8.
For what has been discussed above, this jail petition is
converted into appeal, partly allowed and the impugned judgment is
modified accordingly.
JUDGE
JUDGE
Islamabad, the
11th of April, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.14 of 2016 and
Criminal Petition No.180 of 2016
(Against the judgment dated 27.10.2015 passed by
the Lahore High Court, Rawalpindi Bench Rawalpindi
in Crl. Appeal Nos.265 & 434/2010, Crl. Revision
No.170/2010 with M.R. No.35/RWP/2010)
Shaukat Ali
(in J.P. No.14 of 2016)
Muhammad Akhtar
(in Cr.P. No.180 of 2016)
…Petitioner(s)
Versus
The State
(in J.P.14/2016)
Shaukat Ali & others
(in Cr.P.180/2016)
…Respondent(s)
For the Petitioner(s):
Mr. Basharat Ullah Khan, ASC
(in J.P.14/2016)
For the Complainant:
Mr. Sanaullah Zahid, ASC
(in Cr. P.180/2016)
Date of hearing:
18.09.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- The petitioner was
indicted alongside seven others, since acquitted, for a fatal shot to
Sakina Bibi, 45, at 7:00 p.m. on 2.7.2008 within the precincts of Police
Station Domaili, District Jhelum; she succumbed to the injuries on
4.7.2008. The mischief struck the family a week before the incident in
an otherwise peaceful neighbourhood, followed by a brawl between the
women folk over petitioner’s move to get some girls snapped through
Adil PW, given up as having been won over. It is in this backdrop that
on the fateful day the petitioner armed with a rifle accompanied by
Niaz Ali and Muhammad Saleem, differently armed, confronted the
deceased with the fatal shot while she was busy in fetching water at
Jail Petition No.14 of 2016
2
the spot; she was rushed to the hospital and it is prosecution’s case
that the acquitted co-accused, variously armed, intercepted the PWs on
way to the hospital and dealt them injuries, however, after intervention
by the locals, they succeeded to reach the hospital. Gasping for life,
Sakina Bibi was examined by Dr. Gul Nisa (PW-2) at 8:15 p.m. with a
semi circular entry wound in the right hypochondrial region with a
corresponding exit, confirmed in autopsy, held on 4.7.2008, as cause
of death. Muhammad Ashraf (given up) and Khalid Mehmood (PW-15)
were also medically examined on 2.7.2008; they were noted with
multiple injuries comprising mostly of swellings and lacerations. The
accused claimed trial. The learned trial Judge vide judgment dated
30.04.2010 returned a guilty verdict to the petitioner; convicted under
clause (b) of section 302 of the Pakistan Penal Code, 1860, he was
sentenced to death; remainders were acquitted from the charge.
Appeals filed, both by the convict as well as the complainant, were
dismissed by the High Court; penalty of death awarded to the
petitioner was altered into imprisonment for life vide impugned
judgment dated 27.10.2015. Shoukat Ali, petitioner, has assailed his
conviction through J.P. No.14 of 2016 whereas the complainant,
dissatisfied with consecutive failures qua the acquitted accused as well
as alteration of death penalty, seeks conviction as well as enhancement
through Crl. P. No.180 of 2016; bound by a common thread, these are
being decided through this single judgment.
2.
Mr. Basharat Ullah Khan, ASC, has argued for the convict;
he contends that after wholesale acquittal of co-accused there was no
occasion for the learned trial Judge as well as the High Court to
condemn the petitioner on the strength of evidence massively
disbelieved vis-à-vis the co-accused; adds that in the absence of any
forensic comparison recovery of gun P-4 cannot be viewed as
independent corroboration against the convict, particularly after
prosecution’s failure on the motive set up in the crime report and,
thus, the only juridical course available to the courts below was his
acquittal. Contrarily, learned counsel for the complainant submits that
the learned trial Judge acquitted the respondents without citing any
cogent or plausible reason by extending benefit of doubt, on grounds
vague, non-specific and illusory, an error that escaped High Court’s
notice as well and, thus, intervention by this Court is called for in
circumstances to avoid miscarriage of justice.
3.
Heard. Record perused.
Jail Petition No.14 of 2016
3
4.
The incident is split into two episodes, though in quick
succession; the petitioner, in the first place, effectively shot Sakina Bibi
while Niaz Ali and Muhammad Saleem, co-accused accompanied him,
though armed with a club and an hatchet, they were assigned no harm
the deceased. It was after receipt of solitary shot assigned to Shoukat
Ali petitioner that on way to the hospital the witnesses were allegedly
intercepted where another brawl took place. Insofar as first part of the
occurrence is concerned, we do not find any error of approach by the
trial Court to hold the petitioner guilty for the crime; the injury assigned
to him is confirmed by medico legal examination of Sakina Bibi
conducted shortly after the assault; it proved fatal as was confirmed by
the medical officer who conducted the autopsy. Occurrence taking place
at 7:00 p.m. in the month of July in a small rural neighborhood does
not allow to admit hypothesis of mistaken identity or substitution.
Absence of empty from the spot in the face of single shot without
repetition cannot be viewed as a circumstance intriguing upon the
prosecution case; similarly, failure, in the wake of defection by Adil PW
to testify in support of the motive, does not tremor the foundational
structure of the prosecution case, otherwise firmly founded on ocular
account furnished by the witnesses of the locality, having no axe to
grind. Culpability in the first part of the occurrence revolves around the
petitioner alone with no escape route seemingly available to him nor
prosecution’s failure in the second part of the occurrence cast any
shadow thereon. Scales are in balance with a wage settled conscionably.
No interference is called for. Insofar as acquittal of co-accused
entangling the witnesses on way to hospital is concerned, much water
has flown under the bridge and in view of the period, the respondents
endured tribulation of trial for causing injuries to the witnesses one of
whom abstained from the witness box, their acquittal cannot be viewed
as perverse or resulting into miscarriage of justice. Petitions fail. Leave
declined.
Judge
Judge
Islamabad, the
18th September, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE VAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI
JAIL PETITION NO. 154 OF 2016 AND
CRIMINAL PETITION NO. 108-1 OF 2016
(Against the judgment dated 23,12,2015 passed by the Lahore
High Court, Lahore passed in Criminal Appeal No. 810/2011 &
Murder Reference No. 209/2011)
Shamsher Ahmad
On JP 154/2016)
Manzoor Ahmed (complainant)
(In Cr.P. 108-L/2016)
Petitioner(s)
VERSUS
The State
(In JP 1S4/2016)
ShamsherAhmad and another
(In Cr.P. 108-L/20161
...Respondent(s)
For the Petitioner(s):
Malik Matee UIlah, ASC
(in J p 154/2o16)cv %a or ciso Unic iDLakeyt).
Mr. Saiful Malook, ASC
(In Cr.P. 108-LJ2016)
For the State:
Mirza Abid Majeed, DPG
Date of Hearing: 01.08.2022
JUDGMENT
SAWED MAZAHAR All AKBAR NAQVI, 3.- Petitioner Shamsher Ahmed was
tried by the learned Sessions Judge, Mianwali pursuant to a case
registered vide FIR No. 185 dated 03.06.2009 under Section 302 PPC at
Police Station Kundian, District Mianwali for committing murder of Ishtiaq
Ahmed, son of the complainant. The learned Trial Court vide its judgment
dated 28.04.2011 convicted petitioner Shamsher Ahmed under Section
302(b) PPC and sentenced him to death. He was also directed to pay
compensation amounting to Rs.200,000/- to the legal heirs of the
deceased or in default whereof to further suffer six months SI. In appeal
the learned High Court while maintaining the conviction of the
.
.,
I
-
JAIL PETITION NO. 154 OF 2016 AND
-: 2
CRIMINAL PETITION NO, 108-L OF 2016
petitioner/convict under Section 302(b) PPC, altered the sentence of death
into imprisonment for life. The amount of compensation and the sentence
in default whereof was maintained. Benefit of Section 382-B Cr.P,C. was
also extended to the petitioner/convict. Being aggrieved by the impugned
judgment, the petitioner/convict filed Jail Petition No. 154/2016 whereas
the complainant has filed Criminal Petition No. 108-L/2016 before this
Court seeking enhancement of the sentence of the petitioner/convict.
2.
The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
"2. The brief facts of the case are that Manzoor Ahmed
complainant (PW-6) got registered FIR (Ex.PE) alleging that he is
resident of Doaba and serving as a teacher in Elementary School, JaaI
Shuniali, his sister Mst. Wazir Khatoon widow of Malik GuI Sher is
residing in Mohallah Seelwan, Kundian along with her children and is a
patient of paralysis. Yesterday at Degar vela he along with Ishtiaq
Ahmed his son aged 18 years and Riaz Ahmed son of Allah Ditta went
to inquire about her health, after having dinner he along with Riaz
Ahmed, Ishtiaq Ahmed his son and Sami Ullah son of his sister came on
Jernaili Road for easy load and did the needful after having tea at the
hotel and then returned back at about 10.15 PM when they reached in
front of house of Malik GuI Sher deceased, then Shamsher Ahmed
accused armed with double barrel 12 bore gun came from the front
street and raised a lalkara at Ishtiaq Ahmed his son to be prepared as
he has come to teach him a lesson being an impediment in his
marriage from the house of GuI Sher and fired a shot with his 12 bore
double barrel gun hitting his son Ishtiaq Ahmed on the Chest who fell
down after receiving the injury; that the occurrence was seen by Riaz
Ahmed and Sami Ullah in the tube light installed on the main gate
along with the complainant. The motive for the occurrence is that
Shamsher Ahmed accused wanted to tie the knot with the daughter of
his sister but his sister had refused to accede to his request to which
the accused Shamsher Ahmed had a grouse that the deceased was
hurdle in his way to be married from the house of Gui Sher, therefore,
due to this reason he has committed Qatl-e-Amad of Ishtiaq Ahmed,
his son with 12 bore double barrel gun. The accused ran away while
brandishing the gun towards east, they did not went near due to fear
and took Ishtiaq Ahmed in injured condition to hospital who
succumbed to the injuries after reaching in the hospital."
3.
After completion of the investigation, report under Section
173 Cr,P,C. was submitted before the Trial Court. The prosecution in order
to prove its case produced 11 witnesses. In his statement recorded under
Section 342 Cr.P.C, the petitioner/convict pleaded his innocence and
refuted all the allegations leveled against him. However, he did not make
JAIL PETITION NO. 154 OF 2015 AND
CRIMINAL PETITION NO. 108-L OF 2016
his statement on oath under Section 340(2) Cr.P.0 in disproof of
allegations leveled against him. He also did not produce any evidence in
his defence,
4. Learned counsel for the petitioner/convict contended that
there is a delay of about three hours in lodging the FIR whereas the inter
se distance between the place of occurrence and the police station was 1
& 'I, kilometers. Contends that it was a night time occurrence and it was
not possible for the prosecution witnesses to identify the accused.
Contends there are glaring contradictions and dishonest improvements in
the statements of the eye-witnesses, which have escaped the notice of the
learned courts below. Contends that the prosecution witnesses are
interested and related, therefore, their evidence has lost its sanctity and
the conviction cannot be based upon it. Contends that the prosecution
case is based on whims and surmises and it has to prove its case without
any shadow of doubt but it has miserably failed to do so. Contends that
the prosecution has not been able to prove motive as alleged, which
causes serious dent in the prosecution case. Contends that the recovery of
weapon of offence in absence of recovery of empty is inconsequential.
Contends that the postmortem was conducted after eight hours of the
occurrence for which no reason is given. Lastly contends that the reasons
given by the learned High Court to sustain conviction of the petitioner are
speculative and artificial in nature, therefore, the impugned judgment has
to be set at naught.
S. On the other hand, learned Law Officer assisted by learned
counsel for the complainant submitted that the learned High Court has
converted the sentence of death of the petitioner on the grounds, which
are not tenable in law. Contend that to sustain conviction of an accused on
a capital charge, un-rebutted ocular evidence alone is sufficient. Lastly
contend that the ocular account is supported by the medical evidence,
therefore, the petitioner/convict does not deserve any leniency by this
Court. Learned counsel for the complainant vehemently argued that the
entence of the petitioner/convict may be enhanced.
JAIL PETITION NO. 154 OF 2016 AND
4:-
CRIMINAL PETITION NO. 108-L OF 2016
6. We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
The ocular account in this case has been furnished by
ManzoOr Ahmed, complainant (PW-6) and Samiullah (PW-7). These
prosecution witnesses were subjected to lengthy cross-examination by the
defence but nothing favourable to the petitioner/convict or adverse to the
prosecution could be produced on record. Both these PWs remained
consistent on each and every material point inasmuch as they made
deposition exactly according to the circumstances happened in this case,
therefore, it can safely be concluded that the ocular account furnished by
the prosecution is reliable, straightforward and confidence inspiring. The
medical evidence available on the record corroborates the ocular account
so far as the nature, time, locale and impact of the injury on the person of
the deceased is concerned. So far as the argument of learned counsel for
the petitioner that the medical evidence contradicts the ocular version is
concerned, we may observe that where ocular evidence is found
trustworthy and confidence inspiring, the same is given preference over
medical evidence. It is settled that casual discrepancies and conflicts
appearing in medical evidence and the ocular version are quite possible
for variety of reasons. During occurrence when live shots are being fired,
witnesses in a momentary glance make only tentative assessment of
points where such fire shots appeared to have landed and it becomes
highly improbable to mention their location with exactitude. However,
learned counsel could not point out as to how the medical evidence
contradicts the ocular evidence. As far as the question that the
complainant was father of the deceased, therefore, his testimony cannot
be believed to sustain conviction of the petitioner/convict is concerned, it
is by now a well established principle of law that mere relationship of the
prosecution witnesses with the deceased cannot be a ground to discard
the testimony of such witnesses unless previous enmity or ill will is
established on the record to falsely implicate the accused in the case.
samiullah (PW-7) was son of Mst. Wazir Khatoon, sister of the complainant
EJ
-
JAIL PETITION NO, 154 OF 2016 AND
-: 5
CRIMINAL PETITION NO. 108-L OF 2016
and resident of the same area where the occurrence took place whereas
the complainant has reasonably explained his presence at the place of
occurrence. According to him, he went to his paralyzed sister's house to
inquire about her health. Learned counsel for the petitioner/convict could
not point out any reason as to why the complainant has falsely involved
the petitioner/convict in the present case and let off the real culprit, who
has committed murder of his real son. Substitution in such like cases is a
rare phenomenon. The complainant would not prefer to spare the real
culprit who murdered his son and falsely involve the petitioner without
any rhyme and reason. During the course of proceedings, the learned
counsel contended that there are material discrepancies and
contradictions in the statements of the eye-witnesses but on our specific
query he could not point out any major contradiction, which could shatter
the case of the prosecution. While appreciating the evidence, the court
must not attach undue importance to minor discrepancies and such minor
discrepancies which do not shake the salient features of the prosecution
case should be ignored. The accused cannot claim premium of such minor
discrepancies. If importance be given to such insignificant inconsistencies
then there would hardly be any conviction. Reliance is placed on Allah
Bakhsh Vs. Ahmad Din (1971 SCMR 462). So far as the delay of about 2
hours 45 minutes in lodging the FIR is concerned, the complainant in his
cross-examination has reasonably explained the delay by furnishing the
details about the consuming of time as it took 15/20 minutes at the spot,
about 30 minutes in reaching the hospital, he remained in hospital for
about one hour and then reached the police station in another 35-40
minutes where he had to wait for the SHO for more than an hour. Learned
counsel for the petitioner/convict had argued that as it was a night time
occurrence, therefore, it was not possible for the prosecution witnesses to
identify the accused. However, this argument of the learned counsel is
misconceived as the petitioner is paternal cousin of Samiullah (PW-7),
therefore, the parties were known to each other and no question of
mistaken identify arises. Even otherwise, the prosecution witnesses of
ocular account had clearly mentioned that a tube-light was glowing at the
-
JAIL PETITION NO. 154 OF 2016 AND
-: 6
CRIMINAI PETITION NO. 108-1 OF 2016
main gate of Mst. Wazir Khatoon, sister of the complainant, in front of
which the occurrence took place. Although it has been argued that the
tube-light, which has been shown as source of the light was not taken into
possession and as such it hampers the prosecution case. However, this
aspect of the argument has no legal foundation. Firstly, it depends upon
the ownership of the article, which ultimately provided the source for
identification, and secondly, it is for the Investigating Officer either he
deems it essential or otherwise Even if this aspect of the argument is
evaluated broadly, it is suffice to state that this principle is not absolute
because it depends upon (i) source, (ii) question of ownership, (iii) public
or private, & (iv) essential to show the source. When all these matters are
taken into consideration, it is established that it was a tube-light and as
such the same cannot be made part of case property merely on the
ground that the assailant was identified from the source, which has been
shown. This source of light is also established from the rough site plan as
well as scaled site plan, which is essential part of the prosecution case. The
delay of about eight hours in conducting postmortem examination is also
not beneficial to the petitioner/convict. The occurrence took place at
10.15 PM whereas the FIR was lodged at 1.00 am (mid night) and it was
after the registration of FIR that the state machinery came into action and
after usual proceedings the postmortem examination was conducted at
6.15 am in the morning i.e. after five hours of registration of FIR. After the
occurrence, the petitioner also remained absconder for about six months,
which is also a corroboratory piece of evidence against him. The learned
High Court has rightly disbelieved the motive by holding that there is no
positive proof that the deceased was instrumental in rejection of
matrimonial proposal sent by the petitioner. So far as the recovery of
weapon of offence i.e. .12 bore rifle is concerned, admittedly no empty
was recovered from the place of occurrence, which could be sent to
Forensic Science Laboratory for analysis, therefore, the recovery is
inconsequential. In these circumstances, there is sufficient evidence
available to sustain the conviction of the petitioner/convict. So far as the
antum of punishment is concerned, keeping in view the fact that
I
JAIL PETITION NO. 154 OF 2016 AND
-:7:-
CRIMINAL PETITION NO, 108-L OF 2016
recovery is inconsequential and motive has not been proved, the learned
High Court has rightly taken a lenient view and converted the sentence of
death into imprisonment for life. No further leniency can be shown to the
petitioner. The impugned judgment is well reasoned, proceeds on correct
principles of law on the subject and does not call for interference by this
Court.
For what has been discussed above, we do not find any merit
in these petitions, which are dismissed and leave to appeal is refused. The
above are the detailed reasons of our short order of even date.
Islamabad, the
I' of August, 2022
Approved For Reporting
Iiti,iit.i.ii
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
JAIL PETITION NO. 169 OF 2021
(On appeal against the judgment dated
16.03.2021 passed by the Lahore High Court,
Lahore in Criminal Appeal No. 76554/2017)
Nazir Ahmed
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Mr. Sikandar Zulqarnain Saleem, ASC
(Via video link from Lahore)
For the State:
Mirza Abid Majeed, DPG
Mr. Haseeb Ashraf, D.O. CTD
Date of Hearing:
01.06.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was tried by the
learned Special Judge, Anti Terrorism Court, Sargodha pursuant to a case
registered vide FIR No. 43 dated 29.06.2016 under Sections 4/5 of
Explosive Substances Act, 1908 read with Section 7 of the Anti Terrorism
Act, 1997 at Police Station CTD, Faisalabad as explosive material weighing
1150 grams along with four detonators and two safety fuses were
recovered from his possession. The learned Trial Court vide its judgment
dated 14.09.2017 convicted the petitioner as under:-
i)
Under Section 5 of the Explosive Substances Act, 1908
To undergo fourteen years RI and his whole property was
forfeited to the government.
ii)
Under Section 7(ff) of the Anti Terrorism Act, 1997
To undergo fourteen years RI with forfeiture of his property.
JAIL PETITION NO. 169 OF 2021
-: 2 :-
2.
In appeal the learned High Court maintained the conviction
and sentences recorded by the learned Trial Court. The prosecution story
as given in the judgment of the learned High Court reads as under:-
“2.
Brief facts of the case are that on 29.06.2016 the Complainant,
Noor Muhammad/SI (PW-1), was patrolling with other police officials on
Watta Khel Chowk, Mianwali, when he received a source information that
Nazir Ahmad (the “Appellant”) was waiting for someone at Hassan Chowk
with a red and white cloth bag containing explosives and that he could be
apprehended if an immediate action was taken. On this tip-off, the
Complainant and his contingent reached that place and nabbed the
Appellant on the pointing out of the informer. He checked his bag and
found explosive substance weighing 1150 grams, one match box, four
detonators and two safety fuses. On his personal search he recovered
Rs.570/- from his pocket. The Complainant drew 20 grams from the
recovered explosive substance and prepared a sampled parcel for chemical
analysis. Then he secured the entire case property vide Recovery Memo
Exh. PA, drafted the complaint Ex.PC and sent it to the Police Station CTD,
Faisalabad, through Hammad Qadeer 791/CP on the basis of which
Muhammad Shahid Anwar 720/CP (PW-3) registered FIR No.43/2016 Exh.
PC/1 at 03:10 p.m.”
3.
After completion of the investigation, report under Section
173 Cr.P.C. was submitted before the Trial Court. The prosecution in order
to prove its case produced eight witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted
all the allegations leveled against him. He did not make statement on oath
as provided under Section 340(2) Cr.P.C in disproof of the allegations
leveled against him. However, he produced some defence witnesses and
documentary proof.
4.
At the very outset, learned counsel for the petitioner
contended that the petitioner has been falsely implicated in this case and
the Police has planted the explosive material upon him. Contends that
there are glaring contradictions and dishonest improvements in the
statements of the prosecution witnesses, which have escaped the notice
of the learned courts below. Contends that the learned courts below did
not take into consideration the defence plea of the petitioner that he was
kidnapped by the law enforcing agencies and was falsely framed in the
picture with ulterior motives. Contends that none from the public was
associated in the case and only official witnesses deposed against the
JAIL PETITION NO. 169 OF 2021
-: 3 :-
petitioner. Lastly contends that the reasons given by the learned High
Court to sustain conviction of the petitioner are speculative and artificial in
nature, therefore, the impugned judgment may be set at naught.
5.
On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the petitioner was caught red
handed while in possession of a huge quantity of explosive material and
the Police officials had no enmity to falsely involve him in the present case.
Contends that the prosecution has proved its case against the petitioner
beyond shadow of doubt and mere technicalities cannot absolve the
petitioner of his criminal liability.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
7.
It is the prosecution case that the petitioner was caught red
handed while he was carrying a cloth bag, which contained explosive
substance weighing 1150 grams wrapped in a polythene bag, four
detonators wrapped in blue polythene, a match box and two safety fuses.
Twenty grams explosive material was separated and was sent to Punjab
Forensic Science Agency for chemical analysis. To bring home the guilt of
the petitioner, the prosecution mainly relied upon the statements of Noor
Muhammad, SI/complainant (PW-1), Ahmed Nawaz, SI (PW-2) and Khaliq
Dad Khan, Bomb Disposal Commander (PW-5). Noor Muhammad (PW-1)
and Ahmed Nawaz (PW-2) appeared to prove the factum of recovery
whereas Khalid Dad Khan (PW-5) gave its report to the effect that the
detonators and safety fuses were alive. These witnesses have narrated the
prosecution story in a natural manner and remained consistent
throughout and their testimony could not be shattered. These prosecution
witnesses were subjected to lengthy cross-examination by the defence but
nothing favourable to the petitioner or adverse to the prosecution could
be produced on record. Therefore, it can safely be concluded that the
testimonies of these PWs are reliable, straightforward and confidence
inspiring. The said witnesses had no enmity with the petitioner to falsely
JAIL PETITION NO. 169 OF 2021
-: 4 :-
implicate him in the present case. This Court in a number of cases has held
that testimony of official witnesses is as good as any other private witness
unless it is proved that they have animus against the accused. However,
no such thing could be brought on record by the petitioner in this case.
This Court has time and again held that reluctance of general public to
become witness in such like cases has become judicially recognized fact
and there is no way out to consider statements of official witnesses, as no
legal bar or restriction has been imposed in this regard. Police/official
witnesses are as good witnesses and could be relied upon, if their
testimonies remain un-shattered during cross-examination. The parcel
containing sample of recovered explosive substance was sent to the office
of Punjab Forensic Science Laboratory and according to the report of the
Agency the sample contained explosive material. During the course of
proceedings, the learned counsel contended that there are material
discrepancies and contradictions in the statements of the eye-witnesses
but on our specific query he could not point out any major contradiction,
which could shatter the case of the prosecution. It is a well settled
proposition of law that as long as the material aspects of the evidence
have a ring of truth, courts should ignore minor discrepancies in the
evidence. The test is whether the evidence of a witness inspires
confidence. If an omission or discrepancy goes to the root of the matter,
the defence can take advantage of the same. While appreciating the
evidence of a witness, the approach must be whether the evidence read as
a whole appears to have a ring of truth. Minor discrepancies on trivial
matters not affecting the material considerations of the prosecution case
ought not to prompt the courts to reject evidence in its entirety. Such
minor discrepancies which do not shake the salient features of the
prosecution case should be ignored. The petitioner had taken a defence
plea that he was arrested by CTD due to his relation with one Mukhtar,
who was his cousin and belonged to TTB and was falsely framed in the
picture with ulterior motives. It is worth mentioning that during the course
of proceedings before the Trial Court, the petitioner did not opt to appear
on oath in terms of Section 340(2) Cr.P.C. However, he produced defence
JAIL PETITION NO. 169 OF 2021
-: 5 :-
witnesses. When the person who is himself seized with first hand
information does not appear on oath and only produces witnesses, this
move lowers the sanctity of defence version simply for the reason that the
accused was a best witness to depose entire detail as to when and who
abducted him, what was the reason behind this, where he was kept, who
brought him to the place of occurrence, why he was falsely involved in the
case etc. When the petitioner took a specific plea and he was a best
witness for the same then his non-appearance is to be taken as
withholding of the best evidence. The learned High Court in paragraph 15
of the impugned judgment has dealt with this issue and has rightly held as
under:-
“To prove this plea, he examined DW-1 to DW-4 and produced the
documents mentioned above. So far as the DWs are concerned, their
evidence does not inspire confidence because they did not explain
why they neither approached senior officers in police hierarchy nor a
court of law to get the appellant released. Importantly, the appellant
did not produce his brother Zahoor Ahmed, who was a material
witness as DW-1 Zameer Haider stated that he had informed him
about his arrest by the CIA staff. In our opinion, the documents are
also of little help to the appellant. The application under Section 22-A
Cr.P.C. did not specifically state that the CTD officials were involved in
his alleged arrest.”
8.
According to Article 119 of the Qanun-e-Shahadat Order,
1984, the burden to prove any particular fact lies on the person who
wishes the court to believe its existence. There is no denial to this fact that
the prosecution has to discharge the burden of proving the case beyond
reasonable doubt. However, once the prosecution becomes successful in
discharging the said burden, it is incumbent on the accused who had taken
a specific defence plea to prove the same with certainty but we are of the
view that the petitioner has failed to prove the same. 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 petitioner 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.
JAIL PETITION NO. 169 OF 2021
-: 6 :-
9.
For what has been discussed above, we do not find any merit
in this petition, which is dismissed and leave to appeal is refused. The
above are the detailed reasons of our short order of even date.
JUDGE
JUDGE
JUDGE
Islamabad, the
1st of June, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
LAPPELLA EJURISDIGION
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR All AKBAR NAQVI
)Aii PETITION NO. 190 OF 2017 AND
CRIMINAL PETITION NO 398 1 OF 2 Onl
'OOZ ^017 Pa ssed by the
Lahore High Court, Mijitan Bench In Murder Ref prence Na.
111/2012 & Cdmlr.aj Appeal No. 77212012)
VERSUS
Azhar Hussain
Hafl Ghous Bakhsh (complainant)
The State & others
(In JP 190/2017)
(In Cr.P. 398-L/2017)
...Petitioner(s)
(In both cases)
Respondent(s)
For the Petitioner(s). Ms. Saba Saeed Sheik!,, ASC
(In JP fJ/zot)V. Via video link Lahore
Mr. Sikancjar Javed, ASC
(In Cr.P. 398-1.12017. Via video link Lahore
For the State:
N. R.
Date of Hearing:
16.08.2022
YYED MAZAHAR All AKBAR
JUDGMEN
NAQVI, J.- Petitioner Azhar Hussain along
with two co-accused was tried by the learned Additional Sessions Judge,
Jatoi, District Muzaffargarh pursuant to a case registered vide FIR No.
731/2010 dated 05.10.2010 under Sections 302/34 PPC at Police Station
Jatoi for committing murder of Mst. Sajda Bibi, daughter of the
complainant The learned Trial Court vide its judgment dated 17.11.2012
while acquitting CO-accused convicted petitioner Azhar Hussain under
Section 302(b) PPC and sentenced him to death. He was also directed to
pay compensation amounting to Rs.100,000,L. to the legal heirs of the
deceased or in default whereof to further suffer six months SI. In appeal
the learned High Court while maintaining the conviction of the petitioner
under Section 302(b) PPC, altered the sentence of death into
JAIL PETITION NO. 190 OF 2017 AND
CRIMINAL PETITION NO. 3981 OF 2017
imprisonment for life. The amount of compensation and the sentence in
default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also
extended to the petitioner/convict. Being aggrieved by the impugned
judgment, the petitioner/convict filed Jail Petition No. 190/2017 whereas
the complainant has filed Criminal Petition No. 398-L/2017 before this
Court seeking enhancement of the sentence of the petitioner/convict.
2.
The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
"2. The brief facts of the prosecution case are that on
05.10.2010, the complainant of this case namely Hap Ghaus Bakhsh
appeared before the police and got recorded his statement Exh.P.E.
contending therein that today at morning time he (complainant)
alongwith his wife Mst. Ashraf and children was cultivating vegetable
near his house while his daughter namely Mst. Sajda aged 16/17 years
was present in the house. At about 7.30 AM he heard hue and cry and
rushed towards his house and saw that two unknown persons were
coming out form his Havaili. He reached in the house and saw that his
daughter Mst. Sajda had grappled with accused Azhar Hussain. When
he (complainant) reached near, the accused Azhar Hussain made fire
with his pistol which hit in the belly of Saida Bibi who fell on the
ground. In the meanwhile PWs namely Mukhtiar Hussain and
Muhammad Siddique reached at the spot and they tried to catch
accused Azhar Hussain but accused gave threats while raising his pistol
but PW namely Mukhtiar Hussain chased the accused Azhar Hussain
and caught hold him in the cotton crop near the house and they
grappled with each others. The accused Azhar Hussain fled away while
leaving his Qamiz, Shalwar alongwith broken Azarband, pair of shoe
and identity card before they reached there. His daughter succumbed
to the injuries. On these facts and circumstances, the above
mentioned case was registered."
3.
After completion of the investigation, report under Section
173 Cr.P.C. was submitted before the Trial Court. The prosecution in order
to prove its case produced nine witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner/convict pleaded his innocence
and refuted all the allegations leveled against him. However, he did not
make his statement on oath under Section 340(2) Cr.P.0 in disproof of
allegations leveled against him. He also did not produce any evidence in
his defence.
JAIL PETITION NO. 190 OF 2017 AND
-: 3
CRIMINAL PETITION NO. 398-L OF 2017
4. Learned counsel for the petitioner/convict contended that
there are glaring contradictions and dishonest improvements in the
statements of the eye-witnesses, which have escaped the notice of the
learned courts below. Contends that the prosecution witnesses are
interested and related, therefore, their evidence has lost its sanctity and
the conviction cannot be based upon it. Contends that the prosecution
case is based on whims and surmises and it has to prove its case without
any shadow of doubt but it has miserably failed to do so. Contends that
the prosecution has not been able to prove motive as alleged, which
causes serious dent in the prosecution case. Contends that there was no
blood stained earth at the place of occurrence, which shows that the
occurrence took place somewhere else. Lastly contends that the impugned
judgment is based on misreading and non-reading of the evidence,
therefore, the same may be set at naught.
5.
On the other hand, learned counsel for the complainant
submitted that the learned High Court has converted the sentence of
death of the petitioner on the grounds, which are not tenable in law.
Contends that to sustain conviction of an accused on a capital charge, Un-
rebutted ocular evidence alone is sufficient. Lastly contends that the
ocular account is supported by the medical evidence, therefore, the
petitioner/convict does not deserve any leniency by this Court, rather his
sentence may be enhanced.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
The ocular account in this case has been furnished by Ghous
Bakhsh, complainant (PW-3) and Mukhtiar Hussain (PW-6). These
prosecution witnesses were subjected to lengthy cross-examination by the
defence but nothing favourable to the petitioner/convict or adverse to the
prosecution could be brought on record. Both these PWs remained
consistent on each and every material point inasmuch as they made
deposition exactly according to the circumstances happened in this case,
fr,t
--
U
-
JAIL PETITION NO. 190 OF 2017 AND
-: 4
CRIMINAL PETITION NO. 398-1 OF 2017
therefore, it can safely be concluded that the ocular account furnished by
the prosecution is reliable, straightforward and confidence inspiring. The
medical evidence available on the record corroborates the ocular account
so far as the nature, time, locale and impact of the injury on the person of
the deceased is concerned. As far as the question that the complainant
was father of the deceased, therefore, his testimony cannot be believed to
sustain conviction of the petitioner/convict is concerned, this Court has
time and again held that mere relationship of the prosecution witnesses
with the deceased cannot be a ground to discard the testimony of such
witnesses unless previous enmity or ill will is established on the record to
falsely implicate the accused in the case. Learned counsel for the
petitioner/convict could not point out any plausible reason as to why the
complainant has falsely involved the petitioner/convict in the present case
and let off the real culprit, who has committed murder of his real
daughter. Substitution in such like cases is a rare phenomenon. The
complainant would not prefer to spare the real culprit who murdered his
daughter and falsely involve the petitioner without any rhyme and reason
especially when admittedly there was no previous enmity between the
parties. During the course of proceedings, the learned counsel contended
that there are material discrepancies and contradictions in the statements
of the eye-witnesses but on our specific query she could not point out any
major contradiction, which could shatter the case of the prosecution.
While appreciating the evidence, the court must not attach undue
importance to minor discrepancies and such minor discrepancies which do
not shake the salient features of the prosecution case should be ignored.
The accused cannot claim premium of such minor discrepancies. If
importance be given to such insignificant inconsistencies then there would
hardly be any conviction. Reliance is placed on Allah Bakhsh Vs. Ahmad Din
(1971 SCMR 462). Learned counsel for the petitioner had argued that
there was no blood stained earth at the place of occurrence, which shows
that the occurrence took place somewhere else and just to bring the case
within the prosecution version, the place of occurrence was mentioned at
the complainant's house. However, this argument of the learned counsel is
JAIL PETITION NO. 190 OF 2017 AND
-: 5 :-
CRIMINAL PETITION NO. 398-1 OF 2017
misconceived. The postmortem examination clearly suggests that gut was
coming out of the only injury sustained by the deceased. The learned Trial
Court has rightly observed that in such like injuries when the gut comes
out of the belly, it seals the margin of the wound and the blood falls inside
the body cavity instead of oozing outside the body. Dr. Samreen Rasheed,
(PW-2) who had conducted postmortem examination had observed that
the peritoneum was injured anterioly at the level of umbilicus and the
abdominal cavity was full of blood, the small intestines were perforated,
therefore, non-existence of blood at the place of occurrence is easily
understandable and does not shatter the prosecution case. The petitioner
had taken defence plea that he had friendly relations with the deceased
and when he was seen by the complainant's son with the deceased sitting
in the cotton crop, he ran away and later heard that the deceased has
been murdered. However, he could not substantiate his plea by placing on
record cogent evidence. It seems he has concocted a false story just to
save his skin. However, this stance of the petitioner extends support to the
prosecution case that he was followed by Mukhtiar Hussain (PW-6) till the
cotton crop where confrontation took place and his identity card along
with other belongings were left by him in the field. It was one of the
arguments of the learned counsel that the Investigating Officer did not
properly investigate the case, the investigation remained incomplete and
the challan was not properly sent. However, on our specific query, learned
counsel admitted that neither any attempt was made by the defence to
get the Investigating Officer declared hostile nor did they file private
complaint nor even the Investigating Officer was cross-examined on this
aspect of the matter. Therefore, raising this argument at this stage 15 of no
avail to the petitioner. The prosecution had not disclosed the motive,
which resulted in the commission of the offence but since there was no
enmity between the parties, therefore, the complainant did not narrate
any motive in the crime report. So far as recovery is concerned, admittedly
neither the weapon of offence was recovered from the petitioner nor any
empty was collected from place of occurrence. However, we may observe
at where ocular evidence is found trustworthy and confidence Inspiring
I T
-
JAIL PET II[ON NO. 190 OF 20].] AND
CRIMINAL PETITION NO, 398-1 OF 2017
then the conviction can be solely based upon it. In these circumstances,
there is sufficient evidence available to sustain the conviction of the
petitioner/convict. So far as the quantum of punishment is concerned,
keeping in view the fact that no recovery was affected and motive has not
been proved, the learned High Court has rightly taken a lenient view and
converted the sentence of death into imprisonment for life. No further
leniency can be shown to the petitioner/convict. The impugned judgment
is well reasoned, proceeds on correct principles of law on the subject and
does not call for interference by this Court.
7.
For what has been discussed above, we do not find any merit
in these petitions, which are dismissed and leave to appeal is refused.
Islamabad, the
16th of August, 2022
r'4Approved For Reporting
ILiIffitii•i
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Faisal Arab
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.1 of 2016
(Against judgment dated 02.11.2015 passed by the
Lahore High Court Lahore in Crl. Appeal No.243 of
2011 & M.R. No.133 of 2011)
Arfan Akram
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Nemo
For the State:
Mr. M. Usman,
Deputy Prosecutor General Punjab
Date of hearing:
03.03.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Irshad Bibi, 62,
was shot dead at 11:00 a.m. on 26.1.2009, outside the threshold of
her home, located within the precincts of Police Station
Tandlianwala, District Faisalabad by Irfan Akram, petitioner, no
other than her son-in-law; incident was reported 11:45 p.m. at the
spot by her son Shakil Ahmed (PW-7). It was alleged that armed
with a .30 caliber pistol, the petitioner persuaded the deceased to
sell her residential enclave to apportion the proceed thereof with
him; she declined the suggestion at the cost of her life. Arrested on
27.10.2009, the petitioner pursuant to a disclosure led to the
recovery of a .30 caliber pistol, found wedded with the casing
secured from the spot, dispatched for forensic analysis earlier to
his arrest. A learned Additional Sessions Judge vide judgment
dated 3.2.2010 returned a guilty verdict; he was sentenced to
death under clause (b) of Section 302 of the Pakistan Penal Code,
1860; altered by the High Court into imprisonment for life vide
impugned judgment dated 2.11.2015, vires whereof are being
Jail Petition No.1 of 2016
2
assailed through a jail petition, filed with a delay of 23 days,
condoned with a view to ensure safe administration of criminal
justice.
2.
We have examined the entire record with the
assistance of the learned Law Officer to discover that the incident
was reported with a remarkable promptitude. Occurrence took
place at 11:00 a.m, reported to the police 45 minutes thereafter;
autopsy conducted at 5:00 p.m. cannot be viewed as delayed;
durations mentioned therein synchronize with the point of time
reflected in the crime report. Shakil Ahmed (PW-7), deceased’s real
son and inmate of the same premises is a natural witness by all
standards; his evidence is duly corroborated by Munawar Hussain
(PW-8). On all the salient features of the case as well as details
collateral
therewith,
we
have
found
them
consistent,
straightforward
and
confidence
inspiring;
even
otherwise,
seemingly they do not have an axe to grind. On the contrary,
petitioner being a brother-in-law could not be conceivably swapped
as a scapegoat. Forensic reports are in the positive. Solitary fire
shot is consistent with the weapon recovered and found wedded
with the casing dispatched before arrest. Petitioner’s absence from
law for a considerable span of time heavily militates against the
position taken by him during the trial; his wife Raheela Bibi, a
common link with the deceased, was the best person to vindicate
his position; she is conspicuous by her absence from the scene.
Prosecution successfully drove home the charge to the hilt and we
have not been able to find out any space to admit any hypothesis
other than petitioner’s guilt. Scales are in balance with wages
conscionable in circumstances. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
3rd March, 2020
Not approved for reporting
Azmat/-
Jail Petition No.1 of 2016
3
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO. 206 OF 2019
(On appeal against the judgment dated
11.03.2019 passed by the Lahore High Court,
Rawalpindi Bench in Criminal Appeal No.
394/2018)
Muhammad Ijaz
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Syeda B.H. Shah, ASC
For the State:
Mirza Abid Majeed, DPG
Date of Hearing:
08.05.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Muhammad Ijaz was
tried by the learned Additional Sessions Judge, Rawalpindi pursuant to a
case registered vide FIR No. 66 dated 19.04.2012 under Section 302 PPC at
Police Station Chountra, Rawalpindi for committing murder of Mst.
Naveeda Bibi, daughter of the complainant. The learned Trial Court vide its
judgment dated 26.03.2018 convicted the petitioner under Section 302(b)
PPC and sentenced him to imprisonment for life. He was also directed to
pay compensation amounting to Rs.200,000/- to the legal heirs of the
deceased or in default whereof to further suffer six months SI. Benefit of
Section 382-B Cr.P.C. was also extended in favour of the petitioner. In
appeal the learned High Court maintained the conviction and sentence
recorded by the learned Trial Court.
2.
The prosecution story as given in the impugned judgment
reads as under:-
JAIL PETITION NO. 206 OF 2019
-: 2 :-
“3.
Precisely stated the case of prosecution, as unveiled by Ghulam
Akbar (PW-14) is to the effect that on 19.04.2012 he along with his wife,
namely, Ghulam Shafian went to fields in order to harvest wheat crops;
that at about 12:00 noon his daughter, namely, Naveeda Bibi, who was
married with accused Muhammad Ejaz about 14/15 years back and at
present was residing with him due to the strained relation with her
husband, after giving meals to them went back to the house; that at
about 02:15 pm after harvesting wheat crops, the complainant, his wife,
Muhammad Qurban and Abdul Latif along with their cattle reached in the
street nearby his house; that he heard reports of fire shots from his
house, upon which complainant along with persons mentioned above
rushed towards his house and saw Muhammad Ejaz while decamping and
brandishing his pistol therefrom; that Naveeda Bibi was found screaming
in the room while smeared with blood and shortly thereafter died.”
3.
After completion of the investigation, report under Section
173 Cr.P.C. was submitted before the Trial Court. The prosecution in order
to prove its case produced seventeen witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted
all the allegations leveled against him. However, he neither appeared as
his own witness on oath as provided under Section 340(2) Cr.P.C in
disproof of the allegations leveled against him nor produced any evidence
in his defence.
4.
At the very outset, learned counsel for the petitioner
contended that it was an un-witnessed occurrence and the petitioner has
been falsely involved in this case against the actual facts and
circumstances. Contends that the whole case of the prosecution is based
upon the statements of two witnesses, who furnished the evidence of waj
takar and the same is partisan and it does not inspire confidence.
Contends that the prosecution witnesses are at variance on salient
features of the prosecution version, as such, the same cannot be made
basis to sustain conviction of the petitioner. Contends that the motive in
this case is shrouded in mystery and the report of the Forensic Science
Laboratory with regard to weapon of offence is negative, which makes the
prosecution case doubtful. Lastly contends that the reasons given by the
learned High Court to sustain conviction of the petitioner are speculative
and artificial in nature, therefore, the impugned judgment may be set at
naught.
JAIL PETITION NO. 206 OF 2019
-: 3 :-
5.
On the other hand, learned Law Officer vehemently opposed
this petition on the ground that the witnesses had no enmity with the
petitioner to falsely implicate him in this case and the medical evidence is
also in line with the ocular account, therefore, the petitioner does not
deserve any leniency from this Court.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
A bare perusal of the record shows that the unfortunate
incident, wherein the daughter of the complainant was done to death,
took place on 19.04.2012 at 02:30 pm whereas the matter was reported to
the Police on the same day at 06:05 pm. The distance between the place
of occurrence and the Police Station was 18 kilometers. Thus, it can safely
be said that FIR was lodged with promptitude. Ghulam Akbar, complainant
(PW-14) and Abdul Latif (PW-15) had heard the gunshot and witnessed the
petitioner fleeing away from the place of occurrence after commission of
offence while he was having a pistol in his hands. Evidence of these
witnesses is in the nature of waj takar, the probative strength of which
rests in the doctrine of res gestae in view of Article 19 of the Qanun-e-
Shahadat Order, 1984. The said doctrine of res gestae is based upon the
assumption that statements of witnesses that constitute part of the res
gestae are attributed a certain degree of reliability because they are
contemporaneous making them admissible by virtue of their nature and
strength of their connection with a particular event and their ability to
explain it comprehensively. These prosecution witnesses were residents of
the same locality, therefore, their presence at the place of occurrence was
natural. These prosecution witnesses were subjected to lengthy cross-
examination by the defence but nothing favourable to the petitioner or
adverse to the prosecution could be brought on record. These witnesses
have given all necessary details of occurrence qua the date, time, place,
name of accused, name of witnesses, manner of occurrence, kind of
weapon used in the occurrence, the locale of injuries and the motive of
occurrence. These PWs remained consistent on each and every material
JAIL PETITION NO. 206 OF 2019
-: 4 :-
point inasmuch as they made deposition according to the circumstances
surfaced in this case, therefore, it can safely be concluded that their
statements are reliable, straightforward and confidence inspiring. There is
no denial to this fact that these PWs were related with the deceased but
the law in this regard is well settled. A related witness cannot be termed
as an interested witness under all circumstances. A related witness can
also be a natural witness. If an offence is committed within the presence
of the family members then they assume the position of natural witnesses.
In case, their evidence is reliable, cogent and clear, the prosecution case
cannot be doubted. However, a related witness would become an
interested witness when his evidence is tainted with malice and it shows
that he is desirous of implicating the accused by fabricating and concocting
evidence but the learned counsel for the petitioner could not show us
anything in this regard. The Court is required that the evidence of an eye-
witness who is a near relative of the victim should be closely scrutinized.
Learned counsel for the petitioner could not point out any plausible
reason as to why the complainant has falsely involved the petitioner in the
present case and let off the real culprit, who has committed murder of his
daughter. Substitution in such like cases is a rare phenomenon. The
medical evidence available on the record further corroborates the
prosecution case so far as the nature, time, locale and impact of the
injuries on the person of the deceased is concerned. During the course of
proceedings, the learned counsel contended that there are material
discrepancies and contradictions in the statements of the eye-witnesses
but on our specific query she could not point out any major contradiction,
which could shatter the case of the prosecution. Where discrepancies are
of minor character and do not go to the root of the prosecution story and
do not shake the salient features of the prosecution version, they need not
be given much importance. As the report of the Punjab Forensic Science
Laboratory is negative, therefore, the recovery of weapon of offence is
inconsequential. So far as motive part of the prosecution story is
concerned, the learned Trial Court has rightly disbelieved the motive by
holding that is a vaguely formulated motive because no material evidence
JAIL PETITION NO. 206 OF 2019
-: 5 :-
could be placed on record to prove the motive. There is no denial to this
fact that the petitioner remained absconder for a long period of more than
five years, which is also a corroboratory piece of evidence against him. The
learned courts below have already taken a lenient view while awarding the
sentence of imprisonment for life to the petitioner, which in our view
leaves no room to further deliberate on this point. 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 petitioner 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.
7.
For what has been discussed above, we do not find any merit
in this petition, which is dismissed and leave to appeal is refused. The
above are the detailed reasons of our short order of even date.
JUDGE
JUDGE
Islamabad, the
8th of May, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.210 of 2018
(Against the judgment dated 19.12.2017 passed by the
Peshawar High Court, Abbottabad Bench in Crl. Appeal
No.67-A of 2014)
Abdul Khaliq
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Qazi Adil Aziz, ASC
Mr. Mehmood A. Sheikh, AOR
For the State:
Mr. Arshad Hussain Yousafzai, ASC
Date of hearing:
04.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Amraiz, 25, along with
the witnesses was on way to attend a marriage ceremony on 13.3.2011
at 1:00 p.m. when the petitioner accompanied by his brother Javed
repeatedly shot him in the chest; he initially survived the assault and
himself laid information with the police in the hospital, however,
succumbed to the injuries shortly thereafter. No motive is cited in the
crime report, however, subsequently disclosed as a previous brawl
between deceased’s cousin and the assailants. The deceased was
examined in injured condition at 2:15 p.m; the medical officer noted
two
entry
wounds
surrounded
by
blackened
margins
with
corresponding exits on the chest, confirmed in the autopsy report as
cause of death; the petitioner was arrested on the following day with a
.30 caliber pistol (P-3), forensically found wedded with the casings,
eight in number, secured from the spot. Both the accused were
indicted before the learned Sessions Judge Haripur; the trial
culminated into petitioner’s conviction under clause (b) of Section 302
Jail Petition No.210 of 2018
2
of the Pakistan Penal Code, 1860; he was sentenced to death vide
judgment dated 14.06.2014, however, the co-accused was acquitted
from the charge. The High Court upheld petitioner’s conviction albeit
with alteration of death penalty into imprisonment for life vide
judgment dated 19.12.2017, vires whereof are being assailed through a
jail petition, taken up by Qazi Adil Aziz, ASC. It is argued that evidence
disbelieved qua the co-accused cannot be relied upon for petitioner’s
conviction in the absence of independent corroboration, hopelessly
lacking in view of exclusion of motive from consideration by the High
Court; it is next argued that none was present at the scene and the
petitioner was arrayed as an accused after deliberations and
consultations on the basis of a misplaced and ill-conceived suspicion.
The learned counsel has also assailed dying declaration, relied upon by
the courts below, as according to him, the deceased in view of nature of
his injuries was physically not in a position to make any statement. It
is next argued that statement of Sher Afzal (DW-1) being truthful and
confidence inspiring merited preference over the prosecution evidence,
a unanimous error committed by the courts below. It would be unsafe
to rely upon the solitary statement of an eye witness supported by an
inherently flawed dying declaration, concluded the learned counsel.
The learned Law Officer has faithfully defended the impugned
judgment.
2.
Heard. Record perused.
3.
Shortly after the incident, the deceased was rushed to
D.H.Q. Hospital Haripur; Dr. Dildar Khan (PW-3) attended him and
according
to
his
deposition,
he
endorsed/attested
statement
(Ex.PW-4/1), subsequently treated as dying declaration; subjected to
extensive cross-examination at an
inordinate length, he was
unambiguously categorical about deceased’s capacity to communicate
at the time when he examined him in injured condition; he further
confirmed that the statement was recorded in his presence; he has
vehemently denied connivance with the police; his evidence has been
found by us straightforward and confidence inspiring throughout
without any taint. Mere presence of relatives who brought the deceased
in injured condition to the hospital would not by itself impair the
evidentiary value of statement made by the declarant face to face with
God. In his last agonizing moments, he confined his case to the
petitioner instead of attributing second shot to the co-accused, a
Jail Petition No.210 of 2018
3
circumstance that by itself goes a long way to vindicate his position.
Dying declaration is further corroborated by the weapon recovered
from the accused at the time of his arrest, found wedded with the
casings secured from the spot and consistent with the injuries that
cost the deceased his life. Statement of Phul Nawaz (PW-7), a resident
of the same locality, is in line with the details of events given in the
dying declaration; mere relationship of a witness with the deceased
does not undermine the value of his testimony, if otherwise found with
a ring of truth. Prosecution’s failure on motive and acquittal of co-
accused, with the role vastly distinguishable, do not tremor its case
vis-à-vis the petitioner, firmly structured on pieces of evidence more
than one. Recovery of pistol (P-3) and forensic report (Ex.PW-8/1)
provide ample independent corroboration to sustain charge against the
petitioner. Even otherwise, given the inconsequential role to the
co-accused, his acquittal, seemingly out of abundant caution, does not
adversely impact prosecution case qua the petitioner. Evidence of Sher
Afzal (DW-1) is entirely beside the mark; he has not uttered a single
word regarding the occurrence or to contradict prosecution case
against the petitioner and instead attempted to merely blur date of his
arrest; his partisan alliance with the petitioner cannot override positive
evidence, found by us sufficient to constitute “proof beyond doubt”.
View taken by the High Court, being well within the remit of law, calls
for no interference. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
4th September, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017
(Against judgment dated 10.12.2015 of the High Court of Sindh,
Karachi passed in Special Criminal Anti-Terrorism Appeal Nos.5,6
& 36 of 2005 with Confirmation Case No.1 of 2005)
Muhammad Siddique
(J.P. No.24/2016)
Ali Muhammad
(J.P. No.69/2016)
Syed Bilal Ali
(J.P. No.215/2016)
Fateh Muhammad
(J.P. No.486/2016)
Arshad Parvez & another
(J.P. No.682/2017)
…Petitioner(s)
Versus
The State
(in all cases)
…Respondent(s)
For the Petitioner(s):
Mr. Mahmood Akhtar Qureshi, ASC
(in J.P. No.215/2016)
Dr. Raana Khan, ASC
(in J.P. Nos.24,69,486/2016 & JP
No.682/2017)
For the State
Mr. Hussain Bux Baloch,
Additional Prosecutor General Sindh.
Date of hearing:
2.1.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.-Kamran-ud-Din
(PW-3) was on way after dropping his sister at a school on
24.5.2004; at about 7:30 a.m. he was whisked away, within the
remit of Police Station Shah Faisal Colony Karachi, in a white car by
six assailants; information was laid by Ashiq Hussain (PW-2) with
Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017
2
abductee’s father Ikram-ud-Din (PW-1) who reported the incident to
the police same day. An anonymous caller demanded Rs.2 millions
as ransom for abductee’s release; after protracted negotiations, the
amount was settled as Rs.500,000, finally paid on 16.6.2004 by
Zain-ul-Abideen (PW-10) at the designated place; the abductee was
released soon thereafter. As the investigation progressed, on a tip off,
Jamil Akhtar, Inspector/SHO (PW-11), arrested Syed Abdul Kaleem,
Fateh Muhammad and Arshad Parvez on 2.9.2004 followed by Syed
Bilal Ali, Muhammad Siddique, Muhammad Hassan and Ali Ahmed
on 3.9.2004. Pursuant to a disclosure, Muhammad Siddique,
petitioner got recovered a part of ransom in the tune of Rs.100,000
on 8.9.2004. Vehicle P-2, conveying the abductee into captivity, was
also secured by the Investigating Officer. Muhammad Siddique,
Arshad Parvez, Bilal Ali, Abdul Kaleem and Fateh Muhammad were
rightly picked by the witnesses in the test identification parade held
under magisterial supervision on 9.9.2004; Muhammad Hassan and
Ali Ahmed were identified on 11.10.2004; it is in this backdrop that
they were nominated as the six culprits who took away the abductee
whereas Syed Abdul Kaleem was blamed to have provided premises
to confine him. Upon indictment, the accused claimed trial, resulting
into their conviction with penalty of death for each, accompanied by
fine and forfeiture of properties. The High Court of Sindh vide
judgment dated 10.12.2015 maintained the convictions, however,
altered penalty of death into imprisonment for life, vires whereof are
being impugned by Fateh Muhammad, Arshad Parvez, Syed Bilal Ali,
Muhammad Siddique, Muhammad Hassan and Ali Ahmed through
captioned petitions; bound by a common thread, these are being
decided through this single judgment.
2.
Learned counsel for the petitioners, in a unison with
vehemence, contend that there was no occasion for the courts below
to return and uphold a guilty verdict, in a case, according to them,
inherently flawed inasmuch as initially four persons were alleged to
have committed the crime whereas the number was graduated to
seven during the trial; it is next argued that test identification
parade, conducted in violation of judicial guidelines, without
assigning specific roles, reliance thereon was beside the mark.
Recoveries being fractional as well as inconsequential were liable to
be excluded from consideration, concluded the learned counsel. The
Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017
3
learned Law Officer, contrarily, defended the impugned judgment; he
argued that prosecution produced the best evidence available under
circumstances to successfully drive home the charge by excluding
every hypothesis of innocence; he submits that the petitioners have
already been dealt with leniently, therefore, scales being in balance,
interference is not called for.
3.
Heard. Record perused.
4.
Prosecution case is primarily structured upon three
statements furnished by Ikram-ud-Din (PW-1), Ashiq Hussain (PW-2)
and Kamran-ud-Din (PW-3). PW-1 being complainant is not an eye
witness of the occurrence; he was informed by Ashiq Hussain (PW-2)
that his son was taken away by the assailants mentioned as four in
number in the crime report; in the witness-box, however, he blamed
six accused as privies to the crime. Surprisingly despite the lengthy
cross-examination, he is not confronted with his departure from the
crime report; as he is not an eye witness, therefore, an apparent
discrepancy does not adversely impact the prosecution, particularly
in the face of defence’s failure to impeach the witness in terms of
procedure contemplated under Article 140 of the Qanun-i-Shahadat
Order, 1984 mandatorily requiring the attention of a witness to the
impugned portion of his statement. On the contrary, while
responding to a question, during cross-examination, the witness
stated as under:-
“PW Ashiq Hussain had informed me that he
had seen that 6 culprits came there in a car,
out of whom, 4 persons who were sitting in the
car taken away my son and remaining two had
taken away his motorcycle.”
Even attention of Muhammad Nadeem ASI (PW-5), who recorded the
complaint, was not solicited to explain the actual number of assailants,
narrated by the complainant; Ashiq Hussain (PW-2) and the abductee
(PW-3) are consistent on the number of assailants; nothing contrary is
suggested to them in their statements, otherwise found by us as
confidence inspiring; the argument cannot be viewed more than a far
cry.
5.
Castigating severely the evidence of test identification
parade, the learned counsel relied upon the guidelines laid down in the
Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017
4
case of Kanwar Anwaar Ali (PLD 2019 Supreme Court 488) to urge
exclusion thereof. The supra case, indeed a fine piece of juridical
literature, nonetheless, does not extend much help to the convicts; it
mainly addressed laconic approach adopted by a Magistrate in holding
the test identification parade in the said case while highlighting general
principles of law on the subject.
Test identification parade is a method of proof contemplated by
Article 22 of the Qanun-i-Shahadat Order, 1984, reproduced below for
the convenience of reference:-
“Facts necessary to explain or introduce a fact
in issue or relevant fact, or which support or
rebut an inference suggested by a fact in issue
or relevant fact, or which establish the identity
of anything or person whose identity is
relevant, or fix the time or place at which any
fact in issue or relevant fact happened, or
which show the relation of parties by whom
any such fact was transacted, are relevant in
so far as they are necessary for that purpose.”
The above framework provides enough space to admit evidence in
prosecution of offenders previously unacquainted with the victims or
the witnesses; appraisal of such evidence is subject to same principles
as are universally applicable to any piece of evidence, under
consideration in a criminal trial; there are no additional barricades as is
evident from the plain reading of the Article ibid; without prejudice to
the safeguards available to an accused at each stage of trial, essentially
fair as guaranteed under the Constitution, nonetheless, it does not cast
an artificially heavier onus on the prosecution to meet standards of
proof beyond human capacity. Each criminal case is to be decided
having regard to its own peculiar facts and circumstances. A test to be
essentially applied in one case may absolutely be irrelevant in another,
as the crimes are seldom committed in identical situations; there may
be cases wherein prosecution must assign distinct roles played during
the occurrence by the culprits for determination of their guilt as well as
consequences thereof, however, there are cases in which totality of
transaction may not warrant separability for such determination, like
the one in hand. Cases involving abductions, dacoities and sudden
assaults, more often than not, constitute episodes wherein different
Jail Petition Nos.24, 69, 215, 486 of 2016 & 682 of 2017
5
roles played by the culprits merge into integral totality of the crime,
thus, it would be too harsh as well as unrealistic to demand exact
reenactment of roles by the witnesses. Capacities even intellectually
most sharp dwindle drastically in calamitous situations, therefore, the
administration of criminal justice, in such peculiar situations, has to be
dynamically balanced upon fair trial without prejudice to the accused
as well as due weightage to the prosecution evidence without being
swayed by illusory notions, subjectively structured upon hypothetical
beliefs.
6.
Having found the witnesses, with no axe to grind, in a
comfortable unison on all the salient features of the prosecution case as
well as events collateral therewith, we do not feel persuaded by the
arguments, couched on hyper technical premise. Petitions fail.
Dismissed.
Judge
Judge
Judge
Karachi, the
2nd January, 2020
Approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.255 of 2017
(Against judgment dated 23.01.2017 passed by the
Lahore High Court Multan Bench Multan in
Criminal Appeal No.706 of 2011 along with M.R.
No.5 of 2011)
Nasir Abbas alias Nasiri
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr.
Muhammad
Sharif
Janjua,
ASC/AOR
For the State:
Mr. Ahmed Raza Gillani
Addl. Prosecutor General Punjab
Date of hearing:
27.04.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Nasir Abbas alias
Nasiri, tried alongside acquitted co-accused for homicide, was returned
a guilty verdict by the trial Court vide judgment dated 30.04.2011,
upheld, albeit with alteration of death penalty, vide impugned
judgment dated 23.01.2017, vires whereof, are being assailed through
Jail Petition No.255 of 2017, barred by 41 days, condoned in the
interest of justice. It is alleged that on the fateful day i.e. 07.08.2008,
within the precincts of Police Station Saray Sidhu District Khanewal,
with a view to restrain him from deposing in a murder case, he
repeatedly shot Muhammad Aslam, deceased, accompanied by
companions that included his son Muhammad Aamir PW; co-accused
were blamed for conspiracy as well as facilitation.
Mr. Muhammad Sharif Janjua, ASC, at State expense, contends
that there is inordinate delay between the occurrence and postmortem
examination, suggesting the incident being an un-witnessed affair,
details whereof, were discovered and deliberated subsequently; while
highlighting the role assigned to the acquitted co-accused, he argued
that though somewhat inconsequential, nonetheless, was indivisible
inasmuch as two of them had allegedly clutched the deceased before he
Jail Petition No.255 of 2017
2
was repeatedly shot on the opposite sides of his body and, thus,
prosecution’s failure qua the co-accused goes a long way to tremor the
entire structure; he has further referred to massive improvements in
graduation of number of accused as well as manner of occurrence to
argue that it would be unsafe to maintain the conviction particularly in
the backdrop of ongoing blood feuds inter se the parties. Leave to
appeal is granted to appraise entire evidence to ensure safe
administration of criminal justice.
Judge
Judge
Islamabad, the
27th April, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
MR. JUSTICE ATHAR MINALLAH
JAIL PETITION NOs. 255 & 272 OF 2018
(Against the judgment dated 08.03.2018 passed by the
Lahore High Court, Rawalpindi Bench in Capital
Sentence Reference No. 04-T/2014, Criminal Appeal
Nos. 31/2014 & 11-J/2014)
Ali Taj
(In JP 255/2018)
Afzaar @ Afzaal
(In JP 272/2018)
…Petitioner(s)
VERSUS
The State
(In both cases)
…Respondent(s)
For the Petitioner(s):
Qari Abdul Rasheed, ASC
For the State:
Mirza Muhammad Usman, DPG
Date of Hearing:
12.01.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioners Ali Taj and Afzaar @
Afzal were tried by the learned Anti Terrorism Court-II, Rawalpindi Division
pursuant to a case registered vide FIR No. 269 dated 08.07.2012 under
Sections 302/324/353/186/341/394/224/225/427/34 PPC read with Section
7 of the Anti Terrorism Act, 1997 at Police Station Saddar, Attock for
committing murder of Najam ul Hassan and Mudassar Riaz and for causing
injuries to Jamil Ahmed and Asfhaq Ahmed. The learned Trial Court vide its
judgment dated 15.01.2014 convicted the petitioners as under:-
i)
Under Section 302(b) PPC
Sentenced to death on two counts.
ii)
Under Section 7 of the Anti Terrorism Act, 1997
Sentenced to death on two counts and to pay compensation of
Rs.100,000/- each as compensation under Section 544-A Cr.P.C.
and fine of Rs.100,000/- each under Section 7(a) of the ATA.
The compensation and fine payable shall be recovered as
Jail Petition Nos. 255 & 272 of 2018
-: 2 :-
arrears of land revenue and in default whereof to undergo SI
for six months each.
iii)
Under Section 396 PPC
Sentenced to death each and to pay fine of Rs.50,000/- each or
in default whereof to undergo SI for six months.
iv)
Under Section 324 PPC
Sentenced to 10 years RI each on two counts along with fine of
Rs.20,000/- each on two counts, in default whereof to undergo
SI for six months each. They were further directed to pay
compensation of Rs.50,000/- each to Jamil Ahmed and Azshfaq
Ahmed PWs under Section 544-A Cr.P.C. The compensation and
fine payable shall be recovered as arrears of land revenue and
in default whereof to further undergo SI for six months each.
v)
Under Section 353 PPC
Sentenced to one year RI each.
vi)
Under Section 186 PPC
Sentenced to three months RI each.
vii)
Under Section 412 PPC
Sentenced to ten years RI each with fine of Rs.10,000/- each or
in default whereof to further undergo SI for six months.
viii)
Under Section 341 PPC
Sentenced to one month RI each along with fine of Rs.1000/-
each.
ix)
Under Section 225 PPC
Sentenced to two years RI each along with fine of Rs.10,000/-
each or in default whereof to further undergo six months SI
each.
x)
Under Section 148 PPC
Sentenced to three years RI each along with fine of Rs.5000/-
each or in default whereof to further undergo SI for six months
each.
All the sentences except under Section 302(b) PPC and 7 of the
Anti Terrorism Act, 1997, were ordered to run concurrently.
Benefit of Section 382-B Cr.P.C. was also extended to the
petitioners.
2.
In appeal the learned High Court maintained the convictions
and sentences awarded to the petitioners by the learned Trial Court. The
prosecution story as given in the impugned judgment reads as under:-
Jail Petition Nos. 255 & 272 of 2018
-: 3 :-
“The brief facts as narrated in the complaint (Ex.PCC) lodged by Jamil
Ahmed, complainant (PW.16) are that on 08.072012, he along with Ashfaq
Ahmed, Najam ul Hassan, on a yellow cab car No.RIW/993, being driven by
Mudassar Riaz, were going to District Jail Attock to lodge accused Amjad
Khan of case F.I.R No.203/2012 dated 26.06.2012, under Sections 381-A/411
PPC registered at Police Station City, Rawalpindi. At about 02:45 p.m. due to
a speed breaker, Kamra Road, District Attock, when the speed of the car was
reduced, they were surprised by four armed persons, who started firing with
their pistols 30-bore from the sides which resulted into death of Najam-ul-
Hassan, 8981/C and Mudassar Riaz (cab driver) and the others including
complainant received injuries. The features of the accused persons were
that they were young persons of middle height, wearing shalwar qamiz.
After that, they took Amjad Khan accused in handcuffs along with them. The
accused also snatched official SMG rifle, 30-bullets and magazine and fled
away from the spot towards Teen Meela Haji Shah, on two motorcycles.”
3.
After completion of the investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. The prosecution in order to
prove its case produced 18 witnesses. In their statements recorded under
Section 342 Cr.P.C, the petitioners pleaded their innocence and refuted all
the allegations leveled against him. However, they did not appear as their
own witness on oath as provided under Section 340(2) Cr.P.C in disproof of
the allegations leveled against them. They also did not produce any evidence
in their defence.
4.
At the very outset, learned counsel for the petitioners argued
that there are glaring contradictions and dishonest improvements in the
statements of the eye-witnesses, which have escaped the notice of the
learned courts below. Contends that the prosecution case is based on whims
and surmises and it has to prove its case without any shadow of doubt but it
has miserably failed to do so. Contends that the medical evidence contradicts
the ocular account. Contends that although the injured PWs and the
deceased had sustained injuries on the different parts of the bodies but there
is not even a single scratch on the car, which shows that the occurrence had
not taken place in the manner as stated by the prosecution witnesses.
Contends that the identification parade was conducted without observing
the instructions/guidelines enunciated by the superior courts, as such, it has
no value in the eye of law. Lastly contends that the reasons given by the
Jail Petition Nos. 255 & 272 of 2018
-: 4 :-
learned High Court to sustain conviction of the petitioners are speculative
and artificial in nature, therefore, the impugned judgment may be set at
naught.
5.
On the other hand, learned Law Officer submitted that to
sustain conviction of an accused on a capital charge, un-rebutted ocular
evidence alone is sufficient. Contends that the ocular account is supported by
the medical evidence, therefore, the petitioners do not deserve any leniency
by this Court.
6.
We have heard learned counsel for the parties at some length
and have perused the evidence available on the record with their able
assistance.
7.
A bare perusal of the record reflects that the instant case is a
case of promptly lodged FIR. The unfortunate incident wherein Najam-ul-
Hassan, Police Constable and Mudassir Riaz, driver of the yellow cab were
brutally murdered and two persons were grievously injured, took place at
02:45 PM on 08.07.2012 whereas the crime report was lodged at 04:20 PM
i.e. just after two hours of the occurrence. The distance between the place of
occurrence and the Police station was five kilometers. Thus, it can be said
that FIR was lodged with promptitude. Promptness of FIR shows truthfulness
of the prosecution case and it excludes possibility of deliberation and
consultation. There was hardly any time with the complainant or other
witnesses to fabricate a false story. The ocular account in this case has been
furnished by Jamil Ahmed, Sub-Inspector (PW-16) and Ashfaq Hussain,
Constable (PW-17). Both these witnesses had sustained injuries during the
occurrence, which have fully been supported by the medical evidence given
by Dr. Muhammad Ali Bokhari, who appeared as PW-7. The testimonies of
these injured PWs as well as the stamp of injuries on their person clearly
proves their presence at the place of occurrence. They had no relationship
with the deceased nor had any animosity against the petitioners, therefore,
they are regarded as the most reliable and credible witnesses. These
prosecution witnesses were subjected to lengthy cross-examination by the
Jail Petition Nos. 255 & 272 of 2018
-: 5 :-
defence but nothing favourable to the petitioners or adverse to the
prosecution could be produced on record. These witnesses have given all
necessary details of occurrence qua the date, time, place, name of witnesses,
manner of occurrence, kind of weapon used in the occurrence and the locale
of injuries. These PWs remained consistent on each and every material point
inasmuch as they made deposition exactly according to the circumstances
happened in this case, therefore, it can safely be concluded that the ocular
account furnished by the prosecution is reliable, straightforward and
confidence inspiring. This Court in a number of judgments has held that
testimony of police officials is as good as any other private witness unless it is
proved that they have animus against the accused. However, no such thing
could be brought on record by the petitioners in this case. This Court has
time and again held that reluctance of general public to become witness in
such like cases has become judicially recognized fact and there is no way out
to consider statement of official witnesses, as no legal bar or restriction has
been imposed in such regard. Police officials are as good witnesses and could
be relied upon, if their testimonies remain un-shattered during cross-
examination. Learned counsel for the petitioners could not point out any
reason as to why these injured PWs have involved the petitioners in the
present case and let off the real culprits, who have committed murder of not
only of their colleague but of an innocent taxi driver. Admittedly, these PWs
had no animosity or ill-will against the present petitioners. If they had any
reason to substitute the real culprits, they would have nominated the
petitioners in the FIR on the very first day when the occurrence took place.
As the petitioners were not known to the PWs, therefore, they were not
nominated in the FIR but their features had been given by the injured PWs.
After their arrest, the petitioners were identified by the PWs during
identification parade, which was conducted under the supervision of Tahir
Mehmood, Judicial Magistrate (PW-15). The said Judicial Magistrate
categorically stated that the injured witness Jameel Ahmed had identified the
accused in unambiguous terms and this process was repeated twice so that
no ambiguity could be left and after completion of identification parade, he
prepared the form and then issued the certificate. Both Tahir Mehmood,
Jail Petition Nos. 255 & 272 of 2018
-: 6 :-
Judicial Magistrate (PW-15) and Jameel Ahmed (PW-16) were subjected to
lengthy cross-examination but they remained consistent on all material
particulars of the prosecution case and their testimony could not be
shattered despite lengthy cross-examination. Even otherwise, process of
identification parade has to be essentially carried out having regard to the
exigencies of each case in a fair and non-collusive manner and such exercise
is not an immutable ritual, inconsequential non-performance whereof, may
cause failure of prosecution case, which otherwise is structured upon clean
and probable evidence. Reliance is placed on Tasar Mehmood Vs. The State
(2020 SCMR 1013). During the course of arguments, learned counsel argued
that although the injured PWs and the deceased had sustained injuries on
the different parts of the bodies but there is not even a single scratch on the
car. However, this argument of the learned counsel is misconceived. The
learned Trial Court has very elaborately dealt with this issue and observed
that the site plan prepared by the Investigating Officer and the scaled site
plan reflect that the accused persons were very close to the car when they
had fired on deceased and the injured PWs. The petitioners were armed with
.30 bore pistols. The occurrence took place in the month of July when the
summer is at its peak, therefore, it was obvious that the windows of the car
were opened, therefore, it was natural that the bullets did not hit the car.
8.
The medical evidence available on the record corroborates the
ocular account so far as the nature, time, locale and impact of the injuries on
the person of the deceased and the injured PWs is concerned. Even
otherwise, it is settled law that where ocular evidence is found trustworthy
and confidence inspiring, the same is given preference over medical evidence
and the same alone is sufficient to sustain conviction of an accused. Reliance
is placed on Muhammad Iqbal Vs. The State (1996 SCMR 908), Naeem Akhtar
Vs. The State (PLD 2003 SC 396), Faisal Mehmood Vs. The State (2010 SCMR
1025) and Muhammad Ilyas Vs. The State (2011 SCMR 460). It is settled
principle of law that the value and status of medical evidence and recovery is
always corroborative in its nature, which alone is not sufficient to sustain the
conviction. Casual discrepancies and conflicts appearing in medical evidence
Jail Petition Nos. 255 & 272 of 2018
-: 7 :-
and the ocular version are quite possible for variety of reasons. During
occurrence witnesses in a momentary glance make only tentative assessment
of the distance between the deceased and the assailant and the points where
accused caused injuries. It becomes highly improbable to correctly mention
the number and location of the injuries with exactitude. Minor discrepancies,
if any, in medical evidence relating to nature of injuries do not negate the
direct evidence as witnesses are not supposed to give photo picture of ocular
account. Even otherwise, conflict of ocular account with medical evidence
being not material imprinting any dent in prosecution version would have no
adverse affect on prosecution case. Requirement of corroborative evidence is
not of much significance and same is not a rule of law but is that of prudence.
During the course of proceedings, the learned counsel contended that there
are material discrepancies and contradictions in the statements of the eye-
witnesses but on our specific query he could not point out any major
contradiction, which could shatter the case of the prosecution. It is a well
settled proposition of law that as long as the material aspects of the evidence
have a ring of truth, courts should ignore minor discrepancies in the
evidence. The test is whether the evidence of a witness inspires confidence.
If an omission or discrepancy goes to the root of the matter, the defence can
take advantage of the same. While appreciating the evidence of a witness,
the approach must be whether the evidence read as a whole appears to have
a ring of truth. Minor discrepancies on trivial matters not affecting the
material considerations of the prosecution case ought not to prompt the
courts to reject evidence in its entirety. Such minor discrepancies which do
not shake the salient features of the prosecution case should be ignored. The
petitioners were arrested on 17.07.2012 and from their possession the
weapons of offence i.e. pistols .30 bore were recovered. The Investigating
Officer had already sent eight crime empties, which were collected from the
place of occurrence, to the office of Forensic Science Laboratory on
16.07.2012 whereas the pistols were sent on 23.07.2012. According to the
report of the FSL, the empties were found fired from the pistols recovered
from the petitioners. After their arrest, the petitioners also got recovered
snatched official SMG along with 25 live bullets and handcuffs, which also
Jail Petition Nos. 255 & 272 of 2018
-: 8 :-
provides corroboration to the prosecution story. To prove the motive part of
the prosecution story, the witnesses of the ocular account appeared in the
witness box and deposed against the petitioners. The perusal of the record
reflects that neither the defence seriously disputed the motive part of the
prosecution story nor the PWs were cross-examined on this aspect of the
matter. Keeping in view the facts and circumstances of the present case, we
are of the view that the prosecution has established each limb of its case by
producing unimpeachable and trustworthy evidence. The learned High Court
has evaluated the evidence in its true perspective and has come to the
conclusion, which is neither arbitrary nor perverse. No exception can be
taken to the findings arrived at by the learned High Court.
9.
For what has been discussed above, we do not find any merit in
these petitions, which are dismissed and leave to appeal is refused. The
above are the detailed reasons of our short order of even date.
JUDGE
JUDGE
JUDGE
Islamabad, the
12th of January, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.262/2015,
Criminal Petition Nos.402-L/2015 & 412-L/2015
(Against the judgment dated 13.03.2015 passed by
the Lahore High Court Lahore in Criminal Appeal
No.2628/2010 with M.R. No.33/2012)
Muhammad Sharif
(in J.P. No.262 of 2015)
Muhammad Ajmal
(in Cr.P. No.402-L of 2015)
Asif Ali
(in Cr.P. No.412-L of 2015)
…Petitioner(s)
Versus
The State & another
(in J.P. No.262 of 2015)
The State
(in Cr. P. No.402-L of 2015)
The State & another
(in Cr.P. No.412-L of 2015)
…Respondent(s)
For the Petitioner(s):
Mr. M. Yar Khan Daha, ASC
(in J.P. No.262 of 2015)
Mr. Zubair Afzal Rana, ASC
(in Cr.P. No.402-L of 2015)
Rai Sajid Ali Kharal, Adv. HC
(with permission of the Court
in Cr.P. No.412-L of 2015)
For the State:
Mr. Khurram Khan,
Addl. Prosecutor General Punjab
Date of hearing:
16.07.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Ahmad Ali, deceased, 45,
was statedly shot dead at 3:00 p.m. on 30.6.2009 within the remit of Police
Station Chak Baidi, District Pakpattan; incident was reported by his
brother Asif Ali (PW-1) at 8:30 p.m. in the Rural Health Center Bonga
Hayat; it is alleged that the deceased along with the complainant, Umar
Fareed (PW-2), their father Rehmat Ali (given up) were on way to visit Allah
Ditta, a relative convalescing some disease; they were on two motorbikes
when the petitioners along with co-accused, differently armed, confronted
Jail Petition No.262/2015,
Criminal Petition Nos.402-L/2015 & 412-L/2015
2
the entourage; after subduing them, the deceased was separated and
repeatedly shot by Ajmal petitioner followed by Manzoor Ahmed (P.O.) and
Muhammad Sharif petitioner within witnesses’ view, kept at bay on
gunpoint; they took away a .30 caliber pistol held by the deceased.
A previous brawl between the deceased and Ajmal petitioner is cited as
motive for the incident. Crime report suggests that gunshots attracted the
nearby patrolling police that shifted the casualty to the Rural Health
Center Bonga Hayat where he was provided assistance at 3:20 p.m. and
referred to Jinah Hospital Lahore, however, succumbed to the injuries on
way near Pattoki, at 6:00 p.m.
Dissatisfied with the police investigation, the complainant instituted
a private complaint, wherein pursuant to issuance of process, petitioners
along with Ghulam Rasool were indicted by a learned Additional Sessions
Judge at Pakpattan; the trial culminated into acquittal of Ghulam Rasool,
however, vide the same judgment dated 28.10.2010, Muhammad Ajmal
and Muhammad Sharif, petitioners, were convicted under clause (b) of
section 302 of the Pakistan Penal Code, 1860 and sentenced to death and
imprisonment for life, respectively; the High Court maintained the
convictions albeit with alteration of death penalty into imprisonment for
life vide impugned judgment dated 13.03.2015, vires whereof, are being
separately assailed by both the convicts through Jail Petition No.262 of
2015 and Criminal Petition No.402-L of 2015; complainant seeks through
Criminal Petition No.412-L of 2015 enhancement of sentences awarded to
the convicts; bound by a common thread, these are being decided through
this single judgment.
2.
Learned counsel for the petitioners contend that the deceased
was done to death in an un-witnessed occurrence under mysterious
circumstances and that the witnesses were taken on board much late in
the day to set up a false case after deliberations and consultations,
a hypothesis that according to the learned counsel is confirmed by the
investigative conclusions; that despite seizure of casings of different
calibers from the spot and recovery shown by one of the petitioners,
namely, Muhammad Ajmal, the weapon was not dispatched for forensic
comparison; that the complainant massively improved upon his previous
statement on fundamental aspects of the case and as such was not worthy
of reliance; that the case was fraught with irreconcilable contradictions
and inconsistencies and as such it would be unsafe to maintain the
convictions, concluded the learned counsel. Contrarily, the learned Law
Officer defended the impugned judgment on the ground that the view
Jail Petition No.262/2015,
Criminal Petition Nos.402-L/2015 & 412-L/2015
3
taken by the High Court being factually sound as well as realistically
balanced called for no interference. Learned counsel for the complainant
citing magnitude of brutality inflicted upon the deceased urged
enhancement of sentence to death being a conscionable wage in
circumstances.
3.
Heard. Record perused.
4.
According to the crime report, the assailants distinctively
targeted the deceased with multiple shots, as a consequence whereof, he
received five fire shots on different parts of the body; examined in injured
condition under a police docket at 3:20 p.m. he was noted with five entry
wounds of various dimensions with corresponding exits. We are mindful of
the fact that in a sudden crisis situation, it would be callously unrealistic
to expect from a terror stricken witness to furnish immaculate details with
precision, nonetheless, the complainant by his own choice took specific
positions wherefrom he deviated in the private complaint and was duly
confronted therewith, as under:
“I had stated to the police in Ex.PA that Ajmal
accused has inflicted four firearm injuries on the
person of Ahmad Ali deceased. Confronted with
Ex.PA wherein three injuries are mentioned. I had
also stated in my private complaint Ex.PC that
Ajmal accused had made four fires which hit the
deceased Ahmad Ali. Confronted with Ex.PC
wherein two fires are mentioned. I had also stated
in my cursory statement Ex.DA that Ajmal accused
had inflicted four fire shots on the person of the
deceased Ahmad Ali. Confronted with Ex.DA
wherein two fires have been mentioned and receipt
of injury of second shot is not mentioned.”
Since there are three accused assigned fire shots, shift in complainant’s
position cannot be viewed as trivial or inconsequential as it realigns his
entire case and in retrospect admit possibilities that reflect upon the
factual details set out in the crime report. This deviation is not the only
factor that puts us on caution as we are more profoundly intrigued by
discrepancies evident in the police note wherein according to Muhammad
Ashraf ASI (CW-3), upon receipt of information, he along with Ghulam
Murtaz 647/C, Muhammad Ejaz 95/C and Noushair Ali 137/C met the
complainant at RHC Bonga Hayat 8:30 p.m. when he recorded complaint
Ex.PA and arranged papers for autopsy, whereas as per MLR No.1659
Ex.PH/1, the deceased in injured condition was examined under a police
docket carried by the above named Ghulam Murtaz 667/C who appeared
as CW-7 and remained silent about his having escorted the deceased for
medical examination while he was alive; it was most opportune occasion to
record the crime report; on the contrary, he stated to have escorted the
Jail Petition No.262/2015,
Criminal Petition Nos.402-L/2015 & 412-L/2015
4
dead body from RHC Bonga Hayat to DHQ Hospital Pakpattan, a position
that went unchallenged, both by the complainant as well as the defence,
however, in retrospect confirms beyond doubt that police were available
with the deceased at 3:20 p.m. and, thus, recording of complaint Ex.PA as
late as at 8:30 p.m. is mindboggling. Argument that crime report Ex.PA is
outcome of consultations and deliberations cannot be dismissed out of
hand and as such shadows upon the possibility of witnesses’ presence who
otherwise surprisingly survived a devastating assault unscathed.
Presence of a .30 caliber pistol with the deceased and his failure to
use it in a situation when it was most warranted is also part of an
incomplete tale; despite an elaborate investigative process, it was never
recovered.
Exoneration of Muhammad Sharif and Ghulam Rasool during the
investigation is yet another dilemma confronting the prosecution; it
requires a serious consideration as seemingly there was no reason for three
assailants to jointly take on the deceased, lying at their mercy when every
single of them could individually accomplish the premeditated purpose
without incurring corporal consequences for the entire clan; plea of a wider
net cannot be thrown to the wind.
5.
In the absence of proof beyond doubt, it would be unsafe to
maintain the convictions. Criminal Petition No.402-L of 2015 and Jail
Petition No.262 of 2015 are converted into appeals and allowed; impugned
judgment dated 13.03.2015 is set aside; petitioners/appellants are
acquitted of the charge and shall be released forthwith, if not required to be
detained in any other case.
As a natural corollary, Criminal Petition No.412-L of 2015 stands
dismissed.
Judge
Judge
Judge
Lahore, the
16th July, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.263 of 2018
(Against the judgment dated 7.3.2018 of the
Lahore High Court, Lahore passed in Cr. Appeal
No.190-J/2015 and M.R. No.227/2015)
Muhammad Ashraf
.…Petitioner(s)
Versus
The State
….Respondent(s)
For the Petitioner(s):
Mr. Muddasir Khalid Abbasi, ASC
For the State:
N.R.
Date of hearing:
03.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- A sudden brawl in the
family cost Samra Hafeez, 21, deceased, her life whereas her sister Misbah
Hafeez (PW-3) and brother Murtaza Hafeez (PW-4) survived gun shots at
2:30 p.m. on 10.12.2010 within the precincts of Police Station Aroop,
Gujranwala; incident was reported by their father Muhammad Hafeez
(PW-3) at the police station; he blamed his brother Sana Ullah and sister-
in-law Farzana Bibi for having ignited the situation, pursuant whereto, the
petitioner, a close relative, along with Muhammad Azam (P.O.) targeted
Samra Hafeez with a .44 caliber gun while the absconder trapped Murtaza
Hafeez, PW; they jointly injured Misbah Hafeez PW; he was indicted
alongside Sana Ullah and Farzana Bibi, since acquitted, vide judgment
dated 30.04.2015 convicted under clause (b) of section 302 and sentenced
to death; on the coordinate charge of murderous assault, he was also held
guilty for the crime. The High Court maintained the convictions, however,
altered penalty of death into imprisonment for life vide impugned judgment
dated 07.03.2018, vires whereof, are being assailed through a jail petition,
taken up by Mr. Mudassar Khalid Abbasi, ASC, who argued that the
petitioner was an innocent visitor, unsuspectingly trapped in a fight that
raged between the two brothers, a circumstance which according to the
Jail Petition No.263 of 2018
2
learned counsel, is self evident from the crime report as the occurrence
cropped up while the family members were taking meal on the rooftop. The
learned counsel has also attempted by referring to some selective portion of
prosecution evidence to demonstrate that petitioner was not present at the
scene when the deceased and the injured received fire shot, insinuating the
entire blame onto the absconding co-accused. It is further contended that
in a dispute between two real brothers, petitioner had no earthly reason to
shoot the family members and it appears that he is being hounded as a
scapegoat. To qualify the point, the learned counsel referred to the failure of
prosecution motive with the High Court as well as inconsequential recovery
of weapon allegedly used.
2.
Heard. Record perused.
3.
Occurrence is a daylight affair, graphic details whereof, have
been furnished by the witnesses who are not merely injured but inmates of
the premises as well. An unfortunate situation cropped up all of a sudden
and in that backdrop, the complainant or the witnesses had no axe to grind
so as to swap the petitioner with the real offender. There is no space to
entertain any hypothesis of innocence. The witnesses have been thoroughly
cross-examined during the trial and we have not been able to find out any
serious flaw, contradiction or infirmity reflecting upon their depositions.
Reference by the learned counsel to the statement of Muhammad Hafeez
(PW-5) to demonstrate that the petitioner as well as the absconding
accused were not present during the fateful moments is preposterous and
out of context to say the least; he has referred to the following portion of the
statement of the witness:-
“When we were taking meal accused Azam and
Ashraf were not present.”
He has skipped the very next line wherein the witness in the same breath
said:
“However, they came afterwards from inside the
house.”
The statement is continuity of a narration illustrating the events preceding
commencement of assault and by no stretch of imagination or through any
mode of interpretation one can construe it as implying absence of the
accused.
Ocular account furnished by the witnesses is duly corroborated by
medical evidence. Weapon recovered upon petitioner’s disclosure though
excluded from consideration by the High Court, nonetheless, is consistent
Jail Petition No.263 of 2018
3
with the injuries received both by the deceased as well as the witnesses.
Investigative conclusions in the wake of various steps taken with a
remarkable promptitude are inescapably pointed upon petitioner’s
culpability who remained away from law for a considerable span of time
before he was finally arrested on 10.9.2012. The Courts below have rightly
appraised the evidence and found no space to entertain any hypothesis
other than petitioner’s guilt. We, on our own analysis, have found
petitioner’s conviction in accord with the principles of safe administration
of criminal justice with a wage settled conscionably. Petition fails. Leave
declined.
Judge
Judge
Islamabad, the
3rd August, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Yahya Afridi
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No. 282 of 2017
(Against the judgment dated 26.01.2017
passed by the Lahore High Court Lahore
Multan Bench Multan in Crl. Appeal No.689-
J and 840 of 2012 with M.R. No.77 of 2011)
Muhammad Ramzan
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. M. Sharif Janjua, ASC
For the State:
Ch. Muhammad Sarwar Sandhu,
Addl. Prosecutor General Punjab
Date of hearing:
12.10.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- The petitioner,
alongside his brothers, namely, Muhammad Akram, Muhammad
Aslam and Nazar Hussain, stands convicted by a learned Additional
Sessions Judge, vide judgment dated 15.06.2011, for committing Qatl-
i-Amd of Mushtaq Ahmad, 45, at 9:00 a.m. on 15.10.2010 within the
precincts of Police Station Saddar Vehari in the backdrop of a dispute
over turn of water; he was sentenced to death while the remainders to
imprisonment for life; the High Court altered penalty of death into
imprisonment for life while acquitting the co-convicts from the charge
vide impugned judgment dated 26.01.2017.
Incident was reported by deceased’s widow Khurshid Bibi (PW-7)
in the DHQ Hospital at 10:35 a.m; she was statedly present with the
deceased while irrigating the field when the accused, armed with clubs,
confronted them within the view of Javed Abbas and Fateh Sher PWs.
Muhammad Akram exhorted his companions whereupon the petitioner
Criminal Petition No.282 of 2017
2
dealt the deceased a club blow on his head; as he felled on the ground,
the co-accused thrashed him with multiple blows; commotion attracted
the neighbourhood whereupon the accused took to the heels. The
injured was medically examined 10:07 a.m. at D.H.Q. Hospital Vehari
where he was brought by his cousin Nazeer Hussain; relevant column
sans reference to police docket, however, the name of a PQR as
Mumtaz Ahmed is mentioned therein. The medical officer, after receipt
of a fee of Rs.200/- examined him to find a swelling measuring 8 cm x
10 cm on the left side of the skull; after a brief struggle, he succumbed
to the injury, a short while later. The petitioner, alongside co-accused,
was arrested on 01.112010; pursuant to disclosures, they led to the
recovery of clubs P-3, P-4, P-5 and P-6, albeit without blood stains.
From amongst the accused, Nazar Hussain, statedly deaf and dumb,
was medically examined same day through a Magisterial order of even
date; he was noted with a wound with ruptured skin on the left side of
skull; a cross-version agitated by the accused soon failed with the
police, despite a direction by the Justice of Peace. Upon indictment, the
accused claimed trial that resulted into their conviction under clause
(b) of section 302 of the Pakistan Penal Code, 1860 primarily on the
strength of ocular account furnished by Mst. Khurshid Bibi (PW-7) and
Fateh Sher (PW-8), confronted by the accused with a counter plea of
assault, unleashed in the first place, by the deceased on Nazar
Hussain co-accused, supported by medico legal certificate as well as a
direction for registration of a cross case by a Justice of Peace.
2.
Learned counsel for the petitioner contends that ocular
account disbelieved by the High Court qua three out of four accused
cannot provide evidential basis to single out the petitioner on a capital
charge, particularly after exclusion of motive by the High Court;
inconsequential recoveries also fail to qualify additional corroboration
required to rescue the charge, next argued the counsel. The counter-
version, vividly spelt out by the skull injury of Nazar Hussain
co-accused, has been pressed into service to argue that the genesis of
the occurrence, shrouded into mystery, the petitioner cannot be
blamed with any degree of certainty for inflicting solitary injury as each
of the assailant was independently assigned blows to the deceased and,
thus, trapped by a wider net, his conviction cannot be maintained
without possibility of error. The learned Law Officer has faithfully
defended the impugned judgment.
Criminal Petition No.282 of 2017
3
3.
Heard. Record perused.
4.
The deceased, gasping for his life, was first examined at
10:07 a.m; medico legal certificate Ex.PE sans details about examinee’s
physical condition in terms of his orientation to time and space or
otherwise at the said point of time. Police Karwai recorded by Zahid
Hussain SI tends to suggest that he took over the deceased
unconscious in injured condition in the emergency ward of DHQ
Hospital Vehari to get him examined through Mumtaz Ahmed PQR,
surprisingly without injury statement and a police docket, apparently,
to have been issued after the injured had already been examined.
Relevant column of Ex.PE reflects name of Nazeer Hussain son of
Abdullah who brought the injured to the hospital; he is conspicuously
absent both at the crime scene as well as the report and as to how he
was able to escort the injured on his own to the hospital is a
circumstance that clamours explanation; one Riaz is mentioned to
have paid a fee of Rs.200/- for medical examination against his
signatures whereas no fee was required for a medical examination in a
police case as is evident by a cross on the relevant portion of Ex.PE
relating to exemption for a police case; a cover up through overwriting
as Govt. Fee on Ex.PE is a ludicrous attempt to hoodwink the reality.
The deceased, still alive, was certainly brought by individuals other
than mentioned in the crime report, a real possibility unmistakably
suggested by Ex.PE and in retrospect tears apart the structure
supporting the charge.
Entire family comprising four brothers has been aligned in the
crime report, each armed with a club and taking on the deceased; the
solitary wound though proved fatal, nonetheless, does not correspond
with the array and, thus, argument that the prosecution had cast a
wider net merits serious consideration; with a real possibility of
presence of innocent proxies, identification of the actual offender,
through human endeavour, is an exercise fraught with potential risk of
error,
attribution
of
first
blow
assigned
to
the
petitioner
notwithstanding.
Misfortune struck the neighbours, who otherwise lived in peaceful
harmony, on a small event involving diversion of water by Nazar
Hussain, a deaf and dumb member of petitioner’s family, as is evident
from the charge as well as his examination under section 342 of the
Code of Criminal Procedure 1898; he has been acquitted from the
Criminal Petition No.282 of 2017
4
charge and it is also on the record that he received an injury during
the brawl in his head for which the prosecution has not taken the
investigating agency or the Court into confidence. These circumstances
inescapably intrigue upon the integrity of the prosecution story;
though ominous, nonetheless, calculated to have massively withheld
relevant details of the events that occurred on the fateful day;
concomitant uncertainty would inevitably cast away the entire case;
it would be unsafe to maintain the conviction. Petition is converted into
appeal and allowed; impugned judgment is set aside; the petitioner/
appellant is acquitted of the charge and shall be released forthwith, if
not required to be detained in any other case.
Judge
Judge
Judge
Islamabad, the
12th October, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Mushir Alam
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.296 of 2016
(Against the judgment dated 29.03.2016 passed by the
Lahore High Court Lahore in Crl. Appeal No.849 of 2014,
Cr. PSLA No.126/2020 with M.R. No.230 of 2010)
Shaheen Ijaz alias Babu
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Sahibzada Ahmed Raza Qureshi, Sr.ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
N.R.
Date of hearing:
10.09.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Indicted in a private
complaint, alongside his son Muhammad Umar, since acquitted, the
petitioner was returned a guilty verdict; convicted vide judgment dated
29.3.2010 by a learned Additional Sessions Judge at Wazirabad, under
clause (b) of section 302 of the Pakistan Penal Code, 1860, he was
sentenced to death, altered into imprisonment for life by the High
Court vide impugned judgment dated 29.3.2016, vires whereof, are
being assailed on a variety of grounds.
2.
Muhammad Azhar, 35/36, was fatally shot at 5:00 p.m. on
8.8.2008 within the remit of Police Station Saddar Wazirabad; the
incident was reported at the police station, situating one kilometer
from the venue, at 5:35 p.m. by deceased’s brother Muhammad
Rafique (PW-3). Besides the petitioner, his three sons, namely,
Muhammad Umar, Muhammad Usman and Muhammad Abu Bakar,
were arrayed in the backdrop of complaints by the deceased over
Jail Petition No.296 of 2016
2
discharge of filthy water from petitioner’s rooftop. The petitioner is
attributed repeated fire shots, resulting into multiple injuries with
blackened and burnt margins, confirmed during autopsy, conducted at
10:20 p.m. Spot inspection includes seizure of human blood and
casings found wedded with a .12 caliber pump action gun (P-4),
recovered pursuant to disclosure dated 03.09.2008.
3.
Learned counsel for the petitioner contends that the
complainant has manifestly cast a wider net to implicate the entire
family and in the wake of his failure qua three out of four accused
nominated in the crime report as assailants in a preconcert, there was
no occasion left to still hold the petitioner as guilty; that even dated
dispatch of casings (P-6/1-2) alongside gun (P-4) rendered the forensic
report (Ex.PR) as inconsequential and, thus, after exclusion of motive
from consideration by the High Court, reliance upon a substantially
disbelieved ocular account, is an option fraught with a potential risk of
error.
4.
Heard. Record perused.
5.
The deceased and the petitioner lived in the same
neighbourhood; though disbelieved by the High Court, nonetheless,
motive alleged in the crime report appears to have ignited the
unfortunate situation with a past, otherwise peaceful and smooth; in
this backdrop, petitioner’s nomination in a broad daylight incident by
resident witnesses hardly admits a space to entertain any hypothesis of
mistaken identity or substitution. Prompt recourse to law straight at
the police station excludes every possibility of deliberation or
consultation. Petitioner’s sole nomination as being the one to have
targeted the deceased with five entrance wounds is a circumstance that
reflects positively on complainant’s conduct; nomination of co-accused
with inconsequential roles notwithstanding, their presence at the scene
followed by acquittal, seemingly out of abundant caution, does not
tremor prosecution’s mainstay qua the role assigned to the petitioner.
In the totality of circumstances, presence of petitioner’s sons in an
incident, coming about next door, would not by itself bring them into
the community of intention and as such their acquittal cannot be
viewed as a circumstance casting away the entire case. Forensic report
Ex.PR, though viewed with suspicion by the High Court in view of even
dated dispatch of casings (P-6/1-2) with gun (P-4), nonetheless,
unmistakably confirms injuries sustained by the deceased consistent
Jail Petition No.296 of 2016
3
therewith. A straightforward and consistent ocular account furnished
by the witnesses overwhelmingly preponderates over petitioner’s plea of
an accidental fire by the deceased costing his own life in a brawl
wherein he admits his own presence. The plea in view of repeated fire
shots widely covering different parts of deceased’s body, merits outright
rejection being preposterous. The courts below rightly placed implicit
reliance on the prosecution evidence that squarely constituted “proof
beyond doubt”; scales are in balance with wage settled conscionably.
Leave declined.
Judge
Judge
Islamabad, the
10th September, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Syed Mansoor Ali Shah
Jail Petition No. 298 of 2018
(Against the judgment dated 20.03.2018 passed by the Lahore
High Court, Lahore in Criminal Appeal No. 167868/J of 2018 and
Capital Sentence Reference No. 1/T of 2018)
Imran Ali
… Petitioner
versus
The State
… Respondent
For the petitioner:
Ms. Sarwat Nawaz, ASC
For the complainant:
In person.
For the State:
Mr. Mazhar Sher Awan, Additional
Prosecutor General, Punjab
Date of hearing:
12.06.2018
JUDGMENT
Asif Saeed Khan Khosa, J.: For
allegedly
kidnapping,
sodomizing, raping and murdering a minor girl namely Zainab
Amin, aged about 7/8 years, the petitioner was booked in case FIR
No. 8 registered at Police Station A-Division, Kasur on 04.01.2018
and after a regular trial he was convicted by the trial court for
offences under sections 364-A, 376, 377, 302(b) and 201, PPC and
section 7(a) of the Anti-Terrorism Act, 1997 and for some of the
above mentioned offences he was sentenced to death apart from
some other sentences passed against him. The petitioner
challenged his convictions and sentences through an appeal which
was dismissed by the High Court and all his convictions and
Jail Petition No. 298 of 2018
2
sentences recorded by the trial court were upheld and confirmed.
Hence, the present petition before this Court.
2.
We have heard the learned counsel for the petitioner and the
learned Additional Prosecutor-General, Punjab appearing for the
State and have gone through the record of the case with their
assistance.
3.
It has straightaway been noticed by us that when the charge
was framed by the trial court against the petitioner he had pleaded
guilty as charged and on that occasion he had got recorded a
detailed confessional statement wherein he had admitted almost
every aspect of this case alleged against him. Despite such
pleading guilty to the charge and making of a confessional
statement by the petitioner the trial court had decided to proceed
with recording of evidence and during the trial statements of as
many as 32 prosecution witnesses were recorded and many other
pieces of evidence were brought on the record. In his statement
recorded under section 342, Cr.P.C. the petitioner had once again
admitted almost all the vital pieces of evidence produced by the
prosecution against him as correct and had once again admitted
his guilt unreservedly. We have observed that even in his
arguments addressed before the trial court the learned counsel for
the petitioner had only prayed for some lenience to be shown to the
petitioner in the matter of his sentence and no argument had been
advanced before the trial court challenging the merits of the
prosecution’s case against the petitioner. We have further observed
that in his memorandum of appeal filed by the petitioner before the
High Court once again only lenience in the matter of sentence had
been prayed for by the petitioner without questioning his
convictions recorded by the trial court. It was for the first time
during the arguments before the High Court that the learned
counsel for the petitioner had maintained that admission of guilt
by the petitioner before the trial court was a result of coercion but
during such arguments he had not provided any detail regarding
coercion applied against the petitioner so as to extract a
confession. In paragraph No. 4 of the memorandum of the present
Jail Petition No. 298 of 2018
3
petition filed before this Court it has been maintained by the
petitioner that the confession made by him was a result of duress
and inducement but in paragraph No. 10 of this very petition the
petitioner has, once again, admitted his involvement in the alleged
offences in clear and categorical terms. Apart from pleading guilty
to the charge and making a confession by the petitioner there were
many pieces of evidence brought on the record by the prosecution
which proved every word of the confession to be correct and in that
regard we may refer to the CCTV footages, photographs, DNA tests
and the medical evidence which had confirmed every aspect of the
confession made by the petitioner. All such pieces of evidence have
convinced us that the confession made by the petitioner was not
only voluntary but also true. After proper assessment and
evaluation of the evidence available on the record both the courts
below had concurred in their conclusion regarding guilt of the
petitioner having been proved to the hilt and upon our own
independent evaluation of the evidence available on the record we
have found no occasion to take a view of the matter different from
that concurrently taken by the courts below. We are also mindful
of the provisions of section 412, Cr.P.C. according to which in a
case where an accused person pleads guilty to the charge and he is
convicted on the basis of such pleading guilty then he can file an
appeal only to the extent or legality of the sentence passed against
him and he cannot file an appeal challenging his conviction.
4.
As regards the sentences passed by the trial court against
the petitioner which sentences had subsequently been upheld and
confirmed by the High Court we may observe that the crimes
committed by the petitioner were absolutely horrendous and
barbaric and the same had been committed with a minor and
innocent girl aged about 7/8 years. The petitioner had not only
deceitfully kidnapped her but had also brutalized her by
committing sodomy and rape with her and had then ultimately
killed her mercilessly. In his pleading guilty to the charge as well
as in his statement recorded under section 342, Cr.P.C. the
petitioner had admitted committing similar offences with eight
other minor victims and in that backdrop the petitioner did not
Jail Petition No. 298 of 2018
4
deserve any sympathy in the matter of his sentences. This petition
is, therefore, dismissed and leave to appeal is refused.
Judge
Judge
Judge
Lahore
12.06.2018
Approved for reporting.
Arif
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*
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAUVI
MR. JUSTICE MUHAMMAD All MAZHAR
MR. JUSTICE SHAHID WAKED
JAIL PETITION NO. 300 OF 2022
(On appeal against the judgment dated
17.05,2022 passed by the Lahore High Court,
Bahawalpur Bench in Criminal Appeal No.
215/2021 and criminal Revision No. 109/2021)
Saghir Ahmed
VERSUS
Petitioner(s)
The State et c
Respondent(s)
For the Petitioner(s):
For the State:
For the Complainant:
Date of Hearing:
Malik Muhammad Aslarn, ASC
Syed Rifaqat Hussain Shah, AOR
Mirza Muhammad Usman, OPG
In person
28.11,2022
JUDGMENT
SAYYED M ZAHAR All AKBAR NAQVI, J.- Petitioner along with three co-
accused was tried by the learned Additional Sessions Judge, Fortabbas
pursuant to a case registered vide FIR No. 135/2020 under Sections
377/506-B/337H(ii)/377B/34 PPC at Police Station Maroot for committing
sodomy with son of the complainant. The learned Trial Court vide its
judgment dated 22.04.2021 while acquitting the co-accused, convicted the
petitioner under Section 377 PIt and sentenced him to ten years RI along
with fine of Rs.200,000/ or in default whereof to further undergo six
months SI. In case of realization of fine, the same was ordered to be given
to the victim as compensation Benefit of Section 382-8 Cr.P.C. was also
extended in his favour. In appeal the learned High Court while maintaining
the conviction of the petitioner under Section 377 PPC, reduced the
Jail Petition No. 300/2022
-: 2
quantum of punishment to five years RI. The amount of compensation and
the sentence in default whereof and the benefit of Section 382-B Cr.P.C.
was also maintained. Hence, the instant jail petition seeking leave to
appeal.
2.
The prosecution story as given in the impugned judgment
reads as under:-
"2. The prosecution story as portrayed in the FIR lodged on the
complaint of Nasir Mehmood, complainant (PW-1) is to the effect
that on 08.042020 at about 07.40 pm, when Munecb-ur-Rehman,
complainant's son, aged about 9/10 years old who had gone to the
shop of the accused to get repair the mobile, did not return, the
complainant along with Zaheer Ahmed, Muhammad Abid went to
his shop and found the shutter of shop more than half down while
the light on, son of the complainant weeping and witnessed
underneath the shutter, the accused committed sodomy with him,
who upon seeing them, pull down the shutter and locked it and
thereafter he called his relatives through telephone and after a
while, Muhammad Asif, Muhammad Khalid and Naseer Ahmed
armed with pistols reached there, asked the accused not to worry
upon which, the accused opened the shutter and started aerial
firing while loading his pistol. The accused persons threatened
them to kill and accused Asif etc took the accused Saghir Ahmad
and fled away."
3.
After completion of investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court, In order to prove its case the
prosecution produced as many as nine witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted
all the allegations leveled against him. He did not appear in his own defence
under Section 340(2) Cr.P,C. However, he produced copy of FIR No.
115/2020 under Sections 452/148/149 PPC at Police Station Maroot as
Exh.DB in his defence.
4.
At the very outset, learned counsel for the petitioner
contends that there are glaring contradictions and dishonest improvements
in the statements of the eye-witnesses, which have escaped the notice of
the learned courts below. Contends that the medical evidence in the shape
of medico legal report as also the report of the Forensic Science Agency
does not support the ocular account. Lastly contends that the reasons given
Jail Petition No. 300/2022
-: 3
by the learned High Court to sustain conviction of the petitioner are
speculative and artificial in nature, therefore, the impugned judgment may
be set at naught.
5.
On the other hand, learned Law Officer assisted by the
complainant ! in person vehemently opposed the petition. It has been
contended that the prosecution witnesses had no enmity with the
petitioner to falsely implicate him in the present case and their testimony is
in line with the medical evidence, therefore, the petitioner does not
deserve any leniency from this Court.
6.
We have heard learned counsel for the parties at some length
and have perused the evidence available on the record with their able
assistance.
It is the case of the prosecution that on 08.04.2020 at about
07.40 pm, the son of the complainant namely Muneeb-ur-Rehman aged
about 9/10 tears went to the shop of petitioner Zaheer Ahmed to get the
mobile phohe repaired. However, he did not return in time, which
prompted the complainant to go to the shop of the petitioner. When the
complainant along with other eye-witnesses came at the shop of the
petitioner, they saw that shutter of the shop was down more than half and
light was on. When they saw underneath, the petitioner was committing
sodomy with the son of the complainant. There is no denial to this fact that
the victim vitas medically examined on the same day by Dr. Muhammad
Zeeshan, Medical Officer (PW-9). The medical report, which is available at
page 84 of !the paper book, clearly states that the "child has not yet
defected, nor took shower or clean the area after the act. On general
physically eamination, no signs of physical trauma noted on body." The
doctor further observed that "there is mild redness around the anal
sphincter. No bruise, no swelling, no abrasion or laceration noted on skin
around anal sphincter." The victim neither complained of pain on walking or
defecation. the doctor took two external and three internal anal swabs and
sent the same to Forensic Science Laboratory for DNA analysis. The Punjab
Forensic Science Agency gave its report on 27.10.2020 but it did not give
Jail Petition No, 300/2022
A
any definite finding and the report just denotes that "the victim may have
been victimized with the act of sodomy." In this view of the matter, the
report of the Forensic Science Agency can be interpreted in two ways, one
in favour of. the petitioner and second against him. However, it is a well
settled principle of law that if two views are possible on the evidence
adduced in the case, one indicating the guilt of accused and other to his
innocence, the view favourable to the accused is to be adopted. Reliance is
placed on Shahid Orakzai Vs. Pakistan Muslim League (2000 SCMR 1969).
jjz Hussain Vs. The State (2002 SCMR 1455), lftikhar Hussain and others Vs.
The State (2004 SCMR 1185) and Muhammad Zubair Vs The State (2010
SCMR 182). Mere heinousness of the offence if not proved to the hilt is not
a ground to 'punish an accused. This is an established principle of law and
equity that it is better that 100 guilty persons should let off but one
innocent person should not suffer. As the preeminent English jurist William
Blackstone wrote, "Better that ten guilty persons escape, than that one
innocent suffer" Benjamin Franklin, who was one of the leading figures of
early American history, went further arguing "it is better a hundred guilty
persons should escape than one innocent person should suffer." The above
report of the Forensic Science Laboratory is sufficient to cast a shadow of
doubt on the prosecution case, which entitles the petitioner to the right
of benefit of the doubt. It is a well settled principle of law that for the
accused to be afforded this right of the benefit of the doubt, it is not
necessary that there should be many circumstances creating uncertainty
and if there is only one doubt, the benefit of the same must got to the
petitioner, this Court in the case of Mst. Asia Bibi Vs. The State (PLO
2019 SC 64) while relying on the earlier judgments of this Court has
categorically held that "if a single circumstance creates reasonable doubt
in a prudent mind about the apprehension of guilt of an accused, then
he/she shall be entitled to such benefit not as a matter of grace and
concession but as of right. Reference in this regard may be made to the
cases of Twig Pervaiz v. The State (1995 SCMR 1345) and Avub Masih V.
The State (PLO 2002 SC 1048)." The same view was reiterated in Abdul
bbar vs. State (2019 SCMR 129) when this Court observed that once a
Jail Petition No. 300/2020
-: 5
single loophole is observed in a case presented by the prosecution, such as
conflict in the ocular account and medical evidence or presence of eye-
witnesses being doubtful, the benefit of such loophole/lacuna in the
prosecution's case automatically goes in favour of an accused. The
conviction must be based on unimpeachable, trustworthy and reliable
evidence. Any doubt arising in prosecution case is to be resolved in favour
of the accused. However, as discussed above, in the present case the
prosecution has failed to prove its case beyond any reasonable shadow of
doubt.
7. For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned judgment. The petitioner is
acquitted of the charge. He shall be released from jail forthwith unless
detained/required in any other case. The above are the detailed reasons of
our short order of even date.
Islamabad. the
28th of November, 2022
Approved For Reporting
Ilpui•r.ii.i
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.302 of 2017
(Against the judgment dated 16.03.2017 passed by the Lahore High Court
Lahore in Crl. Appeal No.1294 of 2012 with M.R. No.313 of 2012)
Zia Ullah
Waheed Anwar
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Ms. Tehmina Mohibullah Kakakhel, ASC
For the State:
Mirza Abid Majeed,
Deputy Prosecutor General Punjab
Date of hearing:
19.01.2021.
ORDER
Qazi Muhammad Amin Ahmed, J.- Javed Iqbal, 40/41,
was shot dead in front of his house located within the precincts of
Police Station Sitara District Sialkot at 7:30 p.m. on 30.10.2009; the
incident was reported by his son Aitzaz Ahsan (PW-8) 9:30 p.m. at Civil
Hospital Daska; he blamed the petitioners for the crime in the
backdrop of a dispute, raging over immovable property on the
instigation of Nasrullah and Zulfiqar Hussain, since acquitted. Three
unknown accomplices taking shelter in the dark, presumably aiding the
crime, are off the scene till date.
According to the complainant, on the fateful evening, the
deceased was watering the bricks when Ziaullah petitioner armed with
a .12 caliber repeater shotgun accompanied by Waheed Anwar
petitioner with a .44 caliber rifle surprised him within the view of the
witnesses; the latter opened the assault with a burst followed by the
former, landing on the different parts of his body; gasping for life, he
was rushed to Civil Hospital; where after a brief struggle, he succumbed
Jail Petition No.302 of 2017
2
to the injuries. The petitioners stayed away from law and were finally
arrested on 4.2.2010 and 21.5.2010, respectively; the Investigating
Officer recovered weapons of offence shortly thereafter, found wedded
with the casings secured from the spot. Upon indictment, they claimed
trial that resulted into their conviction under clause (b) of section 302 of
the Pakistan Penal Code, 1860; they were sentenced to death vide
judgment dated 20.07.2012; the abettors, however, were acquitted from
the charge; the High Court while maintaining convictions altered the
penalty of death into imprisonment of life vide impugned judgment
dated 16.03.2017.
2.
Learned counsel for the petitioners contends that the entire
case is structured upon a conspiracy allegedly hatched by Zulfiqar and
Nasrullah, co-accused; their acquittal casts away the entire case.
Seizure of two casings during the spot inspection in the face of as many
as nine entry apertures is a circumstance that does not synchronize
with the theory of a burst made by Ziaullah petitioner and, thus,
discrepancy by itself constitute conflict between ocular account and
medical evidence, benefit whereof, has unduly been withheld. Finally,
he has blamed the medical officer for being in connivance with the
prosecution in setting up a false case against the petitioner. Mirza Abid
Majeed, learned Deputy Prosecutor General Punjab has faithfully
defended the impugned judgment. According to him, the ocular account
furnished by the witnesses whose presence at the spot cannot be
doubted successfully drove home the charge beyond a shadow of doubt.
In the backdrop of an ongoing dispute, the petitioners had a strong
motive to settle the score, concluded the learned Law Officer.
3.
Heard. Record perused.
4.
The prosecution case is primarily structured upon ocular
account furnished by deceased’s son Aitzaz Ahsan (PW-8) and Ishtiaq
Ahmed (PW-9); former being resident of the house in front whereof the
deceased was engaged by the assailants can be safely viewed as a
natural witness. A subsisting dispute notwithstanding, Aitzaz Ahsan
(PW-8) is not expected to swap the assassins of his father with the
innocent; there does not appear any earthly reason for such a senseless
indiscretion; both of them confidently furnished graphic details of the
incident; the former was subjected to lengthy cross-examination, a
directionless exercise, soliciting inconsequential details on peripheral
matters, hardly relevant to the core issue; remainder comprises of bald
Jail Petition No.302 of 2017
3
suggestions, vehemently denied. Ishtiaq Ahmed (PW-9) also firmly held
the ground.
5.
Inclusion of abettors and three unknown aids in the crime
though a suspect circumstance with embarrassing failure, nonetheless,
does not decisively reflect upon petitioners’ culpability, independently
established by confidence inspiring evidence, excluding, to their extent
every hypothesis, other than their guilt; plea of false implication with
the assistance of a medical officer being preposterous merits outright
rejection. View concurrently taken by the Courts below, found by us on
our own analysis being inconsonance with the principle of safe
administration of criminal justice, calls for no interference. Petition
fails. Leave refused.
Judge
Judge
Judge
Islamabad, the
19th January, 2021
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.317 of 2018
(Against judgment dated 12.03.2018 passed by the
Lahore
High
Court
Lahore
in
Crl.
Appeal
No.1285/2013 along with M.R. No.260/2013)
Fateh Sher
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Sarfraz Khan Gondal, ASC
For the State:
Mr. Ahmed Raza Gillani
Addl. Prosecutor General Punjab
Date of hearing:
29.04.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- From amongst a large
array of accused, prosecuted through a private complaint after
complainant’s dissatisfaction with the investigative process, Fateh
Sher, petitioner, alone was returned a guilty verdict in a case of
homicide by a learned Additional Sessions Judge at Pindi Bhatian;
convicted under clause (b) of section 302 of the Pakistan Penal Code,
1860 vide judgment dated 01.8.2013, he was sentenced to death,
altered into imprisonment for life by the learned High Court vide
impugned judgment dated 12.3.2018, vires whereof are being assailed
on a variety of grounds, wholesale failure of prosecution case being
most prominent.
The incident is a night affair on fringe of the village Abadi when
according to the complainant he accompanied the deceased and the
injured at 10:45 p.m, without any apparent purpose. Besides the
petitioner, his brothers Ikram Ullah and Ihsan Ullah, each lethally
armed, alongside three unknown, confronted them with fire shots. Abid
Hussain and Asghar Ali PWs were statedly attracted to the scene at
Jail Petition No.317 of 2018
2
that unearthly hour of the night to witness the occurrence, instigated
by Javed co-accused. Through a supplementary statement purportedly
recorded on 24.5.2010, unknown assailants were introduced by their
names with specific roles. The co-accused were exonerated by the
Investigating Officer and the complainant having found investigative
conclusions inconsistent with the case set up in the crime report,
preferred a private complaint which again resulted into failure barring
the petitioner. Prosecution’s failure qua majority of the accused, one of
whom is indivisibly assigned identical role, question of identity of the
assailants in a moonlit night as mentioned in the crime report, an
unanticipated encounter between the deceased and the injured with
the assailants and inconsequential forensic report, makes out a case
for reappraisal of evidence to ensure safe administration of criminal
justice. Leave granted.
Judge
Judge
Islamabad, the
29th April, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.324 of 2015
(Against judgment dated 09.04.2015 passed by the
Lahore High Court Bahawalpur Bench Bahawalpur
in Criminal Appeal No.14 of 2011 along with M.R.
No.3 of 2011)
Munir Ahmad
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mian M. Tayyab Wattoo, ASC
For the State:
Mr. Ahmed Raza Gillani
Addl. Prosecutor General Punjab
Date of hearing:
27.04.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Indicted by the
learned Judge Anti-Terrorism Court, Bahawalpur, alongside 12 others,
Munir Ahmed, petitioner, is the lone recipient of a guilty verdict vide
judgment dated 07.02.2011, upheld vide impugned judgment dated
09.04.2015, albeit with alteration of death penalty into imprisonment
for life on two counts with concurrent commutation, pre-trial period
inclusive. Being a proclaimed offender in a case of murderous assault,
the petitioner resisted a police contingent on 27.7.2008 at 8:05 p.m.
within the remit of Police Station Kot Sabzal, District Rahim Yar Khan;
his accomplices joined him in the quest; one of the fire shots caught
Shafqat Ali 1083/C in the line of duty with his boots on; ensuing
darkness facilitated the assailants to take on their heels; they were,
however, subsequently taken to the task. Solitary fatal fire shot,
attributed to the petitioner weighed with the learned trial Judge to let
off the co-accused, a view juridically flawed in the totality of
circumstances, nonetheless, countenanced by the State.
According to the prosecution, on a tip off, Abdul Hameed ASI
(PW-4), surprised the petitioner, a proclaimed offender in his hideout;
he along with the accomplices opened fire on the police contingent;
taking shelter behind the official van, the complainant kept the
Jail Petition No.324 of 2015
2
assailants at bay and continued to engage them till arrival of
reinforcement headed by Junaid Ahmad, Assistant Superintendent of
Police with whom the deceased was deputed as a guard, fatally hit
soon after he alighted the official vehicle.
2.
Petition filed by the convict through Superintendent Jail is
barred by 72 days, condoned in the interest of justice; it has been
taken up by Mian Muhammad Tayyab Wattoo, ASC, to argue that there
was no occasion for the Courts below to return a guilty verdict after
prosecution’s wholesale failure qua the majority of the accused, no less
than 12 in numbers; he has argued that the darkness had shielded the
identity of the assailants and, thus, it was not humanly possible for the
witnesses for having seen the petitioner while taking on the deceased;
negative forensic report of gun P-3 squarely vindicated petitioner’s
position, leaving nothing in the field to sustain the impugned
conviction without potential risk of error, shrouded in the haze,
concluded the learned counsel. Syed Ahmed Raza Gillani, Additional
Prosecutor General Punjab has faithfully defended the impugned
judgment.
3.
Heard. Record perused.
4.
Prosecution case is structured upon ocular account
furnished by Nisar Ahmed/C (PW-3), Abdul Hameed, ASI (PW-4) and
Muhammad Riaz, Inspector (PW-6); they have furnished details of
criminal case wherein petitioner’s arrest along with others was
required and, thus, successfully established the purpose behind the
raid; petitioner being prominent amongst the accused was required by
law.
Deceased’s
detachment
as
a
guard
with
an
Assistant
Superintendent of Police posted in the Sub-Division has not been
disputed. The darkness had not yet engulfed the scene when the
encounter commenced and it is so mentioned in the cross-examination
itself “As soon as, we reached at the place of occurrence, the accused
made firing on us. Firing was started at about 7:30 pm. There was some
daylight at that time. When firing started, I came out of my vehicle and
made wireless calls to SHO Police Station Bhong SHO Police Station Kot
Sabzal and SHO Police Station Ahmadpur Lamma for my help”. Cross-
examination is a continuation of examination-in-chief. Disclosures
solicited by defence’s own choice and election from the witness during
the process, if found embarrassing or counterproductive, their adverse
consequences cannot be skipped or hushed up to ward off cumulative
impact of the exercise. It rules out the theory of complete darkness at
Jail Petition No.324 of 2015
3
the fag-end of the month of July. The witnesses are in a comfortable
corroborative unison on all the salient aspects of the prosecution case
as well as details collateral therewith; they being functionaries of the
Republic are second to none in status, having otherwise no axe to
grind; a directionless cross-examination, couched in suggestions, each
vehemently denied, reflects nothing but an exercise in futility. Position
taken by the defence that no encounter took place on the fateful day
nor at a place depicted in the site plan is a far cry in the face of
formidable evidence comprising seizure of human blood and a large
number of casings secured vide inventories of even date from the
designated spot in the village. Petitioner’s absence from law for a
considerable span of time (1 year 8 months) and involvement in
antedated criminal cases do not brilliantly reflect upon his credentials;
his absconsion in retrospect withers away the impact of negative
forensic report; similarly, he cannot claim benefit of en bloc acquittal of
his co-accused as they had been acquitted by the trial Judge without
any determinative finding excluding their participation in the combat;
their acquittal merely on the premise that none fell prey to their
retaliation is a conclusion, inherently incompatible with the well
entrenched principle of community of intention for prosecution of a
common object and mere absence of harm in consequence thereof by
itself does not vitiate culpability of an unlawful assembly. A flawed
acquittal without recourse cannot be viewed as a failure intriguing
upon an indictment otherwise positively established. Even a most
stringent analysis of prosecution evidence does not allow space to
admit any hypothesis other than petitioner’s guilt. Petition fails. Leave
refused.
Judge
Judge
Islamabad, the
27th April, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Maqbool Baqar
Mr. Justice Qazi Muhammad Amin Ahmed
JAIL PETITION NO.333/2013 AND
CRIMINAL PETITION NO.845-L/2013
(Against the judgment dated 3.7.2013 of the Lahore High Court, Lahore passed
in Criminal Appeal No.8-J/2009 and Murder Reference No.324/2008)
Aamir Hanif
(In Jail Petition No.333/2013)
Mst. Shamim Akhtar
(In Criminal Petition No.845-L/2013)
. . . Petitioner(s)
Versus
The State
(In Jail Petition No.333/2013)
Aamir Hanif and another
(In Criminal Petition No.845-L/2013)
. . . Respondent(s)
For the Petitioner(s)
Nemo.
(In Jail Petition No.333/2013)
Mr. A.G. Tariq Ch., ASC
(In Criminal Petition No.845-L/2013)
For the State
:
Mr. Muhammad Jaffar,
Additional Prosecutor General Punjab
Date of hearing
:
5.3.2020.
J U D G M E N T
Qazi Muhammad Amin Ahmed, J.- Aamir Hanif, petitioner,
along with his sister Samina Bibi, since acquitted, was indicted by
a learned Additional Sessions Judge for committing Qatl-i-Amd of
Mehboob Alam, no other than his brother-in-law and for
murderous assault upon Hakeem Nazeer Ahmad (PW-8) on
22.2.2008 at 6:00 p.m. within the remit of Police Station Karana
District Sargodha. The incident was reported on the spot by
deceased’s father Manzoor Ali (PW-7) at 5:30 p.m. It is alleged that
the deceased was not getting along well with his wife and in this
backdrop on the fateful day family elders gathered to settle the
Jail Petition No.333/2013 and
Criminal Petition No.845-l/2013
2
differences; petitioner was also in the session and during the
conversation after exhortation repeatedly targeted the deceased
with a .30 caliber pistol; Hakeem Nazeer Ahmad PW tried to
intervene but was shot instead. Casualties were attended; the
deceased succumbed to the injuries at the spot while Hakeem
Nazeer Ahmed (PW-8) was shifted to the hospital; he was medically
examined at 5:30 p.m. followed by deceased’s autopsy at 9:30 p.m.
Deceased’s wife Mst. Samina Bibi was arrayed as accused for
abetment on the basis of supplementary statement dated
28.2.2008. Petitioner was arrested on 4.3.2008; pursuant to a
disclosure on 8.3.2008 he led to the recovery of a .30 caliber pistol
(P-1). Trial concluded on 13.11.2008 in petitioner’s conviction
under clause (b) of section 302 of the Pakistan Penal Code, 1860
as well as under section 324 of the Code ibid; he was sentenced to
death and imprisonment on coordinate charge; Mst. Samina Bibi
was acquitted vide the same judgment. The High Court maintained
petitioner’s conviction albeit with alteration of death penalty into
imprisonment for life vide impugned judgment dated 03.07.2013,
vires whereof are being challenged by the convict through a jail
petition; the complainant seeks reversal of death penalty as well as
Samina Bibi’s acquittal; issues bound by a common thread are
being decided through this single judgment.
2.
Heard. Record perused.
3.
The convict is unrepresented and for that we have
gone through the entire record with caution and curiosity.
Relationship inter se the deceased and the convict alongside his
co-accused is admitted at all hands. Though no casing was
secured from the spot, nonetheless, blood taken therefrom is
forensically established that of human origin; that confirms the
venue. Excluding the strained relations between the spouses,
blessed with three siblings there was no motive left to bring the
convict face to face with his brother-in-law. Autopsy report
confirms three entry wounds, consistent with the weapon
recovered on convict’s disclosure. Events are recorded with a
remarkable promptitude. Occurrence took place at 4:00 p.m; it is
reported after one and half hour with medico legal examination of
the injured soon thereafter; autopsy at 9:30 p.m. in a non tertiary
Jail Petition No.333/2013 and
Criminal Petition No.845-l/2013
3
hospital cannot be viewed as delayed. Hakeem Nazeer Ahmed
(PW-8), with a stamp of injury, in his early seventies, is an
independent witness; he was requested to join reconciliation when
he came out of a nearby mosque after prayer; he has no axe to
grind and can be believed without demur. Witnesses are in a
comfortable unison on all the relevant details of the incident;
cross-examination on the complainant, though inordinately
lengthy, merely sets up a case of substitution that merits outright
rejection; deceased’s murder by his brother Ilyas and his son
Azhar, as suggested by the defence, is a story that may not find a
buyer. Even the convict himself abandoned the plea in his
examination under section 342 of the Code of Criminal Procedure
1898. Even a most stringent appraisal of prosecution evidence
does not admit any space to entertain any hypothesis other than
convict’s guilt. View taken by the courts below being well within
the remit of law does not call for interference. Quantum of
sentence opted by the High Court has also been found by us as a
conscionable wage. Petitions fail. Leave declined.
Judge
Judge
Lahore, the
5th March, 2020
Not approved for reporting
Azmat/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO.335/2017
(Against the judgment of the Lahore High Court
Lahore dated 04.04.2017 passed in Murder
Reference No.467/2012 and Criminal Appeal
No.443-J/2012).
Muhammad Arshad
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Miss Syed BH Shah, ASC
For the State
N.R
Date of Hearing:
07.10.2020
…
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Criminal petition for leave
to appeal under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973 has been sought calling in question impugned judgment
dated 04.04.2017 passed by learned Division Bench of Lahore High Court,
Lahore.
2.
The facts culminated into filing of the instant petition are that
the petitioner was booked in case bearing FIR No.654/10 dated
11.12.2010 offence u/s 302/324 PPC registered with Police Station
Malakwal, District M.B Din.
As per contents of the crime report, it is alleged that the
petitioner while armed with hatchet gave repeated blows on the head of
Saee Muhammad, who succumbed to injuries. He also caused injuries to
Mst. Rasulan Bibi & Mst. Sardaran Bibi and thereafter fled away from the
scene. Motive behind the occurrence was that there was a dispute over
the possession of a plot. The petitioner was taken into custody on
Jail Petition No.335/2017
Muhammad Arshad vs, The State
2
21.12.2010. During course of investigation, recovery of hatchet was
affected from him on 24.12.2010. During course of investigation, he was
found fully involved in the case and as such, his name was placed in
column No.3 of the report u/s 173 Cr.PC. The challan of the case was sent
to court. The learned trial court vide judgment dated 22.11.2012 convicted
the petitioner u/s 302(b) PPC and sentenced to death. He was also
burdened with compensation of Rs.1,00,000/- u/s 544-A Cr.PC and in
default thereof, he was to suffer six months S.I. He was also found guilty
of causing injuries to Mst. Rasulan Bibi and Mst. Sardaran Bibi and as
such was sentenced 05 years as Taazir u/s 324/337-A(ii)/337-A(iii) PPC.
He was also liable to pay Arsh which shall be 5% of Diyat notified in the
official Gazette of year 2010. He was convicted and sentenced u/s 337-
A(iii) PPC with R.I of 10 years as Taazir and also liable to pay Arsh which
shall be 10% of Diyat notified in the official Gazette of year 2010. The
petitioner was however sentenced u/s 324 PPC with imprisonment of 10
years alongwith fine Rs.50,000/- and in default thereof to further undergo
six months S.I. The sentences shall run concurrently. Benefit of section
382-B Cr.P.C. was also extended.
3.
The judgment of the learned trial court was challenged
before learned High Court through Criminal Appeal No.443-J/2012
whereas the learned trial court sent the Murder Reference bearing
No.467/2012 u/s 374 Cr.PC. The learned High Court while maintaining the
conviction u/s 302(b) PPC but altered the sentence from death to
imprisonment for life however the rest of the judgment of the learned trial
court was maintained. Hence, the instant petition for leave to appeal.
4.
At the very outset, it is argued by the learned counsel for the
petitioner that in fact, both the courts below had not taken into
consideration the evidence available on record and the same has not
been evaluated according to the principles of “appreciation of evidence”
Jail Petition No.335/2017
Muhammad Arshad vs, The State
3
enunciated by the superior courts from time to time. Contends that it is an
admitted fact that the petitioner himself sustained injury and the same has
been suppressed by the prosecution while lodging the crime report.
Contends that the petitioner while making statement u/s 342 Cr.PC has
taken a definite stance that in fact, he was not the actual perpetrator of
this occurrence rather he has been substituted. Contends that due to
previous animus, the petitioner has been roped against the actual facts
and circumstances and he being first offender requires leniency by this
Court and if at all the whole prosecution case is admitted the maximum
punishment which can be inflicted is sentenced u/s 302(c) PPC. Finally, it
has been prayed that the leave to appeal be granted on this aspect.
5.
We have heard learned counsel for the petitioner at length
and gone through the record.
There is no denial to this fact that the instant occurrence has
taken place in broad daylight in which one person was done to death in a
brutal manner whereas 02 women folk were given severe injuries. The
crime report was lodged with promptitude, although the inter-se distance
between the place of occurrence and the police station is 10-KM. The
facts and figures narrated above, rules out any possibility of deliberation
and consultation. Further that there is only single accused nominated in
the crime report which shows the fairness of the prosecution which
normally is against the prevalent custom in our society. The petitioner was
saddled with responsibility of causing injuries to Saee Muhammad who
was done to death in a brutal manner and the injuries ascribed to the
petitioner are fully established from the medical evidence. Similarly, the
injuries caused to the women folk, and the manner in which these were
inflicted are also reflective from the medical legal reports. The ocular
account in this case is supported by 02 injured PWs, the statements of the
prosecution witnesses coincide with each other on salient features of
Jail Petition No.335/2017
Muhammad Arshad vs, The State
4
prosecution version. The ocular account is corroborated by the medical
evidence, recovery of hatchet further lend support to the prosecution case
and during the course of investigation, the petitioner was found involved
and his name was placed in column No.03 of the report u/s 173 Cr.PC.
The contention of the learned counsel that the petitioner was himself
injured but it was suppressed by the prosecution, we have minutely gone
through the medical legal report of the petitioner which is placed on the
record, it is reflecting that it was caused two weeks back. Unfortunately,
the petitioner never made any endeavor to lodge counter version with the
local police qua the injury he sustained during the occurrence as argued
by the learned counsel. Similarly, the doctor who examined him was never
produced. We are conscious of the fact that the accused is having the
privilege just to show the glimpse of his version being true but in the
instant case even we could not find any such material on the record either
in the shape of any application to the police or any application in the court
to summon the doctor to supplement the medical legal report which could
prove the factum of injury on the person of the petitioner. No doubt it is
within the domain of this Court to do complete justice but without any
substantial material the same is beyond its scope.
6.
As a consequence, in view of the facts and circumstances
narrated above, we do not find any scope for interference, hence, the
instant petition before us is dismissed and leave to appeal is declined.
JUDGE
JUDGE
Islamabad, the
7th October, 2020
Approved for reporting
*Syed Rashid Maqsood/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: MR. JUSTICE MANZOOR AHMED MALIK
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Jail Petition No.348 of 2019
(Against the judgment dated 18.04.2019 of the
Lahore High Court, Lahore passed in Criminal
Appeal No.866 of 2017)
Ibrar Ullah
Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s)
Mr. S.M. Mehmood Khan Sadozai, ASC
Ch. Akhtar Ali, AOR
For the State:
Mirza Abid Majeed
Deputy Prosecutor General, Punjab
Date of hearing:
27.10.2020.
…
ORDER
Qazi Muhammad Amin Ahmed, J.- During a routine haul
up, Ibrar Ullah, petitioner, was intercepted shortly after alighting a
public vehicle hailing from Peshawar on a police post set up within
the precincts of Police Station Rawat at 9/10:00 on 10.10.2016;
baffled by a sudden encounter, he attempted to slip away,
however, was subdued by the contingent with 3500 grams of
contraband, wrapped in a polythene bag, forensically turned out as
cannabis. Upon conclusion of investigation, the petitioner was
indicted before the learned Special Judge (CNS) Rawalpindi; he
claimed trial that culminated into his conviction under Section 9(c)
of the Control of Narcotic Substances Act, 1997; sentenced to six
and half years rigorous imprisonment with a direction to pay
Rs.30000/- as fine or to undergo six months simple imprisonment
in lieu thereof, vide judgment dated 20.09.2017; his appeal failed
before a learned Division Bench of the Lahore High Court vide
impugned judgment dated 18.04.2019, vires whereof, are being
assailed on a variety of grounds that include false implication,
non-availability of witness from the public, discrepant statements
Jail Petition No.348 of 2019
-: 2 :-
of the witnesses of recovery and absence of ‘protocol’ to validate the
forensic report.
2.
Heard. Record perused.
3.
We have found it somewhat difficult to persuade
ourselves by the hypothesis of false implication. Admittedly, the
petitioner is a resident of Peshawar; he had apparently no business
to attend at the spot wherefrom he was unanticipatedly arrested.
Similarly, it is difficult to contemplate his substitution to swap the
real offender as the volume of cache being substantial could not be
conceivably planted in the absence of a strong motive that does not
appear the case. Absence of a witness from the public to support
the prosecution despite availability, being symptomatic of public
apathy towards civic responsibilities does not by itself shadow
upon the credibility of official witnesses, repeatedly held us as
second to none in status, found otherwise in a comfortable unison
on all the relevant details relating to the arrest, search and
recovery. Presence of a police picket has not been disputed by the
defence itself. Criticism on forensic report Ex.PE carries no weight
as it contains relevant details of the procedure followed by the
analyst to confirm the narcotic character of the contraband;
acquiesced by the defence during the trial. Belated arrangement by
the petitioner of a well wisher to testify in his favour during the
trial miserably failed to override positive evidence pointed towards
his culpability on all fours. The said defence witness never joined
police investigation and came up with a cock and bull story rather
late in the day that fails to inspire confidence of even a most
unsuspecting listener. Conclusions drawn by the courts below, on
our own independent analysis, have been found by us well within
the remit of law, being inconsonance with the principles of safe
administration of criminal justice. Petition fails. Leave declined.
JUDGE
JUDGE
JUDGE
Islamabad, the
27th October, 2020
Not approved for reporting
Azmat/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO. 34 OF 2020
(Against the judgment dated 21.11.2019
passed by the Lahore High Court, Lahore in
Criminal Appeal No. 1584/2015 & Criminal
Revision No. 907/2015)
Sabtain Haider
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Mrs. Bushra Qamar, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Muhammad Jaffer, Addl. P.G. Punjab
For the Complainant:
Rai Zamir ul Hassan, ASC
Date of Hearing:
21.09.2022
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was tried by the
learned Additional Sessions Judge, Mandi Bahauddin in a private
complaint under Sections 302/34 PPC for committing murder of Altaf
Saqib and Mst. Safeeran Bibi. The same was instituted being dissatisfied
with the investigation conducted by the Police in case FIR No. 242 dated
12.06.2010 registered under Sections 302/34 PPC at Police Station Gojra,
District Mandi Baha-ud-Din. The learned Trial Court vide its judgment
dated 23.06.2015 convicted the petitioner under Section 302(b) PPC on
two counts and sentenced him to imprisonment for life on each count. He
was also directed to pay compensation amounting to Rs.100,000/- to the
legal heirs of the deceased or in default whereof to further suffer six
JAIL PETITION NO. 34 OF 2020
-: 2 :-
months SI. In appeal the learned High Court set aside the conviction and
sentence of the petitioner under Section 302(b) PPC for the murder of
Mst. Safeeran Bibi. However, his conviction and sentence under Section
302(b) PPC for committing murder of Altaf Saqib was maintained. Benefit
of Section 382-B Cr.P.C. was also extended to him. Being aggrieved by the
impugned judgment, the petitioner/convict has filed the instant jail
petition.
2.
The prosecution story as given in the impugned judgment
reads as under:-
“2.
Succinctly stated the facts of the prosecution case as unveiled
by complainant Naveed Iqbal (PW-1) in FIR (Exh.PA/2) are to the effect
that he is resident of Mauza Khai and is running Iqra Model School as
well as a grocery shop; that on the night falling in between
11/12.06.2010 his younger brother Altaf Saqib and Abbas Ali son of
Abdul Sattar went to Iqra Model School for playing badminton but did
not return till late night; that at about 3.30 am (night) he along with
Bashir Ahmad son of Muhammad Siddique reached the said school;
that in the meantime Sabtain Haider (appellant) and Zulqarnain Haider
(since PO), whose house was adjacent to the house of the complainant
while armed with pistol .30 bore entered the school premises while
scaling over the wall; that Sabtain Haider (appellant) asked to switch
on the light, upon which Abbas Ali said as to what was the matter; that
Zulqarnain (since PO) made a pistol shot which missed; that Altaf Saqib
while getting up from the cot ran towards the outside and the second
fire made by Sabtain Haider hit him at the right side of his back which
went through and through, due to which he fell down in the haveli
adjacent to the school and died at the spot; that thereafter the
accused killed their own sister, namely, Safeera Bibi due to suspicion of
illicit liaison with Altaf Saqib.”
3.
The conviction of the petitioner was recorded in a private
complaint. The complainant produced cursory evidence whereafter the
formal charge was framed against the petitioner on 26.03.2011 under
Sections 302/34 PPC to which he pleaded not guilty and claimed trial. In
order to prove its case the prosecution produced as many as thirteen
witnesses and one CW. In his statement recorded under Section 342
Cr.P.C, the petitioner pleaded that deceased Altaf Saqib had developed
illicit relations with his sister Mst. Safeeran Bibi and when he saw them in
a compromising position, he lost his control and on account of ghairat and
JAIL PETITION NO. 34 OF 2020
-: 3 :-
sudden and grave provocation, he committed the murders. However, he
did not make his statement on oath under Section 340(2) Cr.P.C in
disproof of allegations leveled against him. He also did not produce any
evidence in his defence.
4.
Learned counsel for the petitioner/convict contended that
there are glaring contradictions and dishonest improvements in the
statements of the eye-witnesses, which have escaped the notice of the
learned courts below. Contends that the eye-witnesses failed to prove
their presence at the spot especially in the mid of the night. Contends that
the medical evidence contradicts the ocular account, benefit of which
must go to the petitioner. Contends that the occurrence took place in dark
hours of the night but no source of light was proved by the prosecution. In
the alternative, learned counsel contended that the case in hand is indeed
a case of grave and sudden provocation as the petitioner had seen the
deceased in highly objectionable position, which attracts the provisions of
Section 302(c) PPC. Contends that from the day one, it is the stance of the
petitioner that he committed the murders under the impulses of ghairat
and grave and sudden provocation but the learned High Court did not
even consider it.
5.
On the other hand, learned Law Officer assisted by the
learned counsel for the complainant have defended the impugned
judgment. It has been contended that to sustain conviction of the
petitioner, un-rebutted ocular evidence alone is sufficient. Contends that
the ocular account is supported by the medical evidence, therefore, the
petitioner does not deserve any leniency by this Court. It was lastly
contended that in terms of the first proviso to section 302(c) PPC the case
in hand does not attract the provisions of Section 302(c) PPC.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
JAIL PETITION NO. 34 OF 2020
-: 4 :-
The instant case is a case of double murder committed under
the impulses of ghairat and on grave and sudden provocation. The FIR in
respect of the same had been lodged with sufficient promptitude wherein
the petitioner was specifically nominated. Although, the learned Trial
Court had convicted the petitioner under Section 302(b) PPC on two
counts but the learned High Court has exonerated the petitioner for the
charge of murder of his sister Mst. Safeeran Bibi, which finding has not
been challenged before us. The ocular account in this case has been
furnished by Naveed Iqbal (PW-1) and Bashir Ahmad (PW-2). These
prosecution witnesses were subjected to lengthy cross-examination by the
defence but nothing favourable to the petitioner/convict or adverse to the
prosecution could be brought on record. Both these PWs remained
consistent on each and every material point and successfully advanced the
prosecution case so far as it relates to the homicidal death of Altaf Saqib,
deceased is concerned, the said eye-witnesses have given a reasonable
explanation for their presence at the place of occurrence at the relevant
time and have made consistent statements before the trial court which
statements have inspired confidence. As far as the question that the
complainant was brother of the deceased, therefore, his testimony cannot
be believed to sustain conviction of the petitioner/convict is concerned,
this Court has time and again held that mere relationship of the
prosecution witnesses with the deceased cannot be a ground to discard
the testimony of such witnesses unless previous enmity or ill will is
established on the record to falsely implicate the accused in the case. The
medical evidence available on the record corroborates the ocular account
so far as the nature, time, locale and impact of the injury on the person of
the deceased is concerned. The motive set up by the prosecution was
based upon a suspicion of illicit relations between the two deceased,
which has been admitted by the petitioner through his statement
recorded under section 342 Cr.P.C. So far as the recovery of weapon of
offence is concerned, the same is inconsequential simply for the reason
that neither the crime empty nor the weapon was sent to the Forensic
Science Laboratory. So far as the argument that no source of light was
JAIL PETITION NO. 34 OF 2020
-: 5 :-
proved by the prosecution is concerned, the learned High Court has rightly
noted that point No. 8 in the scaled site plan stands for place of electric
bulb which was on at the eventful time. In this view of the matter, it can
safely be concluded that the prosecution has proved its case against the
petitioner.
7.
The only point which requires intervention of this Court is
the quantum of sentence. Keeping in view the facts and circumstances
surfaced during the course of arguments by both the learned counsel,
there is no denial to this fact that the deceased Saqib Altaf was murdered
when the petitioner had seen him with his sister in an objectionable
position. The said question was also put to the eye-witnesses but they
could not deny the same. This fact has also been mentioned in the crime
report. The stance of the petitioner has been supported by the statement
of Dr. Hussana (PW-9), who conducted postmortem examination of the
deceased Mst. Safeeran Bibi. The lady doctor candidly stated that “hymen
is totally absent” and she was of the view that “zina may be committed
but not discharged”. Admittedly, the place where the deceased Saqib was
done to death was a school where no activity was going on when the
occurrence took place. The wall of the school from the northern side was
common wall between the school and the house of the petitioner and the
stairs were situated adjacent to the above said wall. During cross-
examination, the Investigating Officer, who appeared as (PW-13) admitted
that it was the first version of accused Sabtain that he took the life of the
deceased under grave and sudden provocation as he had seen them in a
compromising position. It is established principle of criminal jurisprudence
that the defence is not under obligation to prove its version and the
burden on it is not as heavy as on the prosecution rather the defence is
only to show the glimpse that its version is true. The record clearly reveals
that there was no conventional enmity between the parties and the only
reason as to why the petitioner could have committed the murders was
nothing but his having seen the two deceased together in an amorous
pursuit. In such like cases, the analogy can be drawn from the statutory
law prevalent in United Kingdom called Homicide Act, 1957 wherein if a
JAIL PETITION NO. 34 OF 2020
-: 6 :-
crime is committed due to mental or psychological compulsion, it
squarely falls within the ambit of diminished liability. It is a legal
doctrine that absolves an accused person of part of the liability for his
criminal act if he suffers from such state of mind as to substantially impair
his responsibility in committing or being a party to an alleged criminal act.
In the present case as the murders were committed under the impulses of
ghairat and grave and sudden provocation, the doctrine of diminished
liability would be squarely attracted providing mitigation to the
punishment awarded to the petitioner. In these circumstances, we are of
the firm view that the case in hand is indeed a case of grave and sudden
provocation which attracts the provisions of Section 302(c) PPC. So far as
the argument of learned Law Officer that in terms of the first proviso to
Section 302(c) PPC, the provision of Section 302(c) PPC is not attracted is
concerned, this aspect of the matter has been elaborately dealt with by
this Court in the case reported as Muhammad Qasim Vs. The State (PLD
2018 SC 840) wherein this court held as under:-
“The learned Deputy Prosecutor-General, Punjab appearing for the
State has, however, pointed out that in terms of the first proviso to
section 302(c), P.P.C. the case in hand was a case of murders
committed in the name or on the pretext of honour and, thus, it
was to be treated as a case attracting the provisions of sections
302(a) or 302(b), P.P.C. and not those of section 302(c), P.P.C. We
have attended to this aspect of the matter with care and have
found that the words "in the name or on the pretext of honour"
used in the first proviso to section 302(c), P.P.C. are not without any
significance or meaning. The said words indicate that a murder
committed "in the name or on the pretext of honour" has to be a
calculated
murder
committed
with
premeditation
in
the
background of honour whereas the words used in the context of
grave and sudden provocation in Exception 1 to the erstwhile
Section 300, P.P.C. were "deprived of the power of self-control".
Such words used in Exception I to the erstwhile section 300, P.P.C.
catered for a situation which was not premeditated and had
developed suddenly leading to grave provocation depriving a
person of the power of self-control. Such different phraseology
used by the legislature in these distinct provisions clearly indicates
catering for different situations and, therefore, the words "in the
name or on the pretext of honour" ought not to be mixed or
confused with grave and sudden provocation leading to depriving of
the Power of self-control. This distinction between honour and
grave and sudden provocation was clearly recognized by this Court
in the case of Muhammad Ameer v. The State (PLD 2006 SC 283)
and the same is manifestly attracted to the facts of the present case
JAIL PETITION NO. 34 OF 2020
-: 7 :-
as well. It has already been found by us above that the case in hand
was a case of grave and sudden provocation and honour only
provided a backdrop to the same.”
(Underlined to lay emphasis)
8.
Even otherwise, it is human psychology that if someone
comes across the situation like it, as is disclosed in the present case, the
situation would be dealt with by individual depending upon his
temperament, caste, race, creed, tribe, social status and the area from
where the individual hails. This aspect also imprints a lasting impact
regarding the response keeping in view the previous antecedents not only
of the individual but the family/tribe he belongs. In the instant case, all
these factors must have contributed towards the act of the petitioner,
hence, as stated in the preceding paragraph, the case of the petitioner
squarely falls within the ambit of Section 302(c) PPC. As a consequence of
the above discussion, we convict the petitioner under Section 302(c) PPC
and sentence him to imprisonment for the period which he has already
undergone. Consequently, this petition is converted into appeal, partly
allowed and the impugned judgment is modified as stated above. The
petitioner shall be released from jail forthwith unless detained/required in
any other case.
JUDGE
JUDGE
Islamabad, the
21st of September, 2022
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 SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO. 351 OF 2017
(Against the judgment dated 13.04.2017 passed by the
Lahore High Court, Lahore in Capital Sentence Reference No.
38-T/2014 and Criminal Appeal No. 1747/2014)
Muhammad Nasir
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Mr. Anis Muhammad Shahzad, ASC
For the State:
Mr. Muhammad Jaffer, Addl. P.G. Punjab
For the Complainant:
Mst. Razia Muzafar, In person
Date of Hearing:
13.10.2022
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Muhammad Nasir was
tried by the learned Judge Anti Terrorism, Court No. II, Lahore pursuant to a
case registered vide FIR No. 93/2014 under Sections 302/324/336-
B/109/337-A(I)/337-F(3) PPC read with Section 7 of the Anti Terrorism Act,
1997 at Police Station Ravi Road, Lahore, for committing murder of his wife
Mst. Sakeena Bibi and for causing injuries to Mst. Rasheeda Bibi, Shaukat Ali
and Ibrahim, minor. The learned Trial Court vide its judgment dated
25.09.2014 convicted and sentenced the petitioner as under:-
1)
Under Section 302(b) PPC
To death with a direction to pay Rs.500,000/- as
compensation to legal heirs of deceased or in default whereof
to further undergo six months SI.
2)
Under Section 7(1)(a) of Anti Terrorism Act, 1997
To death with a fine of Rs.100,000/- or in default whereof to
further undergo three months SI.
JAIL PETITION NO. 351 OF 2017
-: 2 :-
3)
Under Section 336-B PPC
To imprisonment for 14 years on two counts alongwith fine of
Rs.10,00,000/- for each count or in default whereof to further
undergo SI for six months for each default.
4)
Under Section 7(1)(c) of Anti Terrorism Act, 1997
To 10 years imprisonment on two counts with fine of
Rs.50,000/- on two counts or in default whereof to further
undergo SI for three months for each default.
The property of the petitioner was also directed to be
forfeited in favour of State under Section 7(2) of the ATA,
1997, in addition to the above-referred sentences. All the
sentences were directed to run concurrently with benefit of
Section 382-B Cr.P.C.
2.
In appeal the learned High Court maintained the convictions
and sentences recorded by the learned Trial Court. Being aggrieved by the
impugned judgment, the petitioner/convict has filed the instant Jail
Petition.
3.
The prosecution story as given in the judgment of the learned
Trial Court reads as under:-
“2.
The brief facts as came out from complaint Ex.PA/1 made by
Sakeena Bibi alias Billo (now deceased) while in injured condition to
Muhammad Hussain SI Police Post Sabzi Mandi Police Station, Ravi
Road, Lahore on 09.02.2014 on the basis of which formal FIR Ex.PA was
recorded are that she is housewife and dispute of divorce is pending
between her and her husband Nasir and due to it 5/6 days earlier she
alongwith her children came to house of her parents at Shams Pura.
Today i.e. 09.02.2014 at about 1:30 pm she alongwith her son Ibrahim
aged one year, her brother Shaukat Ali, her Bhabi Rashedan Bibi were
taking meal at the roof top of the house when Nasir accused came and
threw acid on them which fell on her face and other parts of the body
and on right cheek and right arm of Rasheedan Bibi and on left arm of
her brother Shaukat Ali and on face and on back side of belly and on
right arm of Ibrahim and they became injured whereas, the accused fled
away. This occurrence was also seen by Mazhar Ali and Mst. Razia Bibi.
The injured were shifted to hospital by Rescue-1122. The motive of
occurrence is that a dispute of divorce is pending in between her and
her husband and due to that grudge he threw acid on them.”
4.
During the course of proceedings before this Court, it
transpired that the petitioner committed murder of his wife from whom he
had a son namely Ibrahim, who was about one year of age at the time of
incident. The said minor son is alive and in-fact direct descendant of the
JAIL PETITION NO. 351 OF 2017
-: 3 :-
petitioner and is his ‘wali’. Before proceeding further, it would be in order
to reproduce Sections 306 & 308 PPC, which reads as under:-
"306. Qatl-i-amd not liable to qisas.---Qatl-i-amd shall not be
liable to qisas in the following cases, namely:-
(a) when an offender is a minor or insane:
Provided that, where a person liable to qisas associates himself in
the commission of the offence with a person not liable to qisas,
with the intention of saving himself from qisas, he shall not be
exempted from qisas;
(b) when an offender causes death of his child or grand child, how
low-so-ever; and
(c) when any wali of the victim is a direct descendant, how low-so-
ever, of the offender."
308. Punishment in qatl-i-amd not liable to qisas, etc.: (1) Where
an offender guilty of qatl-i-amd is not liable to qisas under Section
306 or the Qisas is not enforceable under clause (c) of Section
307, he shall be liable to diyat:
Provided that, where the offender is minor or insane, diyat shall
be payable either from his property or, by such person as may be
determined by the Court:
Provided further that where at the time of committing qatl-i-amd
the offender being a minor, had attained sufficient maturity or
being insane, had a lucid interval, so as to be able to realize the
consequences of his act, he may also be punished with
imprisonment of either description for a term which may extend
to twenty-five years as ta'zir.
Provided further that, where the Qisas is not enforceable under
clause (c) of Section 307, the offender shall be liable to diyat only
if there is any wali other than offender and if there is no wali
other than the offender, he shall be punished with imprisonment
of either description for a term which may extend to twenty-five
years as ta'zir.
(2) Notwithstanding anything contained in sub-section (1), the
Court, having regard to the facts and circumstances of the case in
addition to the punishment of diyat, may punish the offender with
imprisonment of either description for a term which may extend
to twenty-five years, as ta'zir.”
5.
There are various judgments of this Court, which enunciate
that the provisions of Sections 306 & 308 PPC would only be attracted in the
JAIL PETITION NO. 351 OF 2017
-: 4 :-
cases of qatl-i-amd liable to ‘qisas’ under Section 302(a) PPC. However, at
the same time, the view persists that “in case we subscribe to the view that
provisions contained in Sections 306 and 308 PPC apply to the cases of qisas
only, it is apt to give rise to an anomaly. The anomaly is that if sentence in
qatl-i-amd liable to qisas, despite stern and stringent forms of proof,
can be lenient in view of the circumstances mentioned in sections 306 and
308 PPC why can't it be lenient in view of the same circumstances in the
case of tazir notwithstanding the forms of proof and sentence provided
thereunder are comparatively less stern and stringent.” Reliance is placed
on Zahid Rehman Vs. The State (PLD 2015 SC 77). There is no direct
judgment on the subject except Khalil-uz-Zaman Vs. Supreme Appellate
Court (PLD 1994 SC 885) wherein while dealing with a similar case, this
Court held that “language of Sections 306 and 308 PPC is plain enough to
show that Qatl-i-Amd committed by the petitioner was not liable to Qisas
and Qatl-i-Amd not liable to Qisas is specifically punishable under Section
308 PPC only. So, the petitioner could be convicted under Section 308 PPC
and not under section 302 PPC to death as Qisas or Ta'zir.” Although review
was filed in this case i.e. Faqirullah Vs. Khalil-uz-Zaman (1999 SCMR 2203),
which was accepted, the conviction of the petitioner under Section 302(b)
PPC as Ta’zir was maintained and he was ultimately executed but from
perusal of the judgment, it is apparent that the Court itself observed that
the provisions of Sections 306 to 308 PPC are not violative of any Quranic
text or the Sunnah. The relevant portion of the judgment reads as under:-
“Due to paucity of time we have not been able to make further
research in the matter ourselves. The opposite side had also not
assisted us on the subject. Nonetheless, the amendments were
introduced in the year 1990 in the Pakistan Penal Code including
the provisions of clause (c) of section 306 and clauses (a) and (b)
of section 304 of the P.P.C. with a view to bringing those
provisions in conformity with the Injunctions of Islam and Sunnah.
The presumption, therefore, is that aforementioned provisions
are not violative of any Qur'anic text or the Sunnah of the Prophet
(p.b.u.h.). The second contention is, therefore, devoid of any
force.”
6.
For what has been discussed above, the questions as to (i)
whether the case of the petitioner is covered under Section 306(c) PPC for
which the maximum punishment provided under Section 308 PPC is 25
JAIL PETITION NO. 351 OF 2017
-: 5 :-
years along with payment of diyat, and (ii) whether the conviction and
sentence recorded against the petitioner under Section 302(b) PPC as Ta’zir
was appropriate as per scheme of law squarely, requires consideration. We,
therefore, grant leave to appeal in this petition. As the matter requires
interpretation of the afore-referred provisions as per the intent of the
Legislature, therefore, we deem it appropriate to send the matter to
Hon’ble Chief Justice for constitution of a larger bench to adjudicate the
matter for authoritative judgment, as the earlier matter was heard by a
bench comprising five members.
JUDGE
JUDGE
JUDGE
Islamabad, the
Announced on _______________
Not Approved For Reporting
Khurram
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO. 355 OF 2018
(On appeal against the judgment dated 22.02.2018
passed by the Lahore High Court, Multan Bench in
Criminal Appeal No. 481/2012)
Muhammad Abbas, and
Muhammad Ramzan
… Petitioners
VERSUS
The State
… Respondent
For the Petitioners:
Ms. Sabahat Rizvi, ASC
(Via video link from Lahore)
For the State:
Mirza Muhammad Usman, DPG Punjab
For the Complainant:
Mr. Abdul Khaliq Safrani, ASC
(Via video link from Lahore)
Date of Hearing:
02.01.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioners along with two co-
accused were tried by the learned Additional Sessions Judge, Chichawatni
in a private complaint under Sections 302/148/149 PPC for committing
murder of Muhammad Sarfraz. The same was instituted being dissatisfied
with the investigation conducted by the Police in case FIR No. 85 dated
10.04.2009 under Sections 302/148/149 PPC at Police Station Ghaziabad,
District Sahiwal. The learned Trial Court vide its judgment dated
28.06.2012 while acquitting the two co-accused, convicted the petitioners
under Section 302(b) PPC and sentenced them to imprisonment for life.
They were also directed to pay compensation amounting to Rs.50,000/- to
the legal heirs of the deceased or in default whereof to further suffer four
Jail Petition No. 355/2018
2
months SI. Benefit of Section 382-B Cr.P.C. was also extended in favour of
the petitioners. In appeal the learned High Court maintained the
conviction and sentences awarded to the petitioners by the learned Trial
Court.
2.
The prosecution story as given in the judgment of the Trial
Court reads as under:-
“The complainant, Ameer Hussain filed this complaint against the
accused persons alleging that he is resident of Chak No.413/E.B. and
cultivator by profession. The accused persons abducted Mst. Shakila Bibi,
aged about 16/17 years, the daughter of complainant’s cousin,
Muhammad Sarwar S/o Niamat. The accused persons promised to return
her. On 09.04.2009 at 9.00 p.m. the complainant along with Muhammad
Sarwar, Hassan Abad Ali, Muhammad Amin, Sarfraz and Muhammad
Shabbir came to Chak No.53/12L and demanded for return of Mst.
Shakila Bibi. Hot words were exchanged between the parties. Gahni
accused raised Lalkara that teach Sarfraz a lesson for demanding the
hand of Shakila Bibi, whereupon Muhammad Abbas made a dagger blow,
which landed on the right wrist of Muhammad Sarfraz. Muhammad
Ramzan accused also made a dagger blow on the right arm pit of Sarfraz.
He fell down smeared in blood. Later on Muhammad Nawaz accused
made a blow of his Chhuri, which landed on the right side of his back
while Muhammad Boota accused beaten Sarfraz with kicks and fists. The
witnesses Abbad Ali, Muhammad Amin witnessed the occurrence and
saved the complainant party from the clutches of the accused persons.
The victim Sarfraz succumbed to the injuries in the way to hospital. The
motive was that the accused persons had abducted Mst. Shakila Bibi,
daughter of Muhammad Sarwar. Sarfraz has been pursuing the said case.
Due to that grudge, the accused persons have caused his murder. The
complainant lodged FIR No.85/09 but the police in connivance with the
accused persons declared Muhammad Nawaz accused as innocent while
accused Muhammad Ashfaq died during the trial. Hence, this private
complaint.”
3.
The conviction of the petitioners was recorded in a private
complaint. The complainant produced cursory evidence whereafter the
formal charge was framed against the petitioners on 02.08.2011 under
Sections 302/148/149 PPC to which they pleaded not guilty and claimed
trial. In order to prove its case the prosecution produced three witnesses
and ten CWs. In their statements recorded under Section 342 Cr.P.C, the
petitioners pleaded their innocence and refuted all the allegations leveled
against them. However, they did not make statements on oath under
Jail Petition No. 355/2018
3
Section 340(2) Cr.P.C in disproof of allegations leveled against them. They
also did not produce any evidence in their defence.
4.
At the very outset, learned counsel for the petitioners
contended that there are material contradictions and discrepancies in the
statements of the eye-witnesses, which have not been taken into
consideration by the courts below. Contends that the PWs are interested
and related to each other and their evidence has lost its sanctity. Contends
that the prosecution case is based upon whims and surmises and it has to
prove its case without any shadow of doubt but it has miserably failed to
do so. Contends that the medical evidence contradicts the ocular account.
Contends that the prosecution has not been able to prove motive as
alleged, which causes serious dent in the prosecution case. Contends that
the reasons given by the learned High Court to sustain conviction of the
petitioners are speculative and artificial in nature, therefore, the
impugned judgment may be set at naught. Lastly contends that even if the
whole prosecution case is admitted, at the most it falls within the ambit of
Section 302(c) PPC.
5.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant defended the impugned judgment. It has
been contended that the petitioners were specifically nominated in the
crime report with a specific role of causing injuries to the deceased, which
ultimately became his cause of death. Contends that the ocular account
has been proved beyond shadow of doubt and the medical evidence
supports the same. Contends that the prosecution has proved its case
through cogent and confidence inspiring evidence, therefore, the
petitioners do not deserve any leniency by this Court. However, it has not
been denied that the occurrence had taken place at the spur of the
moment, which is spelled out from the record.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
Jail Petition No. 355/2018
4
There is no denial to this fact that the unfortunate incident
wherein brother of the complainant lost his life had taken place on
09.04.2009 at 9:00 p.m. whereas the matter was reported to the police at
01:20 a.m. on the same night while the inter se distance between the
place of occurrence and the Police Station was 25 kilometers. This aspect
of the case clearly reflects that the matter was reported to Police promptly
without there being any delay. As the parties were related to each other,
therefore, there is no chance of misidentification. In order to prove its
case, the prosecution has mainly relied upon the statements of Ameer
Hussain, complainant (PW-1) and Muhammad Amin (PW-2). These
prosecution witnesses were subjected to lengthy cross-examination by the
defence but nothing favourable to the petitioners or adverse to the
prosecution could be produced on record. These PWs remained consistent
on each and every material point inasmuch as they made deposition
exactly according to the circumstances happened in this case, therefore, it
can safely be concluded that the ocular account furnished by the
prosecution is reliable, straightforward and confidence inspiring. The
medical evidence available on the record is in line with the ocular account
so far as the nature, locale, time and impact of the injuries on the person
of the deceased is concerned. So far as the question that the PWs were
closely related to the deceased, therefore, their testimony cannot be
believed to sustain conviction of the petitioners is concerned, it is by now
a well established principle of law that mere relationship of the
prosecution witnesses with the deceased cannot be a ground to discard
the testimony of such witnesses. Learned counsel for the petitioners could
not point out any reason as to why the complainant has falsely involved
the petitioners in the present case and let off the real culprit. Substitution
in such like cases is a rare phenomenon. During the course of proceedings,
the learned counsel contended that there are material discrepancies and
contradictions in the statements of the eye-witnesses but on our specific
query she remained unsuccessful and could not point out any major
contradiction, which could shatter the case of the prosecution. On account
of lapse of memory owing to the intervening period, some minor
Jail Petition No. 355/2018
5
discrepancies are inevitable and they may occur naturally. The accused
cannot claim benefit of such minor discrepancies. The eye-witnesses have
given details of the occurrence, which prove that they have witnessed the
tragic death of Sarfraz. The motive had not been seriously disputed by the
defence, therefore, it was rightly believed by the courts below. So far as
the recovery of weapon of offence i.e. churries from the petitioners is
concerned, the same has rightly been held inconsequential by the learned
Trial Court by holding that the occurrence took place on 09.04.2009 while
the weapons were recovered on pointation of the petitioners from their
house on 20.02.2011 i.e. after about two years. Admittedly, the said house
was a joint house wherein the other members of the petitioners’ family
were also residing. During this period, the petitioners did not reside in
their house. Furthermore, the churries were allegedly recovered on
20.02.2011 but the same were sent to office of Chemical Examiner on
29.09.2011 i.e. after elapse of seven months for which no explanation has
been given. In these circumstances, it can safely be said that the
prosecution has brought on record reliable evidence to sustain the
conviction of the petitioners. However, so far as the quantum of
punishment is concerned, we are of the view that the occurrence took
place at the spur of the moment and there was no pre-meditation on the
part of the petitioners. Admittedly, the occurrence took place in the house
of the petitioners where the complainant party had brought a jirga for
return of Mst. Shakeela, niece of the complainant, who was married with
petitioner Muhammad Nawaz against the will of her parents. A bare
perusal of the record reveals that something happened immediately
before the occurrence, which provoked the petitioners and they caused
churri blows on the person of the deceased. On our specific query, learned
Law Officer and learned counsel for the complainant could not deny the
fact that the occurrence took place at the spur of the moment.
Admittedly, both the petitioners did not repeat their act. There was no
deep rooted enmity between the parties. In these circumstances, the
learned High Court ought to have taken a lenient view. Consequently, we
convict the petitioners under Section 302(c) PPC and sentence them to
Jail Petition No. 355/2018
6
fourteen years RI each. The amount of fine and the sentence in default
whereof shall remain intact.
7.
For what has been discussed above, this petition is
converted into appeal and partly allowed and the impugned judgment is
modified as stated in the preceding paragraph. The above are the detailed
reasons of our short order of even date.
JUDGE
JUDGE
Islamabad, the
2nd of January, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO.36 OF 2016
(Against the judgment of the Lahore
High Court, Lahore dated 15.12.2015
passed
in
Criminal
Appeal
No.
772/2013)
Muhammad Yaqoob
… Petitioner
Versus
The State
… Respondent
For the Petitioner
:
Mr. Saeed Khurshid Ahmed, ASC
Syed Rifaqat Hussain Shah, AOR
For the State
:
Mr. Muhammad Jaffar, Addl.P.G. Punjab
Date of Hearing
:
21.04.2020
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI,J:- The
petitioner was convicted in a case bearing FIR No. 10/2013 dated
16.01.2013 registered with police station Kallur Kot, District
Bhakkar.
2.
As per allegations contained in the crime report, it was
alleged that the petitioner had connection with a terrorist
organization and he is in possession of ammunition which can be
recovered. Consequently, raiding party was constituted which
raided the premises of the petitioner who led to recovery of four
Russian made hand grenades and four detonators which were kept
Jail Petition No. 36 of 2016
-:2:-
in a bag and the same was concealed in an oven adjacent to eastern
wall of the house. The petitioner was taken into custody and during
the course of proceedings, the accusation against the petitioner was
found to be correct and as such report in terms of section 173 Cr.P.C.
was submitted in the court of competent jurisdiction. The petitioner
was charge sheeted by the learned trial court vide order dated
04.04.2013. The petitioner denied the same and claimed trial.
Prosecution led five prosecution witnesses to substantiate the
allegation against the petitioner. After recording of the statements of
prosecution witnesses, the petitioner made a statement in terms of
section 342 Cr.P.C. During the statement made by the petitioner he
opted not to appear under section 340 Cr.P.C. in disproof of the
allegation levelled against him, however he produced defence
evidence of one Maqbool son of Ahmad Din, who appeared as DW.1.
3.
The learned trial court after taking into consideration
the statements of prosecution witnesses, statement of petitioner
found the accusation coming through the source which is confidence
inspiring and as such convicted the petitioner under section 4 of the
Explosive
Substance
Act
1908,
thereby
sentenced
him
to
imprisonment for life. The learned trial court further found that the
petitioner has also committed an offence falling within the ambit of
section 7(g) of the Anti-Terrorism Act, 1997, hence he was further
convicted for five years Rigorous Imprisonment and fine to the tune
of Rs.50,000/-, however, benefit of section 382-B Cr.P.C. was
extended in favour of the petitioner.
4.
The petitioner filed Criminal Appeal No. 772/2013
before the learned Lahore High Court Lahore which met the same
Jail Petition No. 36 of 2016
-:3:-
fate vide judgment dated 15.12.2015 while maintaining the
sentences inflicted upon by the learned trial court.
5.
The crux of the arguments advanced by the learned
counsel for the petitioner is that the petitioner cannot be saddled
with the responsibility of keeping explosive substance in his
possession as at the time of raid he was empty handed and perhaps
he was not in a constructive knowledge regarding the possession of
explosive substance which ultimately was taken into consideration
by both the learned courts and the petitioner was convicted. Further
contends that perusal of the definition provided under section 3 sub-
section 1 (a)(iv) of the Arms Ordinance 1965, the “grenade’ is part of
the Arms Ordinance and do not fall within the definition of Explosive
Substance Act. Contends that the application of section 7(g) of Anti-
Terrorism Act, 1997 is not substantiated from the facts and
circumstances as it is not case of terrorism because for that it is
mandatory that the petitioner must be having nexus with some
proscribed religious organization. Learned counsel has further
argued that in fact the prosecution has failed to substantiate the
case against the petitioner as the witnesses of recovery are at
variance regarding the place from where petitioner was arrested.
6.
We have heard the learned counsel for the parties and
gone through the record.
7.
It is an admitted fact that the opening sentence of the
crime report clearly reflects that the petitioner is active member of
proscribed religious organization and as such in pursuance of
information after constituting raiding party; the premises of
Jail Petition No. 36 of 2016
-:4:-
petitioner were raided. During course of proceedings of the raiding
party, the petitioner led to recovery of not only four grenades but
also four detonators which is spelled out from the record especially
when the Bomb Disposal Officer came there for defusing the
aforesaid ammunition which was recovered and was found
explosive in nature. The detail mentioned by the Bomb Disposal Unit
reflects a lot regarding the genuineness of the raid and recovery
effected from the premises owned by the petitioner. The arguments
of the learned counsel that in fact the recovered articles do not
comes within the ambit of Explosive Substance Act, is not of any
avail, rather the same seems to be absurd in nature. The learned
counsel while arguing the matter has only advanced the case up to
the extent of recovery of “grenades”. The other article in the shape of
detonator was also recovered which ultimately if considered
conjointly it comes within the definition of explosive substance. The
definition of the same reflects that any material which if utilized
results into explosion comes with the definition of explosive
substance. Section 2 of Explosive Substance Act, 1908 is reproduced
as under:-
“2. Definition of “explosive substance”.--- In this Act the
expression "explosive substance" shall be deemed to include
any materials for making any explosive substance; also any
apparatus, machine implement or material used, or intended
to be used, or adapted for causing, or aiding in causing, any
explosion in or with any explosive substance; also any part of
any such apparatus, machine or implement.”
Bare perusal of the definition reflects that explosive substance shall
be deemed to be any material which is used or attended to be used
for causing any explosion which could endanger the life. There is no
Jail Petition No. 36 of 2016
-:5:-
second cavil to this proposition that the recovery of four grenades
and detonators are material which could explode and utilized for the
explosion so it comes within the definition of explosive substance.
Otherwise, the nature of the ammunition recovered from the
petitioner bring in the mind of a person of ordinary prudence that the
utilization of such like articles cannot be retained except for only
one purpose which is clearly alleged against the petitioner and same
has been taken into consideration by the learned trial court as well
as learned High Court. It is strange enough to mention here that the
petitioner opted to adduce defence evidence during the course of trial
before learned trial court but he did not opt to appear himself as a
witness under section 340 Cr.P.C to disproof the allegation against
him. A person who do not opt to appear for his own defence to brush
aside the prosecution evidence while availing legal recourse in the
shape of statement under section 340 Cr.P.C. rather produce a
witness in his defence, the statement of such witness has been
taken into consideration by us and found to be nothing but an
afterthought reason being that this witness had never appeared
before the investigating officer during the course of investigation of
this case in the defence of the petitioner.
8.
In view of the facts and circumstances narrated above
while analysing the evidence adduced by the prosecution witnesses
and while evaluating the probative value of the same, if juxtaposed
with the evidence adduced by the defence, we found that the
evidence adduced by the prosecution is straight-forward, confidence
inspiring and while satisfying all the legal requirements to prove the
Jail Petition No. 36 of 2016
-:6:-
case to the hilt, resulting into dismissal of petition before this Court.
As a consequence, the same is dismissed.
9.
Leave to appeal is refused.
Judge
Judge
Islamabad,
21.04.2020
Approved for reporting.
Athar
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO.382/2017
(Against the judgment of the Lahore High Court
Lahore dated 02.02.2017 passed in Murder
Reference No.208/2013 and Criminal Appeal
No.310-J/2013).
Munir Akhtar @ Munir Ahmad
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Miss Tehmina Mohibullah Kakakhel ASC, at
State expenses
For the State
Mirza Muhammad Usman DPG Punjab
Date of Hearing:
08.10.2020
…
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J:-
Crl. MA No.1165/17 in JP No.382/2017:- The instant miscellaneous
application is filed for condonation of delay. The matter pertains to criminal
appeal against conviction, therefore, delay of filing said petition is
condoned in the interest of safe dispensation of justice.
JAIL PETITION No.382/2017:-
Criminal petition for leave to appeal
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973 has been sought calling in question impugned judgment dated
02.02.2017 passed by learned Division Bench of Lahore High Court,
Lahore.
2.
The facts culminated into filing of the instant petition are that
the petitioner was booked in case bearing FIR No.365/06 dated
03.11.2006 offence u/s 302/34 PPC registered with Police Station Darya
Khan, District Bhakkar.
Jail Petition No.382/2017
Munir Akhtar @ Munir Ahmad vs, The State
2
As per contents of the crime report, it is alleged that the
petitioner committed murder of Tariq Mehmood brother of complainant
and Muhammad Abu Bakar son of Noor Muhammad. Motive behind the
occurrence was that Mst. Tahira Parveen real sister of accused
Muhammad Ilyas @ Lasha had contracted marriage with Tariq Mehmood
deceased without consent of her brothers. The petitioner was taken into
custody on 12.03.2012. During course of investigation, recovery of
Kalashnikov was affected from him on 31.01.2010. During course of
investigation, he was found fully involved in the case and as such, his
name was placed in column No.3 of the report u/s 173 Cr.PC. The challan
of the case was sent to court. The learned trial court vide judgment dated
27.06.2013 convicted the petitioner u/s 302(b) PPC and sentenced to
death. He was also burdened with compensation of Rs.1,00,000/- u/s 544-
A Cr.PC and in default thereof, he was to suffer six months S.I. Benefit of
section 382-B Cr.P.C. was also extended.
3.
The judgment of the learned trial court was challenged
before learned High Court through Criminal Appeal No.310-J/2013
whereas the learned trial court sent the Murder Reference bearing
No.208/2013 u/s 374 Cr.PC. The learned High Court while maintaining the
compensation but altered the sentence from death to imprisonment for life.
Hence, the instant petition for leave to appeal.
4.
At the very outset, it is argued by the learned counsel for the
petitioner that in fact, both the courts below had not taken into
consideration the evidence available on record and the same has not
been evaluated according to the principles of “appreciation of evidence”
enunciated by the superior courts from time to time. Contends that due to
vague motive, the petitioner has been roped against the actual facts and
circumstances and even the same was alleged against co-accused
Muhammad Ilyas alias Lasha. Contends that the presence of the
Jail Petition No.382/2017
Munir Akhtar @ Munir Ahmad vs, The State
3
witnesses of ocular account at the place of occurrence at the relevant time
is doubtful. Contends that there is no report of Forensic Science Agency
regarding the Kalashnikov is available on the record. Finally, it has been
prayed that the leave to appeal be granted on this aspect.
5.
We have heard learned counsel for the petitioner at length
and gone through the record.
There is no denial to this fact that the instant occurrence has
taken place in broad daylight in which two persons were done to death in
a brutal manner. It is an admitted fact that the occurrence has taken place
at 12.50 p.m. whereas the matter was reported to the police at 03.15 p.m.
on the same day whereas the inter-se distance between the place of
occurrence and police station is one kilometer. The facts and figures
narrated above, rules out any possibility of deliberation and consultation.
The petitioner was saddled with responsibility of causing firearm injury
with Kalashnikov on the person of deceased Abu-Bakar which hit on his
chest, back, backside of head and different parts of the body whereas the
injuries sustained by other deceased Tariq Mehmood are attributed to co-
accused Muhammad Ilyas alias Lasha, who was convicted by the learned
trial court and later on, the offence was compounded to his extent. The
ocular account in this case is supported by Muhammad Saeed (PW10)
and Khalid Mehmood complainant (PW-11), the statements of the
prosecution witnesses coincide with each other on salient features of
prosecution version. The ocular account is corroborated by the medical
evidence. The petitioner remained absconder for more than five years and
four months and he was arrested on 12.03.2012 and during the course of
investigation, the petitioner was found involved and his name was placed
in column No.03 of the report u/s 173 Cr.PC. All these factors when
evaluated conjointly it is abundantly clear that the prosecution has
succeeded to establish case without any reasonable doubt. The learned
Jail Petition No.382/2017
Munir Akhtar @ Munir Ahmad vs, The State
4
High Court while handing down the judgment impugned before us has
already taken care of all established principles of law and converted the
sentence of death into imprisonment for life which seems to us appropriate
and in accordance with law. A very close scrutiny of evidence available on
the record and while evaluating the same, we are of the considered view
that there is no scope for interference into the judgment handed down by
the learned trial court and modified by the High Court. As this petition is
devoid of any legal justification hence, the same is dismissed. Leave to
appeal is declined.
JUDGE
JUDGE
Islamabad, the
08.10.2020
Approved for reporting
*Athar*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO.385/2017
(Against the judgment of the Lahore High
Court, Lahore dated 12.04.2017 passed in
Murder
Reference
No.117/2015,
Criminal
Appeal No.1630/2013 and Criminal Appeal No.
1631/2013)
Muhammad Afzal
…Petitioner
VERSUS
The State
…Respondent
For the Petitioner
Ms. Aisha Tasneem, ASC (at State expenses)
For the State
Mirza Muhammad Usman, DPG, Punjab
Date of Hearing:
08.10.2020
…
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Criminal petition for leave
to appeal under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973 has been assailed by the petitioner calling in question
impugned judgment dated 12.04.2017 passed by Lahore High Court.
2.
As per allegation contained in the crime report bearing FIR
No.292/2011, dated 30.07.2011, under section 302, 324 PPC registered
with police station Kalurkot District Bhakkar, it is alleged that petitioner
alongwith Mushtaq and Imam Bakhash while armed with gun .12 bore
trespassed into the land belonging to the complainant. Mushtaq raised
“Lalkara” as a consequent, Muhammad Afzal made a fire with his gun .12
bore which landed on the left side of the chest of Iltaf Hussain; the second
fire made by Muhammad Afzal had hit on the right side of neck. Iltaf
Hussain fell on the ground; Imam Bakhash made a fire with his gun which
landed on the left shoulder of Iltaf Hussain whereas Mushtaq made a fire
which landed on the index finger of left hand. The occurrence was seen by
the prosecution witnesses. As a consequent of the injuries, Iltaf Hussain
JAIL PETITION NO. 385 OF 2017
-: 2 :-
succumbed to the injuries at the spot. The motive behind the occurrence
was dispute over land.
3.
The complainant being aggrieved of the investigation
conducted by the local police wherein they have declared Mushtaq
innocent while placing his name in column No.2 of the report u/s 173
Cr.P.C., filed a private complaint. The accused persons were summoned
in response to the proceedings of the said complaint. The learned trial
court amalgamated State as well as private complaint and the same was
disposed of with consolidated judgment dated 05.11.2013. The learned
trial court convicted Muhammad Afzal u/s 302(b) PPC and sentenced to
death and to pay the compensation of Rs.500,000/- under section 544-A
Cr.P.C. to the legal heirs of the deceased recoverable as arrears of land
revenue. The learned trial court also convicted Imam Bakhash under
section 302(b) PPC and sentenced to imprisonment for life and to pay
compensation of Rs.500,000/- under section 544-A Cr.P.C. to the legal
heirs of deceased recoverable as arrears of land revenue whereas the
learned trial court acquitted Mushtaq by giving him benefit of doubt.
4.
Being aggrieved by the judgment, reference was sent u/s
374 Cr.P.C. whereas the convicts filed their appeals before the learned
Lahore High Court and the learned Division Bench of Lahore High Court
vide judgment dated 12.04.2017, acquitted Imam Bakhash while
extending benefit of doubt whereas the death sentence inflicted upon
petitioner Muhammad Afzal was converted into imprisonment for life,
hence, the instant petition before us for leave to appeal.
5.
At the very outset, it has been argued by learned counsel for
the petitioner that both the learned courts below have not taken into
consideration the evidence available on the record and the same has not
been appreciated according to the dictates of law. Further contends that
JAIL PETITION NO. 385 OF 2017
-: 3 :-
the complainant being aggrieved by the investigation filed private
complaint just after four months of the occurrence on the ground that
Mushtaq one of the accused was declared innocent. Contends that in the
private complaint, a different version qua the motive has been given which
itself create doubt in the genuineness of the prosecution version.
Contends that one of the accused Mushtaq was acquitted by the learned
trial court whereas Imam Bakhash was given benefit of doubt by the High
Court. Contends that as the bulk of prosecution case has already been
found false, therefore, the petitioner is also entitled for the extension of
benefit of doubt in the interest of safe administration of justice.
6.
We have heard the learned counsel for the petitioner at
length and gone through the record.
It is an admitted fact that the occurrence has taken place at
3.30 p.m. whereas the matter was reported to the police at 4.45 p.m. on
the same day whereas the inter-se distance between the place of
occurrence and police station is 28/29 kilometers. Perusal of the crime
report clearly reflects that there is definite overt-act ascribed to the
petitioner who fired twice with his gun on the vital part of the body of
deceased Iltaf Hussain. The ocular account in this case is furnished by
complainant Tariq Mehmood (PW-10) and Riaz Hussain (PW-11). The
statements of both the prosecution witnesses qua the time, date, mode
and manner of occurrence are identical. Although they were cross
examined at length but nothing detrimental to the salient features of the
prosecution case was detected from cross examination conducted by
defence counsel. Otherwise it is an admitted fact that the occurrence has
taken place in the open field whereas the parties are known to each other
since long. The occurrence has taken place in the broad daylight and
there is no chance of any misidentification. All these factors when
JAIL PETITION NO. 385 OF 2017
-: 4 :-
evaluated conjointly it is abundantly clear that the prosecution has
succeeded to establish case without any reasonable doubt. The
contention of the learned counsel qua recovery as well as the motive, we
have also taken into consideration these aspects of the case. As far as the
motive is concerned, while filing private complaint, the motive which
mentioned in the crime report was explained, so the same cannot be said
in any manner that altogether another version was introduced by the
prosecution. None recovery of crime weapon and absence of report of
Forensic Science Agency, the benefit of the same has already been
extended to the petitioner and sentence of death was converted into
imprisonment for life being alternative sentence. As far as the acquittal of
Imam Bakhash is concerned, we are afraid that the learned Division
Bench of Lahore High Court has not assigned any legal justification to
extent the benefit of doubt. Mere mentioning of rule of caution is not
sufficient to discard the prosecution version rather the learned court is
supposed to extend the dictum of rule of caution which should be
supported by substantial material which is lacking in this case. We are
showing restrain because there is no petition filed by the complainant in
this regard. The accumulative affect of the facts and circumstances when
discussed in this case is that prosecution has established case against the
petitioner to the hilt, hence, leaving no room for interference. As a
consequence, this petition is dismissed.Leave to appeal is declined.
JUDGE
JUDGE
Islamabad
08.10.2020
Approved for reporting
*Athar*
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