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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 ALl AKBAR NAQVI
(F (p5)
JAIL PETITION NO. 403 OF 2018
(On appeal against the judgment dated 24.06,2010
passed by the Lahore High Court, Lahore in
Criminal Appeal No. 280-J/2005 and Murder
Reference No. 423/2005)
Kashif Ali
Kalu
Petitioner
VERSUS
The State and another
Respondents
For the Petitioner:
Mr. Dii Muhammad Khan Alizai, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Ahmed Raza Gillani, Addl. P.G.
Date of Hearing: 06.06.2022
JUDGMENT
SAYVED MAZAHAR ALl AKBAR NAOVI. J.- Petitioner was tried by the
learned Additional Sessions Judge, Gujranwala, pursuant to a case
registered vide FIR No. 403 dated 25.06.2004 under Sections 302/34 PPC
at Police Station Model Town, Gujranwala, for committing murder of Mst.
Sakeena Bibi, mother-in-law of the complainant. The learned Trial Court
vide its judgment dated 30.04.2005 convicted the petitioner under Section
302(b) PPC and sentenced him to death. 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 undergo St for six months. He
was also convicted under Section 394 PPC and was sentenced to seven
years RI and to pay a fine of Rs.5000/- or in default whereof to further
undergo six months SI. He was further convicted under Section 449 PPC
and was sentenced to five years RI and to pay a fine of Rs.3000/- or in
default whereof to further undergo six months SI. All sentences of
Jail Petition No. 403/2018
imprisonment were ordered to run concurrently. In appeal, the learned
High Court while maintaining the conviction of the petitioner under
Section 302(b) PPC, altered the sentence of death into imprisonment for
life. However, all other sentences including the order for the payment of
compensation to the legal heirs of deceased was maintained on the same
terms and conditions.
2. The prosecution story as given in the impugned judgment
reads as under:-
"In brief, the facts of the prosecution case as narrated in the FIR
are that on 24.062004 at about 6.30 pm complainant Abdul
Waheed (PW-1) received telephonic information that some
occurrence had taken place in the house of his mother in law.
When he reached at the place of occurrence, he found that his
mother in law Mst. Sakina Bibi was lying in serious injured
condition, who told him that at 6.30 pm when she was present in
the house alone, a boy who told his name Ali called from outside
the door and demanded ice. On opening the door, she saw that
Ali alongwith one unknown person was present. Ali came inside
the house and when she entered in the room, he caught hold her
arm and snatched two karras. Jhumkas (ear rings), finger ring,
locket and cash from her purse upon which she asked Ali that why
he is doing so, he picked up Churri lying near and gave
consecutive blows of churri and fled away after bolting the door
from outside. On hue and cry of Mst. Sakina Bibi, people of the
Mohalla opened the door and in the meanwhile complainant also
reached at the spot. Mst. Sakina Bibi (deceased) was brought to
the local hospital and after first aid she was referred to Mayo
hospital, Lahore."
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 11 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
leveled against him. He also did not produce any evidence in his defence.
4.
At the very outset, learned counsel for the petitioner argued
that there are material contradictions and discrepancies in the prosecution
evidence, which have not been taken into consideration by the courts
elow. Contends that there was an inordinate delay of about 18 hours in
JaI Petition No. 403/2018
3
lodging the FIR, which has not been explained. Contends that it was an
unseen occurrence and there is no eyewitness of the occurrence.
Contends that the statement of the complainant is based upon hearsay
and he did not disclose the name of the person who informed him through
telephone about the occurrence. Contends that initially, brother of the
petitioner namely Ali was nominated as an accused but later on the
present petitioner was substituted as an accused, which speaks volume on
the conduct of the complainant. Contends that the dying declaration was
neither signed by the Investigating Officer nor the Investigating Officer
was produced in evidence, therefore, the same cannot be used against the
petitioner. Contends that recoveries of churri and golden ornaments are
also inconsequential, therefore, the petitioner deserves to be acquitted of
the charge.
S. On our specific query as to whether he supports the
impugned judgment, the learned Law Officer very frankly stated that on
the basis of evidence available on the record he does not support the
impugned judgment.
6. We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
The prosecution case mainly hinges upon (i) dying
declaration of Mst. Sakina Bibi, and (ii) recovery of alleged snatched
jewellery and churri at the instance of the petitioner. It is an admitted
position that the complainant is neither an eyewitness nor a resident of
the place of occurrence. As per the prosecution story, the complainant on
receiving a call that a dacoity has been committed in his mother-in-law's
house reached at the place of occurrence. However, he did not disclose
the name of the person from whom he had received a call. The FIR was
registered with an inordinate delay of about 18 hours for which no
plausible explanation has been given. The same makes the whole
prosecution story doubtful especially when initially brother of the
petitioner namely Ali was nominated in the FIR but subsequently the
present petitioner was substituted as an accused. At page 69 of the paper
Jail Petition No. 403/2028
4
book, there is available a statement of the complainant which was
exhibited in evidence as Ex-PI. In the said statement the complainant
stated that the deceased was discharged from hospital on 08.07.2004 and
thereafter she was being treated privately in her house and succumbed to
the injuries at home but he did not mention the date on which she
succumbed to the injuries. The rapat in this regard was registered on
23.072004, which shows that the deceased might have died on the said
date. The record is also silent as to how and by whom she was being
treated privately in her residence. So far as dying declaration of Mst.
Sakeena Bibi is concerned, we have noticed that the alleged dying
declaration as recorded by the investigating officer is without backing of
law established by the superior Courts from time to time and such cannot
be given any credence when the time and place where it was recorded are
not disclosed which makes it highly improbable to rely upon. The
Investigating Officer, who recorded the dying declaration, has also not
been produced in court. The record also suggests that after the
occurrence, Mst. Sakina Bibi was taken to hospital and police was also
present there. The learned High Court has noted that the police had
moved an application on 27.06.2004 regarding her condition and to record
her statement but despite that it did not record the statement at the first
instance i.e. on 24.06.2004 and then on 27.06.2004. The weapon of
offence i.e. churri was not sent to the office of Chemical Examiner,
therefore, the recovery is inconsequential and the same cannot be used
against the petitioner. As far as the alleged recovery of golden ornaments
on the pointation of the petitioner is concerned, the same were taken into
possession by the police officials namely Muhammad Shafique, LHC (PW-
6) and Sultan Ahmed. However, the statement of said Sultan Ahmed could
not be recorded as he was given up by the prosecution at the time of trial.
Besides, no independent witness of the locality was associated in this
process. In these circumstances, it would not be safe to rely upon the
recovery of golden ornaments to sustain conviction of the petitioner.
These are the dents, which are so grave and sensational that they create a
doubt in the authenticity of the prosecution case, which cannot be
Jail Petition No. 40312018
5
ignored. These dents are squarely hampering the very fabric of the
prosecution case and ultimately the salient features of the case, therefore,
it can safely be concluded that the prosecution has miserably failed to
substantiate its case, which is basic requirement to sustain conviction of
an accused in case of capital punishment. It is settled law that a 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 case is to be resolved in favour of the accused.
7, For what has been discussed above, this petition is
converted into appeal, allowed and the impugned judgment is set aside.
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 e
Islamabad, the
6th of June, 2022
Approved For Reporting
-I'
-,
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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. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
(Against the judgment dated 31.03.2021 passed by the
Lahore High Court, Lahore in Criminal Appeal No. 453-
J/2014)
(i) Ansar, (ii) Maqsood Ahmed, (iii) Mumtaz Ahmed
(In JP 405/2021)
(iv) Nasir, and (v) Nisar Ahmed
(In Cr.P. 946/2021)
…Petitioners
VERSUS
The State etc
(In both cases)
…Respondent(s)
For the Petitioner(s):
Mrs. Tabinda Islam, ASC
Syed Rifaqat Hussain Shah, AOR
(In Cr.P. 946/2021)
Mehnaz Bibi, sister of Ansar, in person
(In JP 405/2021)
For the Complainant:
Mr. Rashad Javaid Lodhi, ASC
For the State:
Mirza Muhammad Usman, DPG
Date of Hearing:
02.03.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioners along with co-
accused Naveed Ahmed were tried by the learned Additional Sessions
Judge, Shakargarh, pursuant to a case registered vide FIR No. 578/2011
dated 24.10.2011 under Sections 302/324/396 PPC at Police Station
Shakargarh, District Narowal for committing dacoity cum murder of
Muhammad Javed Rafique and for attempting to take life of Sarfraz Rafiq.
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 2 :-
The learned Trial Court vide its judgment dated 09.07.2014 while
acquitting the co-accused Naveed Ahmed, convicted the petitioners as
under:-
i)
Under Section 302 PPC read with Section 149 PPC
Sentenced to undergo imprisonment for life alongwith
compensation of Rs.200,000/- each as envisaged under
Section 544-A Cr.P.C. to be defrayed to the legal heirs of the
deceased Muhammad Javed Rafique and in default whereof
to further undergo SI for six months.
ii)
Under Section 396 PPC
Sentenced to undergo imprisonment for life along with fine
of Rs.50,000/- and in default whereof to further undergo SI
for six months.
iii)
Under Section 324 PPC read with Section 149 PPC
Ten years RI along with fine of Rs.20,000/- and in default
whereof to further undergo SI for one month.
All the sentences 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 recorded by the learned Trial Court. The prosecution story
as given in the impugned judgment reads as under:-
“2.
The prosecution’s story as projected through FIR (Exh.PA) reflects
that during the night of 23/24.10.2011 at about 1.30 AM, Fazal Mehmood
alias Allah Ditta, the complainant (PW-1) alongwith his family members
were sleeping in their house. The electric bulb was on, therefore, there
was sufficient light in the courtyard. Meanwhile 9/10 persons, one of
them was about six feet height whereas rest were of medium height with
agile bodies, wearing Shalwar Kameez, armed with firearm weapons
made a lurking tress in their house. The accused also gave beatings to
inmates and on gun point conducted a search of the house. The accused
after getting safe Almirah opened, took away three pairs of gold ear
rings, six gold rings, four bangles/karreys, totally weighing ten tolas, cash
Rs.20,000/-, 222 bore licensed rifle, & a pistol .30 bore. After hearing hue
and cry, made by the complainant, Rasheed his brother, besides other
neighbourers Zahid s/o Haneef, Muhammad Javed and Sarfraz son of
Master Rafique reached at the spot. The accused alongwith robbed
property were running away from the place of occurrence. They were
being chased by the complainant party. They made straight firing on the
complainant party hitting on the chest of Muhammad Javaid, who after
receiving injury fell down and succumbed at the spot. One Sarfraz also
received firearm injury on his left thigh at the hands of accused. The
accused while making firing fled away from the place of occurrence.
Besides the complainant, the occurrence was witnessed by Sarfraz
Rafique, Rasheed Ahmad and Zahid and other family members of
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 3 :-
complainant. The complainant had asserted that accused can be
identified if brought before him and the PWs.”
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 23 witnesses. 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 Section 340(2) Cr.P.C in
disproof of allegations leveled against them. They also did not produce any
defence evidence.
4.
At the very outset, learned counsel for the petitioners
argued that there are material contradictions and discrepancies in the
statements of the prosecution witnesses, which have been overlooked by
the courts below. Contends that the prosecution case is full of doubts and
infirmities, as such, petitioners deserve benefit of doubt. Contends that
the prosecution case is based upon conjectures 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 identification parade was conducted without
observing the instructions/guidelines enunciated by the superior courts,
therefore, it cannot be relied upon to sustain conviction of the petitioners.
Contends that the recoveries are planted upon the petitioners, which
creates a dent in the prosecution case. Contends that on the same set of
evidence, co-accused Naveed has been acquitted, as such, the petitioners
also deserve the same treatment to be meted out. Contends that nowhere
in the evidence, it came out that as to which petitioner’s fire hit the
deceased, therefore, all the petitioners cannot be saddled with the
criminal liability of committing murder. Lastly 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 aside.
5.
On the other hand, learned Law Officer assisted by the
learned counsel for the complainant has defended the impugned
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 4 :-
judgment. It was contended that the prosecution case is free from doubts
and all PWs have supported the case of prosecution and there are no
material contradictions in their evidence. It was further contended that
the eyewitnesses were subjected to lengthy cross-examination but their
evidence remained unshaken. Lastly contended that the prosecution has
succeeded to prove its case beyond any shadow of doubt, therefore, the
petitioners do not deserve any leniency from this Court.
6.
We have heard learned counsel for the parties at a
considerable length and have perused the evidence available on record.
7.
It is cardinal principle of criminal jurisprudence that each
case has its own facts and circumstances and that is to be decided keeping
in view the peculiar facts and circumstances spelled out from the facts
surfaced on the record. The instant case is the glaring example of
highhandedness shown by the accused persons, who trespassed in the
house of the complainant in between the night of 23/24 October, 2011 at
about 01:30 am. The complainant Fazal Mehmood (PW-1) along with his
family members was asleep in his house. There was sufficient light in the
shape of electric bulb, which was ‘on’ in the courtyard. In the meanwhile,
9/10 persons armed with firearms entered into the house. They forcibly
woke up the inmates while giving beating to them. They also forcibly
conducted search of the house on gun point and took away different gold
ornaments weighing ten tolas, cash Rs. 20,000/-, 222 bore licensed rifle
and a pistol .30 bore. After commission of the offence when the accused
persons were leaving the premises of the complainant, on alarm raised by
the complainant and the family, Rasheed, brother of the complainant, and
other neighbourers Zahid, Muhammad Javed and Sarfraz reached at the
spot. They started chasing the accused persons who had trespassed into
the house of the complainant and had committed dacoity. While
retreating when the accused persons were being chased by the
complainant party, they started firing on them. As a consequence, a fire
shot hit on the chest of Muhammad Javed, who succumbed to the injuries
at the spot whereas one Sarfraz also sustained injuries on his left thigh.
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 5 :-
The matter was reported to the Police and the formal FIR was registered
on 04:15 am on the same day. In the crime report, the names of the
accused were not mentioned obviously for the reason that they were not
known to the complainant party. However, their features were specifically
given in the crime report. The perusal of record shows that the petitioners
were arrested in some other cases on 15.12.2011 and 01.03.2012 and
then they were formally arrested in the present case. The prosecution
advanced its case mainly upon (i) ocular account, (ii) identification parade,
(iii) medical evidence, and (iv) recoveries. The ocular account has been
furnished by Fazal Mehmood, complainant (PW-1), Zahid Hussain (PW-2),
Sarfraz, injured (PW-3) and Mazhar Mehmood (PW-4). All these witnesses
of the ocular account remained consistent on each and every material
point qua the date, time, mode, manner of the occurrence and the locale
of the injuries on the person of the deceased and the injured PW. Sarfraz
(PW-3) had sustained injuries during the occurrence, which have fully been
supported by the medical evidence given by Dr. Muhammad Tariq, who
appeared as PW-8. 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. 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. These PWs were subjected to lengthy cross-
examination but their testimonies could not be shattered. 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. In this
regard, it must be kept in mind that the discrepancies have to be
distinguished from contradictions. The contradiction in the statement of a
witness may be fatal for the prosecution case but minor discrepancy in
evidence will not make the prosecution case doubtful. Where
discrepancies are of minor character and do not go to the root of the
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 6 :-
prosecution story and do not shake the salient features of the prosecution
version, they need not be given much importance.
8.
The identification parade of the petitioners was held on
23.11.2011 and 06.03.2012 in District Jail Sialkot. The same was conducted
by Muhammad Rashid Phularwan, Magistrate Section 30, Lahore, who
appeared as PW-18. The said Judicial Magistrate categorically stated that
the proceedings of the identification of each of the petitioner were
conducted separately and the complainant and other PWs Zahid and
Mazahar were separately summoned and they separately identified the
petitioners. The petitioners were lined up with ten dummies of same
stature and every time the witnesses were separately called for
identification, the place of accused was changed. The said Judicial
Magistrate further stated that the witnesses identified the accused in
unambiguous terms and after completion of identification parade, he
prepared the report and signed the same. The above-said witnesses and
Muhammad Rashid Phularwan, Judicial Magistrate (PW-18) were
subjected to lengthy cross-examination by the defence but they remained
consistent on all material particulars of the prosecution case and their
testimony could not be shattered. Nothing was suggested to PWs in their
cross-examination that they deposed falsely on account of some enmity
with the petitioners. The petitioners remained in the house of the
complainant for a considerable length of time to complete their nefarious
designs and the complainant had close proximity to remember them
which enabled him to identify them later. So far as the argument of the
learned counsel for the petitioners that the identification parade was
conducted without observing the guidelines enunciated by the superior
courts is concerned, suffice it is to state that the process of identification
parade has to be carried out having regard to the exigencies of each case
in a fair and non-collusive manner and such exercise is not an
unchangeable ritual, inconsequential non-performance whereof, may
result into 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). Even otherwise, it is settled law that holding
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 7 :-
of identification parade is merely a corroborative piece of evidence. If a
witness identifies the accused in court and his statement inspires
confidence; he remains consistent on all material particulars and there is
nothing in evidence to suggest that he is deposing falsely, then even the
non-holding of identification parade would not be fatal for the prosecution
case. Reliance is placed on Ghazanfar Ali Vs. The State (2012 SCMR 215) &
Muhammad Ali Vs. The State (2022 SCMR 2024). The medical 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 the
deceased and injured is concerned. Although, it is the case of the
prosecution that after their arrest, the petitioners led to the recoveries of
some of the looted articles but the sole witness of the recovery
proceedings i.e. Muhammad Nadeem (PW-17) has stated that his
signatures were obtained on blank papers and articles were shown to him
in the police station. The petitioners also got recovered the weapons,
which they were carrying while committing the crime, but as no empty
was sent to the office of Forensic Science Laboratory, therefore, all these
recoveries are inconsequential. However, this does not mean that the
petitioners are absolved of their criminal liability. There is sufficient
evidence in the shape of ocular account, identification parade and medical
evidence to sustain the conviction of the petitioners. During Police
investigation, the accusation leveled against the petitioners was also
found to be true.
9.
During the course of arguments, learned counsel for the
petitioners had argued that nowhere in the evidence, it came out that as
to which petitioner’s fire hit the deceased, therefore, all the petitioners
cannot be saddled with the criminal liability. However, we do not tend to
agree with the learned counsel. To appreciate the aforesaid submission, it
would be in order to reproduce the relevant provisions of law, which read
as under:
“390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing
of the theft, or in committing the theft, or in carrying away or attempting
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 8 :-
to carry away property obtained by the theft, the offender, for that end
voluntarily causes or attempts to cause to any person death or hurt or
wrongful restraint, or fear of instant death or of instant hurt, or of instant
wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the
time of committing the extortion, is in the presence of the person put in
fear, and commits the extortion by putting that person in fear of instant
death, of instant hurt, or of instant wrongful restraint to that person or to
some other person, and, by so putting in fear, induces the person so put
in fear then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to
put the other person in fear of instant death, of instant hurt, or of instant
wrongful restraint.
391. Dacoity: When five or more persons conjointly commit or attempt
to commit a robbery, or where the whole number of persons conjointly
committing or attempting to commit a robbery, and persons present and
aiding such commission or attempt, amount to five or more, every person
so committing, attempting or aiding, is said to commit "dacoity".
395. Punishment for dacoity: Whoever commits dacoity shall be
punished with imprisonment for life, or with rigorous imprisonment for a
term which shall not be less than four years nor more than ten years and
shall also be liable to fine.
396. Dacoity with murder: If any one of five or more persons, who are
conjointly committing dacoity, commits murder in so committing dacoity,
everyone of those persons shall be punished with death, or
imprisonment for life, or rigorous imprisonment for a term which shall
not be less than four years nor more than ten years, and shall also be
liable to fine.”
10.
On bare reading of the aforesaid provisions, it is manifestly
clear that the 'dacoity' can be said to be an exaggerated version of
robbery. If five or more persons conjointly commit or attempt to commit
robbery it can be said to be committing the 'dacoity'. Therefore, the only
difference between the 'robbery' and the 'dacoity' would be the number
of persons involved in conjointly committing or attempt to commit a
'robbery'. The punishment for 'dacoity' and 'robbery' would be the same
except that in the case of 'dacoity' the punishment of imprisonment for
life can be awarded. However, in the case of 'dacoity with murder' the
punishment of death has also been provided in the statute. An immediate
feature of Sections 391 & 396 PPC which strikes at first reading is that the
word “conjointly” has been used in these provisions of law, which is not
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 9 :-
used anywhere in Pakistan Penal Code except in the afore-said provisions.
It appears that this word has been deliberately preferred over the word
'jointly'. 'Conjointly' indicates jointness of action and understanding.
Everyone acts in aid of other. 'Conjointly' means to act in joint manner,
together, unitedly by more than one person. According to Black’s Law
Dictionary, ‘conjoint robbery’ means where the act is committed by two or
more persons. 'Conjoin' means 'join together', as per the Oxford Large
Print Dictionary. According to Corpus Juris Secundum, 'Conjointly is
explained as 'together', the one with knowledge, consent and aid of the
other and pursuant to an agreement or understanding or 'unitedly'. In the
'Words and Phrases' 'Vol. 8 A', published by 'West Publishing', same
meaning is adopted as in Corpus Juris Secundum. It explains that conjoint
robbery is where the act is committed by two or more persons. According
to Webster's New International Dictionary 'conjoint' means 'united',
'connected', associated or to be in conjunction or carried on by two or
more in combination. Similar meaning has been given in ‘Collins’
dictionary. Thus the use of word 'conjointly' in Sections 391/396 PPC
indicates that five or more robbers act with knowledge and consent and in
aid of one another or pursuant to an agreement or understanding, i.e.,
unitedly. No doubt in most of dacoities, the robbers would be acting with
a common object to loot with use of violence. The joint reading of Sections
391 and 396 of PPC makes it abundantly clear that for the offence of
dacoity, the essential pre-requisite is the joint participation of five or more
persons in the commission of the offence. If in the course thereof any one
of them commits murder, all members of the assembly would be guilty of
dacoity with murder and would be liable to be punished as enjoin thereby.
Thus, the essential pre-condition of an offence of dacoity with murder is a
participating assembly of five or more persons for commission of the
offence. It is not necessary that all the five persons must commit or
attempt to commit robbery. If the total number of those who are
committing or attempting to commit or are present and aiding such
commission or attempt is at least five, all of them are guilty of dacoity. In
other words, those who commit robbery and those who attempt to
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 10 :-
commit the same, and those who are present and aiding such commission
or attempt are all counted, and if their number is five or more all of them
would be guilty of committing dacoity. Moreover, it is not necessary for
their conviction that their attempt must succeed and even if the attempt
fails even then the offence is dacoity. An immediate feature of Section 396
PPC is that it is a self-contained provision, which means that the
contributory liability is independent and does not rely on any other
provision of law. Section 396 PPC in its plain terms applies to every
situation in which five or more persons commit dacoity and in the course
of the commission of such dacoity, any one of the said persons, commits
murder. All five persons, thereby become liable by statutory prescription,
to the offence of dacoity with murder and expose themselves to the
punishment stipulated in the said provision. The three essential
ingredients for invoking Section 396 PPC are as under:-
(i)
One of the persons must commit murder i.e. his act must
amount to murder within the meaning of Section 300 PPC.
(ii)
The said person must be one of the five or more persons
who have joined together to commit dacoity.
(iii)
The murder must be committed in the course of commission
of such dacoity.
11.
If these conditions are fulfilled, then Section 396 of PPC
would come into play and blight all other persons, involved in the act of
dacoity even if one of them was aware that murder was about to be
committed. In other words, so far as the remaining persons are concerned,
the prosecution is required to prove in order for Section 396 PPC to apply
is their intention to commit dacoity. The same was the view of this Court
in Muhammad Ali Vs. The State (2022 SCMR 2024).
12.
So far as the argument of learned counsel for the petitioners
that on the same set of evidence co-accused Naveed has been acquitted is
concerned, the same is misconceived. The case of the petitioners is
distinguishable to that of the acquitted co-accused. The learned Trial Court
while acquitting the said co-accused has held that the name of co-accused
surfacd on 01.11.2012 through supplementary statement after more than
JAIL PETITION NO. 405 OF 2021 AND
CRIMINAL PETITION NO. 946 OF 2021
-: 11 :-
one year of the occurrence wherein the complainant simply stated that he
identified the accused in a court present at Shakargarh. However, he did
not give the source of identification. Identification parade qua the said co-
accused has no value in the eye of law as this accused had already been
named by the complainant. It was the version of the said co-accused that
he is relative of the present petitioners and used to pursue their case,
therefore, he has been falsely roped in this case after one year of the
occurrence. The said findings of the learned Trial Court are neither
arbitrary nor capricious and the same are based upon correct appraisal of
the evidence available on the record.
13.
For what has been discussed above, we are of the view that
the impugned judgment is well reasoned, proceeds on correct principles of
law enunciated by this Court and the same does not call for any
interference by this Court. Consequently, these petitions having no merit
are accordingly dismissed and leave to appeal is refused.
JUDGE
JUDGE
JUDGE
Islamabad, the
2nd of March, 2023
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
Jail Petition No.40 of 2017
(Against the judgment dated 27.05.2014
passed
by
the
Lahore
High
Court
Bahawalpur Bench in Criminal Appeal
No.97-J of 2010 with M.R. No.8 of 2010)
Gulshan Shah
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Muhammad Tayyab Wattoo, ASC
For the State:
Mirza Abid Majeed,
Deputy Prosecutor General Punjab
Date of hearing:
30.11.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Safdar Shah, 30 and
his brother Iqbal Shah, 35, were done to death at 8:00 a.m. on
15.4.2003 within the precincts of Police Station Qaim Pur of District
Bahawalpur. The petitioner and his brother Zia Shah (since P.O.), no
other than their paternal nephews, along with their father, were
arrayed as accused in the crime report lodged by deceased’s brother
Ayyaz Hussain Shah (PW-1) at 11:00 a.m.
According to the complainant, his father had forsaken his son
Ashiq Shah for being disobedient and, thus, also withheld his share in
the property and in this backdrop, his sons assaulted the deceased
with an hatchet and club on the fateful day.
The accused absconded after the occurrence, Zia Shah, being still
away from law till date, however, the petitioner was arrested on
24.1.2006 to contest indictment that resulted into his conviction vide
judgment dated 25.02.2010; convicted on two counts under clause (b)
of Section 302 of the Pakistan Penal Code, 1860, he was sentenced to
death and imprisonment for life respectively; the High Court
maintained the conviction, however, altered penalty of death into
imprisonment for life vide impugned judgment dated 27.05.2014,
pre-trial period inclusive, vires whereof, are being assailed through
captioned jail petition, argued by Mr. Muhammad Tayyab Watto, ASC;
he contends that in a divided family, fraught with animosity, the courts
erred in placing implicit reliance on the testimony of witnesses,
Jail Petition No. 40 of 2017
2
manifestly interested without proper corroboration; that there is
nothing on the record to demonstrate that Muhammad Shah had ever
ostracized his son Ashiq Shah so as to deprive him of his share in the
legacy; that acquittal of Ashiq Shah raised the entire edifice of the
prosecution to the ground, leaving no space to sustain the conviction.
Learned Law Officer has faithfully defended the impugned judgment by
arguing that division in the family notwithstanding, the case is firmly
structured upon ocular account furnished by the natural witnesses
with no earthly reason to swap or substitute the actual offenders; he
has further elaborated that the admitted division in the household,
in fact, served as a strong motive that appears to have prompted the
petitioner and his co-accused to take on the deceased in their prime
youth and in a manner most brute and callous.
2.
Heard. Record perused.
3.
Acquittal of Ashiq Shah, assigned no role whatsoever, does
not cast its shadows to possibly space an exit to the petitioner who
armed with hatchet (P-1) fatally stabbed Iqbal Shah, a circumstance
that convincingly conjoins medical evidence with ocular account
furnished by witnesses, no less than three in number, unanimously
pointing their finger upon the petitioner; the testimony does not suffer
from any serious infirmity or flaw reflecting upon credibility of the
deponents. The cross-examination has further highlighted the cleavage
in the family and, thus, seemingly there was no occasion for the High
Court to even discard the motive in order to mould the sentence of
death into imprisonment for life, disregarding the magnitude of
violence suffered by the deceased, however, a fait acompli too late in
the day to be revisited in the absence of any motion by the complainant
or the State. Petitioner’s long absence from law is yet another aspect
that intriguingly reflects upon the hypothesis of his innocence. The
courts below have rightly relied upon the prosecution evidence to
return and uphold a guilty verdict that calls for no interference.
However, given the role assigned to the petitioner qua Iqbal Shah
deceased alone, sentences awarded to the petitioner shall run
concurrently with the benefit already extended. Petition fails. Leave
declined.
Judge
Judge
Islamabad, the
30th November, 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 Petition No.415 of 2018
(Against judgment dated 20.11.2017 passed by
Islamabad High Court Islamabad in Cr. Appeal
No.23 of 2013)
Muhammad Ali
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Ms. Afshan Ghazanfar, ASC
For the State:
Mr. Tariq Mehmood Jahangiri,
Advocate General Islamabad
Date of hearing:
17.10.2019.
JUDGMENT
Qazi Muhammad Amin Ahmed, J. Mst. Shakila
Rafique (PW-3) was still asleep in her room alongside her daughter;
it was a winter morning and at about 5/5:15 a.m, she was
awakened by an entry in the room, assuming that of her husband;
all of a sudden, she screamed after feeling some liquid spilling over
her face, she sprang up to identify the appellant in the room; the
family was attracted including her husband Muhammad Rafique
(PW-1); her face was washed and thereafter rushed to Pakistan
Institute of Medical Sciences. Dr. Farrukh Kamal (PW-5) attended
the prosecutrix with burn injuries. According to the complainant,
the petitioner resided in the neighbourhood with a questionable
conduct to the annoyance of the residents, on whose behalf, he had
moved an application to the Inspector General of Police. It is alleged
that in the above backdrop, he selected complainant’s wife as a
target to avenge the insult. Upon indictment, the petitioner claimed
trial, culminating into his conviction on the counts of murderous
Jail Petition No. 415 of 2018
2
assault as well as Itlaf-i-Salahiyyat-i-Udw, he was sentenced to
10-years rigorous imprisonment along with payment of fine as well
as Arsh; he was additionally convicted for house trespass and
sentenced to 7-years RI with fine; benefit under section 382-B of
the Code of Criminal Procedure 1898 alongside concurrent
commutation; his appeal failed in the High Court vide impugned
judgment dated 20-11-2017, vires whereof are being assailed on the
ground that the very genesis of the incident is shrouded into
mystery and that it is far from being clear as to how the petitioner
made his way into the bedchamber without being noticed by the
inmates so as to conveniently carry out the assault; it is next
argued that in a chilled winter morning much before the sun rise, it
was simply not possible for the prosecutrix to keep her face out of
the quilt or blanket in temperature, presumably subzero; according
to the learned counsel, no blanket or quilt was taken into
possession; question of identity of the assailant has also been
argued at inordinate lengths with a reference to complainant’s large
clan, comprising three wives with siblings, to insinuate behind the
scene family fissures. Contrarily, the learned Law Officer has
faithfully defended the impugned judgment.
2.
Heard. Record perused.
3.
Most of the questions, though raised ingeniously, find
their answers in the cross-examination itself. It is a common
ground that petitioner lived in the neighbourhood with a joint
terrace; to a question asked by no other than the cross-examiner
himself, prosecutrix explained, malady of hyper tension as a reason
for not covering her face with the quilt. Petitioner, being a next-
door resident, taking to the heels after surprising the family, that
attempted to apprehend him, the question of his identity cannot be
viewed with suspicion. Prosecutrix being in her prime youth,
horrendously mutilated, is certainly not expected to swap the
petitioner with the real offender; she has been straightforward and
confidence inspiring in her deposition, joined by other family
members to firmly stand in her support to rule out conspiracy
theories. In the face of formidable evidence, exclusively revolving
around his culpability, plea taken by the petitioner is beside the
point;
statements
of
the
defence
witnesses
are
equally
inconsequential. Courts below have rightly appraised prosecution
evidence while being inconsonance with the principles of safe
administration of criminal justice and upon our own independent
Jail Petition No. 415 of 2018
3
analysis, we have not been able to take a view different than
concurrent conclusions, squarely structured within the remit of
law. Jail Petition fails. Dismissed.
Judge
Judge
Judge
Islamabad
17th October, 2019
Azmat/-
Jail Petition No. 415 of 2018
4
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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
Jail Petition No.417 of 2019
(Against the judgment dated 14.05.2019 passed by the
Lahore High Court Lahore in Cr.A No.1532/2016 & Cr.
Rev. Noi.1646/2016)
Jabar Ali
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Nemo
For the State
Ch. Muhammad Sarwar Sidhu, Addl.
A.G. Punjab
Date of Hearing:
29.09.2021
O R D E R
Qazi Muhammad Amin Ahmed, J.- Indicted for committing
Qatl-i-Amd of Muhammad Hussain deceased, 33/34, Jabar Ali, petitioner,
was returned a guilty verdict by a learned Addl. Sessions Judge at Jhang
vide judgment dated 22.06.2016; convicted under clause (b) of section 302 of
the Pakistan Penal Code, 1860, he was sentenced to imprisonment for life
along with compensation, vide judgment dated 22.6.2016, upheld by a
learned Judge-in-Chamber of the Lahore High Court vide impugned
judgment dated 14.05.2019, vires whereof, are being assailed through the
captioned petition.
Reported to the police by Arshad Mehmood (PW-8), the incident
occurred at 8:30 p.m. on 9.10.2014 within the precincts of Police Station
Ahmad Pur Sial, District Jhang, in a marriage ceremony, when petitioner’s
presence amongst the women folk was objected by the deceased; the former
retaliated, outside the house, with a fire shot on the left side of latter’s chest;
the second shot went astray; autopsy confirmed receipt of fatal shot, within
the preceding 24 hours, being the immediate cause of death. Spot inspection
includes seizure of casings (Ex.P-4/5), forensically found wedded with a .30
caliber pistol (P-6), recovered pursuant to petitioner’s disclosure on
26.10.2014. As the petitioner claimed trial, the prosecution primarily relied
upon ocular account, its mainstay, comprising statements of Arshad
Jail Petition No.417/2019
Mehmood (PW-8) and Liaqat Ali (PW-9), concurrently received with approval
by the Courts below.
2.
We have independently gone through the statements of the
witnesses with the assistance of learned Law Officer to find that on the
fateful night, the petitioner, the deceased and the witnesses, related to one
another, were present inside the house of Ghulam Shabbir in Rasm-e-Hina of
his son Javed Akhtar; the invitees included a number of females,
traditionally participating in the event and it is in this backdrop that
petitioner’s stroll amongst the ladies was viewed as an act unbecoming by
the deceased, suggesting recusal. It is shortly thereafter that the petitioner
targeted the deceased in front of Ghulam Shabbir’s house, a point vividly
depicted in the unrebutted site plan (Ex.PB/I); graphic details of the incident
furnished by both the witnesses have been found by us straightforward and
confidence inspiring; considerable distance between the venue and the
respective abodes of the witnesses, highlighted in the cross-examination,
given the occasion, satisfactorily explain their presence at the scene; both of
them comfortably withstood an otherwise inconsequential cross-examination
without embarrassment. Durations recorded by the medical officer are
consistent with the prosecution case and so are confirmatory the forensic
report as well as recovery of weapon (P-6). Defence plea that the deceased
was done to death by unknown assailants in a dacoity is a position,
belatedly introduced for the first time during the trial; substitution is a rare
phenomena,
antithetical
to
retributive
human
instinct;
formidable
prosecution evidence singularly pointed towards petitioner’s culpability, in
the absence of any foundational basis, does not admit any space to entertain
such an hypothesis. An unreported dacoity involving homicide, allegedly
converted into petitioner’s nomination for the crime, in a small interregnum
of time, that too, without any earthly reason, is a story too illusory to find a
buyer. Finding of guilt recorded by the trial Court, rightly affirmed by the
High Court, found by us on our own analysis, being in accord with the
principle of safe administration of criminal justice, calls for no interference.
Petition fails. Leave declined.
JUDGE
JUDGE
JUDGE
ISLAMABAD
29th September, 2021
Azmat/*
“Not approved for Reporting”
Jail Petition No.417/2019
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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.430 of 2015
(Against judgment dated 10.03.2015 passed by the
Peshawar High Court Bannu Bench in Crl. Appeal
No.29-B of 2013)
Islam Sharif
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Rizwan Ejaz, ASC
For the State:
Malik Akhtar, A.A.G. KPK
Date of hearing:
03.03.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Islam Sharif,
petitioner, indicted for committing Qatl-i-Amd of Dr. Sahib Jan on
3.9.1991 within the precincts of Police Station Ghoriwala, District
Bannu was returned a guilty verdict by a learned Addl. Sessions
Judge vide judgment 11.2.2013; convicted under clause (b) of
Section 302 of the Pakistan Penal Code, 1860, he was sentenced to
imprisonment for life, upheld by a learned Judge in Chamber of
Peshawar High Court vide impugned judgment dated 10.3.2015,
vires whereof are being assailed on a variety of grounds that
include
improbability
of
presence
of
witnesses,
issue
of
identification owing to darkness, absence of casing as well as
prosecution’s failure to recover the weapon.
2.
Prosecution case is structured upon ocular account
furnished by deceased sons, namely, Saifullah (PW-4) and
Inayatullah (PW-5); according to them, on the fateful morning,
shortly before Fajjar prayer, they followed the deceased, en route to
a nearby mosque; when the petitioner confronted the deceased
with a fire shot. Dispute over a house is cited motive for the crime.
Jail Petition No.430 of 2015
2
Autopsy conducted at 8:00 a.m. confirmed solitary fire shot as
being the cause of death. The petitioner stayed away from law and
was finally apprehended as late as on 24.3.2011 to face trial.
3.
Heard. Record perused.
4.
It is in evidence that the petitioner as well as the
deceased lived in the same rural neighbourhood; dispute over the
house has been raging since the year 1982 and, thus, it can be
safely assumed that the both sides were well acquainted with each
other. Fajjar prayer is held shortly before dawn with the recession
of darkness; in such a situation, identification of the culprit by the
witnesses, proceeding in close proximity with the deceased, in the
month of September, particularly in view of long standing
acquaintance, cannot be viewed with suspicion; their joint
departure with the deceased to offer prayer in the nearby mosque
is a usual pursuit, particularly in a rural neighbourhood of Khyber
Pakhtun Khaw. There appears no earthly reason for the witnesses
to swap the assassin of their elderly father with an innocent.
Totality of circumstances that, inter-alia, includes an ongoing
dispute as well as petitioner’s longstanding absconsion spreading
over almost two decades unmistakably suggest petitioner’s
culpability; there was no occasion for recovery of the weapon in the
wake of petitioner’s long disappearance from the scene. Both the
witnesses, inmates of the same premises, despite lapse of
considerable time furnished graphic details of the occurrence, in a
manner found by us consistent, straightforward and confidence
inspiring; cross-examination remained inconsequential. Finding of
guilt, concurred by both the courts below is not open to any
legitimate exception. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
3rd March, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sardar Tariq Masood
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.431 of 2019
(Against judgment dated 11.03.2019 passed by the
High Court of Sindh, Circuit Court Hyderabad in Cr.
Petition No. S-188 of 2017)
Bashir Ahmed Leghari
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
N.R.
For the State:
Mr. Hussain Bux,
Additional Prosecutor General Sindh
Date of hearing:
25.2.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Bashir Ahmed
Laghari, petitioner herein, alongside Muhammad Hussain and
Waryam co-accused, since acquitted in a trial held earlier, had
been arrayed in the Crime Report for murderous assault on Saleem
Raza (PW-2) in the backdrop of a motive, arisen out of a brawl,
settled in lieu of a compensation, partly paid to the injured. This
happened in the view of the witnesses at 7:30 a.m. on 30-7-2008
within the precincts of Police Station Dadu. Multiple pallet injuries
caused by a .12 caliber repeater wounded victim’s both legs, one
subsequently amputated.
Petitioner stayed away from law and it was during his
absence that co-accused Muhammad Hussain and Waryam were
acquitted on 31.1.2013; they were assigned no role qua the victim;
the petitioner contested indictment in the year 2017; the trial
culminated into his conviction on 10.8.2017 for murderous assault
as well as Itlaf-i-Udw, he was sentenced to 10-years and 5-years
rigorous imprisonment respectively, to run concurrently with pre-
trial commutation, along with a direction to pay monetary
compensation to the victim; his appeal in the High Court met with
Jail Petition No.431 of 2019
2
no better fate vide judgment dated 11.3.2019, vires whereof are
being assailed through the captioned Jail Petition.
2.
Heard.
3.
We have gone through the grounds taken by the convict in
his petition and also the record with the assistance of the learned
Law Officer to find that he absconded soon after the occurrence
and remained away from law for a considerable span of time. In
this backdrop, prosecution’s failure to recover the weapon, statedly
used in the occurrence, fades into insignificance; he is certainly
not expected to keep the gun for such a long period of time with
him as a souvenir of his crime; pellets sprayed by him grievously
covered both the thighs and it was in consequence thereof that the
victim lost one of his legs, a permanent reminder of the violence he
endured during the assault. Clinical observations noted by the
Medical Officer regarding the injuries, multiple in number, are
consistent with the weapon held and used by the petitioner;
duration whereof, recorded in the medico legal certificate coincides
with the time of occurrence related in the crime report. The injured
entered the witness box with aftermaths of violence as a writ large
on his body and furnished graphic details of the occurrence with
the support of other witnesses, each in comfortable unison with
him. A directionless and inconsequential cross-examination
hopelessly failed to create a space to admit any hypothesis other
than petitioner’s guilt. View concurrently taken by the Courts
below has been found by us in accord with the principles of safe
administration of criminal justice and thus, does not call for
interference. Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
25th February, 2020
Not approved for reporting
Azmat/-
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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.450 of 2015
(Against judgment dated 21.09.2015 passed by the
Lahore High Court Lahore in Crl. Appeal No.301-J of
2011 & M.R. No.195 of 2011)
Sadiq Ali
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Ms. Ayesha Tasnim, ASC
For the State:
Mirza. Usman,
Deputy Prosecutor General Punjab
Date of hearing:
04.03.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Kashif Ali, deceased, 25,
along with his father Shoukat Ali (PW-5) managed a kiosk within
the remit of Police Station City Arifwala District Pakpattan. On the
fateful day i.e. 28.2.2010 at 11:00 a.m. Sadiq Ali, petitioner,
complainant’s real brother/father-in-law of the deceased asked for
a cup of tea, declined by the deceased; infuriated by refusal, he
took a Churri from a nearby butcher shop and dealt repeated
blows to the deceased on his chest; as the complainant attempted
to intervene, he targeted him also on the belly and left hand;
commotion attracted the witnesses whereupon the petitioner, while
brandishing the weapon, took to the heels; casualties were shifted
to the hospital; Kashif Ali succumbed to the injuries on way. The
deceased was married with petitioner’s daughter Sajida Bibi; the
marriage went on rocks and she was residing with her parents; it
was in exchange of hand subsequently refused and this
background of animosity with an event on the day of occurrence is
Jail Petition No.450 of 2015
2
cited as combined motive for the crime. The injured was examined
at 11:45 a.m. followed by deceased’s autopsy at 3:00 p.m. who was
noted to have two injuries, both on right side of chest; injury No.1
“a sharp edged stab wound 3 x 3 cm x 1.4 cm into going deep on
right side of upper chest. Just 1 cm away from right border of
sternum in between 3rd and 4th rib”, ruptured the right lung and
heart; it was blamed as cause of death. Shoukat Ali (PW-5)
endured an incised stab wound on the upper part of abdomen in
the epigastrium region accompanied by an abrasion on the left
hand with corresponding cuts on the clothes. Pursuant to a
disclosure, the petitioner led to the recovery of Churri (P-4), found
stained with blood of human origin. Petitioner confronted
prosecution evidence, comprising ocular account, recovery of
weapon and forensic reports, with the following plea:-
“All the PWs are related interse and
inimical
towards
me.
Actually
the
complainant forced his son Kashif Ali
deceased to divorce his wife Mst. Sajida
bibi as there was no son from her to his
son but he refused to do so. Shaukat Ali
complainant during scuffle with him gave
chhuri blow on his chest due to which he
died.
During
scuffle
Shaukat
Ali
complainant also received injuries at the
hands of the deceased. In fact Shaukat Ali
complainant wanted to grab my share in
the house inherited by us from our father
and due to this reason he has falsely
involved me in this case in order to grab
my
share
in
the
house
where
the
complainant lives. The PWs are inimical
towards
me
and
they
have
falsely
deposed against me.”
Unimpressed by the plea, the learned trial Judge vide judgment
dated 28.2.2010 returned a guilty verdict for homicide as well as
assault; for the former he was sentenced to death whereas for the
latter to one year RI with monetary compensation; the High Court
maintained the convictions, however, altered penalty of death into
imprisonment for life vide impugned judgment dated 21.09.2015,
vires whereof are being assailed through the captioned jail petition.
2.
Learned counsel or the petitioner contends that the
petitioner had no occasion to kill his real nephew who happened to
Jail Petition No.450 of 2015
3
be his son-in-law as well, as he had no reason to destroy his
daughter’s household; she has vehemently controverted the
allegations of an abortive arrangement for exchange marriage to
argue that the position taken by the petitioner being more
plausible ought to have been preferred by the courts below. Seizure
of Churri P-4 from an open and accessible place did not advance
the prosecution case, concluded the learned counsel. Learned Law
Officer has faithfully defended the impugned judgment.
3.
Heard. Record perused.
4.
Occurrence is a daylight affair; reported to the police
with a remarkable promptitude; medico legal examination of
Shoukat Ali (PW-5) conducted under a police docket at 11:45 a.m,
followed by autopsy at 3:00 p.m. with durations coinciding with
the point of time mentioned in the crime report confirmed
registration of case in the stated manner with exclusion of
possibility for deliberations and consultations. Shoukat Ali (PW-5)
furnished graphic details of the occurrence; he himself sustained
injuries that confirm his presence at the crime scene. Muhammad
Iqbal (PW-6) is an independent witness; he has duly corroborated
the complainant in his deposition; their evidence cannot be
dislodged merely on the basis of bald suggestions, denied
vehemently. Injuries suffered both by the deceased as well as the
complainant are consistent with the weapon, recovered on
petitioner’s disclosure, forensically found to have been stained with
blood of human origin. Theory of substitution, inherently
preposterous, merits outright rejection in the face of formidable
evidence, inexorably pointed upon the petitioner. Both the courts
below rightly appraised the evidence to concurrently arrive at
conclusions which on our independent analysis have been found
by us as unexceptionable. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
4th March, 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.461/2013 AND
CRIMINAL PETITION NO.1364-L/2013
(Against the judgment dated 7.10.2013 of the Lahore High Court, Lahore passed
in Criminal Appeal No.1698/2009, Criminal Appeals No.,1918/2009 & Cr.R.
No.981/2009 and Murder Reference No.437/2009)
Munir Hussain
(In Jail Petition No.461/2013)
Malik Taj Muhammad
(In Criminal Petition No.1364-L/2013)
. . . Petitioner(s)
Versus
The State
(In Jail Petition No.461/2013)
The State and others
(In Criminal Petition No.1364-L/2013)
. . . Respondent(s)
For the Petitioner(s)
Mr. M. Mukhtar Talokar, ASC
(In Jail Petition No.461/2013)
Malik Mateeullah, ASC
(In Criminal Petition No.1364-L/2013)
For the State
:
Mr. Muhammad Jaffar,
Additional Prosecutor General Punjab
Date of hearing
:
5.3.2020.
O R D E R
Qazi Muhammad Amin Ahmed, J.- Munir Hussain,
petitioner was indicted alongside his brother Riaz Ahmed, since
acquitted, for committing Qatl-i-Amd of Abdul Razzaq, deceased,
44, at 9:30 a.m. on 3.11.2008 within the precincts of Police Station
City Mianwali; deceased was on a motorbike followed by the
witnesses when the accused confronted him near saw machine of
Haji Muhammad Din. Petitioner is attributed consecutive shots;
autopsy
report
confirmed
five
entry
wounds
with
their
corresponding exits besides two lacerated wounds of substantial
dimensions on deceased’s organ of generation. Prior to the
occurrence, the local police had raided the accused and as per
crime report the accused suspected the deceased behind the
episode, cited as motive for the crime. Trial culminated into
JAIL PETITION NO.461/2013 AND
CRIMINAL PETITION NO.1364-L/2013
2
conviction
with
penalty
of
death. Complainant
questioned
co-accused’s acquittal while the convict disputed his conviction;
the High Court dismissed appeal against acquittal while altered
the penalty of death into imprisonment for life vide impugned
judgment dated 7.10.2013, vires whereof are being assailed by the
both sides. It is argued that given the deceased’s position, riding
on a motorbike, confronted by the petitioner, as per prosecution’s
own case, from his right flank, there was no occasion for the
deceased to receive five shots on his back; injuries on organ of
generation have been referred to
canvass an hypothesis,
incompatible with the crime report besides prosecution’s failure
qua the co-accused. Learned counsel for the complainant contends
that
without
active
participation/support
of
Riaz
Ahmed
respondent/co-accused, it was simply not possible for the convict
to gun down the deceased and, thus, there was no occasion for the
courts below to issue him a clean chit; he further argued that both
the accused equally shared the motive. Magnitude of violence has
been highlighted to argue that penalty of death is an appropriate
wage in circumstances. Leave is granted to the both sides to
examine the above contentions.
Judge
Judge
Lahore, the
5th March, 2020
Not approved for reporting
Ghulam Raza/*
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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 Petition Nos.467, 613 & Criminal Petition No. 693 of 2017
(Against judgment dated 16.03.2017 passed by Lahore High Court
Multan Bench Multan in Criminal Appeal No.698 of 2015 as well
as Nos. 6, 9, 10 & 12 of 2016 & Crl. Revision No.98 of 2016)
Munir Ahmed
(in J.P. No.613 of 2017)
Sabir Hussain & another
(in J.P. No.467 of 2017)
Abid Hussain
(in Cr. P. No.693 of 2017)
…Petitioner(s)
Versus
The State
(in both Jail Petitions)
Nadir Hussain & others
(in Cr. P. No.693 of 2017)
…Respondent(s)
For the Petitioner(s):
Nemo
(in J.P. No.613 of 2017)
Mr. Dil Muhammad Khan Alizai, ASC
(in J.P. No.467 of 2017)
Mr. Shah Khawar, ASC
(in Cr. P. No.693 of 2017)
For the State:
Mirza Abid Majeed,
Deputy Prosecutor General Punjab
Date of hearing:
08.10.2019.
JUDGMENT
Qazi Muhammad Amin Ahmed, J. Muhammad Ajmal
and his brother-in-law Nadir Hussain were fatally shot on
22.1.2011 at 7:00 p.m. within the precincts of Police Station Ali
Pur, District Muzaffargar; Muhammad Imran PW survived the
Jail Petition Nos.467, 613 & Cr. P. No.693 of 2017
2
assault with gunshot; incident was reported at the spot by Abid
Hussain, a real brother; he arrayed eighteen accused by name
accompanied by eight unknown, each armed differently; the
petitioners are amongst the accused assigned effective shots to the
deceased as well as the injured.
According to the crime report, in the backdrop of an abortive
exchange
marriage,
the
accused,
under
the
barrage
of
indiscriminate firing, trespassed into complainant’s house; Nadir
Hussain petitioner targeted Muhammad Ajmal deceased in his
head followed by a fire shot by Munir Ahmed petitioner on left
thigh of Muhammad Imran whereafter Muhammad Sabir petitioner
fired upon Nadir Hussain deceased on his left shoulder; it is
prosecution’s case that all the accused kept on firing continuously
and upon arrival of the neighbourhood, decamped from the scene,
leaving behind 56 casings and blood at various spots, secured vide
inventories. Sabir Hussain and Nadir Hussain petitioners stayed
away from law for a period exceeding two years; Munir Ahmed
petitioner was, however, arrested alongside other accused, except
those exonerated during investigation, on conclusion whereof,
besides the petitioners, 13 others were indicted by a learned
Additional Sessions Judge at Muzaffargarh who vide judgment
dated 19.12.2015, let off Wazir, Latif, Abdul Rasheed and Ghulam
Qadir while returning a guilty verdict qua the remainder; for
homicide and murderous assault, Sabir Hussain and Nadir
Hussain were sentenced to death whereas Munir Ahmed to
10-years R.I. along with conviction and sentences on coordinate
charges. The High Court maintained convictions of the present
petitioners
albeit
with
alteration
of
death
penalty
into
imprisonment for life and reduction of 10-years imprisonment into
five years R.I. while acquitting the others from the charge vide
judgment dated 16.3.2017, vires whereof have been challenged on
a variety of grounds ranging from improbability of prosecution
story to nomination of hugely exaggerated assailants in the crime
report; contested by the State on the strength of analysis and
findings consequent thereupon by the lower tribunals.
2.
Heard. Record perused.
Jail Petition Nos.467, 613 & Cr. P. No.693 of 2017
3
3.
Loss of precious lives, within a family fold, though on
rocks, confirmed by the witnesses including the one with a stamp
of injury, notwithstanding, there are certain intriguing aspects,
haunting the prosecution, in the totality of circumstances, a
hugely large number of assailants, including the unknown, being
the most prominent. In the face of indiscriminate firing, a case
unambiguously put forth by the prosecution, receipt of single shot
by each deceased as well as the injured belies the hypothesis of
massive indiscriminate firing by each member of unlawful
assembly comprising no less than 26, the unknown included; from
amongst the volley of assailants, precision attribution, in an
extreme crisis situation, is a feat, beyond human capacity, it sans
forensic support as well; quite a few from amongst the array were
let off at investigative stage, on the basis of an affidavit sworn by
no other than the injured himself; prosecution’s dilemma is further
compounded by acquittal of four accused, framed through the
same set of evidence by the Trial Court; a severer blow came from
the High Court that acquitted all others except the petitioners. The
petitioners, though distinctly assigned single shot qua the
deceased and the injured, nonetheless, are identically placed with
those by now, off the hook. Inclusion of the unknown, eight in
numbers, if factually correct was certainly not without a purpose;
if at all, they were there, the petitioners and other known members
of the family had no occasion to carry out the assault without
being out of mind. Notwithstanding the magnitude of loss of lives,
the totality of circumstances, unambiguously suggest that the
occurrence did not place in the manner as is alleged in the crime
report; argument that number of assailants has been hugely
exaggerated, as confirmed by the acquittals of the co-accused with
somewhat identical roles, though without specific attributions, is
not entirely beside the mark and in retrospect calls for caution. It
would be unsafe to maintain the convictions. Consequently, Jail
Petitions are converted into appeals and allowed; impugned
judgment is set aside; the appellants are acquitted from the charge
and shall be released forthwith, if not required in any other case.
Jail Petition Nos.467, 613 & Cr. P. No.693 of 2017
4
As a natural corollary, Criminal Petition No.693 of 2017
stands dismissed.
Judge
Judge
Judge
Islamabad
9th October, 2019
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 Petition Nos.480 & 594 of 2018
(Against judgment dated 2.5.2018 passed by High
Court of Sindh, Circuit Court Larkana in Cr. Appeal
Nos.D-62 & D-63 of 2017)
Abdul Wahab
(in J.P. No.480 of 2018)
Khan Muhammad
(in J.P. No.594 of 2018)
…Petitioner(s)
Versus
The State
(in both cases)
…Respondent(s)
For the Petitioner(s):
Mr. Siddique Baloch, ASC/AOR
(in both cases)
For the State:
Mr. Khadim Hussain Khooharo,
Additional Prosecutor General Sindh
Date of hearing:
17.10.2019.
JUDGMENT
Qazi Muhammad Amin Ahmed, J. Jail Petition
No.594 of 2018, filed by Khan Muhammad is barred by 35 days,
however, since the petitioner is in receipt of a guilty verdict with
corporal consequences, we consider it expedient to attend his
plea on merit alongside Jail Petition No.480 of 2018 filed by his
co-convict Abdul Wahab.
2.
The petitioners were surprised by a contingent of
Police Station A-Section Thal, District Jacobabad, on patrol, and
found in possession of Charas. According to the prosecution,
Abdul Wahab was carrying 7.8 kilograms whereas Khan
Muhammad 8.2 kilograms. Contraband was secured vide
inventories. Separated samples were forensically examined with
confirmatory results. Upon conclusion of trial, the petitioners
were returned a guilty verdict by a learned Special Judge (CNSA)
Jacobabad vide judgment dated 22-11-2017; convicted under
Jail Petition Nos.480 & 594 of 2018
2
Section 9 (c) of the Control of Narcotic Substances Act, 1997,
Abdul Wahab was sentenced to 10-years RI whereas Khan
Muhammad to 11-years RI alongside fines and consequences in
the event of default with benefit of section 382-B of the Code of
Criminal Procedure, 1898; their appeals in the High Court met
with no better fate vide impugned judgment dated 02-05-2018
and this brings them to this Court.
2.
Heard. Record perused.
3.
Prosecution case is, primarily, structured upon
statements of Izhar Ali Shah, ASI (PW-1), Muhammad Ayub
(PW-2) and Abdul Haq, Inspector (PW-4); we have gone through
their statements and found them in a comfortable unison, despite
flux of time, on all the salient aspects of the prosecution case, in
terms of interception of the petitioners and recovery of
contraband, they are consistent, straightforward and confidence
inspiring and their statements cannot be discarded merely on
account of absence of a witness from the public; people seldom
come forward to perform their civic responsibilities and official
witnesses are no less credible or trustworthy provided their
statements rang true, as is the case in hand. Learned counsel for
the petitioners, despite being at his best, has not been able to
point out any serious flaw or infirmity that may be viewed as
material or substantial in nature in the statements of the
prosecution witnesses. Much stress laid by the learned counsel
on a typographical error is not of much consequence, as the
correct volume of contraband was put to the petitioners in the
charge. Petitions fail. Dismissed.
Judge
Judge
Judge
Islamabad
17th October, 2019
Azmat/-
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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.488 of 2015
(Against judgment dated 21.01.2014 passed by
Lahore High Court Lahore in Cr. Appeal No. 1286 of
2010)
Aurangzeb
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Qamar Zaman Qureshi, ASC
Syed Rafaqat Hussain Shah, AOR
For the State:
Mr. Muhammad Usman,
Deputy Prosecutor General Punjab
Date of hearing:
02.03.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Indicted for
homicide alongside six co-accused, since acquitted, Aurangzeb,
petitioner herein, was returned a guilty verdict by a learned
Additional Sessions Judge at Chiniot vide judgment dated
12.5.2010; convicted under clause (b) of Section 302 of the
Pakistan Penal Code, 1860, he was sentenced to death with a
direction to pay compensation of Rs.200000, altered into
imprisonment for life by the Lahore High Court Lahore vide
impugned judgment dated 21.1.2014 vires whereof are being
assailed, through Jail Superintendent. Financial incapacity
appears to have impeded petitioner’s approach to this Court in
time, in view whereof delay of 626 days in filing of the petition is
condoned.
2.
According to the prosecution, on the fateful day i.e.
6.8.2008 at about 4:00 p.m, the petitioner armed with a .30 caliber
pistol, subsequently recovered albeit without forensic comparison,
targeted Zulfiqar deceased; solitary shot on the abdomen with its
Jail Petition No.488 of 2015
2
exit proved fatal. Previous blood feud is cited as motive for the
crime.
3.
Mr. Qamar Zaman Qureshi, ASC has assailed the
impugned judgment on a variety of grounds; according to him,
occurrence did not take place in the manner as alleged in the
crime report, recorded at a point of time other than reflected
therein; it is next argued that presence of the witnesses is highly
improbable; he has particularly highlighted improvements made by
the
complainant
through
a
supplementary
statement
by
nominating unknown assailants, previously acquainted with him;
acquittal of six co-accused, each armed lethally, though assigned
no harm to the deceased has been pointed out to argue that same
set of evidence cannot be pressed into service to sustain the charge
qua the petitioner without independent corroboration, hopelessly
missing, concluded the learned counsel. Learned Law Officer has
faithfully defended the impugned judgment.
4.
Heard. Record perused.
5.
Prosecution case is primarily hinged upon ocular
account furnished by Haqnawaz (PW-1) and Munir Hussain
(PW-2); former is father of the deceased whereas the latter is
former’s collateral; their close relationship notwithstanding, both of
them have plausibly explained purpose of their presence at the
crime scene; they had assembled to watch a Kabaddi match,
annually held by tradition at a nearby mausoleum. To the extent of
role assigned to the petitioner in the crime report, they remained
consistent and straightforward; their failure qua the co-accused
and complainant’s recourse to a supplementary statement in order
to nominate unknown assailants, though an embarrassing failure
for the prosecution, however, does not tremor its mainstay.
Assembly of the accused in the stated numbers, in a festivity, is a
possible scenario; they appear to have been let off by the learned
trial Court out of abundant caution, an option found by us most
expedient in circumstances; their departure does not cast away the
case against the petitioner, singularly blamed for the crime.
The incident was reported with a remarkable promptitude,
followed by post mortem examination that cannot be viewed as
delayed,
factors
excluding
possibility
of
deliberations
and
consultations, in retrospect suggestive of witnesses’ presence at
Jail Petition No.488 of 2015
3
the stated point of time, coinciding with the durations mentioned
in the autopsy report. Though inconsequential for want of forensic
verification, nonetheless, the weapon recovered on petitioner’s
disclosure is consistent with the nature of fatal injury. Occurrence
being a broad daylight affair before a large gathering, does not
admit hypothesis of substitution. Appraisal of evidence carried out
by both the Courts below, on our own independent analysis, is
found by us in accord with the principles of safe administration of
criminal justice and as such does not call for interference. Petition
fails. Leave declined.
Judge
Judge
Islamabad, the
2nd March, 2020
Not approved for reporting
Azmat/-
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TN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ ULAHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAIlED MAZAHAR ALl AKBAR NAQVI
JAIL PETITION NO. 496 OF 2019
(On appeal against the judgment dated 27.04.2018
passed by the High Court of Sindh, Karachi in Cr. Jail
Appeal No. 52/2015)
Muhammad Usama
The State
For the Petitioner:
For the State:
For the Complainant:
Date of Hearing:
Petitioner
VERSUS
Respondent
Mr. Anis Muhammad Shehzad, ASC
Mr. Zafar Ahmed Khan, Addl. P.G.
Mr. Haider Zaman, in person
20. 10.2022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI. J.- Petitioner was tried by the learned
Sessions Judge, Malir, Karachi, pursuant to a case registered vide FIR No.
699/2012 under Section 302 PPC at Police Station Shah Latif Town for
committing murder of Noman Khan, brother of the complainant. The learned
Trial Court vide its judgment dated 10.02.2015 convicted the petitioner
under Section 302(b) PPC and sentenced him to imprisonment for life.
Petitioner was also directed to pay compensation amounting to Rs.50,000/-
to the legal heirs of the deceased or in default whereof to further undergo six
months SI. Benefit of Section 382-B Cr.P.C. was also extended to him. 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:-
"2.
Precisely the facts of the prosecution case as disclosed by
complainant, Qamar Zaman Khan in the FIR are that his younger
brother namely Woman Khan aged about 18 years, who was a
Jail Petition No. 496/2019
student of Intermediate Part-11, and after college time he used to
come to his shop situated at Total Petrol Pump, near Chokandi
Graveyard. On 03.12.2012, the complainant was present at his shop
where on telephone Nasir Khan informed him that one Osama,
resident of Green Park City, has inflicted Motorcycle's wire lock
injury to his brother near milk shop and his brother was taken to
Jinnah Hospital. On receiving such information the complainant
alongwith other relatives reached at Jinnah Hospital, where he found
dead body of his brother Noman Khan in mortuary. On inquiry, Nasir
Khan disclosed that at about 0215 p.m. he and deceased Noman
Khan were coming from Green Park City and upon reaching the gate
No. 2 near Milk shop, Osama/appellant inflicted motorcycle's wire
lock blow to the head of Noman Khan/deceased and fled away.
Accordingly, statement of complainant under Section 154 Cr.P.C. was
recorded by ASI Raza Mohammad of Police Post Khudabad of Police
Station Shah Latif Town, Karachi at Jinnah Hospital on the basis
whereof FIR was registered.
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 seven 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 also examined himself on oath
under Section 340(2) Cr.P.C. However, he did not produce any evidence in his
defence.
4.
At the very outset, learned counsel for the petitioner submitted
that he does not challenge the conviction of the petitioner. However, he
submitted that the petitioner was 14 years of age at the time of commission
of offence and there was no previous enmity, premeditation or preparation
for commission of murder. Contends that the weapon allegedly used was not
conventional rather it was picked up from the nearby place and the
occurrence took place at the spur of the moment on account of trivial
altercation, therefore, the petitioner deserves leniency in the sentence
awarded to him.
5.
On the other hand, learned Law Officer defended the impugned
judgment. He contended that the petitioner was specifically nominated in
the crime report with a specific role of taking life of brother of the
complainant. Contends that the ocular account has been proved beyond
shadow of doubt and the medical evidence supports the same. However, he
Jail Petition No, 49612019
3
did not dispute the use of non-conventional weapon and the age of the
petitioner at the time of occurrence. Lastly contends that the prosecution has
proved its case through cogent and confidence inspiring evidence, therefore,
the petitioner 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.
In order to prove its case, the prosecution has mainly relied
upon the statements of Muhammad lniran (PW-2) and Muhammad Nasir
(PW-3), who were the eye-witnesses of the occurrence. 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. 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 injury on the person of the deceased is concerned. These
witnesses have specifically explained their presence at the spot. No material
contradiction in the statements of the PWs, which could shatter the case of
the prosecution, could also be brought on record. On account of lapse of
memory owing to the intervening period, some minor discrepancies are
inevitable and they may occur naturally but the accused cannot claim benefit
of such minor discrepancies. The eye-witnesses have given details of the
occurrence in a natural manner, which prove that they have witnessed the
occurrence. In these circumstances, it can safely be said that the prosecution
has brought on record reliable evidence to sustain the conviction of the
petitioner. The only question which requires determination by this Court is
that in the given circumstances whether the conviction and sentence
recorded by both the courts below commensurate with the act of the
petitioner. We have noted certain material aspects of the case, which clearly
reflect that the petitioner was minor at the time of occurrence; the
occurrence has taken place at the spur of the moment and without any
Jail Petition No. 49612019
4
preparation or premeditation; the weapon used by the petitioner is ordinarily
attached to the motorcycle/cycle for safety and the same without any stretch
of imagination cannot be termed as a weapon for committing such like
crimes. All these aspects when read conjointly with the statement of the
petitioner under Section 340(2) Cr.P.C., it further strengthens the view of this
Court that the occurrence has taken place without premeditation and
possibility cannot be ruled out that the same was result of some trivial
altercation/use of filthy language as stated by the petitioner. These aspects
when adjudicated, there is no second cavil to this proposition that the
petitioner has made out a case, which squarely attracts the provision of
Section 302(c) PPC. During the course of proceedings, it was argued by the
learned defence counsel that the petitioner was aged about 14 years at the
time of occurrence, which has not been rebutted by the learned Law Officer.
Keeping in view the nature of the occurrence as stated above, we are of the
view that the sentence of imprisonment for life would be too harsh for the
petitioner. Consequently, we convict the petitioner under Section 302(c) PPC
and sentence him to the period, which he has already undergone. 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, partly allowed and the impugned judgment is modified as stated
in the preceding paragraph.
Islamabad, the
20" of October, 2022
Approved For Reporting
EMtin'
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.497 of 2015
(Against judgment dated 18.11.2015 passed by the
Lahore High Court at Rawalpindi Bench in Crl. Appeal
No.602 of 2010)
Mazhar Ellahi
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mr. Kashif Ali Malik, ASC
Syed Rafaqat Hussain Shah, AOR
For the State:
Mr. Ahmad Raza Gillani,
Additional
Prosecutor
General,
Punjab
Date of hearing:
20.2.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Jan Muhammad
alias Jani, 18, was done to death on 22.5.2007 at 7:30 p.m. within
the remit of Police Station City Hassan Abdal District Attock; from
amongst the witnesses Sajid Mehmood (PW-10) was also repeatedly
shot when he beseeched the assailants to spare the deceased.
Statedly accompanied by his son Imran Khan, since acquitted,
Mazhar Ilahi, petitioner herein, is blamed for successive shots,
both upon the deceased as well as the witness. Motive for the
crime is a suspected liaison allegedly carried by deceased’s brother
with petitioner’s daughter. Incident was reported same day at
9:15 p.m. in the Civil Hospital where the injured was examined
and autopsy conducted at 8:30 and 9:30 p.m. respectively.
Recoveries include seizure of blood and casings from the spot and
a .30 caliber pistol (P-7), pursuant to a disclosure. Assailants
Jail Petition No.497 of 2015
2
claimed trial; while extending benefit of the doubt to Imran Khan
co-accused, the petitioner was convicted for homicide as well as
murderous assault; vide judgment dated 28.5.2009, on both the
charges, he was sentenced to death and imprisonment for
10 years, with direction to pay compensation as well as fine;
a learned Division Bench of Lahore High Court at Rawalpindi
maintained the convictions albeit with alteration of death penalty
into imprisonment for life; the High Court additionally convicted
the petitioner under Section 337 L(ii) of the Pakistan Penal Code,
1860 and sentenced him to rigorous imprisonment for one year
with concurrent commutation, under-trial period inclusive, vide
impugned judgment dated 18.11.2015, vires whereof were assailed
through a jail petition, argued by Mr. Kashif Ali Malik, ASC on a
variety of grounds, absence of motive qua the deceased being most
prominent. It is next argued that notwithstanding, absence of a
specific role, acquittal of Imran Khan co-accused raised the
prosecution case to the ground, as fall out thereof, according to the
learned counsel, casts away testimony of the injured witness as
well; suppression of forensic report destroyed the entire edifice,
concluded the learned counsel.
2.
With the assistance of the learned counsel for the
petitioner as well as the learned Law Officer, we examined the
record to find out a remarkable promptitude in registration of the
case, examination of the injured and autopsy of the deceased soon
thereafter. Occurrence took place within the bounds of the locality
where presence of the witnesses, particularly one having extensive
injuries cannot be viewed with suspicion. We have otherwise found
their statements in a complete unison with details of the salient
aspects of the occurrence as well as events collateral therewith;
they have been confronted with cross-examination, devoid of
direction and hopelessly inconsequential. Though the High Court
discarded recovery of .30 caliber pistol (P-7), nonetheless, the
injuries endured both by the deceased as well as the injured are
consistent with the weapon, singularly used with awful lethality by
the petitioner. Totality of circumstances does not admit any
hypothesis other than petitioner’s guilt. Non-assignment of
effective shot to Imran Khan, acquitted co-accused, in the face of
multiple fire shots and available wounds, in retrospect, lends
Jail Petition No.497 of 2015
3
additional credence to the prosecution case, his acquittal
notwithstanding. Benefit for absence of forensic report and a
misdirected motive has already been extended to the petitioner
despite shocking brutality inflicted by him upon the deceased, still
a
teenager,
besides
targeting
Sajid
Mehmood
PW
who
unsuspectingly intervened to rescue the deceased in good faith.
Scales are in balance. Petition fails; leave declined.
Judge
Judge
Islamabad, the
20th February, 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.501 of 2018
(Against the judgment dated 5.6.2018 passed by the
Lahore High Court Rawalpindi Bench Rawalpindi in Crl.
Appeal No.90 of 2016)
Muhammad Javed
.…Petitioner(s)
Versus
The State
….Respondent(s)
For the Petitioner(s):
Syeda B.H. Shah, ASC
For the Respondent(s):
Mr. Ahmad Raza Gillani,
Addl. Prosecutor General Punjab.
Date of hearing:
07.08.2020.
ORDER
Qazi Muhammad Amin Ahmed, J.- Muhammad Elahi, 50,
was murderously assaulted by Muhammad Javed, petitioner, on 23.7.2012
at 6:00 p.m. within the precincts of Police Station Attock Saddar in the
backdrop of a default in payment of Rs.8500/- that he owed to the
deceased, a grocery vendor in the neighbourhood. The casualty was
attended by Naseer Ahmad, SI (PW-15) at 7:20 p.m. in the Civil Hospital
Attock. After a brief struggle, the injured succumbed to the injury.
According to Muhammad Iqbal (PW-13), the first informant, upon receipt
of information that the deceased was being thrashed by the petitioner and
his mother Raeesa Jan, he arrived at the spot to witness the deceased
under assault when from amongst the assailants, the petitioner targeted
the deceased with a straight fire shot on his back; Abdul Khaliq and
Muhammad Shoaib PWs, amongst others, reached the spot for rescue
when the accused took to the heels. Alongside the petitioner, his parents
as well as one of his brothers Rafaqat were arrayed as accused, however,
let off during the investigation and he was alone to contest the indictment
that resulted into his conviction under clause (b) of Section 302 of the
Pakistan Penal Code, 1860 with imprisonment for life, pre-trial period
Jail Petition No.501 of 2018
2
inclusive vide trial Court’s judgment dated 19.2.2016, upheld by a learned
Judge-in-Chamber vide impugned judgment dated 5.6.2018, vires whereof,
are being assailed herein.
2.
It is argued that occurrence did not take place in the manner
as alleged in the crime report and that the prosecution suppressed the real
facts leading to the incident wherein the petitioner besides his mother and
sister sustained multiple extensive injuries, spelling out a scenario
diametrically incompatible with the events alleged in the crime report
Ex.PH; that petitioner’s even dated statement with the police, prima facie,
supported by the witnesses was withheld and thus the evidence presented
before the Court was not the whole truth. In the absence of complete tale,
it would be unsafe to maintain the conviction, concluded the learned
counsel. The learned Law Officer has faithfully defended the impugned
judgment.
3.
Heard. Record perused.
4.
The deceased, in injured condition, was medically examined at
7:15 p.m. under a police docket carried by Aamir Mehmood 1112/C(PW-6);
he was noted with an entry wound on the right buttock; he was fully
conscious, well-oriented with stable vitals; it is somewhat surprising that
despite capacity, he did not opt for a statement. Position taken by the
Investigating Officer that “As per opinion of the doctor, the injured was not in a
condition to give statement” stands contradicted by the observations recorded
by Dr. Faheem Khan, (PW-1) in MLR (Ex.PA). Deceased’s traumatic
condition notwithstanding, nonetheless, his inexplicable silence before the
Investigating Officer standing next to him, despite capacity, has
repercussions on the statement of Muhammad Iqbal (PW-13) who upon
receipt of information regarding an ongoing brawl, reached the scene,
located at some distance from his residence, exactly at a point of time
when the deceased received solitary fire shot, a rare coincident. More
intriguing is his ignorance about injuries suffered by the petitioner, his
sister Yasmeen Bibi and mother Raeesa Jan; they were medically
examined under police dockets and noted with a good number of injuries
comprising bruises, abrasions and lacerated wounds, durations whereof,
coincide with the time of occurrence; comparative triviality of the injuries
notwithstanding, the injured family presented a picture incompatible with
the events narrated in the crime report. Admission by the Investigating
Officer Naseer Ahmad, SI (PW-15) is no less startling:
“I proceeded to the place of occurrence. When I
reached the place of occurrence, accused Muhammad
Jail Petition No.501 of 2018
3
Javed and his mother were found confined in the
house of the complainant and his sister not confined
there alongwith them as suggested. When I examined
bodies of accused Javed, his mother Raeesa Jan and
sister Mst. Yasmeen Bibi, all the three were found
injured. I do not remember as to whether their clothes
were blood stained or not. There was bleeding from
bodies of all the three said persons. I prepared injury
statement of accused Javed, his mother Mst. Raeesa
Jan and sister Mst. Yasmeen Bibi. Before preparing
injury statement of the said three injured persons, I
recorded statement of accused Javed, Ex.P-T. I read
over statement of accused Javed Ex.PT to him, who put
his signatures on the same as token of its correctness.
It is correct that first version of accused Javed which
came on the record was the said statement Ex.PT.
Statement of accused Javed Ex.PT was made part of
police file by me.”.
In the face of unanimous suppression of injuries by the prosecution
witnesses, despite possible exclusion of petitioner’s plea from consideration,
the prosecution case lacks “proof beyond doubt” as it does not reconcile with
the parallel story recorded by the Investigating Officer himself duly
supported by the statements of medical officers who attended the trial as
court witnesses. Statement made by Abdul Khaliq (PW-12) also depicts a
different scenario, as according to him, Javed and his mother were confined
inside the house of the deceased wherefrom they were rescued by the police
and it is so mentioned in his examination-in-chief itself; positions taken by
the prosecution witnesses are mutually destructive as we cannot possibly
believe the complainant without first excluding the statements of Abdul
Khaliq (PW-12) and Naseer Ahmad (PW-15) and vice versa.
In view of the above discrepant positions, implicit reliance upon the
statements of the witnesses cannot be placed without potential risk of error
as the entire episode is shrouded into a mystery, further compounded by
an entry wound without exit on the back of the deceased, fringing near the
position taken by the petitioner on the day one in support whereof on the
conclusion of prosecution evidence, he entered the witness-box and on
solemn affirmation, braved the cross-examiner with the following stance:
“At that juncture, other ladies of their family also
reached there and they all took me, my mother and
sister outside our house in the street where Shoaib
son of the deceased fired a shot on me which hit his
father Muhammad Elahi deceased on his back.”
On an overall analysis, prosecution case is found fraught with doubts,
deducible from the stated positions, benefit whereof, cannot be withheld,
particularly after its failure qua the co-accused. Petition is converted into
Jail Petition No.501 of 2018
4
appeal and allowed; impugned judgment is set aside and by extending
benefit of doubt, the petitioner/appellant is acquitted of the charge; he
shall be released forthwith, if not required to be detained in any other case.
Judge
Judge
Islamabad, the
7th August, 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 Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No. 508 of 2016
(Against the judgment dated 30.08.2016
passed by the High Court of Sindh in Crl.
Jail Appeal No.S-160 of 2011)
Zubair Khan
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Qari Abdul Rasheed, ASC
For the State:
Mr. Zafar A. Khan,
Addl. Prosecutor General
Date of hearing:
21.01.2021.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- A contingent of
Naushahro Feroze police, after a hot pursuit, intercepted a suspicious
truck bearing registration No.E-5318, ostensibly transporting a cargo
comprising 100 bags of potatoes with 80 packets of cannabis,
surreptitiously concealed in the secret cavities thereof, at 4:00 p.m. on
21.4.2010; the petitioner was on the wheel; the vehicle and the
contraband, weighed as 80 K.G, were secured vide inventories; forensic
analysis of the samples, separated from the each packet, confirmed
narcotic character thereof. As the investigation progressed, one Abdul
Latif Gul, since P.O., was identified as the man behind the scene. The
petitioner claimed trial, pursuant whereto, prosecution produced two
witnesses as well as case property consisting the impounded vehicle
and the contraband, confronted by the petitioner with denial; he was
returned a guilty verdict with imprisonment for life vide judgment
dated 02.04.2011, upheld by the High Court of Sindh vide impugned
judgment dated 30.08.2016, vires whereof, are being assailed on the
ground that in the face of prosecution’s failure to establish safe
custody as well as transmission of the samples to the office of
Jail Petition No. 508 of 2016
2
Chemical Examiner with a duplicate forensic report, in circumstances,
there was no occasion for petitioner’s conviction. The learned Law
Officer has defended the impugned judgment though without much
enthusiasm.
2.
Heard. Record perused.
3.
Prosecution produced two witnesses, namely, Basharat
Hussain, Inspector as (PW-1) and Abdul Ghani as (PW-2); the former
furnished comprehensive details regarding interception of vehicle along
with the contraband and investigative steps taken thereafter whereas
the former corroborated his deposition, however, the prosecution
unredeemedly failed to establish the essential link of safe transmission
of samples to the office of Chemical Examiner as despite opportunity
Abdul Hakeem, EC/B-131 who had delivered the samples failed to
enter the witness box, leaving the entire case in the lurch. The last
straw is prosecution’s reliance on a duplicate forensic report Ex.15 to
confirm narcotic character of the contraband. Appalling inaptitude of
the functionaries tasked to prosecute the crime, awfully heinous in
nature, has occasioned the failure to establish a most vital link to drive
home the charge, irreversibly vitiated by a duplicate forensic report,
inadmissible in evidence, leaving no juridical possibility to maintain
petitioner’s conviction. Petition is converted into appeal; same is
allowed; the impugned judgment is set aside; the appellant is acquitted
of the charge and has been ordered to be released if not required to be
detained in any other case vide short order of even date. Findings
recorded hereinabove shall cast no bearings on the trial of absconding
co-accused, to be dealt with independently, after his arrest on the
strength of available evidence. The impounded vehicle statedly owned
by the absconding co-accused, with no rival claimant till date, shall be
disposed of in the manner provided under section 88 of the Code of
Criminal Procedure 1898.
Judge
Judge
Judge
Islamabad, the
21st January, 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 Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.521 of 2017
(Against the judgment dated 16.5.2017
passed by the Lahore High Court,
Rawalpindi Bench in Criminal Appeal
No.799 of 2016).
Muhammad Kamran
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s)
: Malik Altaf Hussain, ASC
For the State
: Mirza Abid Majeed, DPG
Date of Hearing
: 11.06.2019.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Surprised by a
police contingent, the petitioner was found in possession of
Charas Garda, weighing 1200-grams within the remit of Police
Station Naseerabad Rawalpindi on 26-1-2016; upon conclusion
of investigation, he was sent to face trial along with forensic
report that confirmed the narcotic character of the substance;
in the wake of a regular trial, he was returned a guilty verdict
by a learned Additional Sessions Judge at Rawalpindi vide
judgment dated 17-11-2016; convicted under Section 9 (c) of
the Control of Narcotic Substances Act, 1997, he was
sentenced to 4-years and 6-months RI along with fine of
Rs.20,000/- or to suffer 2-months SI in default thereof with
benefit of section 382-B of the Code of Criminal Procedure,
1898. Petitioner’s appeal in the High Court met with no better
fate vide impugned judgment dated 16-5-2017 and this brings
him to this Court.
Jail Petition No.521 of 2017
2
2.
Learned counsel for the petitioner despite being at
his best has not been able to point out any serious flaw or
infirmity that may be viewed as material or substantial in
nature in the statements of the prosecution witnesses. An
alleged discrepancy in the description of the contraband
recovered, between the complaint and statements of the
witnesses went unchallenged during the trial and as such the
petitioner cannot claim any benefit thereof in the absence of
confrontation within the contemplation of Article 140 of the
Qanun-e-Shahadat Order, 1984. No case for interference is
made out. Petition stands dismissed.
JUDGE
JUDGE
Islamabad, the
11th of June, 2019
Azmat Ali/*
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
MR. JUSTICE ATHAR MINALLAH
JAIL PETITION NO. 553 OF 2017
(On appeal against the judgment dated
06.06.2017 passed by the Lahore High Court,
Lahore in Criminal Appeal No. 106-J/2014 and
Murder Reference No. 79/2014)
Aqil
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Mr. Rizwan Ibrahim Satti, ASC
For the State:
Mirza Abid Majeed, DPG
Date of Hearing:
16.02.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Aqil along with three
co-accused was tried by the learned Additional Sessions Judge, Chiniot
pursuant to a case registered vide FIR No. 356 dated 05.10.2011 under
Sections 302/364-A/337-A(I)/337-L(ii)/109 PPC at Police Station Langrana,
Chiniot for committing murder of Mst. Mukhtar Bibi and Mst. Allah Maufi,
mother and sister of the complainant and for causing injuries to the
complainant. The learned Trial Court vide its judgment dated 27.02.2014
while acquitting the co-accused, convicted the petitioner under Section
302(b) PPC and sentenced him to death on two counts. He was also
directed to pay compensation amounting to Rs.50,000/- on each count to
the legal heirs of both the deceased. In default he was to suffer six months
SI on each count. In appeal the learned High Court while maintaining the
conviction of the petitioner under Section 302(b) PPC, altered the
sentence of death into imprisonment for life on two counts. The amount
JAIL PETITION NO. 553 OF 2017
-: 2 :-
of compensation and the sentence in default whereof was also
maintained. Benefit of Section 382-B Cr.P.C. was also extended in favour of
the petitioner.
2.
The prosecution story as given in the impugned judgment
reads as under:-
“2.
Prosecution case in brief un-folded in the F.I.R. (Ex.PA) by Mst.
Farhat Bibi complainant (PW-2) is that she is resident of Chak No.211/J.B
and was married to Azhar whereas her maternal uncle/appellant Aqil was
married to Tasleem Bibi, sister of her husband as a result of exchange.
However, because of strained family relations, complainant was divorced
by her husband Azhar and due to this reason, wife of Aqil also went to
her parents’ house. On 05.10.2011 at about 07:30 a.m. complainant
alongwith her mother Mukhtar Bibi and two sisters Allah Muafi and Allah
Shafi was going towards Chak Sarghana for picking cotton and when they
reached near the land owned by Allah Yar Joota within the jurisdiction of
Chak No.211/J.B, appellant Aqil alongwith his co-accused Ulfat and Umer
Hayat came at the spot on a motorbike driven by accused Ulfat, who
asked the appellant that the complainant’s family had collapsed his
matrimonial life, therefore, they should not be spared, upon that
appellant Aqil made four consecutive fires with his pistol hitting near
right chest, belly, right shoulder and at the right flank of Mukhtar Bibi,
who fell down, then, the appellant again made four consecutive fires
hitting at the left arm, near left chest, left flank and right hand of Allah
Muafi, who also fell down. When the complainant raised hue and cry, co-
accused of the appellant Umer Hayat gave fist blows hitting at the lower
part of left eye and he also snatched her minor daughter Samreen Bibi
aged about 6 years. On hearing hue and cry, PWs Goga and Riaz reached
at the spot and witnessed the occurrence and on seeing them, appellant
alongwith his co-accused Ulfat and Umer Hayat while making aerial firing
fled away from the spot on the motorbike and also took away daughter
of the complainant Samreen Bibi. Complainant alongwith the PWs tried
to rescue Mukhtar Bibi and Allah Muafi but they both succumbed to the
injuries.
Motive behind the occurrence as per FIR. (Ex.PA) is that appellant Aqil
was married in exchange of the complainant Mst. Farhat Bibi and when
she was divorced by her husband, the wife of appellant also left his house
and went to her parent’s house, due to that grudge, appellant alongwith
his co-accused Ulfat and Umar Hayat in furtherance of their common
intention has committed murder of Mukhtar Bibi and Allah Muafi on the
abetment of accused Atta and also snatched daughter of the complainant
for the purpose of committing her murder.”
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
JAIL PETITION NO. 553 OF 2017
-: 3 :-
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 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 and
recoveries as alleged, which causes serious dent in the prosecution case.
Contends that on the same set of evidence, three co-accused of the
petitioner have been acquitted but the petitioner has been convicted,
which is against the canons of justice. 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 vehemently opposed
this petition on the ground that the eye-witnesses had no enmity with the
petitioner to falsely implicate him in this case. It has been contended that
the eye-witnesses have reasonably explained their presence at the spot at
the relevant time, which is quite natural and probable 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 mother and sister of the complainant lost their lives,
JAIL PETITION NO. 553 OF 2017
-: 4 :-
took place on 05.10.2011 at 07:30 am whereas the FIR was registered on
08:55 am i.e. just after one hour and 25 minutes of the occurrence. The
distance between the place of occurrence and the Police Station was 25
kilometers. 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. There was
hardly any time with the complainant or other witnesses to fabricate a
false story. The occurrence took place in the broad daylight and the parties
were known to each other, therefore, there is no chance of
misidentification. The ocular account in this case has been furnished by
Mst. Farhat Bibi, complainant (PW-2) and Mst. Allah Shafi (PW-3). These
PWs were residents of the same locality where the occurrence took place
and they along with the deceased were going towards fields to pick
cotton. 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. Mst. Farhat Bibi had sustained injuries during the
occurrence, which have fully been supported by the medical evidence
given by Dr. Shagufta Zahoor, who appeared as PW-5. The testimony of
this injured PW as well as the stamp of injuries on her person clearly
proves her presence at the place of occurrence. In the circumstances of
the case, both these witnesses were the only and most natural witnesses.
There is no denial to this fact that these PWs were related with the
deceased but merely for this reason they cannot be called "interested"
witnesses. The term "related" is not equivalent to "interested". A witness
may be called "interested" only when he or she derives some benefit in
seeing an accused person punished. A witness who is a natural one and is
JAIL PETITION NO. 553 OF 2017
-: 5 :-
the only possible eyewitness in the circumstances of a case cannot be said
to be "interested"." In the present case, the eye witnesses, one of whom
was an injured eye-witness 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. The Court is not
persuaded that their evidence is to be discarded merely because they
happen to be related witnesses. 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 her mother and sister. Substitution in such like
cases is a rare phenomenon. The medical 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 the deceased and injured 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. Minor
discrepancies and conflicts appearing in medical evidence 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. 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. We may point out that ‘discrepancy’ has to be
JAIL PETITION NO. 553 OF 2017
-: 6 :-
distinguished from ‘contradiction’. Contradiction in the statement of the
witness is fatal for the prosecution case whereas minor discrepancy or
variance in evidence will not make the prosecution case doubtful. It is
normal course of the human conduct that while narrating a particular
incident there may occur minor discrepancies. Parrot-like statements are
always discredited by the courts. In order to ascertain as to whether the
discrepancy pointed out was minor or not or the same amounts to
contradiction, regard is required to be made to the circumstances of the
case by keeping in view the social status of the witnesses and environment
in which such witnesses were making the statement. There are always
normal discrepancies, howsoever, honest and truthful a witness may be.
Such discrepancies are due to normal errors of observation, memory due
to lapse of time and mental disposition such as shock and horror at the
time of occurrence. Material discrepancies are those which are not normal
and not expected of a normal person. The recovery of weapon of offence
was inconsequential as admittedly no crime empty was recovered from
the place of occurrence. The complainant had alleged a specific motive
that the petitioner Aqil was married with her husband’s sister in exchange
of the complainant Mst. Farhat Bibi. When she was divorced by her
husband, the wife of the petitioner also left his house and went to her
parent’s house and due to this grudge, the petitioner committed murder
of complainant’s mother and sister. However, the learned High Court has
rightly disbelieved the motive by holding that the incident of divorce took
place two years prior to the occurrence, therefore, what happened
immediately before the occurrence, which provoked the petitioner to take
lives of two innocent persons, remained shrouded in mystery. Hence, the
motive part of the prosecution case does not inspire confidence so as to
term it is as a cause of the murder. So far as the acquittal of the three co-
accused of the petitioner is concerned, the case of the petitioner is
distinguishable to that of the acquitted co-accused simply for the reason
that none of them had caused any injury to any of the deceased. Keeping
in view the fact that motive has been disbelieved and the recovery is
inconsequential, the learned High Court has rightly taken a lenient view
and converted the sentence of death into imprisonment for life to meet
JAIL PETITION NO. 553 OF 2017
-: 7 :-
the ends of justice, hence, it leaves no room for us 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.
JUDGE
JUDGE
JUDGE
Islamabad, the
16th of February, 2023
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ ULAHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAQVI
JAIL PETITION NO. 557 OF 2016 AND
CRIMINAL PETITION NOs. 1391-I & 1392-I OF 2016
Against the judgment dated 03.10.2016 passed by the Lahore High Court,
Lahore in Criminal Appeal No. 1638/2013, Criminal Appeal No. 1724/2013
and Murder Reference No. 400/2013)
Muhammad Bashir
(In JP 557/2016)
Muhammad Essa (complainant)
(In Cr.Ps 1391-1 & 1392-1J2016)
...Petitioner(s)
VERSUS
The State etc
Muhammad Bashir etc
Saeed Ahmed etc
For the Petitioner(s):
For the Complainant:
*%A Pt
For the State:
Date of Hearing:
(In JP 55712016)
(In Cr.P. 1391-L/2016)
(In Cr.P. 1392-1/2016)
Respondent(s)
Mr. Muhammad Var Khan Daha, ASC
(In JP 557/2016)
Malik Matee UlIah, ASC
(In Cr.Ps 1391-1 & 1392-1/2016)
(Via video link from Lahore)
Mr. Ahmed Raza Gillani, Addl. P.G.
3 1. 10.2022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI, J.- Petitioner Muhammad Bashir
along with two co-accused was tried by the learned Additional Sessions
Judge, Arifwala in a private complaint under Sections 302/34 PPC for
committing murder of Muhammad Amin, brother of the complainant. The
same was instituted being dissatisfied with the investigation conducted by
the Police in case FIR No. 487 dated 2309.2010 registered under Sections
302/34 PPC at Police Station Saddar Arifwala, District Pakpattan Sharif. The
learned Trial Court vide its judgment dated 23.11.2013 convicted the
petitioner and co-accused Saeed Ahmed under Section 302(b) PPC and
JAIL PETITION NO. 557 OF 2016 AND
-: 2
CRIMINAL PETITION NOs, 1391-L & 1392-L OF 2016
while sentencing the petitioner to death, awarded punishment of
imprisonment for life to co-accused Saeed. They were also directed to pay
compensation amounting to Rs.200,000/- each or in default whereof to
further undergo SI for six months. However, the learned Trial Court
acquitted co-accused Abdul Hameed. In appeal the learned High Court
while maintaining the conviction of the 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. However, the learned High Court acquitted co-accused
Saeed Ahmed. Being aggrieved by the impugned judgment, the
petitioner/convict filed Jail Petition No. 557/2016 whereas the
complainant has filed Criminal Petition Nos. 1391-L & 1392-L/2016 before
this Court against acquittal of co-accused Saeed Ahmed and for
enhancement of the sentence of the petitioner/convict from
imprisonment for life to death.
2.
The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
"2. Unnecessary detailed apart, brief facts, as unfurled from the
private complaint are that on 23.9.2010 at about Sam, Muhammad Amin
(deceased) proceeded on motorcycle to Chak No. 87/EB in order to meet
one Hassan Bhatti; when he reached near the land of one Ghulam Rasool
accused persons Muhammad Basheer, Saeed Ahmed and Abdul Hameed,
all armed with pistols 30 bore came there. On hue and cry of Muhammad
Esa complainant, Manzoor Ahmed and Muhammad Sharif PWs, who
were watering the field near the place of occurrence attracted at the spot
and saw the occurrence. Abdul Flameed accused raised lalkara that they
would teach a lesson to Muhammad Amin for not giving 'Rishta' of his
niece to Muhammad Basheer. Muhammad Basheer fired with his pistol
30 bore, which hit on the right side of head above the right ear of
Muhammad Amin. Saeed Ahmed accused fired with his pistol 30 bore
which hit below the right ear on the head of Muhammad Amin, who after
receiving the fire shot fell down and succumbed to the injuries at the
spot. The accused persons fled away from the spot alongwith their
respective weapons.
Alleged motive behind the occurrence was that about six months
prior to the occurrence, Muhammad Bashir accused for himself
demanded Rishta of niece of Muhammad Amin deceased; Muhammad
Amin refused that Rishta to Muhammad Bashir who felt insult and due to
JALPETITION NO. 557 OF 2016 AND
-: 3
CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016
that grievance he alongwith his co-accused persons committed the
murder of Muhammad Amin.
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 and co-accused on
10.05.2011 under Sections 302/34 PPC to which they pleaded not guilty
and claimed trial. In order to prove its case the prosecution produced four
PWs and thirteen CWs. 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 his statement on oath under Section
340(2) Cr.P.0 in disproof of allegations leveled against him. However, he
produced some documentary 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 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 during
investigation, the Investigating Officer AD Sher (CW-12) had found the
petitioner not involved in the case and had declared him innocent.
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 recovery of weapon of offence in presence of a negative FSL report is
inconsequential. Contends that on the same set of evidence, the learned
High Court has acquitted co-accused Saeed Ahmed ,who was ascribed the
similar role but the petitioner has been convicted without there being any
justification. 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 assisted by learned
counsel for the complainant submitted that to sustain conviction of an
JAIL PETITION NO. 557 OF 2016 AND
-: 4
CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016
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 petitioner/convict does not deserve any leniency
by this Court, rather his sentence of imprisonment for life may be
enhanced to death. So far as the acquittal of co-accused Saeed Ahmed is
concerned, learned counsel for the complainant argued that the learned
High Court erred in law while extending benefit of doubt although the
same was not available keeping in view the solid, sound and cogent
evidence adduced by the prosecution.
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.
Undeniably, this occurrence has taken place at 05.00 am. in
the morning whereas the matter was reported to the police at 09:15 am.
on the same day while the inter se distance between the place of
occurrence and the Police Station is six miles. This aspect of the case
clearly reflects that the matter was reported to Police without any
inordinate delay. As the occurrence has taken place in the broad daylight
and it is not denied anywhere that the parties were not known to each
other, therefore, there is no chance of misidentification. The ocular
account in this case has been furnished by Muhammad Essa, complainant
(PW-1) and Manzoor Ahmed (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 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. Both these witnesses have
reasonably explained their presence at the place of occurrence by stating
that they were watering the fields at the distance of one kanal and saw
that Bashir Ahmed petitioner made fire shot with his pistol, which hit on
JAIL PETITION NO. 557 OF 2016 AND
-: 5
CRIMINAL PETITION l'4Os. 1391-L& 1392-L OF 2016
the right side of head of the deceased. 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 Learned counsel for the petitioner had argued that in site plan
the distance between the deceased and the petitioner has been
mentioned as five feet but there was blackening around the wound which
suggests that the fire was made from a distance of less than three feet and
the same contradicts the ocular version. However, this argument is of no
help to the petitioner because there are various factors which affect
blackening e.g. surface of target i.e. wet or dry and the body structure of
the victim and the quality of gun powder. Probably, the accused would
have extended his arm to shot fire at the deceased. The normal length of
the arm of an average man is more than two feet. With this if we add the
length of the weapon i.e. .30 bore pistol, the distance between the
accused and the deceased remains less than three feet. The deceased was
not a static object and he could have changed his position at the time of
occurrence. Even otherwise it is settled law that where ocular evidence is
found trustworthy and confidence inspiring, the same is given preference
over medical evidence. 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 the distance
between the deceased and the assailant and the points where such fire
shots appeared to have landed and it becomes highly improbable to
mention the distance correctly and the location of the fire shots with
exactitude. As far as the question that the witnesses of the ocular account
are related to the deceased, therefore, their testimonies 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. 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
JAIL PETITION NO. 557 OF 2016 AND
—: 6
CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016
and let off the real culprit. Such reasoning does not appeal to reason.
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. 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. It was argued by learned counsel for
the petitioner that during initial investigation, the Investigating Officer,
who appeared as CW-12 had found the petitioner not involved in the
crime. However, this argument is also of no avail to the petitioner simply
for the reason that All Sher (CW-12) was an ASI and under the law, he was
not authorized to investigate the murder case falling within the ambit of
Section 302 PPC. Even otherwise, the statement of the said AS! shows that
his finding was based on hearsay evidence and the same was not
concurred by the subsequent Investigating Officer, who took the charge
later on i.e. Qazi Abdul Basit, Inspector/SHO (CW-13). The said Qazi Abdul
Basit, SHO categorically stated that he investigated the case under the
supervision of SE', Regional Investigation Branch and found the petitioner
involved in the case. His finding was verified by Regional Investigation
Branch. The learned High Court has rightly disbelieved the motive by
holding that a specific motive had been attributed towards the petitioner
JAIL PETITION NO. 557012016 AND
-: 7
CRIMINAL PETITION NOs, 1391-L & 1392-L OF 2016
that he wanted the hand of niece of Muhammad Amin and on refusal he
took his life. However, name and parentage of niece of Muhammad Amin
deceased whose hand had allegedly been demanded by the petitioner has
not been introduced in the investigation as well as before the trial court.
No evidence could also be placed on record to prove the motive. So far as
the recovery of weapon of offence i.e. .30 bore pistol is concerned, the
same is inconsequential in presence of negative report of Punjab Forensic
Science Agency. However, even if motive and recovery is discarded, 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 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.
7. While adjudicating Criminal Petition Nos, 1391-L & 1392-
L/2016 relating to the finding of High Court whereby co-accused of the
petitioner namely Saeed Ahmed was acquitted of the charge while
extending benefit of doubt, it is suffice to point out that the name of the
said Saeed Ahmed was not mentioned in the crime report. However, his
name was brought in through a private complaint, which was lodged after
lapse of three months wherein his name was mentioned for the first time.
The statement of the prosecution witness namely Manzoor Ahmed
recorded on 23.09.2010 under Section 161 Cr,P.C. also does not disclose
the name of the said co-accused. The learned High Court while
adjudicating the matter and taking into consideration all the material
placed on the record gave a finding of acquittal in favour of Saeed Ahmed,
which seems to us to be well reasoned and the same does not invite any
interference on judicial premises. The crux of the argument that there was
a confessional statement on the part of all the co-accused is of no avail as
the same was made jointly, which has no legal sanctity. Even otherwise,
the same is inadmissible in evidence, hence, the order of acquittal is
justified based upon sound judicial reasoning. As far as the question of
enhancement of sentence awarded to petitioner Muhammad Bashir is
JAIL PETITION NO. 557 OF 2016 AND
-:
CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016
concerned, the learned High Court has already taken note of it and passed
an appropriate order while converting the sentence of death into
imprisonment for life, which seems to be meeting all requirements of
principles enunciated by this Court for the safe administration of criminal
justice.
8. 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
31st of October, 2022
Approved For Reporting
Il.iuiitpiI
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Javed Iqbal
Mr. Justice Raja Fayyaz Ahmed
Mr. Justice Ch. Ijaz Ahmed
Mr. Justice Sayed Zahid Hussain
Mr. Justice Muhammad Sair Ali
JAIL PETITION NO. 56 OF 2005
(On appeal against the judgment dated 11.9.2003 passed by the
Peshawar High Court, Abbottabad Bench in Crl. Appeal No. 61/2001)
Shah Hussain
….
PETITIONER
VERSUS
The State
….
RESPONDENT
For the petitioner:
Mr. Zulfiqar Khalid Maluka, ASC
For the State:
Syed Tahaar Hussain, ASC
(on behalf of A.G., NWFP)
Amicus Curiae:
Syed Iftikhar Hussain Gillani, Sr.ASC
Mr. Muhammad Akram Sheikh, Sr.ASC
(Assisted by Barrister M. R. Kamran Sheikh, Adv.)
Sh. Zameer Hussain, Sr.ASC
Ms. Naheeda Mehboob Elahi, DAG
Qazi Muhammad Amin, Addl.AG
Mr. Muhammad Naeem Sheikh, ASC
(With permission of the Court)
Dates of hearing:
7th & 11th May, 2009
----
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. - This petition for
leave to appeal has been filed through jail against the judgment dated
J.P.56/2005
2
11.9.2003 passed by the Peshawar High Court at Abbottabad Bench in Cr.
A. No. 61/2001.
2.
The petitioner, his brother Akhtar Hussain and co-accused
Muhammad Shaukat were tried by the Sessions Judge/Zila Qazi, Kohistan
at Dassu for committing murder of one Farman Ali, causing injuries to
Muhammad Siffat Khan (injured PW) and for the offence of Haraabah in
respect of jeep bearing registration No.GLT-4406. They were convicted
under section 392 read with section 34 PPC and section 20 of the
Offences Against Property (Enforcement of Hadd) Ordinance, 1979 and
were sentenced to 10 years’ R.I. and a fine of Rs.25,000/- each, or in
default of payment thereof, to undergo one year R.I. They were also
convicted under section 394 read with section 34 PPC and section 20 of
the Offences Against Property (Enforcement of Hadd) Ordinance, 1979
and were sentenced to imprisonment for life with a fine of Rs.25,000/-
each, or in default thereof, to undergo one year R.I. In case of recovery of
fine, 3/4 of it was ordered to be paid to the injured PW Muhammad Siffat
Khan as compensation. Under section 302(b)/34 PPC, accused Shaukat
was convicted and sentenced to death while the petitioner and his brother
Akhtar accused were convicted and sentenced to imprisonment for life
each. All three convicts were also ordered to pay a sum of Rs.100,000/-
each as compensation to the legal heirs of deceased Farman Ali, or in
default thereof, to suffer S.I. for six months. Their sentences were ordered
to run consecutively. On a reference under section 374, Cr.P.C. and
appeal filed by the convicts, the Peshawar High Court, vide judgment
dated 11.9.2003, allowed the appeal of Akhtar Hussain, set aside his
conviction and sentence and acquitted him of the charges but dismissed
the appeal of the petitioner and maintained his conviction and sentence.
J.P.56/2005
3
Accused Shaukat died during the pendency of appeal and the murder
reference against him stood abated.
3.
The FIR of the case was registered on 6.9.1999 at the report
of Hafiz Janas Khan, SHO, P.S. Dubair, who, during his usual patrolling,
found jeep No.GLT-4406 at the Karakurram Highway, which appeared to
have met an accident. On search of the vehicle, he found a .30 bore pistol
bearing No.5901-B loaded with magazine containing four rounds, an empty
cartridge of .30 bore and blood. Off the roadside nearby, he found a dead
body of an unknown person. He noticed one entry wound on the right
eyebrow on the scalp with an exit wound near it. There were other injuries
on the head, which showed that the dead body had been thrown down
from somewhere. He registered case under section 302/34 PPC, prepared
the injury sheet and inquest report and sent the dead body to the RHC
Pattan for autopsy.
4.
Sole eyewitness of the occurrence was PW8 Muhammad
Siffat Khan, driver of the jeep. In his deposition, he stated that on 6.9.1999
two boys, namely, Shaukat and Shah Hussain (petitioner and co-accused)
came to him and hired the jeep for the journey from Gilgit to Basham. He
took Farman Ali (deceased) with him as a companion for the aforesaid
journey. The petitioner sat with him on the front seat while the other took
the back seat with Farman Ali. When they reached near a hotel at a
deserted Nallah, he heard a fire shot behind him. He parked the vehicle at
the roadside and found that Farman Ali had been shot by Shaukat.
Thereafter Shaukat came to him and fired a shot at him injuring him on the
neck and right shoulder. Shaukat wanted to fire more shots, but his pistol
did not work. The petitioner pushed the injured PW out of the vehicle and
occupied the driving seat. The accused threw the dead body of Farman Ali
J.P.56/2005
4
off the roadside and took away the vehicle towards Basham. He was lying
there in an injured condition when a bus came and he was taken to
Basham Hospital. At the identification parade held in the jail premises,
petitioner and Muhammad Shaukat were identified. Recoveries included
the aforesaid jeep, a pistol, two empty cartridges, five .30 bore live
cartridges, a wrist watch and bloodstained clothes of the petitioner. The
crime weapon and two empty cartridges were to the firearms expert, which
were found to have been fired from the said pistol. The autopsy of Farman
Ali deceased showed firearm injuries on his body while the medical
examination report of injured PW Siffat Khan showed firearm injuries on
his person.
5.
The petitioner admitted, in his statement, the occurrence. With
minor discrepancies, he narrated the prosecution story as given by Siffat
Khan PW, noted above. He stated that Shaukat accused fired at Farman
Ali deceased and Siffat Khan PW with a .30 bore pistol. He also stated that
after the snatching of the vehicle from Siffat Khan PW and after throwing of
the dead body of Farman Ali deceased off the jeep, he drove the vehicle
towards Basham when it met an accident in which he and Shaukat
accused got injured. They spent the night in a deserted place. In the
morning they met an old man named Samandur whom Shaukat accused
told that they (Shaukat and the petitioner) were searching their brother. On
their way back from that place, they were arrested by the police. Clearly,
petitioner’s statement is inculpatory in nature. Though at the trial, he
retracted from his above statement, yet the same is corroborated on
material particulars by the ocular account of the incident furnished by PW8
Siffat Khan, mentioned above. Likewise, the recovery of crime weapon
coupled wi th the medical evidence also corroborated the prosecution case.
J.P.56/2005
5
In law, the confessional statement of the petitioner was sufficient for his
conviction and sentence. Hence, no case for interference with the
impugned judgment of the Peshawar High Court is made out qua
conviction and sentence of the petitioner.
6.
During hearing of the petition on 6.5.2009, this Court noticed
that the sentences of the petitioner, namely, 10 years’ R.I., and
imprisonment for life on two counts, were ordered to run consecutively, the
benefit of section 382-B, Cr.P.C., was not given to him and the remissions
granted by the Federal and the Provincial Governments during his pre-
sentence custody period were also not allowed to him. Thus, we
considered it a question of public importance relating to the enforcement of
Fundamental Right of a prisoner as guaranteed under Article 9 of the
Constitution and passed the following order on the said date: -
“2.
Learned counsel for the petitioner contends that learned
trial Court has convicted and sentenced the petitioner on
various counts, which were ordered to run consecutively
whereas the Courts, while awarding sentences on different
counts, normally order the same to run concurrently.
Secondly, in view of the law laid down in Haji Abdul Ali v. Haji
Bismillah (PLD 2005 SC 163), the petitioner is not entitled to
any remission granted by the President of Pakistan or the
Provincial Government during the period he remained
confined in jail as under-trial prisoner when he was neither
convicted of any offence nor was undergoing any sentence.
3.
It is to be noted that the petitioner has been in custody
since 1999 and, prima facie, in the light of the law laid down in
the case reported as Ghulam Murtaza v. State (PLD 1998 SC
152), the court is under an obligation to take into consideration
the provisions of section 382-B, Cr.P.C. and in absence of
special circumstances disentitling the accused, exercise its
discretion in favour of the accused by ordering that such
period shall be counted towards his sentence of imprisonment.
4.
In the instant case, the petitioner has neither been
extended the benefit of section 382-B Cr.P.C., nor is entitled
to any remission in view of judgment of two Hon’ble Judges in
Abdul Ali’s case (supra). Further, in the said case, the
judgment of a three member Bench in case of Ghulam
Murtaza (supra) was not considered. Another aspect of the
matter is that in another judgment delivered by a Bench of four
J.P.56/2005
6
Hon’ble Judges in the case reported as Human Rights Case
No.4115 of 2007 (PLD 2008 SC 71), the view taken in the
case of Haji Abdul Ali (supra) has been reaffirmed. It may be
noted that if a prisoner/convict remains in custody, his right to
life under Article 9 of the Constitution remains available to him,
therefore, such convicts should be dealt with in a manner in
which they enjoy their fundamental right to life. This is not the
only one case in which great difficulties and hardships have
arisen for the prisoner but there are so many other cases
wherein the prisoners are suffering in jail on account of delay
in the trial of their cases for which generally they are not
responsible in any manner. Therefore, we consider it
appropriate to re-visit the judgments in the cases of Haji Abdul
Ali and the Human Rights Case No. 4115 of 2007 (supra). The
office is directed to fix this matter before a Bench of more than
five Hon’ble Judges. Adjourned to 7.5.2009. Copy of this order
be sent to the learned counsel appearing on Court’s call.”
7.
The learned counsel for the petitioner referred to the
provisions of section 382-B, Cr.P.C., the corresponding provisions of
section 428 of the Indian Code of Criminal Procedure, 1973 and section 67
of the U.K. Criminal Justice Act 1967, as amended by the Powers of the
Criminal Courts (Sentencing Act), 2000 and particularly Ghulam Murtaza’s
case (supra), wherein it was held that the trial Court was under an
obligation to take into consideration the pre-sentence period spent by a
convict in jail, and in absence of special circumstances disentitling the
accused, exercise its discretion in favour of the accused by ordering that
such period should be counted towards his sentence of imprisonment.
However, the learned counsel contended that in the instant case neither
the trial Court extended the benefit of section 382-B, Cr.P.C., to the
petitioner nor he was held entitled to any remission.
8.
The learned counsel for the petitioner cited judgments in the
cases of Javed Iqbal v. State (1998 SCMR 1539), Muhammad Saleem v.
State (1996 P.Cr.L.J. 1598), Ramzan v. State (PLD 1992 SC 11),
Mukhtiar-ud-Din v. State (1997 SCMR 55), Muhammad Rafiq v. State
(1995 SCMR 1525), Aamir Ali v. State (2002 YLR 1902) at 1912, R. Wust
J.P.56/2005
7
(2001) 1 SCR 455 = 2000 SCC 18 to argue that the grant of benefit of
section 382-B, Cr.P.C., was a rule while its denial an exception, therefore,
the same could only be withheld if the trial Court concluded, on taking into
consideration that the accused for strong reasons was not entitled to the
said benefit. He also referred to an article “Pre-sentence custody and the
determination of sentence: a framework for discussion” by Allan Manson of
the Faculty of Law, Queen’s University, Kingston, Ontario. He further
argued that section 382-B, Cr.P.C. had received beneficial interpretation
from the Superior Courts, which was apparent from the following well-
settled propositions: -
(1)
If the Court did not record reasons in declining the benefit of
section 382-B, Cr.P.C., no presumption could be raised in
favour of the Court;
(2)
The reduction of the sentence of a convict by the under-trial
detention period exploded the myth that the pre-sentencing
detention period and the post-sentencing period were different
and the conviction and sentence could not be ante-dated
because it blurred the line between the pre-sentencing and
post-sentencing periods;
(3)
The period spent in jail prior to formal conviction and sentence
was punishment;
(4)
Once the benefit of section 382-B, Cr.P.C. was extended to a
convict, the remissions granted by any authority could not be
withheld on any ground whatsoever;
(5)
The benefit of this provision could be extended to convicts
even after the passing of judgment by the High Court or the
Supreme Court of Pakistan; and
(6)
The Courts had held that the application seeking the said
benefit would neither be review nor alteration of the main
judgment.
9.
Syed Iftikhar Hussain Gillani, Senior ASC, appearing as
amicus curiae, opened up his arguments with the submission that the
J.P.56/2005
8
extension of benefit under section 382-B, Cr.P.C., and the grant of
remission granted during the under-trial period of a prisoner were inter-
twined and interlinked and could not be dealt with in isolation from each
other under any principle of interpretation as was done in the judgment in
Abdul Ali’s case (supra). To support his stance that the trial Court while
taking into consideration provisions of section 382-B, Cr.P.C., was also
under an obligation to grant the benefit of remissions granted by any
authority under the Constitution or any statute during the pre-sentence
period spent in jail, he dilated upon the terms ‘conviction’ and ‘sentence’ by
quoting passages from the book titled “Access to Justice in Pakistan” by
Justice Fazal Karim, a former Judge of the Supreme Court of Pakistan. He
also referred to the cases reported as Muhammad Rafiq v. State (1995
SCMR 1525), Qadir v. State (PLD 1991 SC 1065), Ramzan v. State (PLD
1992 SC 11), Liaqat Hussain v. State (PLD 1995 SC 485), Mukhtiar-ud-Din
v. State (1997 SCMR 55), Ghulam Murtaza’s case (supra), Javed Iqbal v.
State (1998 SCMR 1539) and Ehsan Ellahi v. Muhammad Arif (2001
SCMR 416). He further submitted that if a convict whose trial was
prolonged was not treated at par with those convicts whose trials were
concluded expeditiously, then four consequences would follow: -
(1)
It would be discriminatory and violative of the equal protection
clause. Convicts could not be classified on the basis of early
and delayed conclusion of trial. It would be violative of Article
9 and Article 25 of the Constitution as well. Fundamental
rights are available to prisoners (AIR 1974 SC 2092);
(2)
It would militate against the rational treatment of pre-sentence
detention period. Once a Court of competent jurisdiction under
the provisions of section 382-B, Cr.P.C., declares and holds
that the sentence begins from the date of arrest, this is a
lawful order passed by a competent court and the sentence is
to be treated as such for all purposes, not for certain purposes
only;
(3)
As soon as the Court directed that the benefit of section 382-
B, Cr.P.C., should be granted, which practically meant that the
sentence was reckoned from the date of arrest, then the
benefit of remissions granted during that period would be
J.P.56/2005
9
admissible. However, where the benefit of section 382-B,
Cr.P.C., was declined, remission would not be granted.
(4)
It would provide a tool in the hands of unscrupulous public
functionaries to pick and choose amongst the prisoners.
10.
Other submissions of Mr. Gillani were: -
(1)
Sentencing was the power of the Court and primarily was a
matter of judicial discretion. If the Court, on the facts and
circumstances of a particular case, came to the conclusion
that the benefit of section 382-B, Cr.P.C. would be granted, no
other authority had the power to negate it by any
methodology;
(2)
Even in computing 2/3rd of the substantive sentence, if the
Court had granted the benefit of section 382-B, Cr.P.C., it was
the Court’s order that would prevail;
(3)
The ratio of Shahid Nabi Malik’s case (PLD 1997 SC 32) and
Mahmood Khan Achakzai’s case (PLD 1997 SC 426) was that
higher rights, e.g. independence of judiciary would prevail;
(4)
The Court alone had the power to sentence. When an order is
passed by the judicial organ of the State in the matter of
admissibility of any remission, the Government had no power
to say that such remission would not be available. Anything
flowing from the Court could only be rectified by the higher
court;
(5)
For months the prisoners involved in petty cases were not
produced before the Courts. The prisoners should not suffer
for failure of the state machinery;
(6)
While interpreting certain provisions of law, legalistic approach
should be blended with equity and compassion;
(7)
Interpretation was an art and not a science, therefore, the
Court was not to follow a pre-determined path. Basic rule of
interpretation applicable to this case was that the legislative
intent to do more good and to do justice was to be ascertained
through the interpretative process; and
(8)
The pardon granted to a prisoner serves God’s purpose –
Islamic jurisprudence.
J.P.56/2005
10
Mr. Gillani further stated that the Indian law was less beneficial. The Indian
Courts were not required to consider anything at all. In Pakistan, the
moment the benefit of section 382-B, Cr.P.C., was given, the Court was
involved. Under the Indian law, it was not. Here, Muhammad Rafiq’s case
(supra) was to be improved. The sentence would become operative from
the date of arrest, and not from the date of conviction. He lastly submitted
that the question of exclusion of certain categories of convicts involved in
certain heinous offences from the benefit of remission (e.g. NAB, anti-
terrorism cases, kidnapping, abduction for ransom, karo kari, etc.) should
be considered in appropriate cases separately.
11.
Mr. Muhammad Akram Sheikh, Sr. ASC appeared as amicus
curiae. He submitted that once the pre-sentence period was taken into
consideration, the grant of remissions from the date of arrest of the convict
was peripheral issue and the same could not be withheld. Reduction of
sentence by the amount of pre-sentence period in jail meant that a
convict’s pre-sentence period was taken into consideration as a
punishment towards his substantive sentence. Refusal to grant the
remissions was discriminatory. He submitted that in pursuance of the
judgment in Abdul Ali’s case (supra), all the remissions earned by the
prisoners under different categories and recorded in their history ticket
were confiscated. The said remissions could not be revoked under the
principle of locus poenitentiae unless a prisoner was guilty of practicing
fraud. According to him, it was a right, which should be available to all the
convicts. He pleaded that the pathetic conditions prevalent in jails, the
suffering and the miseries of jail inmates when juxtaposed with the ‘dignity
of man’ called for a rational treatment of remissions being granted during
incarceration of a person as an under-trial prisoner. He submitted that law
J.P.56/2005
11
was a very tiny branch of logic. If the substantive sentence was being
reduced, it meant that everything that happened during that period was
also to be taken into consideration. If a remission was granted on the eve
of Eid, or for that matter on any other similar occasion, the benefit of
remission should be available to all the prisoners, who were confined in
prison as under-trial prisoners, whether they were convicted on a day prior
to Eid or a day after Eid. He submitted that as held by this Court in the
case of Abdul Malik’s case (supra), the power of the President to grant
pardon, remission, etc., under Article 45 of the Constitution could not be
regulated by any sub-constitutional legislation, e.g., the Pakistan Prison
Rules, or the Jail Manual. The restriction under the said rules to serve a
specified minimum period would not be applicable to such cases. He
pointed out that the system of grant of remissions in India was absolutely
different from that of Pakistan. So far as the liberty element was
concerned, both were supportive otherwise the system was different. If a
person was considered to be incarcerated, he should be deemed to be a
sentenced prisoner and should also be deemed to be entitled to
remissions. He submitted that the aims and objects of punishment and the
circumstances in which offences were committed were required to be kept
in mind, as was done by Omar (RA), the Second Caliph, when he
suspended the sentence of Qata-e-yad (cutting of hands in certain
categories of theft cases) during the times of famine. Lastly, he submitted
that the examination of the question of remission in NAB, ATC, etc., cases
may be postponed to an appropriate time. He also filed written
submissions.
12.
Sh. Zamir Hussain, Sr. ASC also appeared as amicus curiae.
He submitted that there was no ambiguity in the language employed in
J.P.56/2005
12
section 382-B, Cr.P.C. The intent and purpose of the legislation was clear.
Section 428 of the Indian law referred to ‘investigation’, ‘inquiry’ and ‘trial’
while the Pakistani law only referred to the trial period. He submitted that
under the Indian law, the period was categorically set off, but under the
Pakistani law the trial Court was required to consider it while passing the
sentence. The benefit could be withheld in certain cases. Resultantly, the
approach and treatment of the issue differed from Judge to Judge and
from Court to Court. Here it was ‘consideration’, there it was clear ‘set off’.
He submitted that section 382-B, Cr.P.C. may be interpreted in line with
the Indian and the English law. In the interpretative process, the Court was
justified to supply the omission, if any, in an enactment, but re-writing of
the law was not permissible. He stated that on the strength of Muhammad
Rafiq’s case, section 382-B, Cr.P.C., could be interpreted to include
remissions granted during the pre-sentence period, but not, if the view in
Abdul Ali’s case was not overruled. He stated that there were different
categories of prisoners under the Prison Rules, e.g. criminal prisoners,
convicted criminal prisoners. The word ‘remit’ indicated that it was a post
sentence phenomenon, therefore, remissions were not covered under
section 382-B, Cr.P.C. By way of hypothesis he elucidated that in a case,
FIR was registered on 1.1.1990, the accused was arrested on 2.1.1990
and sent to judicial lock up on 20.1.1990. His trial concluded after seven
years and he was sentenced to seven years. If the benefit of section 382-
B, Cr.P.C., was allowed and the remissions granted in that period were
also allowed, he would not suffer one day in prison. He stated that there
was judicial consensus that judgment of sentence could not be antedated.
Lastly, he submitted that given the language of Article 9 of the Constitution,
the right to life was always subject to law.
J.P.56/2005
13
13.
Ms. Naheeda Mahboob Elahi, learned Deputy Attorney
General submitted that the use of word ‘shall’ in place of the word ‘may’ by
the legislature had made it obligatory upon the Court to address itself to
the issue of pre-sentence period spent by a convict in jail. She submitted
that as compared to section 428 of Indian law, section 382-B, Cr.P.C. was
not happily worded. She stated that the remission granted by the President
would prevail.
14.
Qazi
Muhammad
Amin,
Additional
Advocate
General
submitted that the provisions of section 382-B, Cr.P.C., were never
considered in the backdrop of Articles 9 and 25 of the Constitution. The
issue was being examined from this angle for the first time in the present
case under order dated 6.5.2009. He referred to the case of T.V.
Vatheeswaran v. State of Tamil Nadu [AIR 1983 SC 361(2)] wherein it was
held that the prison walls did not keep the fundamental rights out. He
contended that an accused was taken into custody for a purpose, i.e. on a
specific charge and if ultimately the prosecution was able to drive home
the charge, then he would be convicted and sentenced. He stated that if
any benefit was available under the law from the date of arrest, the same
could not be denied, particularly the rights under the Constitution could not
be withheld. However, he submitted that there was no distinction between
pre-sentence or post sentence periods of detention. Detention was
detention. According to him, the entire concept was based on the
classification of punitive and non-punitive detention. The notional
distinction between ‘punitive’ and ‘non-punitive’ had been abolished. To
give excessive remissions would not be a balanced approach. It was for
the Government to grant remissions or not. If the government was of the
opinion that under the prevailing law and order situation it was not
J.P.56/2005
14
advisable to do so, the government was not under compulsion to grant any
remission.
15.
Syed Tahaar Hussain, ASC appeared for the State (on behalf
of the Province of NWFP). He submitted that the ‘wish’ of the Supreme
Court, such as the one expressed in Muhammad Rafiq’s case (supra) was
the highest piece of judicial verdict, which must be honoured. He submitted
that section 382-B, Cr.P.C. was an important piece of legislation. Best
word ‘consideration’ was used in it, which was the main issue. Not only the
Court should not ignore the day and time spent by a person in jail, but the
day and time when the convict committed the offence should also be kept
in view. It was a rational provision. Its meaning was clear. The Court was
bound to take into consideration the period spent by the accused in jail
during trial and was to assign cogent reasons if it decided not to consider
it. It was mandatory for the trial Court, but discretionary for the Supreme
Court. If the benefit was not given by the trial Court or the High Court, the
Supreme Court may direct that such benefit be given. In support of his
submissions, he referred to the cases reported as Ghulam Sarwar v. State
(PLD 1984 SC 218), Ahmed Yar v. State (1985 SCMR 1167), Liaqat
Hussain v. State (PLD 1995 SC 485), Noor Muhammad v. State (1995
SCMR 671), Muhammad Rafiq (supra) and Mukhtiar-ud-Din (supra).
16.
With the permission of the Court, Sh. Muhammad Naeem,
ASC submitted that the provisions of section 382-B, Cr.P.C. should be
interpreted liberally to include remissions so as to give relief to the
prisoners as was done by this Court by expanding its jurisdiction in the
case reported as Al-Jehad Trust v. Federation of Pakistan (1999 SCMR
1379) to secure the rights of the people of Northern Areas.
J.P.56/2005
15
17.
We have heard the learned counsel for the petitioner, the
learned Senior Advocates appearing as amicus curiae and the learned
Deputy Attorney General for Pakistan and have examined the case law
cited at the bar.
18.
The learned counsel for the petitioner vehemently contended
that in absence of sound reasons the benefit of section 382-B, Cr.P.C.,
had been withheld illegally. He submitted that the petitioner in the instant
case was sentenced to 10 years’ R.I. and imprisonment for life on two
counts. His sentences were ordered to run consecutively. The benefit of
section 382-B, Cr.P.C., was not given to him and the remissions of the pre-
sentence custody period were also not allowed. He prayed that not only
the petitioner may be granted the said benefit, but he may be allowed the
remissions granted in the said period and the sentences awarded to him
may also be ordered to run concurrently.
19.
In this background, first question being considered by this
Court is whether the petitioner is entitled to the benefit of section 382-B,
Cr.P.C., and if so, whether he would be entitled to the remission granted
by the President of Pakistan, or the Provincial Government or any other
authority? As the issue pertains to the interpretation of section 382-B,
Cr.P.C., the same is reproduced below: -
“382-B. – Period of detention to be considered while awarding
sentence of imprisonment. – Where a court decides to pass a
sentence of imprisonment on an accused for an offence, it [shall]1
take into consideration the period, if any, during which such an
accused was detained in custody for such offence.”
20.
The provisions of section 382-B, Cr.P.C., have undergone
scrutiny by the superior Courts and have been interpreted in a plethora of
cases. In Qadir v. State (PLD 1991 SC 1065), this Court has held that
1 Section 382-B, Cr.P.C. was added by the Law Reforms Ordinance, 1972. The word “shall” was
substituted for the word “may” by the Criminal Law Amendment Ordinance (Ordinance No. LXXI) of
1979.
J.P.56/2005
16
section 382-B, Cr.P.C., is a beneficial provision and is to be construed
liberally. Relevant observation reads as under: -
“It may be noted that the mandatory provision has been
introduced because of the realization that an accused person
is entitled to be put to trial or released on bail. If he is not to be
released on bail, he must be put to trial. If for any reason the
State is unable to put him up for trial it is only fair that during
the period he is detained to await his trial that period is taken
into consideration in computing the sentence of imprisonment
given to him. Another point to be noted is that the provision
occurs in a criminal statute which requires strict construction
as far as it imposes restrictions and punishments. Beneficial
provisions need to be construed liberally. These are axiomatic
principles.”
21.
In Ramzan v. State (PLD 1992 SC 11), the Court adhered to
the exposition of law made in Qadir’s case (supra). In Liaqat Hussain v.
State (PLD 1995 SC 485), it was noted that the trial Court or the Federal
Shariat Court had not pointed out any circumstance which would justify the
denial of the extension of the benefit of section 382-B, Cr.P.C., to the
appellant in the said case. Thus, while maintaining the conviction and
sentences of the appellant awarded by the trial Court and affirmed by the
Federal Shariat Court, the Court directed that the benefit of section 382-B,
Cr.P.C. would be extended to the appellant.
22.
In Muhammad Rafiq’s case (supra), this Court made a
threadbare examination and discussion of the provisions of section 382-B,
Cr.P.C. After considering the corresponding provisions in the English Act
(section 67) and the Indian Act (section 428), the Court held as under: -
“9.
Section 67 of the English Act and section 428 of the
Indian
Act
provide
expressly
that
the
sentence
of
imprisonment imposed by the Court shall stand reduced by
the pre-sentence period spent in jail (the English Act) or which
is the same thing, that the pre-sentence period shall be set off
against the term of imprisonment imposed on him (the Indian
Act). The English and the Indian Acts do not, therefore, leave,
as regards the pre-sentence period spent in jail, anything to be
done by the sentencing Court. Instead, they direct chat the
period so spent in jail shall automatically count towards the
J.P.56/2005
17
sentence of imprisonment imposed by the Court and the
sentence of imprisonment shall stand reduced accordingly.
10.
We wish that section 382-B of the Code were also
couched in language as clear and unambiguous as the
sections in the Indian and the English enactments are. If it
were, then it would be right to say, as has become customary
to do, that the convict should get the benefit' of that section.
But unfortunately it does not.
23.
In Mukhtiar-ud-Din v. State (1997 SCMR 55), Saiduzzaman,
J., as he then was, speaking for the Court held as under: -
“(i)
That strictly speaking section 382-B, Cr.P.C. is attracted to,
when a Court decides to pass a sentence either in the trial or
appellate or revisional proceedings against an accused for the
offence charged with. In other words, if the sentence has already
been passed by a trial Court and the matter is brought before an
Appellate Court, strictly speaking, section 382-B, Cr.P.C. is not
applicable. However, there is no legal bar and that an Appellate
Court is competent to grant the benefit of the above provision to a
convict. Furthermore, a convict will be entitled to agitate before the
Appellate Court the question, that the trial Court had failed to
consider the above provisions while imposing the sentence on him
or that he was wrongly denied the benefit of the same, in such a
case, the Appellate Court would be bound to examine the above
question and to rectify the error/mistake, if any, committed by the
trial Court.
(ii)
That if an Appellate Court substitutes death sentence to that of
imprisonment for life or rigorous imprisonment for a certain period, it
is obligatory on its part to take into consideration above section
382-B, Cr.P.C., for example, if a High Court in a murder
appeal/reference alters conviction from section 302, P.P.C. to that
under section 304. Part 1, P.P.C. and substitutes death sentence to
that of rigorous imprisonment of 7 or 10 years, it is mandatory for it
to advert to the question of extending the benefit of the above
provision to the convict while imposing above sentence.
(iii)
That though under section 382-B, Cr.P.C. the Court has
discretion not to grant the benefit of the same to a convict, but this
discretion is to be exercised judiciously on sound judicial principles
inter alia as explained hereinabove in Para 9.
(iv)
That since the provision of section 382-B, Cr.P.C. is
mandatory, in the absence of express manifestation of the
application of the mind by the Court that it has addressed itself to the
above provision at the time of imposing sentence on the convict
concerned, no presumption can be raised in favour of the Court of
having adverted to the same.
J.P.56/2005
18
24.
In the case reported as Ghulam Murtaza v. State (PLD 1998
SC 152), the question before the Court was whether benefit of section 382-
B, Cr.P.C., could be extended to the appellant who was awarded life
imprisonment by converting the sentence of death awarded by the trial
Court. After a survey of the case law, the Court answered the question in
the affirmative as under: -
“Unless there are any exceptional circumstances in a case
which the Court considers sufficient for the purpose of denying
the benefit of section 382-B, Cr.P.C., to the accused, the
Court in all other cases, while awarding sentence, will take
into consideration the period during which the accused
remained in detention during his trial, and this period will
normally be adjusted in the sentence awarded to the accused
by allowing him the benefit of section 382-B, Cr.P.C.”
25.
In Javed Iqbal v. State (1998 SCMR 1539), this Court dealt
with the issue from yet another angle. The judgment introduced a new
concept when it held as under: -
“It may be noted that the mandatory provision has been introduced
because of the realization that an accused person is entitled to be
put to trial or released on bail. If he is not to be released on bail, he
must be put to trial. If for any reason the State is unable to put him
up for trial it is only, fair that during the period he is detained to await
his trial that period is taken into consideration in computing the
sentence of imprisonment given to him. Another point to be noted is
that the provision occurs in a criminal statute which requires strict
construction as far as it imposes restrictions and punishments.
Beneficial provisions need to be construed liberally. These are
axiomatic principles.”
In Ehsan Ellahi v. Muhammad Arif (2001 SCMR 416) this Court approved
earlier decisions on the admissibility of benefit of section 382-B, Cr.P.C.
26.
Some of the propositions expounded in the above judgments
are noted here so as to adequately highlight the implications of, and bring
home the manner, in which the provisions of section 382-B, Cr.P.C., were
to be applied. They are: -
(1)
While passing sentence, the Court, in the absence of special
circumstances disentitling the accused to have his sentence of
imprisonment reduced by the period spent in jail during the
J.P.56/2005
19
trial, exercise its discretion in favour of the accused by
ordering that such period shall be counted towards his
sentence
of
imprisonment
or
that
the
sentence
of
imprisonment shall be treated as reduced by that period;
(2)
The discretion has to be exercised with the intention to
promote the policy and objects of the law;
(3)
Indeed, the Court will use its good sense in determining the
circumstances in which the discretion will not be exercised in
favour of the accused. But as the discretion is a judicial
discretion, the order of the Court must show that the
pre-sentence period has been taken into consideration and if
the Court thinks that the sentence should not be reduced by
the period spent in prison during the trial, the Court must give
reasons for so thinking;
(4)
The word ‘shall’ is intended to make the provision mandatory
in the sense that it imposes a duty to do what is prescribed
admits of no doubt whatever;
(5)
The provision occurs in a criminal statute which requires strict
construction as far as it imposes restrictions and punishments.
Beneficial provisions need to be construed liberally”. In any
event, the fact that when the section was first enacted the
word used was ‘may’ and later it was substituted by the word
‘shall’ provides the clearest possible evidence that the
intention was that the Court must take the pre-sentence period
of detention in jail “into consideration”. Section 382-B of the
Code is, therefore, a statutory limitation upon the Court’s
discretion to determine the length of imprisonment. It must
‘take into consideration’ the pre-sentence period spent in jail;
(6)
The benefit of section 382-B is also available to a person
whose sentence of death under section 302 PPC has been
subsequently altered to imprisonment for life;
(7)
As the accused is put in jail for the very offence for which he is
convicted and sentenced to imprisonment, the pre-sentence
period spent by him in jail is not in vain and must, therefore,
be taken into account;
(8)
It explodes the notion that such period can be ignored
because it is not spent in jail by way of ‘punishment’. Not to
treat that period as punishment, will be a play on the meaning
of the word ‘punishment’. Whether the detention in jail was
punitive or non-punitive, the consequence, as regards the
person detained was the same, namely, deprivation of liberty
and that is certainly punishment.
27.
Now we take up the judgment in Abdul Ali’s case. Abdul Ali,
petitioner in the said case was arrested on 24.7.1997 in a case under
section 302/34, etc., but was acquitted by the Sessions Judge, Pishin vide
judgment dated 19.10.1998. However, the High Court, by judgment dated
5.10.1999, set aside his acquittal, convicted him under section 302(b),
PPC and sentenced him to suffer imprisonment for life. The ‘benefit’, as it
J.P.56/2005
20
is commonly referred to, of section 382-B, Cr.P.C., was extended to him.
Remissions granted by various authorities from time to time including the
remissions of the pre-sentence custody period of the petitioner were
recorded in his history ticket, which were challenged by the respondent-
complainant in a writ petition. Vide judgment dated 12.5.2003, the High
Court, inter alia, declared that the petitioner was not entitled to the
remissions of his sentences for the period prior to his conviction. The High
Court, in view of section 402-C, Cr.P.C., also disallowed remission of 60
days granted by a general order dated 5.1.2000 of the Government of
Balochistan under section 401 Cr.P.C., as well as the remission of one
year granted by the President of Pakistan under Article 45 of the
Constitution on 5.1.2000 on the eve of Eid-ul-Fitr to the prisoners
undergoing sentence of life imprisonment. In a petition filed against the
judgment of the High Court, this Court examined the question of
entitlement of the petitioner to the remissions granted by the President
under Article 45 of the Constitution or by the Provincial Government under
section 401, Cr.P.C. during his pre-sentence period spent in jail in
connection with the trial etc., of the case, i.e. prior to the date of his
conviction and sentence by the High Court in the light of the provisions of
sections 35, 383, 396 and 397, Cr.P.C., and took the view that “the
conviction and sentence of an accused could not be made to run from the
date prior to the date of conviction by a competent Court although in
certain eventualities the execution of sentence of a convict could be
postponed. Ordinarily, a conviction commences from the time it is passed.
A criminal Court does not possess any power to make a sentence to
precede the conviction. In other words, the conviction and sentence cannot
be ante-dated.” Reliance was placed on the cases of Baghel Singh v. the
J.P.56/2005
21
Emperor (1907 (5) Crl.L.J. Reports 217), Emperor v. Tha Hmun (1908) (7)
Crl.L.J. 453), Dangar Khan v. Emperor (AIR 1923 Lahore 104), Emperor v.
Naga Po Min (AIR 1933 Rangoon 28), Gulzar Muhammad v. Crown (1951)
(52) Crl.L.J. 238 (Lahore), State v. Jernelsingh (AIR 1955 NUC Rajasthan
4613) and State v. Chandra Khandapani (1968 Crl.L.J. 1152). The
definition of “convicted criminal prisoner” viz., “any criminal prisoner under
sentence of a Court or Court Martial…….” given in section 3(3) of the
Prisons Act, 1894, (Act IX of 1894) and that of “convict” viz., “a convicted
criminal prisoner under sentence of a Court” given in rule 3 of the Prison
Rules was also taken into account. As to the pre-sentence period spent by
a convict in jail, it was observed that the Legislature in its wisdom enacted
section 382-B, Cr.P.C., requiring the Court to take the same into
consideration so as to give it “more rational treatment”. It was concluded
that there was nothing in section 382-B, Cr.P.C., or any other law to
indicate that such a person was to be treated as convict from the very
inception. Finally, it was held that remissions granted by the President
under Article 45 of the Constitution or the Provincial Government were not
available to the petitioner for the period during which he had not been
convicted of any offence nor was he undergoing any sentence.
28.
At this stage, it is just and proper that a brief survey of the
case law relied upon in Abdul Ali’s case (mentioned in the preceding
paragraph) is undertaken. In Baghel Singh’s case (supra), the Chief Court
of the Punjab held as under: -
“The accused on conviction by Mr. Meredyth Young,
exercising the powers of a Magistrate of the first class in the
Montgomery District was sentenced, by order dated 11th September
1906, under section 411 of the Indian Penal Code, to the period of
imprisonment has already passed in the lock-up…………….
“Section 383, Criminal Procedure Code, requires that a
warrant be issued but no such warrant was issued. ……………..
J.P.56/2005
22
“The order of the Magistrate is obviously illegal. No sentence
was passed. Had the Magistrate sentenced the prisoner to
imprisonment until the rising of the Court, the requirements of the
law would have been met. I see no reason for entering into the
merits of the case. I set aside the order purporting to pass sentence
and return the record to the Magistrate for disposal in accordance
with law, either by passing sentence or by passing an order under
section 562 of the Code of Criminal Procedure.”
In Tha Hmun’s case (supra), the Chief Court of Lower Burma held as
under: -
“The accused, after he had been in custody for a week, was
convicted of a petty theft of plantains. He was sentenced “to undergo
the imprisonment he has already suffered.” The form of the sentence
is bad. There is nothing in the Code of Criminal Procedure which
authorizes a Magistrate to antedate the commencement of a
sentence. As the Magistrate thought that the accused had been
sufficiently punished by his detention while under trial, the proper
course would have been to sentence him to one day’s imprisonment.
He would then be released on the same day on which he was
sentenced.”
In Dangar Khan’s case (supra), the Lahore High Court held as under: -
“The Magistrate has directed in the case of each appellant that
half of the period during which he was detained in custody as an
under-trial prisoner shall count as part of the sentence. This order is
quite wrong. If the Magistrate considered that the appellants were
entitled to lenience on account of their having remained a long time
in custody he should have passed a smaller sentence. To set aside
this order would have the effect of enhancing the sentences, unless
the sentences are also reduced. The sentences passed under
section 364, Indian Penal Code, are therefore, reduced in each case
to six years’ rigorous imprisonment.”
In Naga Po Min’s case (supra), the Rangoon High Court held as under: -
“S. 383 says that an accused who is sentenced to
imprisonment shall be forwarded to the jail in which he is to be
confined, and contains no words which warrant the antedating of the
sentence.
S.
397
deals
with
the
postponement
of
the
commencement of the sentence of imprisonment, but nowhere does
the Code provide for the antedating of a sentence of imprisonment,
and the antedating of a sentence of imprisonment seems to be
contrary to the spirit of Ss. 383 and 397.”
In Gulzar Muhammad’s case (supra), the Lahore High Court held as
under: -
“A person is “undergoing” imprisonment within the meaning of
S. 397 from the moment the sentence is passed. The fact that he is
J.P.56/2005
23
on bail is immaterial. The accused need not actually pass into the
portals of the jail. Consequently, when at the time of passing a
second sentence, the accused is “undergoing imprisonment”, though
on bail, and the order does not make the second sentence run
concurrently, the sentence will be treated as consecutive.
In Jernelsing’s case (supra), the Rajasthan High Court held as under: -
“Although there is no direct provision in the Code which lays
down that the sentence passed against an accused should
commence from the date of the judgment convicting him, a sentence
of imprisonment must be made to operate from the date of
conviction and not from a date prior to the date on which the
sentence is passed. (Sections 383, 35 and 397, referred).
Where Magistrate has ordered that the period already
undergone in custody be counted towards the sentence the order
was illegal. In such a case two courses are open for the High Court
in revision: one being that his sentence be reduced so as to
synchronize with the date of his release or he should be made to
serve the remainder of the sentence passed on him.
Held, in the circumstances of the case that the only correct
course open was to direct that the accused shall serve the unexpired
period of his sentence to be counted from the date of his conviction.”
In Chandra Khandapani’s case (supra), the Orissa High Court held as
under: -
“The sentence of imprisonment awarded ought to commence
from the time the sentence is passed and its commencement cannot
be antedated. The Criminal P.C. does not provide for antedating the
sentence, which will amount to passing an unexecutable sentence.
Therefore, no Magistrate can have any jurisdiction to convert, by his
order, the jail custody of an undertrial prisoner into a period of
punishment awarded in the judgment. The only proper course to
which the Magistrate is entitled, if he wanted to take a sympathetic
view having regard to the long period of his jail custody is to pass a
lesser sentence taking the period of custody as an undertrial
prisoner into consideration. Hence the Magistrate has no jurisdiction
to direct that any portion of the period of detention as an undertrial
prisoner should be counted as a part of the sentence.”
The accused in the precedent case just cited was convicted under section
380/75 of the Indian Penal Code and sentenced to undergo R.I. for 3
months and 5 days. He was taken into jail custody on 1.2.1966 where he
remained till the date of judgment. The Magistrate directed that the
sentence be computed from the date when he was taken to the jail
custody, which would expire on 6.5.1966. The Orissa High Court set aside
J.P.56/2005
24
the order of the Magistrate and with a view to regularizing the matter,
reduced the sentence to the post judgment period of 11 days already
undergone.
29.
With great deference, it may be stated that all the judgments
referred to in Abdul Ali’s case (supra) were given in a different legal
setting. They dated back to the pre-Law Reforms Ordinance, 1972 period
when there existed no provision in the Code of Criminal Procedure as it did
in the shape of section 382-B, Cr.P.C., in the post-promulgation period of
the Law Reforms Ordinance. It is noticed that it was being pleaded
successively on behalf of the convicts, and the Courts were also inclined to
it in many cases, that the pre-sentence period of the convicts spent in jail
in connection with the offence of which they were convicted, should not go
unaccounted for and must be taken into consideration. The hue and cry of
the convict-prisoners ultimately led to the enactment of section 382-B,
Cr.P.C., which made a specific provision requiring the Court to take into
consideration the pre-sentence period while passing the sentence. This
was a new era in an area of the criminal law, which dealt with the liberty of
a person. Prior to it, the time spent by the convicts in custody for the same
offence would not be accounted for in any way. Having waited for the
conclusion of their trials for months, and in many cases for years together,
they would re-enter the jail to serve out the sentence imposed upon them.
The enactment of section 382-B, Cr.P.C., brought a complete shift in the
approach of the Court toward the issue of pre-sentence period of a convict.
Hence, in our humble opinion, the case law preceding the enactment of the
said provision had no relevance and bearing on the interpretation of that
provision, which has been termed as a beneficial provision by all and
sundry all along without exception. We would respectfully state that the
J.P.56/2005
25
judgment in Abdul Ali’s case did not address the issue in the changed
perspective, nor the Court addressed itself to certain celebrated judgments
of the superior Courts on the subject matter handed down in the cases of
Muhammad Bashir (1982), Muhammad Rafiq (1995), Mukhtiar-ud-Din
(1997), Ghulam Murtaza (1998), Javed Iqbal (1998), etc., which had dwelt
upon the subject exhaustively. Only one recent judgment delivered by a
Single Judge of the Lahore High Court in the case of Inayat Bibi v. Amjad
Ali (2001 P.Cr.L.J. 1453) was taken note of where a contrary was taken.
But, the Court did not take into consideration even the judgment of a
Division Bench of the same High Court in the case of Aamir Ali v. State
(2002 YLR 1902), which dissented from the view taken in Inayat Bibi’s
case. It is pertinent to reproduce the relevant paragraph from Aamir Ali’s
case, which reads as under: -
“Now we may advert to the question whether the appellant can
avail of the benefit of jail remissions granted to a convict prior to the
date of his conviction if he is given the benefit of section 382-B of the
Criminal Procedure Code. The appellant’s actual date of conviction
is 10.5.2001 and his date of arrest is 21.2.2001. He was given the
benefit of section 382-B of the Criminal Procedure Code. Meaning
thereby that the period of his sentence would be deemed to have
commenced from the date of his arrest, i.e. 21.2.2000. This question
came up before a learned Single Judge of this Court in the case of
Inayat Bibi v. Amjad Ali and others (2001 P.Cr.L.J. 1453) in which it
was held that question of granting remissions to a convict would
arise only after the trial was over and judgment delivered by the
Court. Thereafter, from the date of conviction onwards the convict
could claim the remissions granted by the competent Authority. The
argument that since the substantive period of imprisonment was to
be counted from the date of arrest of the convict by virtue of the
provisions of section 382-B of the Criminal Procedure Code,
therefore, remissions granted by the competent Authority from the
date of arrest are to be counted towards the appellant’s substantive
sentence, was repelled. With due deference, we are not inclined to
subscribe to the view expressed in the above referred case. It is true
that the benefit of remissions is to be granted after announcement of
judgment and passing of the sentence of imprisonment against a
convict. However, the moment benefit of section 382-B of the
Criminal Procedure Code is given to a convict, the period during
which he remained in detention as under-trial prisoner, would be
counted towards his substantive sentence. Legally he would be
deemed to be in jail as a convict since the date of his arrest and
J.P.56/2005
26
would certainly be entitled to the benefit of remissions granted by the
competent Authorities to the convicts after the said date.” (Emphasis
supplied)
30.
Here, we may mention that the judgment in the Human Rights’
case (supra) just followed the dicta laid down in Abdul Ali’s case. Even
otherwise, it being a human rights petition, only an Additional Advocate
General from NWFP had appeared on Court’s notice. No other lawyer had
appeared in the matter and the attention of the Court could not be drawn to
any of the aforesaid judgments. In the above backdrop, we have intended
to re-visit the judgments in Abdul Ali and the Human Rights cases so as to
reach an appropriate conclusion.
31.
Relevant to the concept of antedating of a judgment of
sentence are the terms, “conviction” and “sentence”. To throw light on the
connotations of these terms, Mr. Gillani, learned amicus curiae, took us
through a passage from the book titled “Access to Justice in Pakistan” by
Justice Fazal Karim, a former Judge of the Supreme Court of Pakistan,
which we quote hereunder: -
“Conviction and sentence are two different things. Conviction
means to find guilty of an offence. Sentence is punishment awarded
to a person convicted in criminal trial. Conviction is followed by
sentence. Only when a person has been found guilty of an offence
can the question of sentencing him arise.”
In Abdul Ali’s case, the Court, while making the observation that “the
conviction and sentence of an accused cannot be made to run from the
date prior to the date of conviction by a competent Court”, altogether
overlooked the practical effect of the provisions of section 382-B, Cr.P.C.
Sentence preceding conviction, in our view, means that the accused is
sentenced first, but convicted later, which was not the situation in Abdul
Ali’s case. There, the Court was called upon to just make the sentence
J.P.56/2005
27
(pronounced certainly after conviction) effective from the date the convict
was taken into custody in connection with such offence, and not from any
date prior to the commission of the offence. Even otherwise, conviction
follows proof of guilt of the convict, which is relatable to the time of the
commission of the offence. Only its finding is reached on a subsequent
date. On proof of guilt, the presumption of innocence is displaced and the
convict is considered guilty of the offence from the very inception, i.e. from
the date of commission of the offence. The Court also did not take into
account the consequences of “consideration” in terms of section 382-B,
Cr.P.C., which was a crucial aspect having material bearing on the
determination of the moot point involved in the case regarding admissibility
or otherwise of the remissions of the pre-sentence period.
32.
The Courts, in the afore-noted cases from the Indian
jurisdiction, referring to the provisions of sections 383, 35, 396 and 397 of
the Code, took the view that a sentence could not be antedated. It may be
seen that sections 383 and 396 Cr.P.C., respectively relate to execution of
sentence of imprisonment in other cases and execution of sentence on
escaped convicts, section 397 deals with sentence on offender already
sentenced for another offence while section 35 deals with sentence in case
of conviction of several offences at one trial. (Emphasis supplied). The
Courts, taking note of the issuance of warrant for execution of sentence
mentioned therein, by way of analogical deduction, concluded that there
should be “executable sentence” because in their view, as noted in some
of the above cases, where the convict was sentenced to imprisonment
already passed in the lock up, or to undergo imprisonment he had already
suffered, or half of the period during which the accused was detained in
custody as an under-trial prisoner should count as part of the sentence, it
J.P.56/2005
28
was tantamount to passing an unexecutable sentence. It may be noted
that the issuance of warrant for execution of sentence of imprisonment
“until rising of the Court” may be only a formality otherwise sentence in
such a case is undergone by the convict in the presence of the Judge.
Thus, the Courts in those cases never directly determined what actually
was meant by the term “antedating of sentence”. Even the judgment in
Abdul Ali’s case also did not address this issue, as noted earlier, any more
other than saying that the conviction and sentence could not be antedated.
33.
In the case of Muhammad Rafiq’s case it was held that the
pre-sentence custody of a convict could be treated nothing else but
punishment in all its ramifications. As a matter of fact, this very realization,
which received judicial pronouncement in the year 1995 after much water
had flown under the bridges since the promulgation of the Law Reforms
Ordinance, 1972 had emanated from the sufferings and miseries of the
prisoners (whether they were detained as under-trial prisoners or as
convicts) due to scarcity of accommodation in the jails/lock-ups and the
resultant overcrowding, lack of health facilities in terms of inadequate food
and medical treatment and protracted trials and the hearing of appeals.
Such realization paved the way for the enactment of section 382-B,
Cr.P.C., with a view to providing relief to the prisoners. The pre-sentence
custody period certainly called for a rational treatment, which it got in the
shape of enactment of section 382-B, Cr.P.C.
34.
At this juncture, we take note of a judgment delivered by the
Court of Appeal of Botswana in the case of Thake v Attorney General
(CACLB-033-07) [2008] BWCA 23 (25 April 2008). This appeal had
originated in a claim for damages for unlawful detention and involved the
question of a correct interpretation of the date of commencement of a
J.P.56/2005
29
concurrent sentence within the meaning of sections 300 and 309 of the
Criminal Procedure and Evidence Act (of Botswana). The appellant was
sentenced to an effective period of 10 years imprisonment on 24 April
1997 and to another effective period of 10 years imprisonment 32 days
later, namely, on 26 May 1997. It was ordered that the latter sentence
would run concurrently with the sentence of 24 April 1997. The crisp
question for determination in the appeal was what was the effective date of
the commencement of the sentence of 26 May 1997? The appellant
contended that the effective date was 24 April 1997. The respondent on
the other hand contended for a contrary proposition, namely, that the
effective date was 26 May 1997. The Court of Appeal examined the issue
in the light of section 300 of the Criminal Procedure and Evidence Act. For
facility of reference, the said provision is reproduced below: -
“300. (1) When a person is convicted at one trial of two
or more different offences, or when a person under
sentence or undergoing punishment for one offence is
convicted of another offence, the court may sentence
him to such several punishments for such offences or
for such last offence (as the case may be) as the court
is competent to impose.
(2)
Such
punishments,
when
consisting
of
imprisonments, shall commence the one after the
expiration, setting aside or remission of the other, in
such order as the court may direct, unless the court
directs that such punishments shall run concurrently.”
For the purposes of the present case, more pertinent was the issue of date
of commencement of sentence, concurrent or otherwise, involved in the
precedent case, which was governed by section 309 of the aforesaid Act.
This section provides as follows:-
J.P.56/2005
30
“309. Subject to the provisions of section 308, a
sentence of imprisonment shall take effect from and
include the whole of the day on which it is pronounced
unless the court, on the same day that sentence is
passed, expressly orders that it shall take effect from
some day prior to that on which it is pronounced.”
The Court of Appeal relied upon its earlier judgment in the case of
Kolojane v. State (1999 BLR 70 (CA) and held that the question of ante-
dating a sentence was a matter which lay within the discretion of the trial
Court. In exercising its judicial discretion, the trial Court takes into account
all the relevant factors that have a bearing on the matter such as, for
instance, the fact that the crimes under consideration are interrelated as in
the instant case. After re-stating the above principles, the Court of Appeal
held that since the learned trial Magistrate did not “expressly” order that
the sentence of 26 May 1997 shall take effect from the date of the prior
sentence, namely, 24 April 1997, that being the case, the provisions of
section 309 came into play. The sentence of 26 May 1997 took effect from
the same day, being the day on which the sentence was pronounced. It
was held that the appellant’s submission to the contrary was misconceived
as it was squarely hit by section 309 ibid. Further, the appellant in the
precedent conceded that the learned trial Magistrate did not “expressly”
order that the sentence of 26 May 1997 shall take effect from the earlier
sentence of 24 April 1997, he nevertheless sought to persuade the Court
of Appeal that, by necessary implication, this sentence commenced on the
latter date because, so he argued, the two sentences in the matter were
ordered to run concurrently. The Court of Appeal held that the fallacy of
this submission lay in the fact that concurrent sentences did not
necessarily have to commence or end on the same day. Nor do they
J.P.56/2005
31
necessarily have to be of the same duration. Indeed there may sometimes
be an element of overlapping in concurrent sentences. It all depended on
the particular circumstances of each case. It was for that reason that the
Legislature in its wisdom had enacted that a sentence of imprisonment
shall commence on the day on which it was pronounced unless the trial
court expressly ordered it to commence on a day prior to the
pronouncement. This applied equally to concurrent sentences.
35.
The legal position in the precedent case, to some extent,
elucidates the concept of antedating of a sentence. In that case, the crimes
under consideration were inter-related trial whereof and the conviction and
sentence therein followed one another. None of the judgments relied upon
in Abdul Ali’s case visualized such an eventuality nor addressed the issue
from that angle. Such situations possibly would arise in trial of offences
falling under the heading “Joinder of Charges” (sections 233-240, Cr.P.C.).
36.
This brings us to the question as to how the provisions of
section 382-B, Cr.P.C. have been applied ever since its enactment. On the
language used in the section, particularly, prior to the amendment of 1979,
which substituted the word “shall” with the word “may”, the trial Courts
would apply the provision very casually, rather at their sweet will.
Sometimes, they would advert to it, sometimes they would not.
Consequently, a lot of litigation emanated from the non-application of the
section in its letter and in spirit and the superior Courts were called upon to
lay down the principles for the exercise of power and jurisdiction under the
said provision. After the amendment, the trial Courts were mandatorily
obliged to take into consideration the pre-sentence custody period at the
time of passing of the sentence.
J.P.56/2005
32
37.
In view of above circumstances and the generality of the
language employed in section 382-B, Cr.P.C., this Court in its celebrated
judgment in Muhammad Rafiq’s case wished that the said provision was
couched in language as clear and unambiguous as the sections in the
Indian and the English enactments were. More than a decade having
passed since passing of the above judgment, no step at all had been taken
in this regard at the appropriate level. The learned Deputy Attorney
General confirmed that the matter was never brought on the agenda.
38.
The practical effect of reducing the sentence to the extent of
pre-sentence custody period, particularly, the way it is done in Pakistan, is
that the sentence takes effect from the date of arrest of the convict in
connection with the offence. This is not prohibited by any specific provision
of the Code of Criminal Procedure, rather this course, prima facie, appears
to be permissible considering the provisions of section 382-B, Cr.P.C.,
read with sections 233 to 240, 383, 397 and 35, Cr.P.C. This position is
also in line with the Botswana law as noticed in Thakes’s case (supra),
which empowers the Court to make the sentence effective by a specific
order from an earlier date.
39.
The under-trial prisoners, or criminal prisoners, particularly
those who are later convicted of the offence in connection with which they
were incarcerated, sooner or later join the ranks of convicted criminal
prisoners. It is discriminatory not to treat them at par with their co-prisoners
living in the same or similar premises, may be under the same very roof.
They are equal before law and are entitled to equal protection of law under
Article 25 of the Constitution. If remissions of the pre-sentence period were
to be denied to the convicts after they were granted the benefit of section
382-B, Cr.P.C., we would be confronted with a situation where remission
J.P.56/2005
33
granted on the eve of Eid would be admissible to a prisoner who was
convicted a day before Eid, but not to a person who was convicted a day
after Eid, though the two prisoners were on an equal footing two days
before Eid, i.e., till then both of them were confined as under-trial prisoners
and both of them also got the benefit of section 382-B, Cr.P.C. The
classification of ‘criminal prisoners’ and ‘convicted criminal prisoners’ qua
the admissibility of remissions granted by any authority where the Court
has passed an order granting the benefit of section 382-B, Cr.P.C., does
not meet the test of ‘intelligible differentia’ laid down in the case of I.A.
Sharwani v. Government of Pakistan (1991 SCMR 1041). The under-trial
prisoners getting the benefit of section 382-B, Cr.P.C., cannot be deprived
of remissions accruing during their pre-sentence custody period. Article
9 of the Constitution guarantees the right to life of a person and is very
much available to a prisoner along with certain other fundamental rights,
such as to acquire, hold and dispose of property for the exercise of
which incarceration can be no impediment, though he is deprived of
certain fundamental freedoms like the right to move freely throughout
the country or the right to practice a profession, etc., as it was held in
the case of D.B.M. Patnaik v. State of A.P. (AIR 1974 S.C. 2092).
Therefore, the protection guaranteed under Article 9 remains available
to the under-trial prisoners and they are entitled to the benefit of section
382-B, Cr.P.C., along with remissions if any, granted during their pre-
sentence custody period, inasmuch as on account of denial thereof,
they would be required to remain in prison for a longer time than
warranted and deprived of their liberty. Article 9 has received
interpretation by this Court in the case of Shehla Zia v. WAPDA (PLD
1994 SC 693). Relevant passage from the judgment reads as under: -
J.P.56/2005
34
“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. …………….
“The word ‘life’ in the Constitution has not been used in a
limited manner. A wide meaning should be given to enable a man
not only to sustain life but to enjoy it.”
Keeping the ratio of the above cases in view, we are inclined to hold
that refusal to allow remission of pre-sentence custody period to a
convict whom the Court has granted the benefit of section 382-B,
Cr.P.C., is tantamount to deprivation of his liberty within the
contemplation of above Article of the Constitution. The cases of convict-
prisoners who are expressly debarred under any law from the benefit of
section 382-B, Cr.P.C., stand on a different footing. Thus, where section
382-B, Cr.P.C., itself is not applicable, no remission of the pre-sentence
custody period can be allowed to the prisoner in question.
40.
The petitioner in the instant case was sentenced to 10 years’
R.I. and imprisonment for life on two counts. His sentences were ordered
to run consecutively. The aggregate sentence of the petitioner would thus
come to sixty years, which is contrary to the provisions of section 35,
Cr.P.C. Proviso (a) to section 35, Cr.P.C. prohibits the giving of
consecutive sentence in one trial beyond the period of 14 years. This issue
J.P.56/2005
35
came up for examination by this Court in the case of Javed Shaikh v. State
(PLD 1985 SC 153) wherein it was held as under: -
“Life imprisonment is, according to section 57 of the PPC to be
reckoned as equivalent to 25 years’ R.I. This is one of the
punishments which can be imposed on an offender, on account of
the substitution of the punishment for transportation for life – which
was one of the punishments that could be imposed on an offender
under section 53 of the PPC and was reckoned as equivalent to
fourteen years before its amendment by the Law Reforms
Ordinance, 1972. No objection can, therefore, be taken to the
imposition of the sentence of life imprisonment, after the
promulgation of the Law Reforms Ordinance, 1972. However, the
question is whether the appellant can also be sentenced to undergo
a further sentence of seven years under section 307, PPC for his
having attempted to murder Manzoor Hussain, PW5?
A perusal of proviso (a) to subsection (2) of section 35,
Cr.P.C., indicates that it prohibits the giving of consecutive sentence
in one trial beyond the period of fourteen years, the maximum
sentence, short of the death sentence, which could be imposed on
an offender before the promulgation of the Law Reforms Ordinance,
1972. The said provision (section 35, Cr.P.C.) appears to be in
consonance with the scheme and intendment of the Pakistan Penal
Code that an offender should only suffer the maximum sentence of
imprisonment for any heinous crime (as it stood until 1972) which
should not exceed fourteen years. Therefore, the imposition of the
sentence of life imprisonment (which means 25 years’ R.I., plus
seven years’ R.I. under section 307 PPC would be inconsistent with
the intendment of the provisions of proviso (a) to subsection (2) of
section 35, Cr.P.C., inasmuch as the maximum punishment
prescribed for heinous offences shall be exceeded. The difficulty in
this case can be overcome if the sentences awarded to the appellant
in respect of the two convictions under section 302, PPC and under
section 307 PPC in one and the same trial are directed to run
concurrently instead of running consecutively.”
J.P.56/2005
36
41.
In view of the above discussion, our conclusions and
directions are as under: -
(1)
After the use of word “shall” for the word “may” in section
382-B, Cr.P.C., at the time of passing the sentence, it is
mandatory for the trial Court to take into consideration the
pre-sentence custody period in the light of the principles
discussed above;
(2)
The refusal to take into consideration the pre-sentence
custody period at the time of passing the sentence is illegal
inasmuch as if a Court sentences a convict to imprisonment
for life, which is the alternate but maximum sentence for the
offence of murder, but does not make allowance for the pre-
sentence custody period, it would be punishing the convict-
prisoner with imprisonment for life plus the pre-sentence
custody period, that is to say, more than the maximum legal
punishment;
(3)
The convict-prisoners who are granted the benefit of section
382-B, Cr.P.C., shall be entitled to remissions granted by
any authority in their post-sentence detention or during their
pre-sentence detention in connection with such offence.
However, the same shall not be available to the convicts of
offences
under
the
National
Accountability
Bureau
Ordinance, 1999, Anti-terrorism Act, 1997, the offence of
karo kari, etc, where the law itself prohibits the same;
(4)
The law laid down in Abdul Malik’s case that under Article
45 of the Constitution, the President enjoys unfettered
powers to grant remissions in respect of offences and no
clog stipulated in a piece of subordinate legislation can
abridge this power of the President, is hereby reaffirmed;
41.
Consequently, we convert this jail petition into appeal, and
partly allow it. The sentences of the appellant shall run concurrently. He
shall be entitled to the benefit of section 382-B, Cr.P.C. The remissions
J.P.56/2005
37
granted by any authority in his post-conviction period or during his pre-
sentence detention period in connection with such offence shall be
available to him. His sentences shall be reduced accordingly. The
impugned judgment is modified to the above extent.
42.
Before parting with the judgment, we place on record our
thanks for the learned amicus curiae who have rendered valuable
assistance in the decision of this case.
Chief Justice
Judge
Judge
Judge
Judge
Judge
ANNOUNCED TODAY
AT ISLAMABAD, THE ---- DAY OF MAY 2009
Chief Justice
APPROVED FOR REPORTING
J.P.56/2005
38
JAIL PETITION NO. 56/2005
ORDER
Copies of the judgment in the above jail petition, pronounced
in Court today, i.e. 1st of June, 2009, shall be sent to the Federal Secretary
Interior, Chief Secretaries, Home Secretaries, Inspectors General of
Police, Inspectors General of Prisons and Registrars of the High Courts of
the Provinces for information and onward transmission to the concerned
quarters, including the prisoners, etc., for the purpose of its implementation
in letter and in spirit. The concerned authorities shall submit report within a
period of two weeks to the Registrar of this Court for our perusal in
Chambers in respect of the implementation of the judgment, also giving the
number of prisoners benefited from it.
CHIEF JUSTICE
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
Islamabad
1.6.2009
| {
"id": "J.P.56_2005.pdf",
"url": ""
} |
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Mr. Justice Sarciar Tariq M asocid
Mr. justice Mzllar Atam Khan MitUikhCl
Mr. justice .n itn-ud-Din Khan
JAIL PETIPION NO. 587 OF 2016
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I
P 1. IS. uI6
Cr.P.C. was also extended to him. Being aggrieved, petitioner and
Muhammad ZareefBhatti riled appeals before the Peshawar High Court,
Peshawar which were dismissed the impugned judgment dated
11 11.2014 - Hence, this petition for leave to appeal by the petitioner
Qaiser through jail.
3.
We have heard the learned counsel for the petitioner as well as
the learned Additional Advocate General. KPK and perused the available
record alongwith the impugned judgment with their assistance and
observed that in this ease the prosecution has failed to establish the
safe custody and safe transmission of sample parcels to the concerned
laboratory. This court had laid down in many judgments that the
representative samples of the alleged drug must be kept in safe custody
and undergo safe transmission from the stage of recovery till its
submission to the office of the Government analyst. Non establishing
the said facts would cost doubt and would impair and vitiate the
concluseness and reliability of the report of the Government analyst.
Thus rendering it incapable of sustaining conviction.
4.
In the present case no police official was produced before the Trial
Court to report about safe custody of samples if entrusted to him for
being Rep' in the Malkhana in safe custody. Even the police official
whose belt number (FC 4225) has been mentioned by the Government
analyst in his report, was not produced by the prosecution to depose
regarding the safe deposit IT the said sample parcels in the concerned
laboratory . The record reveals that the recovery was allegedly affected
on 19.08.2011 whereas, according i.e the report of chemical examiner,
the sample parcels were received in I he said office on 26.08.2011.
Nobody from the prosecution side was produced to claim that during
this period the said sample parcels remained intact in his possession or
under his control in the M&khanu in safe custody. Even the
prosccuiion is silent as to where remained these sample parcels from
19.08.2011 to 26.08.2011. In absence of establishing the safe custody
and safe transmission, the element of tempering cannot be excluded in
this case. The chain of custody of sample parcels begins from the
recovery of the narcotics by the police including the separation of
reprcsriitative samples of the recovered narcotics, their dispatch to the
MaIk-hana and further dispatch to the tesiing lahoratoiy The said chain
of custody and transmission was pivotal as the entire construct of the
Act 1997 and the Control of Narcotic Substances (Government Analysts)
Rules 2001 (Rules 20011, rests upon the report of the analyst. It is
prosecutions bounded duty that such chain of custody must be safe
and secure because the report of chemical examiner enjoined critical
importance under the Act 1997, and the chain of custody ensure the
reaching of correct representative samples to the office of chemical
examiner Any break in the chain of custody i.e. the safe custody or sale
transmission of the reprcsentativc samples, makes the report of
chemical examiner worthless and un-reliable for justifying conviction of
the accused. Such laps on the part of the prosecution would cast doubt
and would vitiate the conclusiveness and reliability of the report of
chemical examincr. Reliance can be made upon the judgments rendered
by three members benches of this court I.e. Ikramuflah V. the State
(2015 SCMR 1002), the State v. Imam B&ChSh (2018 S'CMR 2039),
Abdul Ghani a the State (2019 SCMR 608), Kamran Shah is the
State (2019 SCMR 1217), Mist. Russia Sultana v. the State (2019
SCMR 1300), Fainrt AU V. the State (2019 SCMR 1649), Zahir Shah
alias Shat is State thn AG KPK (2019 SCMR 2004), Hall Nawaz V.
the State 2020 SCMR 687), Qaiser Khan V. the State (2021 SCMR
3631, Mn. Sakfna Ram.zan v. the State (2021 SCMR 451), Zubair
Khan is the State (2021 SCMR 492) and Guizar a the State 2021
SCMR 380).
5 Although the learned Additional Advocate General, KPK tried to
persuade us for deviation from the earlier judgments but it is quite clear
from the judgments of this Court that 3-Members Bench remained
unanimous that the prosecution is required to prove the sale custody
and safe transmission of the sample parcels. It is now established that
the decision of a bench of certain member of judges is binding on the
subsequent bench of the same strength and if a subsequent bench of
the sam" strength wants to lake a different view the only possibility is
to refer the matter to the Chief Justice of Pakistan for the constitution
of a larger bench, even a decision of a bench of equal strength is not
brought into the notice of a subsequent bench of same strength and it
expresses 'a contrary view, then the later decision is a judgment per
incuriam.
6.
In We case of Mst. Sarnrana Nawaz p. M.CH. Hank Ltd. (PLD
021 SC 581) it was held that earlier judgment of a Bench of the
Supreme Court was binding not only upon the Benches of smaller
/ 2&J
numeric strength but also upon the Benches of co-equal strength a
Bench of co-equal strength could not dcviate from the view held by an
earlier Bench, and if a contrary view had to be taken, then the proper
course was to request the Chief iustice of the Supreme Court for
constitution of a larger Bench to reconsider the earlier view. Smaller
Bench cannot request for the constitution of a larger Bench to revisit
the opinion of a larger Bench or' any (location or principle of law. View
expressed by a three member Bench of the Supreme Court could only
he changed or deviated, from a Bench of equal number for which the
forum provided by law was to request the Chief Justice for constitution
of a larger Bench. In the cases of Multiline AssociateS a Ardeshir
Cowasjcc (PLD 1995 SC 423) and Wak Limited Muttan Road, Lahore
V. collector Central Excise and_ Saks Tax.Lahore (now
CommissIoner Inland Revenue. LTU. Lahore) (2018 SCMR 1474) it
was held that earlier judgment of equal Bench of the High Court on the
same point was binding on the subsequent Bench and if the
subsequent Bench tended to take a different view, it had to request for
the conist! 'ation of larger Bench. In the case of Union of India &
others p. S.K. hialloor 1(2011) 4 8CC 5391 it was held that if a
subsequent coordinate Bench of equal strength wants to take a different
view, it can only refer the matter to a larger Bench, otherwise the prior
decisioi or a co-ordinate Bench is binding on the subsequent Bench of
equal strength and if any subsequent judgment by deviating from the
earlier judgment of equal number of bench, would be perincurium.
Same was the view of this court In Ardeshir Cowasjee and 10 others
Vs. Karachi Building Control Authority KMCL Karachi and 4 others
(1999 SCMR 2833). Thus tire judgments passed by the 3-Members
Benches, mentioned above, have binding effect upon equal or less
Member Benches of this Court, unlcss contrary is declared by a larger
Bench of this Court.
7. It is also a circumstance that the Act 1997 provide sever
punishment, therefore, their proof has to be seen strictly and the
benefit of any doubt in the prosecution case must be extended to the
accused because harder the sentence is, stricter the standard of proof
should be. Because for convicting an accused person for such a severe
punishrilcfli the bounded duty of the prosecution is to prove the case
without an y breakage of chain, as discussed above.
-I
.
-
-
,i)fl)
8.
For the forgoing reasons, this petition is converted into an appeal
and the same is allowed. The conviction and sentence of petitioner
Qaisar, passed by the trial court and upheld by the High Court, is
hereby sc I aside and he is acquitted of the charge in the instant caseS
He be released from jail forthwith if not required to be detained in any
other case
Cr!. S.M.R.P. No. 14of2022
9.
Pci it ioner Muhammad Zareef Uhatti alongwith Qaisar was
indicted in case FIR No 333 dated 19 08.20 TI regisiered under section
9 (c of the Control of Nat-colic Substances Act, 1997 ('Act, 19971 at
police station University 'l'owri, Peshawar After conclusion of trial,
learned trial court vide judgment dated 21.062012 convicted the
petitioner and Qaisar under section 9 (c) of the Act, 1997 and sentenced
them i t (Tiprisonnient for lire with a fine of Rs.25 ,000 / - or in default of
paymeti t Of fine to further undergo six months simple imprisonment.
Benefit of section 382-5. Cr.P C. was also extended to him. Being
aggricvcrl, petitioner and co-convict flied appeals before the Peshawar
High Court, Peshawar which were dismissed vide impugned judgment
dated 11.l1.2014 Thereafter petitioner riled jail petition No. 447 of
2014 bclnrc this Court which was rbs'nisscd on 23.02.2016 and leave
was ic Ilised but during the course of hearing of Jail Petition No. 587 of
201 5 coo conviction of Cotter, co-convict of the review petitioner, it was
observed that safe custody and safe transmission of the sample parcels
have not been established and this fact had been escaped notice from
the 13c:tic} when Jail petition No 447 of 2014 riled by the petitioner
Muhammad Zareef Bilotti was dismissed on 23.05.2016. The mater
was reft2r'ed to the Hon'ble Chief Jusi ice and it was ordered by the
Forcible Chief Justice that this Jail Petition No. 447 of 2014 be taken up
as Suit Motor Review Petition and he heard alongvith Jail Petition No.
587 012015 (ready decided above)
10.
As in this case neither the sale custody nor the safe transmission
was established by the prosecution and we have extended the benefit of
such defect in the prosecution case to co -convict Qaiser, so the same
benefit is also extended to the petitioner Muhammad Zareel Bhatti, as
mentioned above. Consequently, this Sue Moto Review Petition is
allowed and the earlier order dated 23 0L20 IS, passed by this Court, is
recalled at id the Jail Petition No 447 of 2014 is restored. For the
reasons mentioned in the ordor in Jail Petition 1r0 587 of 2016, Jail
.S ;• Mild
Pctilion No. 447 of 2014 filed b y Muharrirnad Zareel Bhatti is also
converted into an appeal and the same is allowed thc conviction and
sentence of petitioner Muhammad Zarcef Uhatti, passed by the trial
court and upheld by the High Court, is also hereby set aside and he is
acquitted of the charge in the instant case He be released from jail
forthwith iCnot required to be detained in a ny other
I sIan i a be U
02 06.2022
n C—.-
APPROVED FOR REPORTING
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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. 614 OF 2016
(On
appeal
against
the
judgment
dated
19.10.2016 passed by the Peshawar High Court,
Peshawar in Criminal Appeal No. 46-P/2014)
Ajab Khan
… Petitioner
VERSUS
The State
… Respondent
For the Petitioner:
Ms. Aisha Tasneem, ASC
For the State:
Raja Muhammad Rizwan Ibrahim Satti, State
Counsel
Date of Hearing:
28.10.2021
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was proceeded
against in terms of the case registered vide FIR No. 567 dated
29.05.2011 under Section 9(c) of the Control of Narcotic Substances
Act, 1997, at Police Station Muhammad Riaz Shaheed, District Kohat
as charas weighing 19 kilograms was recovered from him. The learned
Trial Court vide its judgment dated 07.01.2012 convicted the petitioner
under Section 9(c) of the Control of Narcotic Substances Act, 1997, and
sentenced him to imprisonment for life. He was also directed to pay a
fine of Rs.500,000/- or in default whereof to further undergo SI for five
years. Benefit of Section 382-B Cr.P.C. was extended to him. In appeal
the learned High Court maintained the conviction and sentences
recorded against the petitioner by the learned Trial Court.
2.
The prosecution story as given in the impugned judgment
is as under:-
“2.
Brief and essential facts of the prosecution case
according to the FIR are that Wali Bat Khan IHC along with
Mubarik Hussain LHC, Tariq Ahmed LHC, Abrar No. 1369 and
other police personnel were busy in checking of vehicles at
Highway Check Post; that in the meanwhile a Suzuki motorcar
of White colour bearing registration No. N-8704 coming from
Darra Adam Khel side, was stopped for checking purpose; that
Jail Petition No. 614/2016
2
on query the driver disclosed his name as Ajab Khan son of Aqal
Khan, and on search of the motorcar 19 packets of charas
gardha was recovered; that on weighment each packet came
1000 grams; that from each packet 4/4 grams were separated
for FSL and sealed into separate parcels while the remaining
was sealed into separate parcel. The recovered contrabands
were taken into possession vide recovery memo (Exh.PC); that
murasila (Exh.PW 5/1) was drafted and sent to the police
station for registration of the case, upon which the case FIR was
registered against the accused.
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 eight witnesses. When examined
under Section 342 Cr.P.C., the petitioner stated that he is innocent and
has been falsely implicated in the case.
4.
Learned counsel for the petitioner contended that the
petitioner has been falsely implicated in this case and the Police has
planted a fake case upon him. Contends that the narcotic was
allegedly recovered from the petitioner in the broad daylight in a busy
thoroughfare but none from the public was associated in the case to
depose against the petitioner. Contends that the confessional
statement of the petitioner under Section 164 Cr.P.C. has no value as
the same was recorded on a printed proforma and the certificate
issued by the Magistrate clearly shows that the petitioner gave the
statement in Pashto, which was translated into Urdu. Contends that
Muhammad Iqbal (PW-3) who was supposed to send the parcels to KBI
unit for its onward transmission to Forensic Science Laboratory did not
mention the date as to when he transmitted the parcels to KBI unit
whereas Samiullah (PW-8) stated that he had taken the samples to the
FSL on 06.06.2011 i.e. after six days of the alleged occurrence, for
which no plausible explanation has been given and the same shows
that the safe chain of custody was compromised. She lastly contends
that the petitioner is innocent and he may be acquitted of the charge.
5.
On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the petitioner was caught red
handed while transporting a huge quantity of narcotics and he also
confessed his guilt after two days of the occurrence before the Judicial
Magistrate and the fact that he gave his statement on a proforma or in
Pashto is of no avail to him because it is on record that his statement
was translated and read over to him. Contends that the Judicial
Magistrate who had recorded petitioner’s confessional statement had
Jail Petition No. 614/2016
3
appeared as PW-7 and has duly explained and verified the statement
made by the petitioner. Contends that the defence counsel did not
cross-examine PW-8 as to why he sent the samples to the FSL after six
days, therefore, this ground cannot be taken at this stage. Lastly
contends that the petitioner is guilty of the offence, 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.
The petitioner was caught red handed by the Police and
19 packets of charas garda, each packet weighing 1000 grams (total
19 kilogram), was recovered from beneath the rear seat of the car,
which was being driven by the petitioner. From each packet, 4 grams
of charas was separated in 19 separate parcels for the purpose of
chemical examination and the remaining was sealed into separate
parcel. The prosecution’s case hinges upon the statements of Tariq
Ahmed, LHC, (PW-4) and Wali Bat, IHC (PW-5). Both these witnesses
have narrated the prosecution story in a natural manner and remained
consistent throughout and their testimony could not be shattered by
the defence despite lengthy cross-examination. The said witnesses had
no enmity with the petitioner to falsely implicate him in the present
case as a huge quantity of 19 kilograms of charas cannot be foisted
upon the petitioner to fabricate a fake case. 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
petitioner in this case. This Court in Salah-ud-Din Vs. State (2010
SCMR 1962) has held that “reluctance of general public to become
witness in such like cases has become judicially recognized fact and
there was no way out to consider statement of official witness, 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 testimony
remained un-shattered during cross-examination.” The police officials
separated the samples from each packet in a prescribed manner and
sent the same to the office of Forensic Science Laboratory. The report of
the Forensic Science Laboratory shows that all the 19 samples were
subjected to chemical and instrumental analysis and the same were
found to be narcotic substance. So far as the argument of learned
counsel for the petitioner that the samples were sent to the Forensic
Jail Petition No. 614/2016
4
Science Laboratory after a period of six days, therefore, the safe
transmission of the samples is not proved is concerned, we have
noticed that Muhammad Iqbal (PW-3) and Samiullah (PW-8) who were
responsible for transmission of the samples to FSL were never cross-
examined on this point by the defence, therefore, this ground cannot be
taken at this stage. We could not find anything from the record,
which could suggest that the safe chain of custody of the samples
was compromised. We have noticed that just after two days of the
occurrence, the petitioner had made a confessional statement before
the Judicial Magistrate-VI, Kohat in which he confessed his guilt and
stated that because of poverty he has committed the crime. The printed
proforma was only a memorandum of enquiry through which some
basic questions were asked from the petitioner. The confessional
statement of the petitioner was separately recorded and not on a
printed proforma. The certificate issued by the Magistrate in this
regard clearly shows that although the petitioner gave the statement in
Pashto but the same was translated and read over to him. The
petitioner was also given 30 minutes time to think over before
recording his confessional statement. The learned Judicial Magistrate
who had recorded the statement of the petitioner has also appeared
before the Trial Court as PW-7 and has duly testified the same. He
was cross-examined at length but nothing favourable to the petitioner
could be brought on record. Even otherwise, the close analysis of the
whole prosecution evidence coupled with the confessional statement,
the recovery of huge quantity of narcotics and the happening of the
occurrence in broad daylight when evaluated conjointly, there is no
other option left with the Court except to rely on the statements of the
prosecution witnesses for the purpose of conviction as recorded by the
two courts below. Consequently, this petition being devoid of any force,
the same is dismissed and leave to appeal is refused.
JUDGE
JUDGE
Islamabad, the
28th of October, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT QEPAKISIAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO. 637 OF 2016
(On appeal against the judgment dated
16.11.2 016 passed by the High Court of Sindh,
Karachi in Criminal Appeal No. 19612015)
Liaquat Ali and Shad Muhammad
Petitioners
VERSUS
The State
Respondent
For the Petitioners:
Mr. Liaquat All Tareen, ASC
(For petitioner Liaqat All)
Syed QaIb-e-Hassan, ASC
Mr. Zahoor ul Haq Chishti, ASC
(For petitioner Shod Muhammad)
For the State: Dr. Faiz Shah, P. G. Sindh
Mr. ZafarAhmed Khan, Addl. P.G.
Mr. Khadim Rind, DIGP
Mr. Abdul Qayyum Patafi, SSP
Date of Hearing:
09.03.2022
JUDGMENT
SAYYED MAZAHAR AL! AKBAR NAQVI, J.- Petitioners were tried by the
learned Special Judge for CNS, Naushero Feroz in terms of the case
registered vide FIR No. 145 dated 04.11.2013 under Section 9(c) of the
Control of Narcotic Substances Act, 1997, at Police Station Bhiria City,
District Naushero Feroz as contraband charas weighing 59 kilograms was
recovered from them. The learned Trial Court vide its judgment dated
04.08.2015 convicted the petitioners under Section 9(c) of the Control of
Narcotic Substances Act, 1997, and sentenced them to imprisonment for
life. They were also directed to pay a fine of Rs. 500,0001- each or in default
whereof to further undergo SI for one year each. Benefit of Section 382-B
Jail Petition No. 637/2016
2
Cr.P.C. was also extended to them. In appeal the learned High Court
maintained the conviction and sentences recorded against the petitioners
by the learned Trial Court.
2.
The prosecution story as given in the impugned judgment
reads as under:-
"2. The brief facts of the prosecution case as disclosed in the FIR
are that on 04.11.2013 SIP Khadim Hussain Buledi was posted as
Incharge CIA Police Naushero Feroz, on the same date, he along with
PCs Abdul Ghaffar Mashori, Khamiso Khan Mashori, Nisar Ahmed
Kalhoro left CIA center in Police mobile vide Roznamcha Entry No. 07 at
1215 hours for patrolling duty. While patrolling at various places when
the police party reached at National Highway, near Bhiria city, where it
is alleged that incharge CIA received spy information that two persons
were coming in a Parado, Silver Colour Vehicle bearing No. BD-4450
from Sukkur to Karachi. According to information, accused persons had
charas in secret cavities of the vehicle. Police party held nakabandi
near Grid Station Bhiria City. At 1600 hours vehicle appeared on the
road from Sukkur side. It was stopped, two persons were sitting in it,
one was driving the vehicle and another was sitting beside the driver
seat. SIP inquired the name of the driver to which he disclosed his
name as Liaquat Ali son of Gut Hassan Magsi, resident of Labour
Colony, Hub Chowki, Balochistan. Another accused who was sitting
beside the driver disclosed his name as Shad Muhammad son of Gut
Nazar Gujjar Pathan, resident of Qalander Abad, Gulistan-e-Johar,
Karachi. SIP made PCs Abdul Ghaffar and Khamiso Khan as mashirs
and searched the vehicle. Under the seat of the vehicle there was
secret cavity, it was opened and charas was found in such cavity in
plastic bags. 16 bundles of the charas were in white, black and red
plastic bags and words 'Fair Trade Espresso Dark Rost' were written.
Two bundles of the chorus were in two red coloured polythine bags, on
which 'candle' was written. Different words were written on different
bundles. Total weight of charas was 59 Kgs. SIP conducted personal
search of accused Liaquat All in presence of mashirs and recovered one
original CNIC and cash Rs.15001-. From personal search of accused
Shad Muhammad a CNIC and cash of Rs.20001- were recovered.
Accused had no vehicle documents. Mashirnama of arrest and
recovery was prepared by SIP in presence of the above named mashirs
and choras was sealed in three different plastic bags. Thereafter
accused, case property and vehicle were brought to the police station
Bhiria city where SIP kept Entry No. 17 at 1830 hours. SIP Wali
Muhammad, SHO PS Rhiria City lodged FIR bearing Crime No.
14512013 under Section 9(c) of the Control of Narcotic Substances Act,
1997 at Police Station Bhiria City. Thereafter, investigation was handed
over to SHO Wali Muhammad Chang."
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 four witnesses. When examined under
Jail Petition No. 637/2015
3
Section 342 Cr.P.C., the petitioners stated that they are innocent and have
been falsely implicated in the case.
4.
Learned counsel for the petitioners contended that the
petitioners have been falsely implicated in this case and the Police has
planted a fake case upon them. Contend that the narcotic was allegedly
recovered from the petitioners in the broad daylight in a busy thoroughfare
but none from the public was associated in the case to depose against the
petitioners. Contend that safe custody and safe transmission of the
narcotic was compromised as Amjad Hussain (PW-3) who was supposed to
send the parcels to Forensic Science Laboratory did not mention the dote
and time as to when he transmitted the parcels to the Laboratory.
5.
On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the petitioners were caught red
handed while transporting a huge quantity of narcotics and the Police
officials had no enmity to falsely involve them in the present case,
therefore, they 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 record.
The petitioners were caught red handed by the Police and a
huge quantity of 59 kilograms of contraband charas packed in 58 packets
was recovered from secret cavities of the car, which was being driven by
the petitioner Liaquat Ali whereas the petitioner Shad Muhammad was
sitting on the rear seat. The prosecution's case hinges upon the statements
of SIP Khadim Hussain Buledi (PW-1), Abdul Ghaffar (PW-2), PC Amjad
Hussain (PW-3) and Wali Muhammad Chang, 1.0 (PW-4). All these
witnesses have narrated the prosecution story in a natural manner and
remained consistent throughout and their testimony could not be
shattered by the defence despite lengthy cross-examination. The said
witnesses had no enmity with the petitioners to falsely implicate them in
the present case. Even otherwise a huge quantity of 59 kilograms of charas
in no circumstances can be planted by the Investigating Officer of his own.
This Court in a number of judgments has held that testimony of police
Jail Petition No. 637/2016
4
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 testimony remains un-shattered during cross-
examination. The police officials sent entire recovered contraband charas
to the office of Chemical Examiner. The report of the Chemical Examiner
shows that from all the 58 packets of recovered charas, 50 grams charas
was separated from each packet and consumed in analysis and the same
was found to be contraband charas. So for as the argument of the learned
counsel for the petitioner that the contraband charas, its safe custody and
safe transmission is not established is concerned, the learned High Court
has very ably dealt with this issue in paragraphs 18 & 19 of the impugned
judgment while holding that the Control of Narcotic Substances
(Government Analysts) Rules, 2001 virtually place no bar on the
Investigating Officer to send the samples beyond 72 hours of the seizure.
These Rules are stricto sensu directory and not mandatory in any manner.
It does not spell out that if there is any lapse and the time is consumed
beyond 72 hours, it would automatically become instrumental to discard
the prosecution case in all manners. The Control of Narcotic Substances
(Government Analysts) Rules, 2001, cannot control the substantive
provisions of the Control of Narcotic Substances Act, 1997. These Rules
cannot in any manner frustrate the salient features of the prosecution case
which otherwise hinges upon (i) receipt of information, (ii) action by the
concerned law enforcing agency, (iii) recovery of contraband narcotics, (iv)
the report of chemical examiner regarding analysis of the recovered
contraband, (v) the finding of fact by the courts below after recording of
evidence i.e. (a) witnesses of the raiding party, (b) the recovery witnesses,
(c) Investigating Officer and all other attending circumstances. If the series
of acts which ultimately resulted into recovery of contraband narcotic are
juxta poised with the violation of the Rules due to one reason or the other
-
JailPetition No. bJ7/201b
5
as alleged, it cannot by any stretch of imagination be considered
reasonable in law to smash the prosecution case on its salient features.
The transportation of drugs either inside the country or sending it abroad
has become a menace against morality, decency, public order, law and
order situation which indirectly intrudes upon the sovereignty of the
country. If this practice is allowed to continue it will squarely hamper the
very purpose of the law on the subject and would squarely bring bad name
for the country in the eyes of international community. It is established
beyond any doubt that the proceeds of narcotics are largely utilized in
terrorist activities which this country is facing since decades, therefore, the
activities of these elements need to be curbed with iron hands. Even
otherwise, on merits we could not find anything from the record, which
could suggest that the safe chain of custody of the narcotic was
compromised. The close analysis of the whole prosecution evidence i.e. the
recovery of huge quantity of narcotics, the happening of the occurrence in
broad daylight, report of the Chemical Examiner and the statements of the
prosecution witnesses when evaluated conjointly, there is no other option
left with the Court except to rely on the statements of the prosecution
witnesses for the purpose of conviction as recorded by the two courts
below. Consequently, this petition being devoid of any force, the same is
dismissed and leave to appeal is refused.
Islamabad, the
9th of March, 2022
Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE SAJJAD ALI SHAH
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO. 657 OF 2016
(On
appeal
against
judgment
dated
29.09.2015 passed by the Lahore High
Court, Lahore in Criminal Appeal No.
1628/2009)
Zulfiqar @ Zulfa
… Petitioner
VERSUS
The State
… Respondents
For the Petitioner:
Nemo
For the State:
Ch. Muhammad Sarwar Sidhu, Addl. P.G.
Date of Hearing:
16.12.2020
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The
petitioner was proceeded against in terms of the case registered
vide FIR No. 1372/2007 dated 20.10.2007 under Section 9 (c) of
the Control of Narcotic Substances Act, 1997, at Police Station
Saddar, Faisalabad. The learned Trial Court vide its judgment
dated 28.08.2009 convicted the petitioner under Section 9 (c) of
the CNSA, 1997, and sentenced him to imprisonment for life. He
was also directed to pay fine of Rs.30,000/- or in default whereof
to further suffer one year & four months SI. Benefit of Section 382-
B Cr.P.C. was also extended to him. The learned High Court vide
impugned judgment maintained the conviction and sentence
recorded by the learned Trial Court.
2.
Briefly stated the facts of the matter are that on a spy
information, raid was conducted on the house of the petitioner and
Jail Petition No. 657/2016
2
he was apprehended with a sack full of bhukki/poast. On search, it
was found that there was 15 kilogram of bhukki/poast in the bag.
Out of the 15 kilogram, 500 grams was separated for chemical
analysis. The report of the Chemical Examiner came positive. The
prosecution produced six witnesses in support of its case. In his
statement recorded under Section 342 Cr.P.C., the petitioner
denied the allegations leveled against him and pleaded that he is
falsely involved in this case.
3.
None was present on behalf of the petitioner in this
case. However, in the interest of justice, instead of adjourning the
case, we have decided to proceed with the case and decide it on
merits.
4.
Learned Additional Prosecutor General has inter alia
contended that the petitioner was caught red handed with a huge
quantity of narcotics; that the Police had no enmity with the
petitioner to falsely implicate him in the present case and that the
prosecution case has been fully proved beyond any reasonable
doubt. He lastly contended that the petitioner deserves no leniency
by this Court.
5.
We have heard learned Law Officer and have perused
the case record.
6.
The petitioner was caught red handed by the Police
while he was holding a sack, which contained 15 kilograms of
bhukki/poast. To bring home the guilt of the petitioner, the
prosecution produced six witnesses, out of which Ghazanfar Ali,
constable (PW-4) and Khawaja Imran Manan, ASC (PW-6) were
important. Both these PWs were cross-examined by the defence
counsel at length but they remained consistent on all material
Jail Petition No. 657/2016
3
particulars of the case. We have noted that FIR was registered in
the year 2007 whereas the evidence was recorded in the year 2009,
therefore, the possibility of minor discrepancies in the statements
of PWs is natural. This Court in a number of cases has held that
police officials are also competent witnesses and their testimony
cannot be discarded merely for the reasons that they are
employees of police force. This Court in Salah-ud-Din Vs. State
(2010 SCMR 1962) has held that “reluctance of general public to
become witness in such like cases has become judicially recognized
fact and there was no way out to consider statement of official
witness, as no legal bar or restriction had been imposed in such
regard. Police officials are as good witnesses and could be relied
upon, if their testimony remained un-shattered during cross-
examination.” The occurrence took place on 20.10.2007 whereas
the sample was sent to Chemical Examiner on 02.11.2007 and
according to the report of the Chemical Examiner the sample
contained ‘poast’. Keeping in view the above position, it can safely
be said that there is sufficient evidence available to connect the
petitioner with the commission of crime. However, so far as
quantum of punishment is concerned, we note that this is a case
of lesser punishment and for this we will examine as to what
actually is the ‘poast’/opium. In Section 2(t) of the Control of
Narcotics Substances Act, 1997, ‘opium’ has been defined as
under:-
“(t)“opium” means:-
(i)
poppy straw, that is to say, all parts of the poppy plant
(papaver somniferum or any other species of Papaver) after
mowing, other than the seeds,
(ii)
the spontaneously coagulated juice of capsules of poppy
which has not been submitted to any manipulations other
Jail Petition No. 657/2016
4
than those necessary for packing and transport; and
(iii)
any mixture, with or without natural materials, of any of the
above forms of opium, but does not includes any preparation
containing not more than 0.2 per cent of morphine;”
7.
As per definition clause of CNSA, after mowing, all
parts of the poppy plant except seeds are considered to be poppy
straw. However, this Court in the case reported as Taimoor Khan
Vs. State (2016 SCMR 621) while referring to earlier judgment of
this Court reported at Muhammad Imran v. The State (2011 SCMR
1954) has held that it is only the basket, sack or pouch (also
known as ‘Doda’) excluding the seeds, which contains narcotic
substance and that all poppy straw may not necessarily be
‘poast’/doda because poppy straw can be any other part of the
mowed poppy plant as well, excluding the seeds. It would be
advantageous to reproduce the relevant portion of the said
judgment, which reads as under:-
“What exactly is that which is called 'Poast'?
It has been agreed before us by the learned counsel for
all the parties and it is also borne out from the
authoritative works referred to above that in the local
parlance Poast is the name given to that part of a poppy
plant which has the shape of a basket, sack or pouch
and it contains the seeds of such plant. This natural
pouch or bulb made of the skin of the plant is meant by
the nature to hold and protect the seeds of the plant
contained therein. In some parts of this country this
natural pouch of the poppy plant is also known as
Doda. The Control of Narcotic Substances Act, 1997
calls this part of a poppy plant as 'capsule' of poppy
and this finds a specific mention in section 2(t) (ii) of the
said Act. The authoritative works mentioned above as
well as the learned counsel for all the parties before us
are also in agreement that if an unripe capsule of a
poppy plant is given an incision then a fluid oozes out of
the same containing meconic acid and a number of
alkaloids including narcotine and morphine which fluid
thickens within a short time and becomes brown in
colour and such substance is pure opium. It is also
Jail Petition No. 657/2016
5
agreed at all hands that even ripe and dry capsules of
poppy contain morphine and other alkaloids, i.e. opium,
although less in quantity, which can be used for
sedative and narcotic action. Most of the authoritative
works produced by the learned counsel for the parties
also confirm that alkaloids can be extracted even from a
mature and dry plant of poppy or poppy straw whether
it is in its natural shape or is in a crushed form.
However, the seeds contained in a capsule of a poppy
are free from morphine. After its mowing every part of a
poppy plant, including its capsule/Poast/Doda but
excluding the seeds, is generally called poppy straw
and, thus, every Post/Doda is a part of a poppy straw
but all poppy straw may not necessarily be Poast/Doda
because poppy straw can be any other part of the
mowed poppy plant as well, excluding the seeds.
(Underlined to lay emphasis)
8.
From the above, it is clear that ‘Poast’ is the name
given to that part of a poppy plant which has the shape of a basket,
sack or pouch and it contains the seeds of such plant. In some parts
of this country this natural pouch of the poppy plant is also known
as Doda. This led us to the question as to what actually was
recovered from the petitioner. Was it only the doda/basket/pouch
or it was the whole plant with stems and flowers? But
unfortunately, there is nothing in evidence regarding this aspect of
the matter. In common parlance, it has been seen that oftenly
stems and leaves of the poppy plants are used as animal food. The
plant can reach the height of about 1-5 meters (3-16 feet). Poppy
straw is derived from the plant Papaver somniferum, which has
been cultivated in many countries of Europe and Asia for
centuries. This has medicinal impact as well, which is largely used
as a tonic for wellness of nervous system. The purpose of its
cultivation was actually the production of poppy seeds. The latter
is used as a food stuff and as a raw material for manufacturing
poppy-seed oil, which is used for making various varnishes, paints
and soaps etc. We, therefore, find it a mitigating circumstance. The
Jail Petition No. 657/2016
6
petitioner is behind the bars for the last more than 13 years and
his remaining sentence is less than two years.
8.
For what has been discussed above, we while
maintaining the conviction of the petitioner, reduce the sentence of
imprisonment for life awarded to him into what he has already
undergone. The petitioner shall be released from jail forthwith,
unless detained in any other case. This jail petition is accordingly
converted into appeal and partly allowed.
JUDGE
JUDGE
JUDGE
Islamabad, the
16th of December, 2020
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Maqbool Baqar
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Amin-ud-Din Khan
Jail Petition No.684 of 2016
(Against the judgment dated 29.11.2016 passed by the Lahore
High Court Lahore in Cr. A. No.168-J of 2013 with M.R. No.202 of
2013)
Ashfaque alias Shaka
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Mian Liaqat Ali, ASC
For the State:
Mirza Muhammad Usman
Deputy Prosecutor General
For the Complainant:
In person.
Date of Hearing:
04.01.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.:- Indicted for homicide
and murderous assault alongside co-accused, since acquitted, the
petitioner was returned a guilty verdict by a learned Addl. Sessions
Judge at Kasur; vide judgment dated 30.05.2013, convicted under
clause (b) of section 302 of the Pakistan Penal Code, 1860, he was
sentenced to death with a direction to pay compensation, altered into
imprisonment for life by a Division Bench of the Lahore High Court
Lahore vide impugned judgment dated 29.11.2016, vires whereof, are
being assailed through jail petition, argued by Mian Liaqat Ali, ASC.
2.
According to the prosecution, on the fateful day, i.e.
18.6.2010, at 5:30 p.m., the petitioner armed with a .12 caliber short-
gun accompanied by acquitted co-accused, differently armed, fatally
shot Khurshid Bibi, 50/55, in the backdrop of a minor altercation of
even date; Ejaz co-accused, assigned a shot to Shahid Maseeh PW, was
acquitted as the latter did not support the prosecution case. Incident
Jail Petition No.684 of 2016
was reported at 7:00 p.m. same day; the injured were medically
examined under a police docket 7:30 p.m; the deceased, after struggling
for life, later succumbed to the injury; her autopsy was conducted
following day at 3:00 p.m. Arrested on 11.7.2010, pursuant to a
disclosure, the petitioner led to recovery of short gun (C-1), founded
wedded with the casings, secured from the spot.
Dissatisfied with police investigation, the complainant preferred
to prosecute his case through a private complaint with the assistance of
eye witnesses, namely, Hanif Mashi (PW-1) and Shoukat Maseeh
(PW-2); Shahzad alias Shahid Maseeh (CW-1), injured defected from the
scene.
3.
Learned counsel for the petitioner contends that desertion
of Shahzad alias Shahid Maseeh (CW-1) raised the entire edifice of
prosecution case to the ground, inasmuch as, being an injured and
close relative, he furnished details diametrically different than the case
set up in the crime report and as such there was no occasion for the
trial Court to return a guilty verdict on the strength of evidence
inherently flawed, a circumstance that escaped High Court’s notice in
concurrence of error. It is next argued that evidence disbelieved qua
majority of the accused cannot be pressed into service to maintain
petitioner’s conviction without independent corroboration, lacking
hopelessly. A delayed autopsy heavily reflected upon the prosecution
case, concluded the learned counsel. The learned Law Officer has
faithfully defended the impugned judgment.
4.
Heard. Record perused.
5.
Despite setbacks, usual more often than not, prosecution
case vis-à-vis the petitioner is firmly structured on the foundations
un-trembled by the defection of an injured witness; he was medically
examined under a police docket even before the autopsy was conducted;
in those agonizing moments, he supported the prosecution case in his
statement recorded by the Investigating Officer; it was much late in the
day that he opted to part ways with the prosecution for reasons best
known
to
him
and,
thus,
his
mysterious
departure,
though
embarrassing to the prosecution, nonetheless, by itself, does not cast
away its case in the presence of witnesses named in the crime report
faithfully supporting their case.
Learned counsel for the petitioner despite detailed survey of the
evidence has not been able to point out any flaw or infirmity in the
statements of the witnesses that may reflect upon their presence at the
Jail Petition No.684 of 2016
spot having seen the solitary fatal shot singularly assigned to the
petitioner costing the deceased her life in broad daylight. Investigation
though somewhat controversial, nonetheless, is pointed towards
petitioner’s culpability, further supported by recovery of weapon
matched with the casing. The autopsy cannot be viewed as delayed as
after initially gasping for life, the deceased breathed her last later and it
is for this reason, autopsy was conducted the following day. The Courts
below having rightly assessed the evidence, no interference is called for.
Petition fails. Leave declined.
Judge
Judge
Judge
Islamabad, the
4th January, 2022
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.739 of 2018 and Criminal
Petition No.1344 and 1351 of 2018
(Against the judgment dated 10.10.2018 of the Islamabad High Court
Islamabad passed in Crl. Appeal No.62 of 2018)
Haroon-ur-Rasheed
(in J.P.739/2018)
Shahzad
(in Crl. P. 1344/2018)
Meer Qabil
(in Crl. P. 1351/2018)
…Petitioner(s)
Versus
The State
(in J.P.739/2018 & in Crl. P. 1344/2018)
The State & 2 others
(in Crl. P. 1351/2018)
…Respondent(s)
For the Petitioner(s):
Mr. Mudassir Khalid Abbasi, ASC
Ch. Akhtar Ali, AOR
(in J.P.739/2018)
Mr. M. Amjad Iqbal, ASC
(in Crl. P.1344/2018)
Maik Qamar Afzal, ASC
(in Crl. P.1351/2018)
For the State:
Raja Inaam Ameen Minhas,
Ch. Ehtisham-ul-Haq,
Special Prosecutors, ANF
Date of hearing:
13.04.2021
ORDER
Qazi Muhammad Amin Ahmed, J.- On a tip off, the
petitioners were intercepted by Anti-Narcotic Force contingent
Jail Petition No.739 of 2018 and Criminal Petition No.1344 and
1351 of 2018
2
within the precincts of Police Station Rawat at 9/10:00 on
10.10.2016; they were transporting a heavy consignment of
narcotics concealed in different portions of a car; the search led to
discovery
of
ten
packets
of
contraband,
weighing
10-kg,
surreptitiously placed in different cavities, forensically confirmed
as cannabis; they were indicted by the learned Special Judge (CNS)
Islamabad who returned them a guilty verdict under Section 9(c) of
the Control of Narcotic Substances Act, 1997; sentenced to ten
years
rigorous
imprisonment,
they
were
directed
to
pay
Rs.100,000/- each as fine or to undergo nine months simple
imprisonment in lieu thereof, vide judgment dated 19.04.2018;
their appeal failed before a learned Division Bench of the
Islamabad High Court vide impugned judgment dated 10.10.2018,
vires whereof, are being assailed on a variety of grounds ranging
from false implication, discrepant statements of the witnesses,
non-availability of support from the public and a forensic report
with deficient protocols. The learned Law Officer faithfully defended
the impugned judgment, according to him, the prosecution
succeeded in proving the charge to the hilt beyond a shadow of
doubt.
2.
Heard. Record perused.
3.
We have gone through the evidence to find the
witnesses in a substantial unison on all the details of the episode;
petitioners’ joint arrest with the vehicle they were travelling in and
seizure of contraband therefrom are circumstances heavily
looming over their culpability. Forensic report substantially details
the procedure adopted by the analyst to undertake the analysis,
unambiguously
confirming
the
narcotic
character
of
the
contraband, a conclusion that went unrebutted/unchallenged
during the trial. Petitioners’ different backgrounds, converging in
their illicit pursuit, the only common ground, by itself confirms a
collaboration in a purpose far from being usual or just.
Inconsequential
cross-examination
and
reticent
denials,
in
retrospect, lend a mute support to the prosecution in its quest to
drive home the charge. In the totality of circumstances, we are not
persuaded to take a view other than the one concurrently taken by
the Courts below. However, distinctly saddled with different
quantities of the contraband by each convict, ranging from
Jail Petition No.739 of 2018 and Criminal Petition No.1344 and
1351 of 2018
3
2 to 5 k.g., a case set up by the prosecution itself, spells out a
makeshift union instead of a concerted joint detour, therefore, we
are inclined to proportionately mould the sentence. Consequently,
while maintaining their conviction, sentence awarded to them is
reduced to a period of 5-years R.I. with a corresponding reduction
in the fine to the tune of Rs.50,000/- each with 6-months S.I. in
the event of default, a wage conscionable in the peculiar facts and
circumstances of the case. With the aforesaid modification, the
petitions are converted into appeal and partly allowed.
Judge
Judge
Judge
Islamabad
13th April, 2021
Not approved for reporting.
Azmat/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
JAIL PETITION NO. 794 OF 2017
(On appeal against the judgment dated 06.10.2017
passed by the Lahore High Court, Lahore in Murder
Reference No. 340/2014 & Criminal Appeal No. 508-
J/2014)
Muhammad Sadiq
… Petitioner
VERSUS
The State
… Respondent
For the Petitioner:
Mr. Tariq Mehmood Butt, ASC
For the State:
Ch. Muhammad Sarwar Sandhu, Addl. P.G
Date of Hearing:
09.11.2021
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was
proceeded against in terms of the case registered vide FIR No. 630
dated 13.11.2012 under Section 302 PPC at Police Station
Bhowana, District Chinito for committing murder of Muhammad
Tahir son of the complainant. The learned Trial Court vide its
judgment dated 13.09.2014 convicted the petitioner under Section
302(b) PPC and sentenced him to death. He was also directed to pay
an amount of Rs.500,000/- as compensation to the legal heirs of the
deceased as provided under Section 544-A Cr.P.C. or in default
whereof to further undergo six months SI. However, the learned
High Court vide impugned judgment while maintaining the
conviction of the petitioner 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.
2.
The prosecution story as given in the impugned
judgment reads as under:-
Jail Petition No. 794/2017
2
“2.
Prosecution story, as set out in the FIR (Ex.PB/1)
registered on the statement (Ex.PB) of Mst. Zubaida Bibi,
complainant (PW-6) is that she (complainant) was resident of
Mohammadi Sharif and had kept her cattle at the dhari of
Mian Farooq Ahmad Mayana. In evening time, Muhammad
Tahir son of the complainant used to bring back the goats to
the house daily but on the fateful day when he did not
return, the complainant alongwith Muhammad Nasir and
Ahmad Nawaz started search and when they reached near
the Dhari, Muhammad Sadiq (appellant) within their view,
inflicted hatchet blows on the person of Muhammad Tahir
which landed on his chin and head who fell down on the
ground. On the hue and cry of complainant party numerous
people gathered there who also witnessed the occurrence.
When the complainant’s side tried to overpower Muhammad
Sadiq (appellant) he threatened that if anybody came near
he would not be left alive and fled away from the place of
occurrence while brandishing his hatchet. The complainant
and other PWs attended Muhammad Tahir but he had
succumbed to the injuries. Motive behind the occurrence as
that few days prior to the occurrence an altercation took
place between Muhammad Tahir (deceased) and Muhammad
Sadiq (appellant) and they abused each other and due to the
said grudge the appellant has committed the murder of
deceased.”
3.
After completion of the investigation, report hallan 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 opt to appear under Section 340(2) Cr.P.C. to lead
defence evidence.
4.
Learned counsel for the petitioner contended that there
are glaring contradictions in the statements of the eye-witnesses,
which were ignored by the learned courts below. Contends that the
complainant was mother of the deceased, therefore, her testimony
cannot be believed to sustain the conviction of the petitioner.
Contends that when the learned High Court disbelieved the motive
part of the prosecution story and held recovery of weapon of offence
to be inconsequential, there was no occasion for it to maintain the
conviction and sentence recorded by the learned Trial Court. Lastly
contends that the learned High Court while passing the impugned
judgment has not appreciated the evidence in its true prospective,
therefore, a great miscarriage of justice has been done.
5.
On the other hand, learned Law Officer has defended
the impugned judgment. He contended that the petitioner has
Jail Petition No. 794/2017
3
committed murder of an innocent person and the evidence available
on record is sufficient to prove the case against him, 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 with their
able assistance.
The ocular account in this case has been furnished by
Mst. Zubaida Bibi, complainant (PW-6) and Ahmad Nawaz (PW-7).
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. Both
these PWs remained consistent on each and every material point
inasmuch 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 fully corroborates 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
complainant was mother of the deceased, therefore, her 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. In the present case, the petitioner
committed the murder of his real son whereas his wife, who
happened to be mother of the deceased, implicated him in the case.
Learned counsel for the petitioner could not point out any reason as
to why the wife of the petitioner i.e. the complainant has falsely
involved him in the present case and let off the real culprit.
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, who happened to be her
husband, without any rhyme and reason. Even otherwise, if we
keep aside the testimony of Mst. Zubaida Bibi (PW-6) even then the
petitioner can be convicted on the solitary statement of Ahmed
Jail Petition No. 794/2017
4
Nawaz (PW-7) as it is an established principle of law that testimony
of a solitary eye-witness is sufficient to sustain conviction of an
accused if the same rings true and inspires confidence and it is the
quality of the testimony of a witness that has to be weighed and not
the quantity of witnesses. The witnesses were residents of the same
locality where the occurrence took place and they have duly
explained their presence at the scene of occurrence. The learned
High Court has disbelieved the motive part of the prosecution story
whereas the recovery of weapon of offence was also held
inconsequential only on the ground that it was recovered after lapse
of 19 days and was sent to the office of Chemical Examiner after 24
days and because it was possible that the blood would have
disintegrated it does not advance the prosecution case. However, we
are of the view that the conclusion arrived at by the learned High
Court so far as the weapon of offence is concerned is based upon
hypothetical approach. Normally the blood stains disintegrate after
one month through a biological process but this process is not
absolute rather it depends upon so many other factors such as
nature of article stained with blood, severity of weather, level of
humidity, place where it is found, blood group, race and physique of
the body etc. In the instant case the hatchet was recovered at the
instance of the petitioner after 19 days and the same was sent for
chemical examination after 24 days. The Investigating Officer had
also collected blood stained earth and sent the same along with the
hatchet to the office of Chemical Examiner. As per the reports of
Punjab Forensic Science Agency human blood was found on both
these articles. The recovery was affected by the petitioner from the
corn fields in the same vicinity where the occurrence took place in
the presence of PWs, who remained consistent in their depositions.
Even otherwise, when we have found the testimonies of the
witnesses of the ocular account to be trustworthy, straightforward
and confidence inspiring, which are duly supported by the medical
evidence, mere the fact that motive has not been proved and
recovery of weapon of offence has been held to be inconsequential,
would not be of any benefit to the petitioner. The learned High Court
has already taken a lenient view while converting the penalty of
Jail Petition No. 794/2017
5
death into imprisonment for life. No further leniency can be shown to
the petitioner.
7.
For what has been discussed above, this petition
having no merit is accordingly dismissed and leave to appeal is
refused.
JUDGE
JUDGE
Islamabad, the
9th of November, 2021
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.83 of 2021
(Against the judgment 01.02.2021 passed by the Lahore
High Court Rawalpindi Bench in Crl. A. No.58/2020)
Raja Ehtisham Kiyani
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Syed Hamid Ali Shah Bokhari, ASC
For the State:
Mirza Abid Majeed,
Deputy Prosecutor general Punjab
Date of Hearing:
04.03.2022.
ORDER
Qazi Muhammad Amin Ahmed, J.:- Surprised by a
police contingent within the precincts of Police Station Gujjar Khan,
headed by Shabbir Hussain, SI (PW-3), the petitioner was found in
possession of 1500 grams of heroin at 1:30 p.m. on 21.04.2019.
Upon search, a cell phone handset alongwith some cash were also
secured vide inventory. 75 grams sample forensically confirmed the
contraband character of the contraband.
Upon indictment, the petitioner claimed trial that resulted into
his conviction under section 9(c) of the Control of Narcotic
Substances Act, 1997; he was sentenced to 6-years RI with a
direction to pay fine, pre-trial period inclusive, vide judgment dated
29.01.2020, upheld by the High Court vide impugned judgment
dated 01.02.2021, being assailed on a variety of grounds, bias of
Shabbir Hussain SI (PW-3), clamored most emphatically.
2.
It is argued that Shabbir Hussain SI who allegedly
headed the police contingent comprising of three constables carried
out the entire exercise, right from inception to deposit of samples to
the Punjab Forensic Science Agency himself, which in retrospect,
lends credence to the defence plea that in the backdrop of an earlier
animosity he cooked up a false case and was personally interested in
its success. It is next argued that investigation of the case by the
complainant himself, particularly in the face of his alleged
Jail Petition No.83 of 2021 2
misconduct must be viewed with caution. The learned Law Officer,
contrarily, defended the impugned judgment on the grounds that the
petitioner was intercepted with a considerable cache of a narcotic
substance, most lethal in nature, forensically so confirmed through
an uninterrupted chain of various investigative steps, ranging from
seizure, safe custody to transmission thereof. It is next argued that
the witnesses are in a comfortable unison on all the salient details of
the recovery as well as matters collateral thereto, leaving no space to
entertain any hypothesis other than petitioner’s guilt.
3.
Heard. Record perused.
4.
We are not intrigued by Investigation Officer’s conduct
on his having swiftly concluded various investigative steps/
requirements, himself to bring the prosecution to its logical end;
attestation of inventories by other members of the contingent
confirmed their presence in the episode, otherwise an official
business
protected
by
statutory
presumption
of
being
in
order/genuine; on the contrary, efficient promptitude deserves
acclaim.
Insofar as allegation of previous animosity on account of
alleged demand of bribe by one of the members of the police party,
against whom, the petitioner claims to have moved some application
is concerned, nothing is on the record to even obliquely suggest an
ongoing previous rancor, prompting the police to impose a false
recovery of a substance with a price tag rather huge in terms; the
plea surfaced, surprisingly late in the day without any attempt to the
departmental recourse and, thus, at best can be viewed as an
afterthought and at worst a ploy to subvert the prosecution. Even
during the trial, the petitioner did not pick courage to enter the
witness box in disproof of charge or to drive home his plea with a
view to discharge adverse statutory presumption provided in section
29 of the Act ibid.
On our independent analysis of the record, we have not been
able to take a view than the one concurrently taken by the Courts
below. Petition fails. Leave declined.
Judge
Judge
Islamabad, the
4th March, 2022
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
Jail Petition No.847 of 2018
(Against judgment dated 15.11.2018 of the
Lahore High Court Rawalpindi Bench
passed in Crl. Appeal No.539/2017)
Shazia Bibi
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Malik Jawwad Khalid, ASC
For the State
Mr. Muhammad Jaffar,
Additional
Prosecutor
General,
Punjab.
Date of hearing:
08.1.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J. Shazia Bibi,
petitioner herein, was apprehended with 4-kilograms of cannabis
during a random search on 28.12.2016 by a police contingent of
Attock Khurd; she was on board a public vehicle hailing from
Peshawar; forensic report established narcotic character of the
contraband; upon conclusion of trial, convicted under Section
9(c) of the Control of Narcotic Substances Act, 1997, she was
sentenced to four years rigorous imprisonment with a direction to
pay Rs.20,000/- as fine or to undergo four months simple
imprisonment in lieu thereof, vide judgment dated 23.2.2017,
upheld in appeal vide impugned judgment dated 15.11.2018,
vires whereof, are being assailed on the grounds that she has
been targeted as a scapegoat by the police to settle score with her
husband, a driver by profession, on loggerheads with the police
over illegal demands. It is next argued that the case was liable to
be thrown out for prosecution’s failure to come up with complete
details/protocol of forensic tests, carried out to establish the
Jail Petition No.847 of 2018
2
nature of contraband allegedly recovered. Learned Law Officer
faithfully defended the impugned judgment.
2.
Heard. Record perused.
3.
Quantity recovered, rather substantial in volume/
weight, cannot be possibly foisted upon a female to victimize her
husband, himself a most suitable target, if at all the police had
an axe to grind. All the prosecution witnesses including those of
recovery have been found by us well within tune with one
another; soon after her arrest, with the assistance of a female
staffer, she was produced before a Magistrate who remitted her
into judicial custody, a most opportune occasion to raise protest;
her silence goes a long way to rebut the belatedly related story
that otherwise may not find a buyer. Argument that the forensic
report sans protocol is beside the mark as well inasmuch as tests
carried out by the analyst are vividly mentioned therein,
reproduced for the convenience of reference:-
“Test Performed on Received Item(s) of Evidence
1. Top load balance was used for weighing.
2. Chemical Spot Tests
were used for
Presumptive Testing.
3. Gas Chromatography-Mass Spectrometry
was used for confirmation.
Results and Conclusions
Item # 01 3982 gram(s) of dark brown
resinous material in sealed parcel contains
Charas.”
Above details mentioned in the forensic report substantially/
sufficiently qualify to meet the statutory requirements. Findings
concurrently arrived by the Courts below, being well within the
remit of law, do not call for interference. Petition fails. Leave
declined.
Judge
Judge
Islamabad
8th January, 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
MR. JUSTICE MUHAMMAD ALI MAZHAR
JAIL PETITION NO. 865 OF 2017
(Against the judgment dated 17.11.2017
passed by the Lahore High Court, Lahore in
Murder Reference No. 10/2015 and Criminal
Appeal No. 595-J/2014)
Nasir Ahmed
…Petitioner(s)
VERSUS
The State
…Respondent(s)
For the Petitioner(s):
Syed Rifaqat Hussain Shah, ASC
For the State:
Mirza Abid Majeed, DPG
Date of Hearing:
12.12.2022
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Nasir Ahmed along
with co-accused was tried by the learned Additional Sessions Judge,
Sargodha pursuant to a case registered vide FIR No. 150 dated 29.07.2011
under Sections 302/324/34 PPC at Police Station Shah Nikdar, Sargodha
for committing murder of Mst. Shehnaz Bibi and for causing injuries to
Bushra Bibi, a minor. The learned Trial Court vide its judgment dated
31.10.2014 while acquitting the co-accused, convicted the petitioner
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 undergo SI for six months.
In appeal the learned High Court maintained the conviction and sentence
of death awarded to the petitioner by the learned Trial Court. The amount
JAIL PETITION NO. 865 OF 2017
-: 2 :-
of compensation and the sentence in default whereof was also
maintained.
2.
The prosecution story as given in the impugned judgment
reads as under:-
“Prosecution story, as set out in the FIR (Ex.PJ) registered on the
statement of Sher Muhammad, complainant (PW.7) is that he was
resident of Chak No.168/171 Shumali and a labourer. On 20.072011 the
marriage of daughter of complainant namely Mst. Shahnaz Bibi aged
about 18/19 years was fixed. The complainant along with his guests
Abdul Majeed, and Abdul Hafeez, was busy in his house for marriage
arrangements. At around 10.00 a.m. Nasir Ahmad (appellant),
Muhammad Iqbal and Ahmad Sher came on a motorcycle. They parked
motorcycle in the street and entered the house of complainant. Mst.
Shahnaz Bibi daughter of complainant was sitting in the room on a chair,
having Mst. Bushra Bibi daughter of elder daughter of complainant aged
about 4 years in her lap. Nasir Ahmad, who was son-in-law (damad) and
maternal nephew (bhanja) of complainant, while reaching near the door
of room put out pistol from the folder of his shalwar and within the view
of complainant party, fired three shots with pistol at Mst. Shahnaz Bibi.
First fire landed behind left ear of Mst. Shahnaz Bibi and made its exit
from right side of chin. Second fire hit on left thumb of Mst. Shahnaz Bibi
and went through and through whereas third fire hit Bushra Bibi aged
about 4 years on her right cheek near ear. Muhammad Iqbal and Ahmad
Sher co-accused of the appellant kept on raising lalkaras. The accused
persons went out of the house and fled away on motorcycle. The
complainant along with Abdul Majeed and Abdul Hafeez witnessed the
occurrence and attended both the injured. Mst. Shahnaz Bibi succumbed
to injuries on the spot whereas Bushra Bibi immediately shifted to
Sillanwali Hospital from where she was referred to Sargodha and
thereafter referred to Lahore.
Motive behind the occurrence as alleged in the FIR was that Nasir
Ahmad (appellant) etc. were not willing over the marriage of Mst.
Shahnaz Bibi arranged by the complainant and told the complainant not
to get her married there but the complainant did not accede to.”
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 twelve 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 opt to appear as his own
witness on oath as provided under Section 340(2) Cr.P.C in disproof of the
allegations leveled against him. He also did not produce any evidence in
his defence.
JAIL PETITION NO. 865 OF 2017
-: 3 :-
4.
At the very outset, learned counsel for the petitioner
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 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 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 is inconsequential as no crime empty
was collected from the spot, as such, the same cannot be used against the
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 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 petitioner 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.
There is no denial to this fact that the unfortunate incident
wherein the daughter of the complainant lost her life had taken place on
29.07.2011 at 10.00 a.m. in the morning whereas the matter was reported
to the police at 10:30 a.m. on the same day while the inter se distance
between the place of occurrence and the Police Station was six kilometer.
This aspect of the case clearly reflects that the matter was reported to
Police promptly without there being any delay. As the occurrence has
taken place in the broad daylight and the parties were known to each
other, therefore, there is no chance of misidentification. The ocular
account in this case has been furnished by Sher Muhammad, complainant
JAIL PETITION NO. 865 OF 2017
-: 4 :-
(PW-7) and Abdul Hafeez (PW-8). 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. 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 complainant Sher
Muhammad was inmate of the house where the occurrence took place,
therefore, his presence was natural. So far as the presence of Abdul
Hafeez (PW-8) is concerned, it is admitted position that at the relevant
time, the wedding ceremony of the deceased Mst. Shahnaz Bibi was going
on and he being a close relative had come to complainant’s house to
attend the ceremony. 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 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. In Muhammad Iqbal Vs. The State (1996 SCMR 908) this Court
candidly held that “ocular testimony being wholly reliable, conviction
could even be safely based on the same without further corroboration.” In
Naeem Akhtar Vs. The State (PLD 2003 SC 396) this Court observed that
“eye-witness who was a doctor and victim of the occurrence had narrated
the incident in each detail without any omission and addition and his
evidence being of unimpeachable character is alone sufficient to the
charge.” In Faisal Mehmood Vs. The State (2010 SCMR 1025) it was held
that “reliable ocular testimony did not need any corroboration to lose
conviction”. Same was the view of this Court in Muhammad Ilyas Vs.
The State (2011 SCMR 460) wherein it was held that “it is not medical
evidence to determine question of guilt or innocence but it is ocular
version which is required to be taken into consideration at first
instance”. The value and status of medical evidence and recovery is always
JAIL PETITION NO. 865 OF 2017
-: 5 :-
corroborative in its nature, which alone is not sufficient to sustain the
conviction. 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 the distance
between the deceased and the assailant and the points where such fire
shots appeared to have landed and it becomes highly improbable to
correctly mention the location of the fire shots 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. As far as the question
that the witnesses of the ocular account are related to the deceased,
therefore, their testimonies 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 especially
when the relationship with the assailant is so close and admittedly the
marriage ceremony was going on in the house. Presence of PWs cannot be
doubted. 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. 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, who
was his son-in-law and maternal nephew, 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. It is
a well settled proposition of law that as long as the material aspects of the
JAIL PETITION NO. 865 OF 2017
-: 6 :-
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. 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 neither the defence seriously disputed the motive part of the
prosecution story nor the PWs were cross-examined on this aspect of the
matter. On our specific query, learned counsel admitted that although the
petitioner was represented by a counsel and an opportunity was given to
cross-examine the witnesses but despite that the witnesses were not
cross-examined on the issue of motive. In this view of the matter, we are
constrained to hold that the prosecution has successfully proved the
motive against the petitioner. So far as the recovery of weapon of offence
i.e. .30 bore pistol is concerned, the same is inconsequential simply for the
reason that no crime empty was recovered from the place of occurrence,
which could be sent to Forensic Science Laboratory for chemical analysis.
There seems to be something which was extended as obliging concession
due to close relationship with the deceased family. Admittedly, the
petitioner remained absconder for a period of about six months and the
same is also a corroboratory piece of evidence against him. Keeping in
view the facts and circumstances of the present case, even if the recovery
of weapon of offence is excluded from consideration, still there is ample
evidence in the form of unimpeachable and trustworthy ocular account,
medical evidence and motive to sustain conviction of the petitioner on the
capital charge. In Muhammad Aslam Vs. The State (2004 SCMR 872), this
Court by holding that when ocular account is believed to be inspiring
JAIL PETITION NO. 865 OF 2017
-: 7 :-
confidence
and
trustworthy,
mere
the
fact
that
recovery
is
inconsequential by itself could not be a ground for lesser penalty,
maintained the penalty of death awarded to the accused by the lower
courts. Reliance is also placed on Muhammad Afzal Vs. The State (2003
SCMR 1678).
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
JUDGE
Islamabad, the
12th of December, 2022
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE JAMAL KHAN MANDOKHAIL
MR. JUSTICE ATHAR MINALLAH
JAIL PETITION NO. 883 OF 2017 AND
CRIMINAL PETITION NO. 1793-L OF 2017
(On appeal against the judgment dated 23.10.2017 passed by the
Lahore High Court, Lahore in Criminal Appeal Nos. 1273 &
1125/2013, Criminal Revision No. 675/2013 and Murder Reference
No. 209/2013)
Aman Ullah
(In JP 883/2017)
Riaz Hussain
(In Cr.P. 1793-L/2017)
…Petitioner(s)
VERSUS
The State etc
(In both cases)
…Respondent(s)
For the Petitioner(s):
Rana Ghulam Sarwar, ASC
(In JP 883/2017)
Mr. Shahid Tabbassum, ASC
(In Cr.P. 1793-L/2017. Through video link from Lahore)
For the State:
Mirza Muhammad Usman, DPG
Date of Hearing:
07.02.2023
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner Aman Ullah along
with co-accused was tried by the learned Sessions Judge, Bhakkar
pursuant to a case registered vide FIR No. 658 dated 11.11.2010 under
Sections 302/324/34 PPC at Police Station Saddar, Bhakkar for committing
murder of Niaz Hussain and for causing injuries to Mst. Farzana Bibi,
brother and sister-in-law of the complainant. The learned Trial Court vide
its judgment dated 03.07.2013 while acquitting the co-accused, convicted
the petitioner 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
CRIMINAL PETITION NO. 1397-L OF 2017 AND
JAIL PETITION NO. 743 OF 2018
-: 2 :-
months SI. He was also convicted under Section 324 PPC and was
sentenced to ten years RI with a direction to pay fine of Rs.50,000/- or in
default thereof to further undergo six months SI. He was further convicted
under Section 337-D PPC and was sentenced to ten years RI and to pay
Arsh equivalent to one third of Diyat according to value fixed for the year
of occurrence i.e. 2010-2011. Till payment of the same, the petitioner was
ordered to be kept in jail. Benefit of Section 382-B Cr.P.C. was also
extended in favour of the petitioner. In appeal the learned High Court
while maintaining the conviction of the petitioner under Section 302(b)
PPC, altered the sentence of death into imprisonment for life. The other
conviction and sentences were maintained. The amount of compensation
and the sentence in default whereof was also maintained. Benefit of
Section 382-B Cr.P.C. was also extended in favour of the petitioner.
2.
The prosecution story as given in the impugned judgment
reads as under:-
“2.
Briefly stated the case of the prosecution as unveiled by Riaz
Hussain complainant (PW.3) in FIR (Exh.PB/1) is to the effect that on
11.11.2010 at about 10:30 a.m. he along with his brother Niaz Hussain
and his Bhabi Mst. Farzana Bibi was present in his house situated in Basti
Lugran Wali; that Aman Ullah (petitioner) armed with pistol .30 bore
along with an unknown person armed with rifle came there on
motorcycle and parked the motorcycle outside his brother's house; that
unknown accused kept standing as guard near motorcycle while Aman
Ullah (petitioner) entered in the Haveli and raised lalkara for not sparing
complainant's brother and fired successive shots from his pistol hitting at
the chest and belly of Niaz Hussain; that when Mst. Farzana Bibi stepped
forward to rescue Niaz Hussain, Aman Ullah (petitioner) made a fire shot
from his pistol which landed on her abdomen; that on hearing their hue
and cry as well as reports of firing, PW Kallu Khan (given up) and Ansar
Abbas (PW.19) attracted to the scene and witnessed the occurrence.
They tried to apprehend Aman Ullah etc, whereupon they aimed their
weapons at them and warned not to come near and made good their
escape from the spot. Niaz Hussain and Farzana Bibi, who were seriously
injured, were taken to HQ Hospital, Bhakkar, where Niaz Hussain
succumbed to the injuries. The motive behind the occurrence statedly
was the love marriage of Niaz Hussain (deceased) and Mst. Farzana Bibi.”
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 twenty witnesses. In his statement recorded
CRIMINAL PETITION NO. 1397-L OF 2017 AND
JAIL PETITION NO. 743 OF 2018
-: 3 :-
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 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 and
recoveries 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 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 learned
counsel for the complainant vehemently opposed this petition on the
ground that the eye-witnesses had no enmity with the petitioner to falsely
implicate him in this case. It has been contended that the eye-witnesses
have reasonably explained their presence at the spot at the relevant time,
which is quite natural and probable and the medical evidence is also in line
with the ocular account, therefore, the petitioner does not deserve any
leniency from this Court, rather his sentence of imprisonment for life may
be enhanced to death.
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.
CRIMINAL PETITION NO. 1397-L OF 2017 AND
JAIL PETITION NO. 743 OF 2018
-: 4 :-
A bare perusal of the record shows that the unfortunate
incident, wherein the brother of the complainant lost his life and his sister-
in-law sustained injuries, took place on 11.11.2010 at 10:30 am. The
deceased and injured PW were firstly taken to DHQ Hospital Bhakkar
where the matter was reported to the Police. The FIR was lodged on the
same day at 1:45 am. The distance between the place of occurrence and
the Police Station was 32 kilometers whereas as per the record the place
of occurrence was one hour away from the DHQ Hospital. 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 occurrence
took place in the broad daylight and the parties were known to each
other, therefore, there is no chance of misidentification. The ocular
account in this case has been furnished by Riaz Hussain, complainant (PW-
3), Mst. Farzana Bibi, injured (PW-4) and Ansar Abbas (PW-19). Mst.
Farzana Bibi was inmate of the house where the occurrence took place
whereas complainant Riaz Hussain was residing in the adjacent house.
Similarly, Ansar Abbas (PW-19) was resident of the same locality.
Therefore, the presence of these PWs 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
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. Mst. Farzana had sustained injuries during the
occurrence, which have fully been supported by the medical evidence
given by Dr. Saira Batool, who appeared as PW-7. The testimony of this
CRIMINAL PETITION NO. 1397-L OF 2017 AND
JAIL PETITION NO. 743 OF 2018
-: 5 :-
injured PW as well as the stamp of injuries on her person clearly proves
her presence at the place of occurrence. The medical 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 the deceased and
injured 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 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. As
far as the question that the prosecution witnesses are interested and
related, therefore, their evidence has lost its sanctity is concerned, it is
now settled 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 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
real brother. Substitution in such like cases is a rare phenomenon. During
the course of proceedings, the learned counsel contended that there are
CRIMINAL PETITION NO. 1397-L OF 2017 AND
JAIL PETITION NO. 743 OF 2018
-: 6 :-
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. The
weapon of offence i.e. pistol .30 bore, recovered at the instance of the
petitioner and the crime empties collected from the place of occurrence
were separately sent to the Forensic Science Laboratory and the report is
positive. The motive behind the occurrence was statedly the love marriage
of Niaz Hussain, deceased, with Mst. Farzana Bibi. However, the learned
High Court has rightly discarded the same by holding that the love
marriage had taken place about two years back and the grievance of the
family of Mst. Farzana Bibi had been redressed as pursuant to a
compromise the daughter of the deceased Mst. Zarqa was given in the
nikah of one Abdul Rehman, son of co-accused Ghulam Sarwar. Hence, the
motive part of the prosecution case does not inspire confidence so as to
term it is as a cause of the murder. Keeping in view the fact that motive
was disbelieved, the learned High Court has rightly taken a lenient view
and converted the sentence of death into imprisonment for life to meet
the ends of justice, hence, it leaves no room for us 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. Before parting with the judgment, we
may observe that the petitioner was convicted under three provisions of
law i.e. Sections 302(b), 324 and 337-D PPC. The impugned judgment is
silent as to whether these sentences are to run concurrently or
consecutively. Probably, the learned High Court inadvertently omitted to
order running of the sentences of imprisonment concurrently. There is no
denial to this fact that all the offences for which the petitioner was
convicted had been committed in one and the same transaction,
therefore, in the interest of justice, we direct that all the sentences of
imprisonment shall run concurrently.
CRIMINAL PETITION NO. 1397-L OF 2017 AND
JAIL PETITION NO. 743 OF 2018
-: 7 :-
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.
JUDGE
JUDGE
JUDGE
Islamabad, the
7th of February, 2023
Approved For Reporting
Khurram
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I
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MLJF4IB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAUVI
JAIL PETITION NO. 943 OF 2017
(On appeal against the judgment dated 18.102017
passed by the Lahore High Court, Lahore in
Criminal Appeal No. 442-J/2013 & Criminal PSL.A
No. 18/2014 & Murder Reference No. 15/2014)
Muhammad Ashraf @ Nikka
Petitioner
VERSUS
The State
Respondent
For the Petitioner:
Mr. Aftab Hussain Bhatti, ASC
For the State:
Mr. Muhammad Jaffer. DPG
Date of Hearing: 12.052022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI, J.- Petitioner along with seven
other co-accused was tried by the learned Additional Sessions Judge,
Jaranwala, pursuant to a private complaint under Sections
302/337F5/337F6/148/149 PPC arising out of FIR No. 397 dated
18.06,2009 under Sections 302/148/149 PPC at Police Station
Landyanwala, District Faisalabad for committing murder of Salamat Ali,
son of the complainant and for causing injury to Muhammad Latif, uncle of
the complainant. The learned Trial Court vide its judgment dated
30.11.2013 while acquitting the co-accused, convicted the petitioner
under Section 302(b) PPC and sentenced him to death. 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 undergo
imprisonment for six months. He was also convicted under Section
337F(vi) PPC and sentenced to rigorous imprisonment for five years with a
Jail Petition Mc. 94312017
direction to pay daman amounting to Rs.50,000/- In appeal, the learned
High Court while maintaining the conviction, altered the sentence of death
into imprisonment for life. The amount of compensation and the sentence
in default whereof was also maintained. Benefit of Section 382-B Cl
was also extended to him.
2. The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
"Niamat Ali complainant filed this private complaint against the
respondents Muhammad Ashraf alias Nikkah etc (eight in
numbers) u/s 302, 337F5, 33716, 148, 149 PPC alleging therein
that on 18.06.2009 at about 7:00 P.M (evening) in the area of
Chak No.655/6, the accused Ashraf son of Sardar armed with
hatchet, Muhammad lshfaq alias Sajjad, Muhammad Mujahid
alias Madu armed with hatchets, Abid alias Abi, Tariq alias Tan, Ali
Muhammad alias Imam Din, Arif Hussain, Muhammad Mushtaq all
armed with sotas with common intention to commit Qatl-e-Amd
of Salamat Ali son of Niamat All while ambushed sitting at the
chowk. Accusing Ali Ahmad raised lalkara while seeing Arif
Hussain son of the complainant that caught hold Arif and taught
him the lesson of the quarrel broke out 5/6 days ago.
Consequently accused Muhammad Ashraf inflicted hatchet blow
from its wrong side which hit Arif at his right arm and other
accused persons also beaten Ant. Basharat Ali came home crying
and told this fact to the complainant. The complainant along with
Salamat (deceased) went at the spot and tried to save Ant. The
accused Muhammad lshfaq inflicted hatchet blow which hit
Salamat at his back thereafter accused Abid alias Abi inflicted Sota
blow which hit Salamat at his head. Meanwhile, Muhammad Latif
uncle of the complainant came at the spot after hearing hue and
cry and tried to rescue Salamat Au. The accused Arif Hussain
inflicted Sota blow which hit at left arm of Muhammad Latif,
accused Muhammad Mushtaq inflicted Sota blow which hit on
right shoulder of Arif accused, Mujahid inflicted hatchet blow
which hit at the right hand of Ant, Muhammad Ashraf inflicted
hatchet blow which hit Salamat at his head, Muhammad Ishfaq
inflicted hatchet blow which hit at the head of Salamat
(deceased), afterwards accused Muhammad Ashraf assaulted
Muhammad Latif and hit on his right arm afterwards accused
persons continuously assaulted and deviously injured Salamat Ali,
Arif Hussain and Muhammad Latif. Muhammad Latif and Salamat
Ali became unconscious at the spot. Muhammad Asif and Asghar
AM rushed to the spot and attended the injured but Salamat Ali
succumbed to the injuries while taking him to the hospital for his
treatment and Arif Hussain and Muhammad Latif were taken to
Civil Hospital iaranwala.
2.
Motive behind the occurrence is that 5/6 days before the
ccurrence there was quarrel between the children of the parties
Jail Petition No. 943/2017
3
which was redressed afterwards but accused persons with this
grudge and with their common object committed murder of
Salamat All and injured the complainant party"
3.
The conviction of the petitioner was recorded in a private
complaint, which was lodged after eleven months of the occurrence. The
complainant produced cursory evidence whereafter the formal charge was
framed against the petitioner and the co-accused on 05.11.2010 under
Sections 302/337F5/337F6/148/149 PPC to which they pleaded not guilty
and claimed trial. In order to prove its case the prosecution produced as
many as five witnesses and six CWs. 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
leveled against him. He also did not produce any evidence in his defence.
4.
At the very outset, learned counsel for the petitioner argued
that there are material contradictions and discrepancies in the prosecution
evidence, which have not been dealt with by the courts below. Contends
that the occurrence took place at the spur of the moment and there was
no premeditation on the part of the petitioner. Contends that during the
occurrence, the petitioner and the co-accused also sustained injuries,
which have been suppressed by the prosecution. Contends that the injury
ascribed to the petitioner on the head of the deceased was also ascribed
to two co-accused but they have been acquitted whereas the petitioner
has been sentenced to imprisonment for life. Contends that the
prosecution has to prove its case without any shadow of doubt but it has
miserably tailed to do so. Contends that the reasons given by the learned
High Court to sustain conviction of the petitioner are speculative and
artificial in nature and resulted into miscarriage of justice, therefore, the
impugned judgment may be set aside.
5.
On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the evidence led by the
osecution in the shape of ocular account duly supported by medical
Jail Petition No. 94312017
4
evidence is sufficient to sustain conviction of the petitioner. So far as the
argument that the petitioner had received injuries during the occurrence is
concerned, he contends that the petitioner did not place on record the
medico legal reports in support of their assertion, therefore, the same
cannot be taken into consideration.
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 petitioner along with co-
accused was alleged to give hatchet blow on the head of the deceased
Salamat Ali, which proved fatal and the deceased succumbed to the injury
later on. However, we have noted that in the very private complaint
lodged by the complainant, the role of causing injury on the head of the
deceased was enhanced while ascribing it to three accused. The other two
co-accused namely Abid @ Aabi and Muhammad Ashfaq, who were
ascribed the similar role, have been acquitted of the charge by the learned
Trial Court, which judgment has been upheld by the learned High Court.
According to medical evidence furnished by Dr. Khalid Javed, who
appeared as CW-5, the deceased received only one injury on his head,
which was an incised wound 4 x 1 c on left side top of head 8.2 cm from
left ear 5 cm from mid skull line. The learned High Court did not discuss
this aspect of the matter in the impugned judgment at all. The perusal of
record also reveals that the occurrence took place all of a sudden; there
was no pre-meditation on the part of the petitioner's side and during the
occurrence the petitioner and co-accused Mujahid also received injuries at
the hands of the complainant party, which aspect has been suppressed.
Although, no medical report in this regard could be placed on record but
there is no denial to this fact that during investigation it was found that
the petitioner and the co-accused had received injuries during the
occurrence, therefore, the stance of the petitioner cannot be denied
merely for the reason that he did not place on record the medical
certificate. A careful analysis of this aspect of case reflects that it is
stablished principle of criminal jurisprudence that the defence is not
I
Jail Petition No. 943/2017
5
under obligation to prove its version and the burden on it is not as heavy
as on the prosecution rather the defence is to only show the glimpse that
its version is true. This aspect lends support from the finding of the
Investigating Officer that during the occurrence the petitioner and his co-
accused had sustained injuries but due to one reason or the other they
could not establish the same by producing medico legal reports. The
possibility cannot be ruled out that it was because the petitioner was
nominated in murder case and according to learned counsel he was
arrested soon after the incident, the police officials had not let them to be
medically examined being in league with the complainant. This creates a
doubt in veracity of prosecution version, as such doubt in the prosecution
case can be resolved in favour of the petitioner because it is settled that
any doubt arising in the prosecution case is to be resolved in favour of the
defence. Even otherwise, we have noted that during the course of
investigation co-accused Muhammad Ashfaq, Muhammad Arif,
Muhammad Mushtaq, Tariq, Abid were not recommended for dial/an as
they were declared innocent by the Police. It seems the prosecution
exaggerated the contents of the private complaint and has made an
attempt to involve all the male members of the family. In these
circumstances, a dentin the prosecution case has been created, benefit of
which must be given to the petitioner. It is settled law that a 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. Any doubt arising in prosecution case
is to be resolved in favour of the accused and burden of proof is always on
prosecution to prove its case beyond reasonable shadow of doubt.
However, as discussed above, we have observed that the case advanced
by the prosecution is based upon facts not properly brought forth, rather
there are certain flaws in the narration of the same particularly manner of
occurrence, number of accused persons and suppression of facts, hence as
an abundant caution, we refrain to accept finding of both courts below
rather consider it a case of sudden affair, coupled with the fact, material
facts were suppressed, hence keeping in view the act of each individual,
&
Jail Petition No. 943/2017
we consider that the case of the petitioner is covered by Section 302(c)
PPC. As he has already served out major portion of sentence which is more
than 15 years, hence it seems adequate to meet the ends of justice. As a
consequence, we convict the petitioner under Section 302(c) PPC and
sentence him to imprisonment for the period which he has already
undergone.
7. For what has been discussed above, this petition is
converted into appeal, partly allowed and the impugned judgment is
modified as stated in the preceding paragraph. The petitioner 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
12th of May, 292
Approved For porting
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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
JAIL PETITION NO. 95 OF 2017
(On
appeal
against
the
judgment
dated
15.12.2016 passed by the Lahore High Court,
Multan Bench in Criminal Appeal No. 319/2014)
Faisal Shahzad
… Petitioner
VERSUS
The State
… Respondent
For the Petitioner:
Sardar Muhammad Latif Khan Khosa, Sr. ASC
Syed Iqbal Hussain Shah, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Mr. Muhammad Jaffer, Addl. P.G. Punjab
Date of Hearing:
14.03.2022
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioner was tried by the
learned Additional Sessions Judge, Multan in terms of the case registered
vide FIR No. 33/2012 under Section 9(c) of the Control of Narcotic
Substances Act, 1997, at Police Station Daulat Gate, Multan as contraband
charas weighing 10 kilograms and opium weighing 5 kilograms was
recovered from him. The learned Trial Court vide its judgment dated
30.06.2014 convicted the petitioner under Section 9(c) of the Control of
Narcotic Substances Act, 1997, and sentenced him to imprisonment for life.
He was also directed to pay a fine of Rs.100,000/- or in default whereof to
further undergo SI for one year. Benefit of Section 382-B Cr.P.C. was also
extended to him. In appeal the learned High Court maintained the
conviction and sentences recorded against the petitioner by the learned
Trial Court.
Jail Petition No. 95/2017
2
2.
The prosecution story as given in the judgment of the learned
Trial Court reads as under:-
“2.
Brief facts of the prosecution case as disclosed in the
complaint Ex.PA lodged by Muhammad Saeed Akhtar Inspector are
that on 27.02.2012 he was present at Chowk Aaam Khas Bagh
alongwith Muhammad Hanif Tasi, Muhammad Khan Tasi, Muhammad
Jamil, Jan Muhammad, Muhammad Khalid and Lal Khan constables
and Muhammad Rashid driver where he received spy information that
one person was coming from shrine of Hafiz Jamal with huge quantity
of narcotic whereupon he constituted a raiding party and reached at
Hafiz Jamal chowk. One person having a gatoo came from Hafiz Jamal
Darbar. On the pointation of the informer, he was apprehended who
disclosed his name as Faisal Shehzad. After search of the Gatoo of the
accused Faisal Shahzad ten packets of charas and five packets of
opium were recovered. On weigh of the charas it was found 10 kgs and
each packet was of one kg of the charas. The opium was in the shape
of pieces which weighed 05 kgs. Each packet was found one kg of
opium. Ten grams of charas was separated out of recovered charas
from each packet for chemical analysis. Likewise, ten grams of opium
from each packet was separated out of the recovered opium for
analysis. All the packets of charas and opium were taken into
possession through recovery memo which is attested by the PWs. He
then drafted the complaint and sent it to the P.S. through Muhammad
Khalid constable for registration of the case whereupon the instant
case was registered.”
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 six witnesses. When examined under
Section 342 Cr.P.C., the petitioner stated that he is innocent and has been
falsely implicated in the case. The petitioner firstly opted to appear as his
own witness in terms of Section 340(2) Cr.P.C. in disproof of the allegations
leveled against him but subsequently he refused to appear. Even he did not
produce any evidence in his defence.
4.
Learned counsel for the petitioner contended that the
petitioner has been falsely implicated in this case and the Police has
planted a fake case upon him. Contends that the narcotic was allegedly
recovered from the petitioner in the broad daylight in a busy thoroughfare
but none from the public was associated in the case to depose against him.
Contends that the prosecution could not prove safe custody of the
allegedly recovered narcotics and its safe transmission to the Police station
and then to the Laboratory for chemical analysis, therefore, the same
Jail Petition No. 95/2017
3
cannot be used against the petitioner to sustain his conviction. In support
of his argument, learned counsel relied upon Qaiser Khan Vs. The State
(2021 SCMR 363), Mst. Sakina Ramzan Vs. The State (2021 SCMR 451),
Mst. Razia Sultana Vs. The State (2019 SCMR 1300) and Zahir Shah Vs. The
State (2019 SCMR 2004). Further contends that the narcotic was allegedly
recovered from a ‘gatoo’ but the same was not produced in evidence,
therefore, the recovery loses its relevance. In support of his argument, he
relied on Amjad Ali Vs. The State (2012 SCMR 577). In the alternative, he
contended that it is a case of lesser penalty, as according to him, it is only
the basket/sack/pouch/doda of the opium, which contains narcotic
substance but nothing is available in evidence to show as to what actually
was recovered from the possession of the petitioner, therefore, the same
may be considered as a mitigating circumstance. In support of his
argument, he relied upon Zulfiqar Vs. The State (2021 SCMR 531).
5.
On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the petitioner was caught red
handed while transporting a huge quantity of narcotics, the Police officials
had no enmity to falsely involve him in the present case and the safe
custody of the narcotic and then its safe transmission to the Chemical
Examiner has been proved to the hilt, 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.
It is a case which was lodged with promptitude on the basis
of spy information, which was supplied to the law enforcing agency prior
to conducting raid by the raiding party comprising of number of police
officials and it had already established a picket at the particular place on
the basis of the said information. The petitioner was caught red handed by
the Police and a huge quantity of 10 kilograms of contraband charas and 5
kilograms of opium was recovered from him, which was contained in a
sack/gatoo in 15 separate packets. The prosecution case hinges upon the
statements of Falak Sher, H.C. (PW-1), Mumtaz Hussain, constable (PW-2),
Jail Petition No. 95/2017
4
Muhammad Asghar Tasi (PW-3), Muhammad Hanif Tasi (PW-4), Shaukat
Hussain, SI (PW-5) and Muhammad Saeed Akhtar, Inspector (PW-6). All
these witnesses have narrated the prosecution story in a natural manner
and remained consistent throughout and their testimony could not be
shattered by the defence despite lengthy cross-examination. The said
witnesses had no enmity with the petitioner to falsely implicate him in the
present case. Even otherwise a huge quantity of 10 kilograms of
contraband charas and 5 kilograms of opium in no circumstances can be
planted by the Investigating Officer of his own. 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
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 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. The police
officials separated 10 grams of charas and 10 grams of opium from each
packet in a prescribed manner and put the samples in 15 separate packets
and then sent the same to the office of Chemical Examiner for its analysis.
The reports of the Chemical Examiner show that all the 15 packets contain
contraband charas and opium.
7.
So far as the argument of the learned counsel for the
petitioner that the safe custody of the allegedly recovered narcotic and its
safe transmission to the Police Station and then to the Chemical Examiner
is not established, therefore, the same cannot be used against the
petitioner to sustain his conviction is concerned, we have noted that the
learned High Court in paragraph 4 of the impugned judgment has dealt
with this issue in detail. The learned High Court after perusal of evidence
has rightly found that on the same day when the narcotic was recovered
from the petitioner i.e. 27.02.2012, 10 sealed sample parcels of contraband
charas and five sealed sample parcels of opium were received by Falak
Jail Petition No. 95/2017
5
Sher, HC (PW-1) for safe custody. The said PW handed over the said
samples to Mumtaz Hussain (PW-2) on 02.03.2012 alongwith road
certificate for their onward transmission to the office of Chemical Examiner
Multan. This fact was confirmed and testified by the said Mumtaz Hussain,
who took the samples to the office of Chemical Examiner on the same day.
The reports of the Chemical Examiner also testify this fact, therefore, it can
safely be said that the safe chain of custody of the recovered narcotics was
not compromised at all. The case law relied upon by the learned counsel
for the petitioner in this regard is distinguishable as in the cases referred by
him either the safe custody and transmission from the ‘maalkhana’ to the
chemical examiner was not proved, the police constable who delivered the
sealed samples to the Chemical Examiner was not produced in evidence or
his statement could not be recorded or the officer of the Anti Narcotics
Force through whom the sample was dispatched to the Chemical Examiner
was not produced in evidence but as discussed above the same is not the
case here. This Court in a recent judgment passed in Jail Petition No.
637/2016 has held that the Control of Narcotic Substances (Government
Analysts) Rules, 2001 virtually place no bar on the Investigating Officer to
send the samples within a certain/specified period of time. These Rules are
stricto sensu directory and not mandatory in any manner. It does not spell
out that if there is any lapse, it would automatically become instrumental
to discard the whole prosecution case. The Control of Narcotic Substances
(Government Analysts) Rules, 2001, cannot control the substantive
provisions of the Control of Narcotic Substances Act, 1997 and cannot in
any manner frustrate the salient features of the prosecution case, which
otherwise hinges upon (i) receipt of information, (ii) action by the
concerned law enforcing agency, (iii) recovery of contraband narcotics, (iv)
the report of chemical examiner regarding analysis of the recovered
contraband, (v) the finding of fact by the courts below after recording of
evidence i.e. (a) witnesses of the raiding party, (b) the recovery witnesses,
(c) Investigating Officer and all other attending circumstances. If the series
of acts which ultimately resulted into recovery of contraband narcotic are
kept in juxtaposition with the alleged violation of the Rules, it cannot by
any stretch of imagination be considered reasonable in law to smash the
Jail Petition No. 95/2017
6
whole prosecution case on its salient features. Even otherwise, in terms of
Section 29 of the Control of Narcotic Substances Act, 1997, manner and
standard of proof in cases registered under the Act is slightly different as in
terms of the said Act the accused is presumed to have committed the
offence unless the contrary is proved.
8.
The learned counsel argued that the narcotics was allegedly
recovered from a ‘gatoo’/sack but the same was not produced in evidence,
therefore, in view of the law laid down by this Court in Amjad Ali Vs. The
State (2012 SCMR 577) the recovery loses its relevance. However, this
argument of the learned counsel is misconceived because in Amjad Ali
supra case 20 kilograms charas was recovered from a spare wheel of the
car, which was not produced in evidence and this Court considered its
production in evidence necessary only to verify as to whether could it
contain such a huge quantity of narcotics in question. In the present case
the petitioner was carrying narcotics in a sack/’gatoo’, which is usually
made of polythene/cloth/plastic and is commonly used by the people in our
society to carry heavy things and the same can easily carry a weight of 15
kilograms. The ‘gatoo’ is just a cloth or plastic bag, so the real thing to look
at is that the petitioner was carrying a huge quantity of narcotics in it,
therefore, the non-production of the gatoo is of no avail to the petitioner.
In the alternative, learned counsel had prayed that it’s a case of lesser
punishment and in support of his argument, he has placed reliance on
Zulfiqar Vs. State (2021 SCMR 531). However, we have noted that in the
said Zulfiqar supra case, 15 kilograms of poast/opium was recovered from
the accused and nothing was brought on record as to whether was it only
the doda/basket/pouch or was it the whole poppy plant. This Court while
holding that it is only the basket/sack/pouch also known as ‘doda’
excluding the seed, which contains narcotics, considered it as a mitigating
circumstance and reduced the quantum of punishment. However, in the
present case a huge quantity of 10 kilograms of contraband charas and 5
kilograms of opium was recovered in pure form from the possession of the
petitioner. Even if we keep aside the recovery of 5 kilograms of opium for
the reason that it is unknown as to in which shape the opium was
Jail Petition No. 95/2017
7
recovered, even then the recovery of 10 kilograms of contraband charas
alone is sufficient to sustain the conviction of the petitioner.
9.
This Court has time and again held that the menace of drugs
is increasing day by day due to various reasons. It is very disheartening to
observe that every day there are many reports of drug peddlers being
caught with drugs. This menace is a great threat to a peaceful society and
is affecting many lives especially the youngsters, therefore, immediate
steps are required to be taken to curb these nefarious activities. The
proceeds of narcotics are largely utilized in anti-state/terrorist activities,
which this country is facing since decades. When the prosecution is able to
prove its case on its salient features then un-necessary technicalities should
not be allowed to hamper the very purpose of the law on the subject. The
close analysis of the whole prosecution evidence i.e. the recovery of huge
quantity of narcotics, the happening of the occurrence in broad daylight,
separating the samples from each packet in a prescribed manner and
sending them to the Chemical Examiner, report of the Chemical Examiner
and the statements of the prosecution witnesses when evaluated
conjointly leaves no room to come to a different conclusion than what has
been arrived at by the learned courts below.
10.
For what has been discussed above, this petition having no
merit is accordingly dismissed and leave to appeal is refused.
JUDGE
JUDGE
JUDGE
Islamabad, the
14th of March, 2022
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Sardar Tariq Masood
Mr. Justice Qazi Muhammad Amin Ahmed
Jail Petition No.960 of 2017
(Against the judgment dated 10.11.2017 passed by the High Court of
Sindh Circuit Court at Hyderabad in Criminal Appeal No.S-314 of 2006)
Abbas Ali
Hajji Umar alias Ghulam Hussain
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Qari Abdul Rasheed, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Ms. Rahat Ahsan,
Addl. Prosecutor General Sindh
Date of hearing:
22.10.2020.
JUDGMENT
Qazi Muhammad Amin Ahmed, J.- Indicted alongside
Mehar Ali, since acquitted, for homicide as well as murderous assault,
the petitioners were returned a guilty verdict by a learned Additional
Sessions Judge at Kotri; convicted on multiple counts, they were
sentenced to imprisonment for life with10-years as well as 3-years
rigorous imprisonment with a direction for payment of compensation,
fine and Daman on coordinate charges with concurrent commutation,
pre-trial period inclusive, vide judgment dated 05.12.2006, upheld by
the High Court vide impugned judgment dated 10.11.2017.
2.
According to the prosecution, on the fateful day i.e.
15.6.1998 at about 7:15 a.m. Rab Rakhio, 45, hereinafter referred to as
the deceased, along with Khamiso Behlani (PW-4) was on way towards
the Campus of Sindh University Jamshoro when the petitioners armed
with guns accompanied by Mehar Ali, acquitted co-accused, carrying an
hatchet, suddenly emerged from the bushes and soon after exhortation
targeted the deceased and Khamiso Khan PW within the view of Haji
Muhammad Siddique (PW-1) and Ali Sher (PW-2) who followed them at
some distance. Deceased’s daughter Mst. Zareena was married with
Ghulam Mustafa, who lived with his in-laws, disapproved by his father
Jail Petition No.960 of 2017
2
Haji Umar petitioner; the rancor is cited as a motive for the crime. Spot
inspection included seizure of blood and four casings albeit without
recovery of weapons. The casualties were shifted to the hospital;
Khamiso Khan PW survived the assault. Abbas Ali petitioner was
arrested on 7.7.1998 shortly followed by Mehar Ali acquitted
co-accused, however, Haji Umar, petitioner stayed away from law to be
finally apprehended on 3.5.2004; they claimed trial in a unison.
Autopsy report of the deceased as well as medico legal certificate of the
injured were proved through secondary evidence furnished by Dr.
Anwar Hussain (PW-12) as Dr. Abdul Hanan Sheikh had expired before
his appearance in the Court; nature of injuries endured both by the
deceased as well as the injured being consistent with firearm is not
disputed by the defence.
3.
Learned
counsel
for
the
petitioners
contends
that
occurrence does not appear to have taken place in the manner as
alleged in the crime report particularly in the backdrop of alleged motive
impliedly discarded by the courts below. While referring to injured
Khamiso Khan (PW-4), the learned counsel contends that he shared
animus/malice in a divided household to falsely implicate the
petitioners in order to settle an ongoing dispute in the family; he has
emphatically highlighted absence of recovery of weapons allegedly used
during the occurrence to argue that actual culprits have been
substituted with the scapegoats. Acquittal of co-accused on the same
set of evidence left no option for the Court except to reject the
prosecution case in its entirety concluded the learned counsel. The
learned Law Officer, however, has faithfully defended the impugned
judgment; he argued that given the close relationship, there was no
earthly reason for the family to swap the petitioners with the actual
offenders.
4.
Heard. Record perused.
5.
Prosecution case is primarily structured upon ocular
account furnished by Haji Muhammad Siddique (PW-1), Ali Sher (PW-2)
and Khamiso Khan (PW-4); the last being injured during the episode;
they have furnished graphic details of the occurrence without being
trapped into any serious narrative conflict. Both sides, being part of the
same household, questions of mistaken identity or substitution are the
possibilities beyond comprehension. There is a remarkable promptitude
in recourse to law by the witnesses that included an injured, medically
examined under a police docket. Though the Investigating Officer failed
Jail Petition No.960 of 2017
3
to recover the weapons used during the occurrence, nonetheless, the
failure does not tremor the prosecution case otherwise firmly founded
on ocular account furnished by the witnesses who plausibly explained
their presence at the crime scene. Inconsequential and directionless
cross-examination mainly comprising bald suggestions vehemently
denied fails to undermine the preponderance of prosecution case.
Acquittal of co-accused with a role vastly distinguishable as well as
inconsequential appears to be inspired by a judicial caution and as
such does not adversely impact upon the integrity of the charge. View
taken by the courts below being well within the remit of law calls for no
interference. Petition fails. Leave declined. However, the petitioners
shall benefit from the modification in impugned judgment recorded in
the short order of even date, reproduced below:
“For reasons to follow, jail petition filed by both
the convicts, argued by Qari Abdul Rasheed,
ASC,
fails.
Leave
is
declined.
Convictions
recorded and sentences awarded consequent
thereupon are maintained with benefits already
extended, however, the amount of Daman
imposed upon the convicts, in the peculiar facts
and circumstances of the case and having regard
to the extreme advance age of the convicts, is
reduced to Rs.1000/-.”
Judge
Judge
Judge
Islamabad, the
22nd October, 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
Jail Shariat Petition No.03(s)/2020
(Against the judgment dated 08.02.2009 of the Federal
Shariat Court passed in Appeal No.7-I of 2018)
Muhammad Yaqoob
…Petitioner(s)
Versus
The State
…Respondent(s)
For the Petitioner(s):
Nemo.
For the Respondent(s):
Mr. Salim Akhter Buriro, Additional
Prosecutor General.
Date of hearing:
02.12.2020.
ORDER
Qazi Muhammad Amin Ahmed:- Petitioner is amongst the
accused in a crime that occurred way back on 20.3.1992 within the
precincts of Police Station Ahmed Pur of District Khairpur, wherein two
members of a police contingent, detached at Jamea Mosque Mehaisar
Wadda Taluka Kingri to guard the Taravih prayers, were martyred in
the line of duty. According to the crime report, on the fateful night, 12
assailants, differently armed, were resisted by the contingent in their
attempt to abduct some of the worshipers; two of them, namely,
Ibrahim Sandelu and Laloo Sher, opened fire with automatic weapons,
followed by the remainders; the contingent returned fire whereupon the
assailants took to the heels into a nearby jungle. As the guns went
silent, Mukhtar Hussain, PC/12586, aged 25 and Abdul Razzaq,
PC/11302, aged 28, were found to have succumbed to multiple bullet
injuries. The assailants took away official weapons with them and it is
Jail Shariat Appeal No.3(s) of 2020
2
in this backdrop that they were indicted on the coordinate charge of
Haraba as well.
Specifically named in the crime report, the petitioner was arrested
after almost quarter of a century to claim trial that culminated into his
conviction on the charge of homicide; he was sentenced to
imprisonment for life vide judgment dated 30.01.2017, upheld by the
Federal Shariat Court vide impugned judgment dated 08.02.2019
under section 302 (b) of the Pakistan Penal Code, 1860, vires whereof
are being assailed on a variety of grounds ranging from the question of
identity during dark hours to the absence of evidence to connect the
petitioner with any specific shot as well as prosecution’s failure to
effect recovery either of weapon of offence or official weapons snatched
during the occurrence. The learned Law Officer has faithfully defended
the judgment by referring to various parts of evidence produced by the
prosecution that, according to him, successfully drove home the charge
by excluding every hypothesis of petitioner’s innocence; his absence
from law for an exasperating length of time, heavily reflected upon his
culpability, concluded the learned Law Officer.
3.
Heard. Record perused.
4.
We have gone through the evidence furnished, amongst
others, by Abdul Hadi (PW-1), Ali Mardan (PW-2) and Iqbal Hussain
(PW-3) with extra care and caution to explore any possibility of finding
an exit for the petitioner, however, found the witnesses unanimously
pointing their fingers for his having participated in the occurrence,
being an active member of the unlawful assembly, constituted in
prosecution of a common object, a pursuit that resulted into the death
of two police constables in their prime youth; they laid their lives to
protect unsuspecting worshipers. Despite flux of considerable time, the
witnesses confidently recollected the incident and faced the cross-
examination without embarrassment though Iqbal Hussain (PW-3)
somehow omitted to name the petitioner in his examination-in-chief,
however, the defence rectified the error through an indiscreet
suggestion, vehemently denied by the faltering witness. Prosecution’s
failure to effect recovery after almost 25 years of the incident does not
surprise us nor adversely reflects upon its case otherwise firmly
structured on the statements of the witnesses whose presence at the
crime scene cannot be suspected. Argument that it cannot be assumed
with any degree of certainty that the shots allegedly fired by the
Jail Shariat Appeal No.3(s) of 2020
3
petitioner had trapped any of the deceased is entirely beside the mark;
community of intention is a valid concept to entail corporeal
consequences, if in the circumstances of a particular case, like one in
hand, participation of an offender is reasonably established through
credible evidence; the deceased certainly died of the bullets conjointly
fired upon them as is evident from the seizure of as many as 90
casings from the spot and, thus, petitioner alongside the co-accused is
equally culpable to share the cumulative impact of the assault.
Presence of electric lights at the mosque presented ample opportunity
for the identification of assailants, each named in the crime report.
Darkness by itself does not provide immunity to an offender if the
witnesses otherwise succeed to capture/ascertain his identity through
available means, conspicuously mentioned in the crime report. On our
independent analysis, the totality of circumstances does not space any
hypothesis other than petitioner’s guilt and, thus, do not find ourselves
in a position to take a view different than concurrently taken by the
courts below. Petition fails. Leave declined.
Chairman
Member
Member
Member
Member
Islamabad, the
2nd December, 2020
Not approved for reporting
Azmat/-
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE IJAZ UL AHSAN
SUO MOTU ACTION TAKEN UP IN COURT
Date of Hearing:
01.02.2018
ORDER
It has been common knowledge for years that a large
number of Pakistani citizens, who are residents of Pakistan and
are maintaining accounts in foreign countries without disclosing
the same to the authorities competent under the Laws of Pakistan
or paying taxes on the same in accordance with law. Prima facie, it
appears that such money is siphoned off without the payment of
taxes through illegal channels and represents either ill-gotten
gains or kickbacks from public contracts. Such money creates
gross disproportion, inequality and disparity in the society, which
warps economic activity and growth, and constitutes plunder and
theft of national wealth.
2.
Recently, the names of a large number of Pakistani
citizens were disclosed in the Panama Papers and Paradise Papers.
The Chairman, Federal Board of Revenue (FBR) had appeared
before the Court and made a statement that appropriate action
was being initiated against the citizens whose names had appeared
in above said papers. However, no appreciable progress appears to
have been made in this regard. The society and economy of the
country is being bled by illegal and surreptitious theft of national
SMC
-: 2 :-
wealth, which is stashed in foreign countries, the same could
otherwise be utilized for the welfare of the people in projects such
as education, health and public welfare. Such delinquency
constitutes violation of the fundamental rights of the citizens of
Pakistan and is a matter of great public importance.
3.
Therefore, in exercise of powers under Article 184(3) of
the Constitution of the Islamic Republic of Pakistan, 1973, we
direct as follows:
i)
The State Bank of Pakistan shall before the next date
of hearing submit a comprehensive report regarding
steps which have been taken under the International
agreements/treaties/protocols to identify the citizens
who hold accounts in foreign jurisdictions, including
UAE, Switzerland, Luxemburg, Spain, UK, etc. and
other tax haven jurisdictions, including, British Virgin
Islands, Cayman Islands, Channel Islands, etc.
ii)
The State Bank of Pakistan, the FBR, the Security &
Exchange Commission of Pakistan and the Ministry of
Finance shall submit report about the steps taken, in
collaboration with other State institutions, for retrieval
of the said money.
iii)
The Federal Board of Revenue shall also submit a
report providing details of the steps taken on the basis
of information available, inter alia, through Panama
Papers and Paradise Papers and the action taken
against citizens holding properties and banks accounts
in foreign countries.
SMC
-: 3 :-
iv)
All State agencies including IB, ISI, MI and FIA are
directed to share all requisite information available
with them with this Court.
v)
The State Bank of Pakistan, FBR, the Ministry of
Finance
and
Ministry
of
Foreign
Affairs
shall
collaborate with each other, collect and share
information and approach the afore-noted foreign
jurisdictions to obtain such/other further information,
as may be necessary, through legal and diplomatic
channels.
4.
Let responsible officers, conversant with the necessary
facts appear before this Court on 15.02.2018.
CHIEF JUSTICE
JUDGE
JUDGE
ISLAMABAD.
1st February, 2018.
Mudassar/
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IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
PRESENT:
MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI
MR. JUSTICE JAWWAD S. KHAWAJA
MR. JUSTICE KHILJI ARIF HUSSAIN
MR. JUSTICE TARIQ PARVEZ
Civil Review Petitions Nos.46 & 47 of 2011 in
Constitution Petitions Nos.10 & 18 of 2011.
(Against the judgment dated 4.3.2011 passed by this Court
In Const. Ps. Nos. 10 & 18 of 2011).
Federation of Pakistan, thr. Secy. M/o Law
…
Petitioner in CRPs 46-47/11
VERSUS
Munir Hussain Bhatti & others
…
Respondents in CRP-46/11
Sindh High Court Bar Association & others
…
Respondents in CRP-47/11
In C.R.Ps.46 & 47 of 2011:
For the petitioners:
Mr. K.K. Agha, Additional Attorney General for Pakistan
Mr. M.S. Khattak, AOR.
For the respondent:
Mr. Makhdoom Ali Khan, Sr.ASC.
(In CRP 46/11)
Mr. Faisal H.Naqvi, ASC
Mr. Arshad Ali Ch., AOR.
Assisted by Mr. Saad Hashmi Advocate
(In CRP 47/11)
Mr. Abid S. Zuberi, ASC.
Mr. Arshad Ali Ch., AOR
Assisted by Mr. M. Munir Khan Advocate
Date of hearing:
20.04.2011.
J U D G M E N T
Jawwad S. Khawaja, J. We have heard these petitions at length and
find no grounds to review our judgment whereby Constitution Petitions
Nos. 10 of 2011 and 18 of 2011 were allowed. We would, however, like to
take this opportunity to address the arguments advanced by the learned
Additional Attorney General, Mr. K. K. Agha, in support of these Review
Petitions. To facilitate this task we have, for convenience, dealt with the
submissions of Mr. Agha under distinct headings.
CRP 46 & 47 of 2011
2
JUDICIAL REVIEW
2.
Mr. K. K. Agha agreed that our Constitution was based on a system of
checks and balances as set out in the judgment under review. He also
agreed, therefore, that the Committee created under Article 175A of the
Constitution had to have some checks on it consistent with the
Constitutional scheme. He gracefully acknowledged in the context, that
review of the decisions of the Committee by the Court would provide such
check and will create the requisite balance. He had some hesitation making
this submission, but only on the score that while arguing the Constitution
Petitions challenging the 18th Amendment before a seventeen-Member Bench
of the Court, he had adopted the plea that judicial review in those petitions
was barred. He felt that accepting this Court’s power of judicial review in
these cases would be inconsistent with his argument advanced before the
seventeen-Member Bench challenging the Court’s power of judicial review in
the said petitions.
3.
This is an unfounded concern. The challenge to the Court’s power of
judicial review in the petitions being heard by the seventeen-Member Bench
is based on the premise that a Constitutional amendment properly passed by
Parliament under Article 239 of the Constitution cannot be judicially
reviewed. Needless to say this aspect of the petitions before the said Bench
will be addressed in the petitions being heard by it. The present cases, we
repeat, assume the validity of the 18th and 19th amendments. Judicial review
in these cases relates to decisions which have been made by the
Parliamentary Committee purporting to be decisions under Article 175A of
the Constitution. No challenge has been presented by the petitioners to the
Article itself. This distinction between judicial review of a constitutional
amendment and judicial review of an act purported to have been done under
the Constitution should provide reassurance to Mr. Agha that by
acknowledging the Court’s power of judicial review in these cases, he is not
being inconsistent with his argument before the seventeen-Member Bench.
CRP 46 & 47 of 2011
3
THE COMMITTEE AS AN INDEPENDENT CONSTITUTIONAL BODY
4.
We can now take up the submissions of Mr. Agha in relation to our
finding that the Committee cannot be equated with Parliament nor can it be
treated as a sub-set of Parliament in the manner in which a Parliamentary
Committee elected and answerable to Parliament can be considered to be
part of Parliament. There is ambivalence in the thinking of the Federation.
This seems to be a result of the appellation of ‘Parliamentary Committee’
used in Article 175A and discussed in the judgment under review. The
mistaken notion apparently has resulted from ignoring the wisdom of the
Master al-Ghazzali of old and the contemporary thinker S. Idries Shah that
the container or outward label is not and must not be confused with the
content if we are to avoid the pitfalls of superficiality and muddled thinking.
The Bard revered by the English spoke in similar vein a few hundred years
after al-Ghazzali. With a slight twist to his words we can say, that the
gainda, a beautiful flower in itself, will not become a rose or acquire its
attributes and smell as sweet, if called a rose. Thus, while it may be possible
for a layman or an uninformed commentator to be misled by an outward
label, as Judges we would fall into serious error if we were to be inveigled by
a title alone. In the judgment under review we have given reasons for our
view that the Committee’s name is irrelevant; it is independent of Parliament
and cannot be considered its part or be accorded the same status as
Parliament. No reason has been given by the learned Additional Attorney
General which can persuade us to depart from this opinion.
5.
In this regard, it is also worth noting that Mr. K. K. Agha’s argument
was that though Article 175A, as originally framed in the 18th Amendment,
created a misleading impression that the Committee is an independent body,
the changes brought about in Article 175A by the 19th amendment, had the
effect of clarifying that the Committee was meant to be part of Parliament.
This submission is disingenuous and is also in conflict with the Federation’s
own stance as will be shown shortly. When Mr. Agha was specifically asked
CRP 46 & 47 of 2011
4
to refer to such changes which, according to him, addressed the lacuna
overlooked in the original Article 175A, he drew our attention to clause (16)
thereof. This provision reads as under:-
“175A …
(16) The provisions of Article 68 shall not apply to the proceedings of the
Committee”
Despite our best efforts, we must admit, we have been unable to understand
how the above clause can counter the reasoning in our judgment or how this
provision can be taken to mean that the Committee is a body elected by
Parliament or is accountable to it or is part of it.
6.
However, since the learned Additional Attorney General did make an
attempt to argue this point, it will be appropriate to advert to some extracts
from the review petition itself which, in our view, correctly state the
constitutional status of the Committee and go against the position now
canvassed before us. The Federation, in any event, cannot be allowed to
argue against its own pleadings. Here it may be noted that the review
petitions were filed much after the passing of the 19th Amendment and were
also submitted subsequent to the judgment under review. The Federation
has averred therein that “this new system of judicial appointments envisaged
two new independent constitutional bodies being a part of the process” of
judicial appointments. As specifically pleaded in paragraphs 2 and 3 of the
review petitions, the first independent constitutional body was the
Commission while the “other independent constitutional body was the
Parliamentary Committee” comprised under Article 175A (9) of the
Constitution. It is quite obvious from these categorical averments in the
review petitions, that the Parliamentary Committee is acknowledged even by
the Federation, as an “independent constitutional body”. It should also be
self-evident that a Constitutional body which is independent in this way
cannot at the same time be part of Parliament.
CRP 46 & 47 of 2011
5
7.
There is also ambivalence on the part of the Federation in respect of
the nature of the Committee and its place in the constitutional order. In this
regard we can refer to the synopsis of oral submissions which has kindly
been supplied to us in these cases, by the learned Additional Attorney
General. These submissions were made by him before the seventeen-Member
Bench hearing the petitions challenging the 18th Amendment. While defining
the status of the Committee the position taken by the Federation was that it
is a ‘constitutional Committee, distinct from an ordinary Parliamentary
Committee established under the Parliamentary Rules of Business, the special
Constitutional Committee is not subject to the same rules as a Parliamentary
Committee and instead is subject to its own rules, which it is entitled to make
for itself under Article 175A’. This position was re-emphasized by the
submission that “the Parliamentary Committee is generally a stage in the
legislative process whereas [the Committee] under Article 175A is not
concerned with Parliament’s legislative process. It is a distinct Committee
dealing with a distinct area of the Constitution namely the appointment of
superior Court Judges”.
8.
Clearly, therefore, it is impossible, for the aforesaid reasons, to see the
Committee as being part of Parliament or to accord to it equivalence with
Parliament.
RULE RELATING TO PRECEDENT
9.
We may now address the Federation’s contention that our judgment,
by virtue of Article 189, will have the effect of rendering the Committee
redundant, for all future cases. While the respective domains/roles of the
Committee and the Commission will be addressed in a later part of this
opinion, for the present we can briefly deal with the fundamental rule
relating to the use of precedent in a common law jurisdiction such as ours,
as this will show that the Federation’s argument is misconceived. The rule
which infuses discipline in the working of a common law Court and which we
have scrupulously adhered to, can be seen from our judgment and in
CRP 46 & 47 of 2011
6
particular paragraph 74 of the concurring opinion where we have consciously
avoided giving ‘overly broad and sweeping statements on Article 175 as
amended’ and have, with full awareness of the nature and effect of
precedent, noted that our ‘job here is to determine the fate of [these] petitions
before us. And the outcome of these petitions is determined, ultimately, by their
own facts and circumstances’. This fundamental principle of legal reasoning
in common law jurisdictions, with which students are familiarised in law
school, is often overlooked by lawyers and Judges, to the peril of incremental
and organic growth of the law. It is in this jurisprudential context that
certain paragraphs in the judgment under review, cited by Mr. K. K. Agha in
support of his argument and considered later, have to be examined.
10.
Mr. Agha rightly referred to Article 189 of the Constitution as
providing constitutional recognition of the common law principle of binding
precedent. It will be seen that a decision of the Supreme Court under the
said Article “shall to the extent that it decides a question of law or is based
upon or enunciates a principle of law, be binding …” Mr. K. K. Agha’s reading
of the judgment under review based on his understanding of Article 189 ibid,
and his conclusion that the Committee has been rendered redundant, is not
in accord with settled principles applicable to precedent. The error in his
reasoning can easily be illustrated by adverting to the circumstances of the
present case.
11.
Firstly, it is through reliance on precedent that we have accepted as “a
principle of law” that the Constitution has to be read as an organic whole and
that its Articles and separate clauses cannot be seen in decontextualised
isolation. There appears to be no dispute on this as Mr. Agha himself became
a forceful votary of this legal principle despite his earlier objection against
judicial review of the decisions of the Committee, based on the insular
reading of Article 175A alone. Then, inter alia, by applying the said principle
of law to Article 175A, we have enunciated a new principle of law, which is
that the decisions of the Committee are subject to judicial review. This can
CRP 46 & 47 of 2011
7
rightly be termed a principle of law enunciated by us in terms of Article 189
of the Constitution. While doing so we have carefully remained within the
ambit which constrains a Court when laying down precedent. The learned
Additional Attorney General, as noted earlier, has also now acknowledged the
Court’s power to review the decisions of the Committee. By virtue of Article
189 this new principle will remain the law until it is revisited. Yet another
‘principle of law’ which has been enunciated in the judgment under review is
the delineation of the respective roles of the Commission and the Committee
under Article 175A. It is here that the Federation appears to have fallen in
error. The principle that the Commission and the Committee have defined
roles is precedent. Whether the Committee has performed its role or has
remained within its domain while making the impugned decisions in the
circumstances of these cases is not precedent except to the extent a future
case may arise which is indistinguishable on facts, from these cases.
12.
The misconception in Mr. Agha’s reasoning arises when the factual
determination, based on the specific circumstances of this case, is treated as
a principle of law in terms of Article 189 ibid. He reads our judgment as
enunciating a principle of law which renders the Committee redundant. No
such legal principle, we say with respect to Mr. Agha, has been enunciated
by us, as is clear from the extract of the judgment under review reproduced
above and from a number of other passages in the said judgment which
highlight the factual aspects of this case. Whatever is peculiar and specific to
the facts and circumstances of this case, by definition cannot be a principle
of law enunciated by us.
13.
What has been stated in this section of our opinion is neither original
nor is it a product of any creative exercise on our part. These principles can
be found in any textbook on precedent and legal reasoning in a common law
jurisdiction. The dynamic of the judicial process which drives evolution of the
law based on precedent appears to have been overlooked in the Federation’s
submissions before us.
CRP 46 & 47 of 2011
8
DOMAIN OF THE COMMITTEE - REDUNDANCY
14.
The above discussion should to a large degree address the arguments
of the Federation. But, considering the importance of this case, we may take
this opportunity to directly deal with the Federation’s stance that through
the judgment under review, the Committee had been made redundant. This
argument is not correct as it ignores important parts of the judgment and
also appears to be based upon a misconception as to the nature and effect of
precedent as explained above. The learned Additional Attorney General
adverted to paragraphs 21, 22 and 32 of the lead judgment and paragraphs
55 and 56 of the concurring opinion to support his argument. According to
him when these parts of the judgment under review are examined together
the conclusion is that no meaningful role has been left for the Committee
and that it has been rendered redundant. I have gone through the cited
paragraphs of the judgment and find the argument of the Federation to be
without merit.
15.
Let me say at once that the Committee has and can exercise the
powers which under the earlier dispensation were exercisable by the Prime
Minister. We have specifically held that “[t]he role which they [the Prime
Minister and President] were performing in the previous legal set up … is now
logically to be performed by the Committee”. Therefore, if the Prime Minister’s
role in the previous appointment mechanism was not considered to be
meaningless, we fail to see how the Committee, charged with performing the
same role, can be considered redundant. That the Committee is only an
“institutionalized forum” for performing the functions which were previously
the domain and province of the Prime Minister is made clear in our judgment
more than once. This can be further buttressed if one considers the speeches
of Mr. Raza Rabbani, Chairman of the Parliamentary Committee on
Constitutional Reform (PCCR), on the floor of Parliament at the time the 18th
Amendment bill was being debated. On 6.4.2010, for instance, with the
object of convincing the members of the National Assembly to approve Article
CRP 46 & 47 of 2011
9
175A, Mr Rabbani said, “in actual fact what is happening is that the functions
that were being performed by the Prime Minister in terms of the present [pre
amendment] system of appointment of Judges would be taken over by this
Parliamentary Committee”. The very same intention was repeated six days
later on the floor of the Senate on 12.4.2010 when Mr. Rabbani, with the
same clarity of expression and intent stated that “what in actual fact has
been done here [in Article 175A] is, that the role that was assigned to the Prime
Minister in terms of appointment of Judges … has now been assigned to this
Parliamentary Committee”.
16.
It may be noted here that Mr. Raza Rabbani was not just any member
of Parliament making any odd speech on the floor of the Houses of
Parliament to put forward his own point of view. He was the Chairman of the
PCCR. It was he who was steering the Constitutional amendments through
Parliament. We can presume that within the PCCR, comprised of 27
members, there would have been discussion and divergent points of view on
Article 175A before it was given the shape it finally took in the 18th
Amendment. These divergent views were sorted out which resulted in the
view expressed by Mr. Rabbani while explaining the function of the
Committee. It has not been suggested and, in any event, there would be no
warrant for the premise that the intent of Parliament was anything different
from what was stated by Mr. Rabbani in Parliament, in the solemn
proceedings effecting important provisions of the Constitution. It would,
therefore, be reasonable to rely on Mr. Raza Rabbani, as providing evidence
of Parliamentary intent. It is such intent after all, which we are engaged in
ascertaining and in this effort we are immeasurably benefited by what Mr.
Rabbani said. We have already commented on the relevance of Parliamentary
proceedings as an aid to interpretation of statutory text. While considering
the domain and functions of the Committee we should also note that Mr.
Rabbani was unambiguous in informing Parliament that the members of the
PCCR “were also mindful of the fact that the manner in which the trichotomy of
power has been defined in that [Sindh High Court Bar Association] judgment,
CRP 46 & 47 of 2011
10
the balance of that should not be upset”. Our judgment under review has
ensured that this balance is maintained.
17.
The above noted Parliamentary record provides the most clear and
unequivocal explanation of what role the Committee was meant to perform.
And since there was no debate on Article 175A in either House when Article
175A was passed without comment or amendment, we can take comfort in
the fact that our interpretation of Article 175A matches the intention of
Parliament as we have held in the judgment under review that, “Parliament
intended to preserve the delineation of powers in the previous dispensation,
but vest the role in more diffused bodies than was previously the case”. If we
have enunciated this general principle of law, it is difficult to see how it can
be said we have rendered the Committee redundant.
18.
Regardless of the above discussion, it must be stressed here that
though the Commission and the Committee perform essentially the same
functions as the Chief Justice and the Prime minister in the previous
dispensation, it would be a mistake to imagine these constitutional bodies as
simply substitutes for the Chief Justice of Pakistan and the Prime Minister
respectively. The base of decision-making has been substantially broadened.
Thus, we now have in the Commission, members of the Bar and the
governing Executive involved in the decision-making process along with
seven members of the Judiciary who did not have a Constitutional role in the
previous dispensation. This provides capacity to the Commission which
enables it to have information about, and consider what in our jurisprudence
are referred to as ‘antecedents’, of a potential nominee for judicial office. This
should not be taken to mean that the Committee’s role in considering the
antecedents of such nominee stands eliminated. The Committee may also
examine the antecedents of a nominee and form an opinion as to his
suitability for judicial office. Such opinion, howeve r, must conform to
standards which pass judicial scrutiny because the decisions of the
Committee are subject to judicial review.
CRP 46 & 47 of 2011
11
19.
There may, therefore, be an overlap of functions of the Commission
and the Committee in, for instance, assessing and evaluating the
antecedents of a nominee for judicial office. But this overlap does not
eliminate the role of the Committee or make it redundant. It simply requires
the Committee to engage in a conscious and rigorous exercise of its own
which will ensure that a person who has dubious antecedents is filtered out
in the selection and appointment process. It is precisely this function which
has been emphasised on behalf of the Federation in the synopsis of
arguments referred to above wherein it has been said, inter alia, that the
Committee may “be concerned in calling for intelligence reports which was the
function of the Governor under the old system …”.
20.
However, if the Committee, as in the present cases, does not engage in
any exercise at all other than picking up an observation of one member of the
Commission and chooses to base its decision on it without more, it will have
fallen in error. The Committee has to perform its role in a meaningful way
and with the application of mind which will withstand judicial scrutiny in
accordance with recognized standards. The Federation nevertheless, wants
us to hold that this verdict of the Committee is sacrosanct despite these
shortcomings. To give such extraordinary precedence to the verdict of the
Committee,
based
on
nothing
more
than
tentative
observations
(subsequently reconsidered) of one member of the Commission is not
warranted. The appointment of Judges is too serious a matter to be dealt
with in such casual fashion. The requirement of Article 175A is that the
Committee shall give “its decision with reasons” in the event it does not
confirm a nomination made by the Commission. Unfortunately, this has not
been done. Instead the Committee’s decision making function, entrusted to it
by Article 175A, has in effect, been outsourced. It is the unquestioning
subservience of the Committee to the observations of the Chief Justices of
Punjab and Sindh, without examining the basis of such observations, which
we have guarded against in our judgment under review. The reasons for this
CRP 46 & 47 of 2011
12
view have been stated in the judgment under review, but can now be further
elaborated.
21.
It is clear that the observations which form the sole basis of the
Committee’s decision represent at best the pre-deliberation views of the Chief
Justices of the two High Courts. These views may or may not have an
empirical basis. It would be for the Commission, assembled as a collegium to
examine the same and to decide whether or not these views adhere to the
objective standards considered appropriate or relevant by the collegium. This
is the essential function of a collegium responsible for making a collective
decision. Our jurisprudence is familiar with instances of collective decision
making, be these in University Syndicates, Boards of Trustees/directors or
statutory authorities etc. The hallmark of such decision-making is that each
member of the collegium brings his own views – informed or uninformed,
subjective or reasoned – to the collegiate body. It is there that all views are
either synthesised into an objective decision, or a member of the collegiate
body, who disagrees with the collective view, records his dissent.
22.
In the facts of this case, the relevant collegiate body, the Commission,
unanimously agreed to recommend the contentious names after discussion.
The Committee, therefore, could not rely on the pre-discussion views of the
one member of the Commission respectively in each case, without providing
any independent reasoning. The Committee did not have any information
before it for treating the tentative views of the two Hon’ble Chief Justices as
empirical fact nor did it consider the objective standards which informed the
unanimous opinion of the Commission. It is this aspect of the petitions
which has been of concern to us and has justifiably been given importance.
The Committee could still have disagreed with the Commission within the
ambit previously reserved for the Prime Minister, if it had any reasons of its
own to justify a different opinion. This process, if adhered to, would have
been consistent with the role which was earlier envisaged for the Prime
Minister. The outcome of the Constitution Petitions decided by us is a result
CRP 46 & 47 of 2011
13
of these specific circumstances. It follows, therefore, that if the facts are
different in any subsequent case the outcome of such case may also be
different. This is precisely what we have said in para 74 of the concurring
opinion, which in relevant part is reproduced as under:-
“74. … We are not here engaged in an academic exercise or in a
discourse to expound general constitutional principles of political
philosophy. Our job here is to determine the fate of the petitions
before us. And the outcome of these petitions is determined,
ultimately, by their own facts and circumstances.” (emphasis is
ours).
The same view has been repeatedly emphasised in the judgment under
review where we have underscored this by noting that “we have consciously
confined our consideration of the petitions and arguments advanced, to the
specific facts and circumstances of [these] cases”.
23.
Therefore, if in future the Committee decides to subordinate itself to
the opinion of one member of the Commission, it must, under accepted
norms of judicial scrutiny, give its own reasons for making this choice.
Without such reasons which are capable of withstanding judicial scrutiny,
the opinion of the Committee can only be termed as unreasoned and
arbitrary. Our jurisprudence as a rule strikes down arbitrary and
unreasoned exercise of discretionary power, particularly when the law
requires that reasons be given by the decision maker for such exercise of
power. Reference can be made to the case titled Chief Justice of Pakistan
Iftikhar Muhammad Chaudhry versus President of Pakistan through Secretary
and others (PLD 2010 SC 61) if authority is required for this established
principle of law. Thus, if at all, a legal principle is to be deduced from our
judgment in the light of Article 189, it would be that the Committee does not
have untrammelled powers to choose, without sound reasons, the
unconsidered views of one member of the Commission out of thirteen, while
discarding the considered views of all thirteen members together or of the
CRP 46 & 47 of 2011
14
remaining twelve members. The decisions of the Committee must meet the
usual and well recognized standards of objectivity and application of mind,
amongst other standards.
24.
It must also be noted here that even Mr. Agha rightly acknowledged
that allowing the Committee to pick and choose between the views of
members of the Commission would amount to unwarranted slippage into the
territory, which Article 175A has endeavoured to avoid. He nevertheless
advanced the argument that some extra weight should be given to the
opinion of the Chief Justices of the two High Courts because they would be
in a better position to make an evaluation of the capabilities and potential of
a nominee. This is not necessarily a correct premise because it would be
equally arguable that the five senior most Judges of this Court would have a
better ability to assess such potential, having had the occasion to sit in
appeal over decisions of the nominees. Giving weightage to the views of one
member of the Commission, apart from being questionable on the said
ground, will also have the effect of negating the principle of collegiate
decision-making introduced in the Constitution by Article 175A. As Mr.
Makhdoom Ali Khan said with some justification, this would emasculate the
Commission, reducing its power to selection of nominees only, but otherwise,
in matters of actual appointment, it would be rendered subordinate to the
Committee.
25.
Mr. K. K. Agha then prayed that we should identify areas left open for
the Committee for cases which may arise in the future. Consistent with our
views expressed in paragraph 74 ibid, we will not speculate or play
clairvoyant or gaze into crystal balls. We, therefore, will not make an attempt
to provide for all possibilities or future eventualities. As was aptly put by
Benjamin Cardozo, an American jurist and judge in the last century in his
lecture on “Adherence to Precedent”, “we have to pay in countless ways for
the absence of prophetic vision. No doubt the ideal system, if it were
attainable, would … supply for every conceivable situation, the just and fitting
CRP 46 & 47 of 2011
15
rule. But life is too complex to bring the attainment of this ideal within the
compass of human powers”. (Cardozo, B. J. Adherence to Precedent (1921)
New Haven: Yale University Press) We have already stated that the
Committee has the powers indicated above. It only has to adhere to
established standards in arriving at its decisions to ensure that such
decisions withstand judicial scrutiny. The learned Additional Attorney
General then advanced the argument that the decisions of the Commission
must also state reasons and be subject to judicial review. This question does
not arise in these petitions. We need not, therefore, speculate on an issue not
before us.
26.
The above discussion, we expect, will have demonstrated that rather
than the tenor and context of our judgment, it is the mistaken reading of the
same and the flawed understanding of Article 189 of the Constitution which
has resulted in the unwarranted impression, that as a legal principle we have
rendered the Committee redundant.
PREJUDICE IN THE 18th AMENDMENT CASE
27.
The next contention of the learned Additional Attorney General was
that the various parties, including the four Advocates General, in the
petitions challenging the 18th Amendment, pending before a seventeen-
Member Bench, stand prejudiced by the judgment under review as no notice
was given to them before deciding the Constitution Petitions. This argument
is based on the premise that certain issues, which were argued before the
larger bench in the said case, had yet to be finally determined; therefore,
instead of deciding those issues in the instant case, this bench should have
either clubbed these proceedings for adjudication with the 18th amendment
cases or waited for the final decision in that case.
28.
In this regard, Mr. K. K. Agha’s submissions focused on the
justiciability of the decisions of the Parliamentary Committee. We have
considered this argument and find it to be without force. Firstly, the
justiciability of the decisions of the Committee was not a central issue in the
CRP 46 & 47 of 2011
16
18th amendment cases; any submission thus made by the Federation
regarding the justiciability of the Committee’s decisions was only ancillary to
the argument which concerned this Court’s power to judicially review a
constitutional amendment. It must be stated clearly that this issue has not
been touched by the judgment under review and so is a matter which
remains to be settled by the larger Bench in the 18th amendment cases.
29.
Moreso, it cannot be imagined that pending the decision in the said
cases, any matter relating to the countless submissions made before the
larger Bench cannot be adjudicated by this Court. The Constitution (18th
Amendment) Act, 2010 introduced amendments in 97 Articles of the
Constitution. Many of these provisions have been challenged before the other
Bench. The challenged provisions concern important subjects. It would,
therefore, be inappropriate to suspend the application and interpretation of
the same for as long as the 18th Amendment cases remain pending.
30.
Similarly, Mr. K. K. Agha’s submission that the impugned judgment
has prejudiced the Federation because it has made observations relating to
the scope of ouster clauses, independence of the judiciary, judicial review,
etc. does not carry much weight. Our observations regarding these matters
are based on the limited context and issues arising in these cases. The
existing legal corpus has been used while rendering our judgment. This
treasure trove is available to all Courts within our jurisdiction at all times.
We, therefore, do not see any prejudice being caused to the Federation as a
result of our adjudication. As to prejudice to the other parties, none of them
has approached us with any grievance that they have been prejudiced by our
judgment.
10-A MAINTAINABILITY
31.
Mr. Agha then referred to the case of Wukala Mahaz Barai Tahafaz
Dastoor and another versus Federation of Pakistan and others (PLD 1998 SC
1263) and argued that Article 199 of the Constitution was available to the
petitioners and, therefore, Article 184 (3) should not have been used because
CRP 46 & 47 of 2011
17
the power thereunder has to be sparingly used. He also added that Article
10-A which has been inserted in the Constitution through the 18th
Amendment has provided for fair trial and due process. According to him,
due process includes a right of at least one appeal. As such if this Court
exercises power under Article 184 (3) of the Constitution, this will result in
denial of a right of appeal to the Federation. He also pointed out that in the
case of Sindh High Court Bar Association versus Federation of Pakistan (PLD
2009 SC 879), the petitioner Association had first approached the Sindh
High Court and thereafter the appellate jurisdiction of this Court had been
invoked since the Association was aggrieved of the High Court judgment.
32.
Mr. Agha’s submission was that the failure of the Court to consider
Article 10A and the consequent denial of the implied right of at least one
appeal and the implications of this omission have not been examined in the
judgment under review. This is a new argument which was never raised
during arguments in the Constitution Petitions. In principle, this is reason
enough to dismiss this argument, since it has long been settled that new
issues are not to be entertained at the Review stage. However, even if we were
to consider this argument, it would have made no difference to the outcome
of the review since it is misconceived because it ignores the express
provisions of Article 184 (3) of the Constitution.
33.
It is clear from Article 184 (3) that the Constitution has expressly
empowered this Court to exercise the powers vested in a High Court under
Article 199, subject to the two-fold rider that the matter should be one of
public importance and should relate to the enforcement of fundamental
rights. In the present cases, we have already exercised our jurisdiction under
Article 184 (3) ibid and find no justification for recalling the judgment under
review, solely for the purpose of directing the respondents Nos. 1 and 2
(petitioners in the Constitution Petitions) to approach the High Court and
then to approach this Court again if aggrieved by the decision of the High
Court.
CRP 46 & 47 of 2011
18
34.
In view of the foregoing discussion, we find no justification for
reviewing our judgment. These Review Petitions are, therefore, dismissed.
35.
Keeping in mind the requirements of Articles 28 and 251 of the
Constitution, and the fact that a gist of the judgment under review was also
issued in Urdu, we propose to issue a gist of this opinion in Urdu which will
be an appendix hereof. This will be done shortly.
Judge
Judge
Judge
Judge
ISLAMABAD
20th April, 2011.
A. Rehman /�
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Advisory Jurisdiction)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ
Mr. Justice Muhammad Sair Ali
Mr. Justice Ghulam Rabbani
REFERENCE NO. 1 OF 2011
[REFERENCE BY THE PRESIDENT OF THE
ISLAMIC REPUBLIC OF PAKISTAN UNDER
ARTICLE 186 OF THE CONSTITUTION TO
REVISIT THE CASE OF ZULFIQAR ALI
BHUTTO REPORTED AS PLD 1979 SC 38]
-.-.-
On behalf of President:
Dr. Babar Awan
Minister for Law & Justice
Government of Pakistan
Mr. M. Masood Chishti
Secretary, Ministry of Law & Justice
Date of hearing:
13.04.2011
-.-.-
ORDER
Dr. Babar Awan has stated that he would appear in
this matter. But we have told him that as a lawyer he must be
aware that he has to get his licence revived, though we know
that there are examples where during the era when there was no
constitutional dispensation in the country, Ministers had been
appearing before the Courts as lawyers, but now as there is
constitutional dispensation and institutions are functioning under
Reference 1 of 2011
Order dt. 13.04.2011
2
the Constitution, therefore, such exercise should not be
repeated. On this, he stated that he has prepared his resignation,
which was placed before us for our perusal along with another
document whereby he has been authorized by the President to
appear in Court. However, resignation has to be tendered to the
President, who is the competent authority to accept the same.
We appreciate that realizing importance of the case, Dr. Babar
Awan, Minister for Law has tendered his resignation and his
licence is likely to be revived during the course of the day. In
view of the importance of the Reference, we adjourn it to
14.04.2011 at 11.30 a.m.
IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MUHAMMAD SAIR ALI, J
GHULAM RABBANI, J
Islamabad, the
13th April, 2011
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IN THE SUPREME COURT OF PAKISTAN
(Advisory Jurisdiction)
PRESENT:
MR. JUSTICE KHILJI ARIF HUSSAIN.
MR. JUSTICE TARIQ PARVEZ.
MR. JUSTICE EJAZ AFZAL KHAN.
MR. JUSTICE GULZAR AHMED.
MR. JUSTICE SH. AZMAT SAEED.
REFERENCE NO.01 OF 2012.
[Reference by the President of Pakistan
under Article 186 of the Constitution of
Islamic Republic of Pakistan, 1973]
For the President:
Mr. Wasim Sajjad, Sr. ASC.
Mr. Abdul Latif Yousafzai, Sr. ASC.
Mr. Idrees Ashraf, Advocate
Mr. Mehr Khan Malik, AOR.
For Federation:
Mr. Irfan Qadir, A. G. for Pakistan
Mr. Dil Muhammad Alizai, DAG
Barrister Shehryar Riaz Sh. Advocate
Mrs. Shafaq Mohsin, Advocate
Ch. Faisal Hussain, Advocate
Amicus Curie:
Mr. Makhdoom Ali Khan, Sr. ASC.
Mr. Khurram M. Hashmi, Advocate.
Mr. Umair Majeed Malik, Advocate.
Mr. Hyder Ali Khan, Advocate.
Mr. Saad M. Hashmi, Advocate.
Mrs. Asma Hamid, Advocate.
Khawaja Haris Ahmed, Sr. ASC,
Assisted by:
i.
Kh. Zaheer Ahmed, Advocate
ii.
Syed Ali Shah Gilani, Advocate.
Date of Hearing:
14.12.2012. (Reserved)
OPINION
Khilji Arif Hussain, J-. Briefly stating the facts, relevant
to give opinion on the questions referred to by the President of
Pakistan, through Reference No.1 of 2012, under Article 186 of the
Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred
Reference No.1 of 2012 & Const.P.No.126 of 2012
2
to as ‘the Constitution’], are that in a meeting of the Judicial
Commission of Pakistan [hereinafter referred to as ‘the Commission’],
held on 27.09.2012 to fill a vacancy, the Chief Justice of Pakistan
initiated the names of Mr. Justice Iqbal Hameed-ur-Rahman, the
Chief Justice of Islamabad High Court, Islamabad, as a Judge of this
Court. After deliberations, the Commission nominated Mr. Justice
Iqbal Hameed-ur-Rahman as a Judge of this Court.
2.
In another meeting of the Commission, on the same
day, which was attended by Mr. Justice Iqbal Hameed-ur-Rahman,
the Chief Justice of Islamabad High Court, Islamabad, the Chief
Justice of Pakistan initiated the name of Mr. Justice Muhammad
Anwar Khan Kasi, as Chief Justice of Islamabad High Court,
Islamabad, who after deliberations and with majority of 7 to 2, was
nominated.
3.
When the tenure of Mr. Shaukat Aziz Siddiqui; Mr.
Noor-ul-Haq N. Qureshi; and Mr. Muhammad Azeem Khan Afridi,
who were initially appointed as Additional Judges of Islamabad
High Court, Islamabad, for a period of one year with effect from the
date they took oath of their offices was nearing expiry, their cases
were referred to the Commission and after deliberations it
nominated the names of Mr. Shaukat Aziz Siddiqui, as a Judge of
Islamabad High Court, Islamabad with a vote of 8 to 2 and
unanimously nominated Mr. Noor-ul-Haq N. Qureshi, as an
Additional Judge of Islamabad High Court, Islamabad, for further
Reference No.1 of 2012 & Const.P.No.126 of 2012
3
period of six months from the date of expiry of his present term,
whereas the name of Mr. Muhammad Azeem Khan Afridi was
dropped he was not nominated.
4.
The meeting of the Commission was attended by Mr.
Justice Muhammad Anwar Khan Kasi, as most senior Judge of
Islamabad High Court, Islamabad.
5.
On receipt of nominations, in respect of Mr. Justice
Iqbal Hameed-ur-Rahman, as a Judge of this Court; Mr. Justice
Muhammad Anwar Khan Kasi, as Chief Justice of Islamabad High
Court, Islamabad; Mr. Shaukat Aziz Siddiqui, as a Judge of
Islamabad High Court, Islamabad; and Mr. Noor-ul-Haq N.
Qureshi, as an Additional Judge of Islamabad High Court,
Islamabad, for a period of six months from the date of expiry of his
tenure, the Parliamentary Committee [hereinafter referred to as ‘the
Committee’], after due consideration unanimously endorsed the
nominations made by the Commission and sent the same to the
Prime Minister of Pakistan to forward them to the President of
Pakistan for issuance of requisite notifications. The President of
Pakistan, after receipt of the aforesaid nominations, instead of
issuing the notifications, by way of filing a Reference (Reference
No.1 of 2012) under Article 186 of the Constitution, sought opinion
of this Court on the following questions of law, considering them to
be of public importance:-
“(i).
Whether in view of the decision by the Chief Justice of the IHC
that Mr. Justice Riaz was the senior most judge of the IHC,
which decision of the Chief Justice was also confirmed by the
Reference No.1 of 2012 & Const.P.No.126 of 2012
4
President of Pakistan, Mr. Justice Kasi could be treated as most
senior Judge of the IHC?
(ii)
Whether Mr. Justice Riaz had a legitimate expectancy to be
appointed as Chief Justice of the IHC on the ground that he was
the most senior Judge of that Court in the light of the judgment
of the Supreme Court in the Al-Jehad case referred to above?
(iii)
Whether the JCP acted in accordance with the Constitution and
conventions thereof in recommending a junior Judge as Chief
Justice of the IHC?
(iv)
Whether JCP was properly constituted as per provision of Article
175-A of the Constitution as Mr. Justice Kasi who participated
in the meeting was not a Member thereof and was a stranger to
the proceedings?
(v)
Whether the President who is bound by oath of office to preserve,
protect and defend the Constitution is obliged to make the
appointments which are not in accordance with the provisions of
the Constitution?
(vi)
What should be the manner, mode and criteria before the Judicial
Commission with respect to the nomination of a person as a
Judge of High Court, Supreme Court and Federal Shariat Court
in terms of Clause (8) of Article 175-A of the Constitution of
Islamic Republic of Pakistan, 1973?
(vii)
What is the proper role of the Judicial Commission and
Parliamentary Committee under the Constitution of Pakistan
with respect to appointment of Judges of Supreme Court, High
Court and Federal Shariat Court?
(viii)
What should be the parameters before the Parliamentary
Committee for the confirmation of the nominee of the Judicial
Commission in terms of Clause (12) of Article 175-A of the
Constitution of Islamic Republic of Pakistan, 1973?
(ix)
Whether the Constitution prohibits reconsideration of the
nominations by JCP and confirmed by the Parliamentary
Committee in the light of the observations made by the
President?
(x)
What should be the criteria for elevating a Judge/Chief Justice of
the High Court to the Supreme Court? Is it, their seniority inter-
se as Judge of the High Court or their seniority inter-se as Chief
Justice of respective High Court be the consideration for
elevation to the Supreme Court?
(xi)
Whether the Constitution of Pakistan prohibits individual
Members of the JCP to initiate names for appointments of Judges
to the Supreme Court, the High Courts and the Federal Shariat
Court?
(xii)
The Parliamentary Committee under Article 175-A of the
Constitution may confirm or may not confirm a nomination in
accordance with the provisions stated therein. What is the true
import and meaning of the word “confirm” and what is the effect
of the proviso to Clause 12 of Article 175-A which reads as
follows:
Reference No.1 of 2012 & Const.P.No.126 of 2012
5
“Provided further that if nomination is not confirmed,
the Commission shall send another nomination”
(xiii)
Whether by not providing in camera proceeding for JCP in
Article 175-A of Constitution of Pakistan, the intention of the
legislature is to ensure complete transparency and open
scrutiny?”
6.
As the subject matter of the Reference is of utmost
importance with regard to the independence of the Judiciary and the
principle of trichotomy of powers, this Court decided to seek the
assistance of some senior Lawyers and thus appointed Mr.
Makhdoom Ali Khan, learned Sr.ASC and Khawaja Haris Ahmed,
learned ASC, as amicus.
7.
Mr. Waseem Sajjad, learned Sr. ASC while appearing on
behalf of the Referring Authority contended that the principle
underlying the determination of seniority of Judges, elevated on the
same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being
senior in age is the most Senior Judge and thus is to be nominated as
Chief Justice, Islamabad High Court. This practice, the learned
counsel added, being more than a century old has been consistently
followed in the Indian sub-continent and even after its partition.
The learned counsel, to substantiate his argument, referred to the
letter No.F.12(5)/86-AII, dated 30.04.1987, Government of Pakistan,
Ministry of Justice and Parliamentary Affairs (Justice Division). The
learned counsel by elaborating his argument contended that when
according to the dictum laid down in the case of Al-Jehad Trust v.
Federation of Pakistan (PLD 1996 Supreme Court 324), the most
senior Judge of a High Court has a legitimate expectancy to be
appointed as Chief Justice, in the absence of any concrete reason, Mr.
Reference No.1 of 2012 & Const.P.No.126 of 2012
6
Justice Riaz Ahmed Khan being the most senior Judge was entitled
to be nominated for appointment as Chief Justice and that the
nomination of Mr. Justice Muhammad Anwar Khan Kasi was not
only an out right departure from the century old practice but also
against the law of the land, therefore, the President is not bound to
appoint such person as Chief Justice. The learned counsel next
contended that even the Judicial Commission, nominating Mr.
Justice Shaukat Aziz Siddique for appointment and Mr. Justice
Noor-ul-Haq Qureshi for extension as Judges of the High Court,
cannot be said to have been properly constituted in the absence of
the most senior Judge, therefore, their nominations will not have any
legal or constitutional sanctity, notwithstanding it having been
confirmed by the Parliamentary Committee, sent to the Prime
Minister and then forwarded to the President. It would be all the
more without any legal and Constitutional sanctity, argued the
learned counsel, when it does not conform to the manner prescribed
by the Constitution. The learned counsel to support his contention
referred to the cases of Human Rights Cases Nos. 4668 of 2006, 1111
of 2007 and 15283-G of 2010 (PLD 2010 Supreme Court 759), and
Federation of Pakistan v. Aftab Ahmad Khan Sherpao (PLD 1992
Supreme Court 723). The fact, maintained the learned counsel, that a
non-entity, sat, voted and took part in the proceedings would also
call for its annulment on this score alone. The learned counsel to
support his contention placed reliance on the case of “Regina. Vs.
Bow Street Metropolitan Stipendiary Magistrate and others, Ex-
Reference No.1 of 2012 & Const.P.No.126 of 2012
7
parte Pinochet Ugarte (No.2). Even otherwise, the learned counsel
submitted, that the President being appointing authority is duty
bound to ensure obedience to the Constitution and the law cannot
appoint a person who has not been nominated in accordance with
the provisions of the Constitution.
8.
The learned counsel further contended that if the
principle of seniority and that of legitimate expectancy linked
therewith, are ignored without reasons to record, it would give rise
to the whim and caprice of the person sitting at the peak which is
not conducive for independence of judiciary. The learned counsel
also waxed eloquent by asking this Court to redefine the mode and
manner of appointing Judges but when we observed that all these
questions have been elaborately dealt with in the case of Munir
Hussain Bhatti v. Federation of Pakistan (PLD 2011 Supreme Court
407), the learned counsel submitted that since they have been dealt
with collaterally the judgment so rendered being obiter dicta will not
have binding force. We would have agreed with the learned counsel
for the President but he could not point out anything striking or
significant in the judgment which went un-noticed or unattended. It
is, therefore, not obiter dicta by any attribute. This judgment could
have been treated as sub-silentio a precedent not fully argued, but
again the learned counsel could not advert to any legal or
Constitutional aspect of the case which escaped the notice of the
Bench, rendering the judgment, so as to relegate it, to the status of
sub-silentio. The learned counsel after taking us through various
Reference No.1 of 2012 & Const.P.No.126 of 2012
8
parts of the judgment rendered in the case of Federation of Pakistan
v. Sindh High Court Bar Association (PLD 2012 Supreme Court
1067), contended that its reference in the minutes of the meeting of
the Judicial Commission, to justify the inference that Mr. Justice
Muhammad Anwar Khan Kansi is the most Senior Judge of the
High Court, is absolutely uncalled for, as it, when read carefully,
does not support any such inference. How could the proceeding in
the Judicial Commission be held in camera, asked the learned
counsel, when the legislature in its wisdom purposely provided
otherwise so as to ensure complete transparency and open scrutiny.
What would be the criterion asked the learned counsel, for elevating
Judges or a Chief Justice of a High Court to the Supreme Court and
whether it is inter se seniority of the Judges or the Chief Justices of
the High Courts which constitutes a determining factor?
9.
Learned Attorney General appearing on the notice of
the Court contended that the Judicial Commission was not properly
constituted, as persona designata did not attend the meeting and the
person who attended the meeting was just a non-entity, therefore,
the whole process shall stand vitiated. The President, the learned
Attorney General submitted, is not bound to appoint a nominee of
such Judicial Commission notwithstanding nomination so made was
confirmed by the Parliamentary Committee and forwarded to the
President by the Prime Minister on its receipt. The learned Attorney
General next contended that where in the judgment rendered in the
case of Sindh High Court Bar Association v. Federation of Pakistan
Reference No.1 of 2012 & Const.P.No.126 of 2012
9
(PLD 2009 Supreme Court 879), this Court annulled the
appointment of many Judges for want of recommendation by the
consultee, a nomination originating from the Judicial Commission
which was not properly constituted has to be given alike treatment.
The learned Attorney General by referring to the commentary on the
Constitution of India by Durga Das Basu argued that the President is
not a robot placed in the President House nor a Computer controlled
automation, nor a figure head nor ornamental piece placed in the
show window of the nation called the President’s House. Instead,
the learned Attorney General submitted, he is a living human who
on being selected by the nation is endowed with all dignity, honour
and prestige as head of the republic for upholding the Constitution
and the laws, therefore, his role as such cannot be doubted in any
situation. Seen from such an angle, the learned Attorney General
concluded, the President cannot be kept out of the affairs regulating
the appointment of Judges.
10.
Mr. Makhdoom Ali Khan, learned Sr. ASC appeared as
Amicus Curie on notice of the Court. The learned counsel in the first
instance addressed the Court as to the binding nature of an advice
rendered by this Court in the exercise of its advisory jurisdiction.
The learned counsel by referring to the relevant paragraph of the
judgment rendered in Reference No. 02 of 2005 by the President of
Pakistan (PLD 2005 Supreme Court 873), submitted that though an
opinion given by the Court on a reference filed by the President is
not a decision between the parties but since it is handed down after
Reference No.1 of 2012 & Const.P.No.126 of 2012
10
undertaking an extensive judicial exercise and hearing of Advocates
it has a binding force. Such advice, the learned counsel submitted
has to be esteemed and accepted with utmost respect. The learned
counsel then by referring to various Articles of the Constitution in
general and Article 175-A in particular contended that the mode and
manner of appointing Judges of the superior Courts has under gone
a change and that the whole process from the inception to the end is
now regulated by the latter. The learned counsel submitted that after
a person has been nominated by the Judicial Commission, his name
has been confirmed by the Parliamentary Committee, sent to the
Prime Minister and then forwarded by the latter to the President for
appointment, the President will have no choice but to appoint him.
While commenting on the mode and manner of appointment of
Judges and things ancillary thereto, the learned counsel submitted
that an exhaustive exercise has been taken in the cases of Al-Jehad
Trust (supra) and Munir Hussain Bhatti (supra), therefore, yet
another exercise is hardly called for. The learned counsel, however,
submitted that the principle and practice of appointing the most
Senior Judge as Chief Justice is not open to any dispute and thus
cannot be departed from without reasons to be recorded as held in
the case of Al-Jehad Trust (supra). The President or for that matter
any other person performing the affairs of Federation, the learned
counsel submitted, is duty bound to protect the Constitution and
that the instant reference appears to be an effort in this behalf.
Reference No.1 of 2012 & Const.P.No.126 of 2012
11
11.
Khawaja Haris Ahmed, Sr. ASC who was also asked to
assist the Court as Amicus Curie, highlighted the salient features of
his written submissions. He by referring to Article 175-A of the
Constitution of Pakistan submitted that the role of the President in
the appointment of Judges is more-or-less ministerial, once a
nomination
originating from the Judicial Commission and
confirmed by the Parliamentary Committee has been sent to the
Prime Minister and then forwarded to the President. He by referring
to the judgment rendered in the case of Munir Hussain Bhatti
(supra), submitted that where almost all of the questions raised in the
reference have been answered in the judgment it would be futile to
reiterate the same.
12.
With regard to the question relating to seniority, the
learned counsel submitted that the same being person specific is not
one of law, therefore, this Court cannot afford to decide such
question in its advisory jurisdiction. The learned counsel next
contended that the omission to mention the expression most senior
Judge in the provision relating to appointment of the Chief Justice of
a High Court is significant and that in the absence of any express
provision even the most senior Judge cannot have legitimate
expectancy, as the Constitution on this score has remained the same
even after the dictum laid down in the case of Al-Jehad Trust (supra).
13.
In order to give an opinion on the questions referred to
by the President of Pakistan and reproduced hereinabove, we would
Reference No.1 of 2012 & Const.P.No.126 of 2012
12
like to discuss the legislative history of various Articles of the
Constitution.
14.
The first document that served as the Constitution of
Pakistan was the Government of India Act, 1935. The constituent
assembly, elected in the year 1946, after nine years adopted the first
Constitution of 1956, which was abrogated in October, 1958 by
Gen.(R) Ayub Khan. The 1962 Constitution was abrogated on
25.03.1969
by
second
Martial
Law
Administrator
Gen.(R)
Muhammad Yahya Khan. In December, 1970, elections were held,
however, due to various reasons, which we would not like to
comment upon, the National Assembly did not meet due to
widespread disturbance in East Pakistan and Mr. Zulfiqar Ali
Bhutto was sworn in on 20.12.1971 as President of Pakistan. After
gaining power, Mr. Zulfiqar Ali Bhutto invited the leaders of
political parties to meet on 19.07.1972, which after intensive
discussions resulted in an agreement. A Committee of 25 Members
was appointed to prepare a draft for a permanent Constitution of
Pakistan and after deliberations; the Assembly passed a bill
unanimously on 19.04.1973. The Constitution of Pakistan, 1973 came
into effect on 14.08.1973, providing Parliamentary Form of
Government, based on the trichotomy of power.
15.
Prior to Constitution (Eighteenth) Amendment, the
procedures for appointment of a Judge of the superior Courts
mentioned in the Constitutions of Islamic Republic of Pakistan, 1962
Reference No.1 of 2012 & Const.P.No.126 of 2012
13
and 1973 were identical to some extent. Before Constitution
(Eighteenth) Amendment, the Articles 177 and 193 of the
Constitution empowered the President of Pakistan to appoint the
Chief Justice of Pakistan; the Chief Justices of the High Courts; and
the Judges of the superior Courts. From perusal of the said Articles,
it appears that though appointment of a Judge of the superior
Courts was to be made by the President, but after consultation with
the Chief Justice of Pakistan, the Governor concerned and the Chief
Justice of the concerned High Court (except where the appointment
is that of a Chief Justice). The appointment of a Judge of the superior
Courts is a constitutional appointment and mode thereof is provided
by the Constitution itself. The “consultation”, as envisaged prior to
the Constitution (Eighteenth and Nineteenth) Amendments,
required by the President of Pakistan from the consultees was not a
formality, but was mandatory and no appointment or confirmation
of a Judge of the superior Courts could be made without resorting to
the consultative process.
16.
In the case of Al-Jehad Trust v. Federation of Pakistan
(PLD 1996 Supreme Court 324), it was held that if the Chief Justice
of the High Court and the Chief Justice of Pakistan give a positive
opinion about the suitability of a candidate, but the Governor on the
basis of information received about his antecedents gives a negative
opinion, the President is empowered to decline the appointment of
the candidate. On the other hand, if the Chief Justice of the High
Court and the Chief Justice of Pakistan give a negative opinion
Reference No.1 of 2012 & Const.P.No.126 of 2012
14
about a candidate on the basis of their expert opinion that the
candidate cannot be appointed, then the opinion of the Chief Justice
cannot be ignored and due weight is to be given to his opinion. It
was further held that the President/Executive does not have a final
say in the matter of appointment of the Judges of the superior
Courts and if the opinion of the Chief Justice is ignored, the
President/Executive should give reasons which could be juxtaposed
with the reasons of the Chief Justice to find out as to what reasons
are in the public interest.
17.
Immediately, after the pronouncement of judgment in
the case of Al-Jehad Trust (supra), the President of Pakistan filed a
Reference (Reference No.2 of 1996) under Article 186 of the
Constitution seeking opinion of this Court whether the President’s
powers to make the appointment of Judges of the superior Courts,
such appointment is subject to the provisions of Article 48(1), which
prescribed that in the exercise of his functions, the President shall act
in accordance with the advice of the Prime Minister. This Court,
vide judgment reported as Al-Jehad Trust v. Federation of Pakistan
(PLD 1997 Supreme Court 84), after discussing all aspects of the
matter, in detail, came to the conclusion that in respect of
appointment of the Judges as contemplated under Articles 177 and
193 of the Constitution, the advice of the Cabinet/Prime Minister
under Article 48 (1) is attracted. In the said case at page 141, it was
held as under:-
“74.
After considering the arguments advanced for and
against the proposition on the point whether for making
Reference No.1 of 2012 & Const.P.No.126 of 2012
15
appointments of Judges under Articles 177 and 193, which
are special provisions, advice of the Prime Minister to the
President under general provision of Article 48 is attracted or
not, we are of the considered opinion that there is no
apparent conflict in Articles 48 on one side and 177 and 193
on the other side because Articles 177 and 193 are to be read
in conjunction with Article 48 (1) which is omni potent
provision being special characteristic of Constitution of 1973
which envisages Parliamentary Form of Government. If the
Constitution-makers intended even after promulgation of
Eighth Amendment to exclude Article 48(1) from application
to Articles 177 and 193, then they could have expressly
mentioned in Articles 177 and 193 that the President while
performing his functions under these Articles is allowed to
act in his discretion excluding advice of the Prime Minister
and would be deemed to be acting under Article 48(2). For
such reasons we are of the view that there is no conflict as
appointments under Articles 177 and 193 of the Constitution
are made in conjunction with Article 48(1) of the
Constitution always attracting and applying advice of the
Prime Minister to the President.”
18.
After the pronouncement of the authoritative decision
by this Court in the case of Al-Jehad Trust (ibid) by Constitution
(Eighteenth) Amendment Act, 2010 (Act 10 of 2010), the
appointment procedures of the Judges of the superior Courts were
radically changed.
“175A. Appointment of Judges to the Supreme Court, High Courts
and the Federal Shariat Court.- (1) There shall be a Judicial
Commission of Pakistan, hereinafter in this Article referred to
as the Commission, for appointment of Judges of the
Supreme Court, High Courts and the Federal Shariat Court,
as herein after provided.
(2)
For appointment of Judges of the Supreme Court, the
Commission shall consist of--
(i)
Chief Justice of Pakistan;
Chairman
(ii)
two most senior Judges of the
Supreme Court;
Members
(iii)
a former Chief Justice or a
Member
former Judge of the Supreme
Court of Pakistan to be nominated
by the Chief Justice of Pakistan,
in consultation with the two member
Judges, for a term of two years;
(iv)
Federal Minister for Law and
Member
Justice;
(v)
Attorney-General for
Member
Pakistan; and
(vi)
a Senior Advocate of the
Member
Supreme Court of Pakistan
Reference No.1 of 2012 & Const.P.No.126 of 2012
16
to be nominated by the Pakistan
Bar Council for a term of
two years.
(3)
Notwithstanding anything contained in clause (1) or
clause (2), the President shall appoint the most senior
Judge of the Supreme Court as the Chief Justice of
Pakistan.
(4)
The Commission may make rules regulating its
procedure.
(5)
For appointment of Judges of a High Court, the
Commission in clause (2) shall also include the
following, namely: ---
(i)
Chief Justice of the High Court Member
to which the appointment is being
made;
(ii)
the most senior Judge of that
Member
High Court;
(iii)
Provincial Minister for Law;
Member
and
(iv)
a senior advocate to be
Member
nominated by the Provincial
Bar Council for a term of two
years:
Provided that for appointment of the Chief
Justice of a High Court, the most senior Judge of the
Court shall be substituted by a former Chief Justice or
former Judge of that Court, to be nominated by the
Chief Justice of Pakistan in consultation with the two
member Judges of the Commission mentioned in
clause (2):
Provided further that if for any reason the
Chief Justice of High Court is not available, he shall
also be substituted in the manner as provided in the
foregoing proviso.
(6)
For appointment of Judges of the Islamabad High
Court, the Commission in clause (2) shall also include
the following, namely:---
(i)
Chief Justice of the Islamabad
Member
High Court; and
(ii)
the most senior Judge of that
High Court:
Member
Provided that for initial appointment
of the Judges of the Islamabad High Court,
the Chief Justices of the four Provincial High
Courts shall also be members of the
Commission:
Provided further that subject to the
foregoing proviso, in case of appointment of
Chief Justice of Islamabad High Court, the
provisos to clause (5) shall, mutatis mutandis,
apply.
Reference No.1 of 2012 & Const.P.No.126 of 2012
17
(7)
For appointment of Judges of the Federal Shariat
Court, the Commission in clause (2) shall also include
the Chief Justice of the Federal Shariat Court and the
most senior Judge of that Court as its members:
Provided that for appointment of Chief
Justice of Federal Shariat Court, the provisos to clause
(5) shall, mutatis mutandis, apply.
(8)
The Commission by majority of its total membership
shall nominate to the Parliamentary Committee one
person, for each vacancy of a Judge in the Supreme
Court, a High Court or the Federal Shariat Court, as
the case may be;
(9)
The Parliamentary Committee, hereinafter in this
Article referred to as the Committee, shall consist of
the following eight members, namely: ---
(i)
four members from the Senate, and
(ii)
four members from the National Assembly.
(10)
Out of the eight members of the Committee, four
shall be from the Treasury Benches, two from each
House and four from the Opposition Benches, two
from each House. The nomination of members from
the Treasury Benches shall be made by the Leader of
the House and from the Opposition Benches by the
Leader of the Opposition.
(11)
Secretary, Senate shall act as the Secretary of the
Committee.
(12)
The Committee on receipt of a nomination from the
Commission may confirm the nominee by majority of
its total membership within fourteen days, failing
which the nomination shall be deemed to have been
confirmed:
Provided that the committee may not confirm
that nomination by three-fourth majority of its total
membership within the said period, in which case the
Commission shall send another nomination.
(13)
The Committee shall forward the name of the
nominee confirmed by it or deemed to have been
confirmed to the President for appointment.
(14)
No action or decision taken by the Commission or a
Committee shall be invalid or called in question only
on the ground of the existence of a vacancy therein or
of the absence of any member from any meeting
thereof.
(15)
The Committee shall make rules for regulating its
procedure.”
The Constitution (Eighteenth) Amendment was called in question
through various petitions in this Court and after hearing, an interim
Reference No.1 of 2012 & Const.P.No.126 of 2012
18
short order was passed; for convenience sake relevant portion
therefrom, reads as under:-
“While doing so we take note of the fair stand taken by Mian
Raza Rabbani, Chairman of the Special Committee of the
Parliament for Constitutional Reforms and the Attorney
General for Pakistan to which reference has been made in
Para-12 above and hold that Article 175A shall be given effect
to in the manner as under:-
(i)
In all cases of an anticipated or actual vacancy a
meeting of the Judicial Commission shall be
convened by the Chief Justice of Pakistan in his
capacity as its Chairman and the names of candidates
for appointment to the Supreme Court shall be
initiated by him, of the Federal Shariat Court by the
Chief Justice of the said Court and of the High Courts
by the respective Chief Justices.
(ii)
The Chief Justice of Pakistan as head of the Judicial
Commission shall regulate its meetings and affairs as
he may deem proper.
(iii)
The proceedings of the Parliamentary Committee
shall be held in camera but a detailed record of its
proceedings and deliberations shall be maintained.
The Parliamentary Committee shall send its approval
of recommendations of the Judicial Commission to
the Prime Minister for onward transmission to the
President for necessary orders. If the Parliamentary
Committee disagrees or rejects any recommendations
of Judicial Commission, it shall give specific reasons
and the Prime Minister shall send copy of the said
opinion of the Committee to the Chief Justice of
Pakistan and the same shall be justicable by the
Supreme Court.
19.
In the light of the interim order, the Constitution
(Nineteenth) Amendment Act of 2011 was passed and to some
extent, the observations made by this Court were accepted and
Article 175A was amended, which reads as under:-
175A. Appointment of Judges to the Supreme Court, High Courts and
the Federal Shariat Court.-
(1) There shall be a Judicial Commission of Pakistan,
hereinafter in this Article referred to as the Commission,
for appointment of Judges of the Supreme Court, High
Courts and the Federal Shariat Court, as hereinafter
provided.
(2) For appointment of Judges of the Supreme Court, the
Commission shall consist of--
(i) Chairman Chief Justice of Pakistan;
(ii) Members four most senior Judges of the Supreme
Court;
(iii) Member a former Chief Justice or a former Judge of
the Supreme Court of Pakistan to be
Reference No.1 of 2012 & Const.P.No.126 of 2012
19
nominated by the Chief Justice of Pakistan,
in consultation with the four member
Judges, for a term of two years;
(iv) Member Federal Minister for Law and Justice;
(v) Member Attorney-General for Pakistan; and
(vi) Member a Senior Advocate of the Supreme Court of
Pakistan nominated by the Pakistan Bar
Council for a term of two years.
(3) Notwithstanding anything contained in clause (1) or clause
(2), the President shall appoint the most senior Judge of the
Supreme Court as the Chief Justice of Pakistan.
(4) The Commission may make rules regulating its procedure.
(5) For appointment of Judges of a High Court, the
Commission in clause (2) shall also include the following,
namely:-
(i) Member Chief Justice of the High Court to which the
appointment is being made;
(ii) Member the most senior Judge of that High Court;
(iii) Member Provincial Minister for Law; and
(iv) Member An advocate having not less than fifteen
years practice in the High Court to be
nominated by the concerned Bar Council for
a term of two years:
Provided that for appointment of Chief Justice of a
High Court, the most senior Judge mentioned in paragraph
(ii) shall not be Member of the Commission:
Provided further that if for any reason the Chief
Justice of High Court is not available, he shall be
substituted by a former Chief Justice or former Judge of
that Court, to be nominated by the Chief Justice of Pakistan
in consultation with the four member Judges of the
Commission in paragraph (ii) of clause (2):
(6) For appointment of Judges of the Islamabad High Court,
the Commission in clause (2) shall also include the
following, namely:-
(i) Member Chief Justice of the Islamabad High Court;
and
(ii) Member the most senior Judge of that High Court
Provided that for initial appointment of the Chief
Justice and the Judges of the Islamabad High Court, the
Chief Justices of the four Provincial High Courts shall also
be members of the Commission:
Provided further that subject to the foregoing
proviso, in case of appointment of Chief Justice of
Islamabad High Court, the provisos to clause (5)
shall, mutatis mutandis, apply.
(7) For appointment of Judges of the Federal Shariat Court, the
Commission in clause (2) shall also include the Chief
Justice of the Federal Shariat Court and the most senior
Judge of that Court as its members:
Provided that for appointment of Chief Justice of
Federal Shariat Court, the provisos to clause (5)
Reference No.1 of 2012 & Const.P.No.126 of 2012
20
shall, mutatis mutandis, apply.
(8) The Commission by majority of its total membership shall
nominate to the Parliamentary Committee one person, for
each vacancy of a Judge in the Supreme Court, a High
Court or the Federal Shariat Court, as the case may be.
(9) The Parliamentary Committee, hereinafter in this Article
referred to as the Committee, shall consist of the following
eight members, namely:-
(i) Four members from the Senate; and
(ii) Four members from the National Assembly.
Provided that when the National Assembly is
dissolved, the total membership of the Parliamentary
Committee shall consist of the members from the Senate
only mentioned in paragraph (i) and the provisions of this
article, shall, mutatis mutandis, apply.
(10) Out of the eight members of the Committee, four shall be
from the Treasury Benches, two from each House and four
from the Opposition Benches, two from each House. The
nomination of members from the Treasury Benches shall
be made by the Leader of the House and from the
Opposition Benches by the Leader of the Opposition.
(11) Secretary, Senate shall act as the Secretary of the
Committee.
(12) The Committee on receipt of a nomination from the
Commission may confirm the nominee by majority of its
total membership within fourteen days, failing which the
nomination shall be deemed to have been confirmed:
Provided that the Committee, for reasons to be
recorded, may not confirm the nomination by three-fourth
majority of its total membership within the said period.
Provided further that if a nomination is not
confirmed by the Committee it shall forward its decision
with reasons so recorded to the Commission through the
Prime Minister.
Provided further that if a nomination is not
confirmed, the Commission shall send another nomination.
(13) The Committee shall send the name of the nominee
confirmed by it or deemed to have been confirmed to the
Prime Minister who shall forward the same to the
President for appointment.
(14) No action or decision taken by the Commission or a
Committee shall be invalid or called in question only on
the ground of the existence of a vacancy therein or of the
absence of any member from any meeting thereof.
(15) The meetings of the Committee shall be held in camera and
the record of its proceedings shall be maintained.
(16) The provisions of Article 68 shall not apply to the
proceedings of the Committee.
(17) The Committee may make rules for regulating its
procedure.
Reference No.1 of 2012 & Const.P.No.126 of 2012
21
It is in this background that thirteen questions have
been framed and are placed before this Court seeking opinion under
Article 186 of the Constitution.
20.
We are recording this opinion without touching the
vires of Article 175A which is subject matter of various petitions
pending before this Court.
21.
First of all, we would like to give our opinion on
questions No.(v) & (ix) although framed separately but are
interconnected. These are as under:-
(v)
Whether the President who is bound by oath of office to
preserve, protect and defend the Constitution is obliged to
make the appointments which are not in accordance with
the provisions of the Constitution? and
(ix)
Whether the Constitution prohibits reconsideration of the
nominations by JCP and confirmed by the Parliamentary
Committee in the light of the observations made by the
President?
22.
The suitability of a candidate about his ability, legal
competency and integrity, which was to be determined by the Chief
Justice of Pakistan and the Chief Justice of the concerned High Court
prior to the Constitution (Eighteenth and Nineteenth) Amendments
now is to be determined by the Commission, a body consisting of
experts from all stakeholders i.e. the Judiciary, the Executive and
Bars, created by Article 175A of the Constitution. Although each
Member of the Commission is equal, including the Chief Justice of
Pakistan/Chief Justice of the concerned High Court having one vote
each, yet the Constitution Framers in their wisdom gave decisive
vote to the Judiciary, as out of 11 Members of the Commission 08
Reference No.1 of 2012 & Const.P.No.126 of 2012
22
Members are from the Judiciary alongwith one retired Judge of the
Supreme Court, nominated by the Chief Justice of the Pakistan.
23.
To discharge the duty put on their shoulders by the
Constitution Makers, to select the best person as a Judge of the
superior Courts, the most senior Judges of the Supreme Court and
the High Courts, being Members of the Commission, having one
vote each, are supposed to form their opinions independently about
the ability, legal competency, integrity and administrative skill of
the person, whose name is initiated by the Chief Justice of Pakistan
or the Chief Justice of the High Court, without which, the
fundamental rights of the Citizens cannot be secured.
24.
The President of Pakistan makes appointment to
various (non-elective) constitutional offices besides appointing the
High Court and Supreme Court Judges like the Auditor General of
Pakistan; the Chief Election Commissioner and its Members; the
Chairman, Federal Public Service Commission; Care Taker Prime
Minister, Members of Islamic Council and the Chiefs of Armed
Forces. We would like to reproduce hereinbelow the relevant
Articles of the Constitution to appreciate the questions involved:-
“Audit and Accounts
168. (1) There shall be an Auditor-General of Pakistan, who
shall be appointed by the President.
(2) Before entering upon office, the Auditor-General shall
make before the Chief Justice of Pakistan oath in the form set
out in the Third Schedule.
(3) The Auditor-General shall, unless he sooner resigns or is
removed from office in accordance with clause (5), hold office
for a term of four years from the date on which he assumes
such office or attains the age of sixty-five years, whichever is
earlier.
(3A) The other terms and conditions of service of the
Auditor- General shall be determined by Act of Majlis-e-
Reference No.1 of 2012 & Const.P.No.126 of 2012
23
Shoora (Parliament); and, until so determined, by Order of
the President.]
(4) A person who has held office as Auditor-General shall not
be eligible for further appointment in the service of Pakistan
before the expiration of two years after he has ceased to hold
that office.
(5) The Auditor-General shall not be removed from office
except in the like manner and on the like grounds as a Judge
of the Supreme Court.
(6) At any time when the office of the Auditor-General is
vacant or the Auditor-General is absent or is unable to
perform the functions of his office due to any cause, [the
President may appoint the most senior officer in the Office of
the Auditor-General to] act as Auditor- General and perform
the functions of that office.
177
Appointment of Supreme Court Judges.
177. (1) The Chief Justice of Pakistan and each of the other
Judges of the Supreme Court shall be appointed by the
President in accordance with Article 175A.
(2) A person shall not be appointed a Judge of the Supreme
Court unless he is a citizen of Pakistan and—
(a) has for a period of, or for periods aggregating, not less
than five years been a Judge of a High Court (including a
High Court which existed in Pakistan at any time before the
commencing day); or
(b) has for a period of, or for periods aggregating, not less
than fifteen years been an advocate of a High Court
(including a High Court which existed in Pakistan at any
time before the commencing day).
Appointment of High Court Judges.
193. [(1) The Chief Justice and each of other Judges of a High
Court shall be appointed by the President in accordance with
Article 175A.]
(2) A person shall not be appointed a Judge of a High Court
unless he is a citizen of Pakistan, is not less than [forty-five]
years of age, and—
(a) he has for a period of, or for periods aggregating, not less
than ten years been an advocate of a High Court (including a
High Court which existed in Pakistan at any time before the
commencing day); or
(b) he is, and has for a period of not less than ten years been,
a member of a civil service prescribed by law for the
purposes of this paragraph, and has, for a period of not less
than three years, served as or exercised the functions of a
District Judge in Pakistan; or
(c) he has, for a period of not less than ten years, held a
judicial office in Pakistan.
[Explanation.—In computing the period during which a
person has been an advocate of a High Court or held judicial
office, there shall be included any period during which he has
held judicial office after he became an advocate or, as the case
may be, the period during which he has been an advocate
after having held judicial office.]
(3) In this Article, "District Judge" means Judge of a principal
civil court of original jurisdiction.
Chief Election Commissioner and Election Commissions
213. (1) There shall be a Chief Election Commissioner (in this
Part referred to as the Commissioner), who shall be
appointed by the President.
(2) No person shall be appointed to be Commissioner unless
he is, or has been, a Judge of the Supreme Court or is, or has
been, a Judge of a High Court and is qualified under
Reference No.1 of 2012 & Const.P.No.126 of 2012
24
paragraph (a) of clause (2) of Article 177 to be appointed a
Judge of the Supreme Court.
(2A) The Prime Minister shall in consultation with the Leader
of the Opposition in the National Assembly, forward three
names for appointment of the Commissioner to a
Parliamentary Committee for hearing and confirmation of
any one person.
(2B) The Parliamentary Committee to be constituted by the
Speaker shall comprise fifty percent members from the
Treasury Benches and fifty percent from the Opposition
Parties,
based
on
their
strength
in
Majlis-e-Shoora
(Parliament),
to
be
nominated
by
the
respective
Parliamentary Leaders:
Provided that in case there is no consensus between the
Prime Minister and the Leader of the Opposition, each shall
forward separate lists to the Parliamentary Committee for
consideration which may confirm any one name:
[Provided further that the total strength of the Parliamentary
Committee shall be twelve members out of which one-third
shall be from the Senate:
Provided also that when the National Assembly is dissolved
and a vacancy occurs in the office of the Chief Election
Commissioner, the [total membership of the Parliamentary
Committee shall consist of] the members from the Senate
only and the foregoing provisions of this clause shall, mutatis
mutandis, apply.]
(3) The Commissioner shall have such powers and functions
as are conferred on him by the Constitution and law.
Time of Election and bye-election
224(1)(1A) On dissolution of the Assembly on completion of
its term, or in case it is dissolved under Article 58 or Article
112, the President, or the Governor, as the case may be, shall
appoint a care-taker Cabinet:
Provided that the care-taker Prime Minister shall be
appointed by the President in consultation with the Prime
Minister and the Leader of the Opposition in the outgoing
National Assembly, and a care-taker Chief Minister shall be
appointed by the Governor in consultation with the Chief
Minister and the Leader of the Opposition in the outgoing
Provincial Assembly:
“224A. Resolution by Committee or Election Commission.-
(1) In case the Prime Minister and the “Leader of the
Opposition in the outgoing National Assembly do not agree
on any person to be appointed as the care-taker Prime
Minister, within three days of the dissolution of the National
Assembly, they shall forward two nominees each to a
Committee to be immediately constituted by the Speaker of
the National Assembly, comprising eight members of the
outgoing National Assembly or the Senate, or both, having
equal representation from the Treasury and the Opposition,
to be nominated by the Prime Minister and the Leader of the
Opposition respectively.
(2) In case a Chief Minister and the Leader of the Opposition
in the outgoing Provincial Assembly do not agree on any
person to be appointed as the care-taker Chief Minister,
within three days of the dissolution of that Assembly, they
shall forward two nominees each to a Committee to be
immediately constituted by the Speaker of the Provincial
Assembly, comprising six members of the outgoing
Provincial Assembly having equal representation from the
Treasury and the Opposition, to be nominated by the Chief
Minister and the Leader of the Opposition respectively.
(3) The Committee constituted under clause (1) or (2) shall
finalize the name of the care-taker Prime Minister or care-
Reference No.1 of 2012 & Const.P.No.126 of 2012
25
taker Chief Minister, as the case may be, within three days of
the referral of the matter to it:
Provided that in case of inability of the Committee to decide
the matter in the aforesaid period, the names of the nominees
shall be referred to the Election Commission of Pakistan for
final decision within two days.
228.
Composition, etc., of Islamic Council.
228. (1) There shall be, constituted within a period of ninety
days from the commencing day a Council of Islamic Ideology,
in this part referred to as the Islamic Council.
(2) The Islamic Council shall consist of such members, being
not less than eight and not more than 3[twenty] as the
President may appoint from amongst persons having
knowledge of the principles and philosophy of Islam as
enunciated in the Holy Quran and Sunnah, or
understanding
of
the
economic,
political,
legal
or
administrative problems of Pakistan.
(3) While appointing members of the Islamic Council, the
President shall ensure that—
(a) so far as practicable various schools of thought are
represented in the Council;
(b) not less than two of the members are persons each of whom
is, or has been a Judge of the Supreme Court or of a High
Court;
(c) not less than 1[one third] of the members are persons each
of whom has been engaged, for a period of not less than fifteen
years, in Islamic research or instruction; and
(d) at least one member is a woman.
2[(4) The President shall appoint one of the members of the
Islamic Council to be the Chairman thereof.]
(5) Subject to clause (6), a member of the Islamic Council shall
hold office for a period of three years.
(6) A member may, by writing under his hand addressed to the
President, resign his office or may be removed by the President
upon the passing of a resolution for his removal by a majority
of the total membership of the Islamic Council.
Public Service Commission
242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs
of the Federation, and the Provincial Assembly of a Province
in relation to the affairs of the Province may, by law provide
for the establishment and constitution of a Public Service
Commission.
(1A) The Chairman of the Public Service Commission
constituted in relation to the affairs of the Federation shall be
appointed by the President on the advice of the Prime
Minister.
(1B) The Chairman of the Public Service Commission
constituted in relation to affairs of a Province shall be
appointed by the Governor on advice of the Chief Minister.]
(2) A Public Service Commission shall perform such functions
as may be prescribed by law.
Armed Forces
243. (1) The Federal Government shall have control and
command of the Armed Forces.
(2) Without prejudice to the generality of the foregoing
provision, the Supreme Command of the Armed Forces shall
vest in the President.
(3) The President shall subject to law, have power—
(a) to raise and maintain the Military, Naval and Air Forces of
Pakistan; and the Reserves of such Forces; and
(b) to grant Commissions in such Forces.
(4) The President shall, on advice of the Prime Minister,
appoint—
Reference No.1 of 2012 & Const.P.No.126 of 2012
26
(a) the Chairman, Joint Chiefs of Staff Committee ;
(b) the Chief of the Army Staff;
(c) the Chief of the Naval Staff; and
(d) the Chief of the Air Staff,
and shall also determine their salaries and allowances]”
25.
A bare reading of the Article 168 prior to Constitution
(Eighteenth and Nineteenth) Amendments, reveals that Clause 3 of
Article 168 was substituted by Sub Clause 3 of Article 168 (1) of the
Constitution, as adopted in 1973 Constitution by providing a term of
office of the Auditor General of Pakistan.
26.
Articles
177(1)
and
193(1)
were
amended
by
Constitution
(Eighteenth
and
Nineteenth)
Amendments
by
providing that the Chief Justice of Pakistan and Chief Justices of the
Provincial High Courts and Judges of superior Courts will be
appointed by the President of Pakistan, in accordance with Article
175A of the Constitution, which Article gives a complete process and
mechanism for the appointment of Judges of the superior Courts.
27.
Article
213
for
appointment
of
Chief
Election
Commissioner and its Members was amended by inserting new
Clauses 2A & 2B by Constitution (Eighteenth) Amendment and
proviso to clause 2B by Constitution (Nineteenth) Amendment. By
Clause 2B of Article 213 of the Constitution, a Parliamentary
Committee (to some extent identical to Parliamentary Committee in
the matter relating to appointment of Judges of the superior Courts)
has been constituted to confirm one person out of three names each
proposed by the Prime Minister and the Leader of the Opposition, if
there is no consensus between them on three names. The ‘discretion’
Reference No.1 of 2012 & Const.P.No.126 of 2012
27
of the President to appoint the Chief Election Commissioner, as
provided in the 1973 Constitution was omitted from sub clause 1 of
Article 213 of the Constitution, which means that though the
President
of
Pakistan
has
to
appoint
the
Chief
Election
Commissioner and its Members, he now has no discretion except to
appoint
the
“person”
whose
name
is
confirmed
by
the
Parliamentary Committee, as provided by Article 175A(13) of the
Constitution for appointment of Judges of the superior Courts. He is
completely ousted from the process of nomination of name and the
only role left for him is to “appoint” the nominee of the Committee
and or of Prime Minister & Leader of Opposition as the case may be.
28.
Article 224(1A) is inserted by Constitution (Eighteenth)
Amendment, whereas Article 224A is inserted by Constitution
(Twentieth) Amendment providing for appointment of care-taker
Cabinet/Prime Minister. On dissolution of the Assembly on
completion of its term or in case it is dissolved under Article 58 or
Article 112, the President or the Governor, as the case may be, shall
appoint a care-taker Prime Minister in consultation with the Prime
Minister and the Leader of Opposition in the outgoing National
Assembly. The proviso of Article 224(1A) inserted by Constitution
(Eighteenth) Amendment made it mandatory to appoint the person
as care-taker Prime Minister, nominated by the Prime Minister and
the Leader of the Opposition. In case, the Prime Minister and
the Leader of the Opposition in the outgoing National Assembly do
not agree on any person, they shall forward two nominees each to a
Reference No.1 of 2012 & Const.P.No.126 of 2012
28
committee comprising 8 members of the outgoing National
Assembly or the Senate or both, having equal representation from
the Treasury and the Opposition, to be nominated by the Prime
Minister and the Leader of the Opposition, respectively. The
Committee shall finalize the name of the care-taker Prime Minister
within 3 days of the referral of the matter to it. If committee is
unable to finalize the name of care-taker Prime Minister within 3
days of the referral, the name of the nominee shall be referred to the
Election Commission for final decision within two days.
29.
Although, the President of Pakistan has to appoint the
care-taker Prime Minister but by Constitution (Eighteenth &
Twentieth) Amendments, now he is only a symbolic appointing
authority with no discretion, but to appoint the person nominated
by the outgoing Prime Minister and the Leader of the Opposition as
care-taker Prime Minister within 3 days of the dissolution of
National Assembly and if they do not agree then by the Committee
comprising 8 Members of the outgoing National Assembly or the
Senate or by the Election Commission, as the case may be, as in the
matter of appointment of Judges of the Superior Courts.
30.
The Chairman of Public Service Commission and Chiefs
of Armed Forces now by Constitution (Seventeenth) Amendment
are to be appointed by the President on the advice of the Prime
Minister instead of “in his discretion”.
Reference No.1 of 2012 & Const.P.No.126 of 2012
29
31.
From the perusal of different Articles referred to above
for appointments of various constitutional offices, by the President
in the matter of appointment of Chairman, Public Service
Commission, Chiefs of Armed Forces, it appears that the President
has to act on the advice of Prime Minister and he may require the
Prime Minister to re-consider such advice whereas, in the matter of
appointment of Judges in the Superior Courts; Chief Election
Commissioner and Members of the Commission; and care-taker
Prime Minister, the advice of Prime Minister is not required and
after the nomination of name for appointment, by the Committee,
the President has no discretion except to appoint the nominee.
32.
We would like to mention here that the Azam Jammu &
Kashmir Interim Constitution Act, 1974 provides that a Judge of the
Supreme Court or High Court shall be appointed by the President
on the advice of a Council after consultation with the Chief Justice of
the Azad Jammu & Kashmir. The Prime Minister or the person
nominated by him is one of the members of the council alongwith
six members to be elected by the Assembly, including five members
nominated by the Prime Minister of Pakistan and others. In the case
of Muhammad Younas Tahir and another vs. Shaukat Aziz,
Advocate, Muzaffarabad and others (PLD 2010 SC AJK 42) while
dealing with question whether advice of Prime Minister is required
while appointing Judges of superior courts it was held that since a
Judge in the Supreme Court is appointed by the President on the
advice of the “Council” and after consultation with the Chief Justice
Reference No.1 of 2012 & Const.P.No.126 of 2012
30
of Azad Jammu & Kashmir and the Chief Justice of the High Court
the advice of Prime Minister is not relevant for the purpose of
appointment of judges.
33.
The Constitution, being a living organ for all times is to
be interpreted dynamically, as a whole, to give harmonious meaning
to every Article of the Constitution.
34.
The function of the Court, while interpreting the statute,
is to discover the true legislative intent. Having ascertained the
intention, the Court must strive to interpret the statute as to
promote/advance the object and purpose of the enactment. For this
purpose, where necessary, the Court may even depart from the rules
that plain words should be interpreted according to their plain
meaning. The Constitution was framed by its Framers, keeping in
view the situations and conditions prevailing at the time of its
making, but being an organic document it has been conceived in a
manner so as to apply to the situations and conditions which might
arise in the future. The words and expressions used in the
Constitution, in that sense, have no fixed meaning and must receive
interpretation based on the experience of the people in the course of
working of the Constitution.
35.
The general principle of interpretation of statutes is
equally applicable while interpreting any provision of the
Constitution. However, while interpreting a provision of the
Constitution, great caution has to be taken by the Court, as the
Reference No.1 of 2012 & Const.P.No.126 of 2012
31
Constitution is supreme law, which creates the Legislature itself
which makes ordinary law and statutes with respect to which
canons of statutory interpretation have been formulated by the
Courts. The task of expounding a Constitution is crucially different
from that of construing a statute. An ordinary statute can easily be
enacted or repealed by a simple majority of the Members of the
Parliament, whereas any provision of the Constitution can be
amended only by 2/3rd majority of both the Houses.
36.
In the case of Munir Hussain Bhatti v. Federation of
Pakistan (PLD 2011 Supreme Court 407), this Court held that the
Parliamentary Committee under Article 175A of the Constitution
cannot be equated with the Parliament nor can it be treated as a sub-
set of the Parliament in the manner in which a Parliamentary
Committee elected and answerable to the Parliament can be
considered to be part of the Parliament. The role of the
Parliamentary Committee has been dealt with in detail in the said
judgment and the Review Petition filed there-against by the
Federation of Pakistan. We would like to reproduce hereinbelow
paras 15 and 16 of the judgment, under review, dated 24.04.2011:-
“15.
Let me say at once that the Committee has and can
exercise the powers which under the earlier dispensation were
exercisable by the Prime Minister. We have specifically held
that “[t]he role which they [the Prime Minister and President] were
performing in the previous legal set up … is now logically to be
performed by the Committee”. Therefore, if the Prime Minister’s
role in the previous appointment mechanism was not
considered to be meaningless, we fail to see how the
Committee, charged with performing the same role, can be
considered redundant. That the Committee is only an
“institutionalized forum” for performing the functions which
were previously the domain and province of the Prime
Minister is made clear in our judgment more than once. This
can be further buttressed if one considers the speeches of Mr.
Raza Rabbani, Chairman of the Parliamentary Committee on
Reference No.1 of 2012 & Const.P.No.126 of 2012
32
Constitutional Reform (PCCR), on the floor of Parliament at
the time the 18th Amendment bill was being debated. On
6.4.2010, for instance, with the object of convincing the
members of the National Assembly to approve Article 175A,
Mr. Rabbani said, “in actual fact what is happening is that the
functions that were being performed by the Prime Minister in terms
of the present [pre amendment] system of appointment of Judges
would be taken over by this Parliamentary Committee”. The very
same intention was repeated six days later on the floor of the
Senate on 12.4.2010 when Mr. Rabbani, with the same clarity
of expression and intent stated that “what in actual fact has been
done here [in Article 175A] is, that the role that was assigned to the
Prime Minister in terms of appointment of Judges … has now been
assigned to this Parliamentary Committee”.
16.
It may be noted here that Mr. Raza Rabbani was not
just any member of Parliament making any odd speech on the
floor of the Houses of Parliament to put forward his own
point of view. He was the Chairman of the PCCR. It was he
who was steering the Constitutional amendments through
Parliament. We can presume that within the PCCR, comprised
of 27 members, there would have been discussion and
divergent points of view on Article 175A before it was given
the shape it finally took in the 18th Amendment. These
divergent views were sorted out which resulted in the view
expressed by Mr. Rabbani while explaining the function of the
Committee. It has not been suggested and, in any event, there
would be no warrant for the premise that the intent of
Parliament was anything different from what was stated by
Mr. Rabbani in Parliament, in the solemn proceedings
effecting important provisions of the Constitution. It would,
therefore, be reasonable to rely on Mr. Raza Rabbani, as
providing evidence of Parliamentary intent. It is such intent
after all, which we are engaged in ascertaining and in this
effort we are immeasurably benefited by what Mr. Rabbani
said. We have already commented on the relevance of
Parliamentary proceedings as an aid to interpretation of
statutory text. While considering the domain and functions of
the Committee we should also note that Mr. Rabbani was
unambiguous in informing Parliament that the members of
the PCCR “were also mindful of the fact that the manner in which
the trichotomy of power has been defined in that [Sindh High Court
Bar Association] judgment, the balance of that should not be upset”.
Our judgment under review has ensured that this balance is
maintained.”
37.
The President of India under Article 143 of Constitution
of India, sought the opinion of the Indian Supreme Court as to
whether the expression "consultation with the Chief Justice of India"
in Articles 217(1) and 222(1) requires consultation with a plurality of
Judges in the formation of opinion of the Chief Justice of India or
does the sole individual opinion of the Chief Justice of India
constitute consultation within the meaning of the said Articles. It
gave its opinion as under:-
Reference No.1 of 2012 & Const.P.No.126 of 2012
33
“19. It is, we think, reasonable to expect that the collegiums
would make its recommendations based on a consensus.
Should that not happen, it must be remembered that no one can
be appointed to the Supreme Court unless his appointment is in
conformity with the opinion of the Chief Justice of India. The
question that remains is: what is the position when the Chief
Justice of India is in a minority and the majority of the
collegiums disfavor the appointment of a particular person?
The majority judgment in the second Judges case has said
that if "the final opinion of the Chief Justice of India is contrary
to the opinion of the senior Judges consulted by the Chief
Justice of India and the senior Judges are of the view that the
recommendee is unsuitable for stated reason, which are
accepted by the President, then the non-appointment of the
candidate recommended by the Chief Justice of India would
be permissible". This if the majority of the collegiums is against
the appointment of a particular person, that person shall not be
appointed, and we think that this is what must invariably
happen. We hasten to add that we cannot easily visualize a
contingency of this nature; we have little doubt that if even two
of the Judges forming the collegiums express strong views, for
good reasons, that are adverse to the appointment of a
particular person the Chief Justice of India would not press for
such appointment.
20.
The majority judgment in the second Judges case
contemplates the non-appointment of a person recommended
on the ground of unsuitability. It says that such non-
appointment "must be for good reasons, disclosed to the Chief
Justice of India to enable him to reconsider and withdraw his
recommendation on those considerations. If the Chief Justice of
India
does
not
find
it
necessary
to
withdraw
his
recommendation even thereafter, but the other Judges of the
Supreme Court who have been consulted in the matter are of
the view that it ought to be withdrawn, the non-appointment of
that person for reasons to be recorded, may be permissible in
the public interest.......... However, if after due consideration of
the reasons disclosed to the Chief Justice of India, that
recommendation is reiterated by the Chief Justice of India with
the unanimous agreement of the Judges of the Supreme Court
consulted in the matter, with reasons for not withdrawing the
recommendation, then that appointment as a matter of healthy
convention ought to be made". It may be that one or more
members
of
the
collegium
that
made
a
particular
recommendation have retired or are otherwise unavailable
when reasons are disclosed to the Chief Justice of India for the
non-appointment of that person. In such a situation the reasons
must be placed before the remaining members of the original
collegium plus another Judge or Judges who have reached the
required seniority and become one of the first four puisne
Judges. It is for this collegium, so re-constituted, to consider
whether the recommendation should be withdrawn or
reiterated. It is only if it is unanimously reiterated that the
appointment must be made. Having regard to the objective of
securing the best available men for the Supreme Court, it is
imperative that the number of Judges of the Supreme Court
who consider the reasons for non-appointment should be as
large
as
the
number
that
had
made
the particular
recommendation (AIR 1999 Supreme Court 1).
38.
The Parliament, keeping in view the principle laid
down by this Court in Al-Jehad Trust case (i.e. the opinion of the
Reference No.1 of 2012 & Const.P.No.126 of 2012
34
Chief Justice of Pakistan, being pater-familias about suitability of a
candidate’s ability, legal competency and integrity deserves due
deference and that the President/Executive should give justicable
reasons, which could be juxtaposed with the reasons of the Chief
Justice, if the opinion of the Chief Justice of Pakistan is ignored) and
the principle laid down by Supreme Court of India that instead of
nomination by Chief Justice of India, the nomination will be made
by the collegiums of Judges with majority, amended the process of
appointment, by constituting a Commission having members from
the Judiciary, Bars and the Executive to nominate one person each
for each vacancy of a Judge in the Supreme Court, High Courts or
the Federal Shariat Court, as the case may be, by majority of its
members. Now instead of the President/Executive, under the old
dispensation, the Parliamentary Committee either confirm the
nomination by a majority of its total membership within fourteen
days on receipt of a nomination from the Commission, failing which
the nomination shall be deemed to have been confirmed or for
justifiable reasons, to be recorded, may not confirm the nomination
by a three-fourth majority of its total membership within fourteen
days.
39.
In the case of Al-Jehad Trust v. Federation of Pakistan
(PLD 1997 Supreme Court 84) [Reference No.2 of 1996, filed by the
President of Pakistan], it was held that if the Prime Minister within the
time-frame fixed in the judgment of this Court fails to tender his
advice, he or she, shall be deemed to have agreed to the
Reference No.1 of 2012 & Const.P.No.126 of 2012
35
recommendations of the Chief Justice of Pakistan and the Chief
Justice of Provincial High Court, as the case may be, and the
President may proceed to make the final appointment on that basis.
Keeping in view the authoritative decision given by this Court in the
said case, the Constitution Framers by Clause 12 of Article 175A of
the Constitution provided that if the Parliamentary Committee on
receipt of a nomination from the Commission fails to confirm the
nominee or to record reasons for not confirming the same by three-
fourth majority of its total membership within said period, the
nomination shall be deemed to have been confirmed. Clause 12 of
Article 175A of the Constitution read with the law laid down in the
cases of Munir Hussain Bhatti and Al-Jehad Trust leaves no room of
doubt that the advice of the Prime Minister for the appointment of
Judges of the superior Courts, which was binding upon the
President under Article 48(1) of the Constitution, is now conferred
upon the Committee and it is for this reason that Clause 13 of Article
175A of the Constitution provided that the Prime Minister shall
forward the nominee confirmed by the Committee to the President
of Pakistan for appointment. It does not require that the Prime
Minister shall then advice the President for appointment.
40.
To
appreciate
the
proposition,
it
would
be
advantageous to reproduce hereinbelow the definition of the word
“forward” as defined in ‘The Concise Oxford Dictionary (Ninth
Edition), which is the foremost authority on current English
Language:-
Reference No.1 of 2012 & Const.P.No.126 of 2012
36
Onward so as to make progress (not getting any further
forward); send (letter etc.) on to a further destination.
41.
From a bare reading of Clause 13 of Article 175A of the
Constitution, it appears that the Committee, if confirms the name of
a nominee of the Commission or the same is deemed to have been
confirmed by it, the Prime Minister is left with no discretion but to
forward the same to the President of Pakistan for appointment. The
Prime Minister after confirmation of the name of the nominee by the
Committee is not required to advice the President, under Article 48
of the Constitution or vice versa since no advice is given by the
Prime Minister to return the same for reconsideration.
42.
The role of the Prime Minister and the President of
Pakistan in the appointment of Judges of the superior Courts is
nothing but ministerial, and after receiving the nominations from
the Committee the Prime Minister and the President have no
discretion but to forward/appoint the nominees.
43.
If
Article
175A
alongwith
the
Scheme
of
the
Constitution, keeping in view its Preamble, which refers to an
independent judiciary as well as Article 175(3) of the Constitution,
which aims to separate the Judiciary from the Executive, is
examined, it will lead to an irresistible conclusion that the role of the
Executive in the appointment process of the Judges of the Superior
Courts has become more-or-less ministerial and the entire process of
appointment revolves around two bodies, created by/under the
Constitution i.e. the Judicial Commission and the Parliamentary
Committee.
Reference No.1 of 2012 & Const.P.No.126 of 2012
37
44.
Neither the learned Sr.ASC for the Referring Authority
nor the learned Attorney General for Pakistan pointed out that the
method of selecting Judges by the Commission in its meetings dated
27.09.2012 & 22.10.2012 and by the Committee thereafter was
violative of Articles 177(2) or 193(2) of the Constitution or any
provision of the Constitution. The questions are answered in above
terms.
45.
Now we would revert to question No.(i), to give my
opinion on the same, which for convenience sake is reproduced
hereinbelow:-
(i).
Whether in view of the decision by the Chief Justice of the
IHC that Mr. Justice Riaz was the senior most judge of the
IHC, which decision of the Chief Justice was also confirmed
by the President of Pakistan, Mr. Justice Kasi could be
treated as most senior Judge of the IHC?
46.
Mr. Justice Riaz Ahmad Khan was born on 15.05.1952.
He qualified C.S.S. Examination in the year 1977 and joined Civil
Services Academy Lahore. At the time, when he was posted at
Peshawar, the PCS (Judiciary) Exam was announced in Khyber
Pakhtunkhwa (the then NWFP) and he participated in the said
examination and qualified the same. On his request, his services
were transferred from Federal Government to the Provincial
Government of Khyber Pakhtunkhwa and was posted as Civil Judge
at Kohat, Haripur, and Peshawar and lastly as Senior Civil Judge at
D.I. Khan. He resigned from the said post and started practicing law.
He was elevated to the Bench on 04.1.2011 as an Additional Judge of
Reference No.1 of 2012 & Const.P.No.126 of 2012
38
Islamabad High Court, Islamabad and was confirmed on 21.11.2011
as a Judge of the said High Court.
47.
Conversely, Mr. Justice Muhammad Anwar Khan Kasi
was born on 28.11.1956. He was enrolled as an Advocate in 1982 and
joined the Judicial Service of Balochistan as a Civil Judge in May,
1986. He was appointed as an Additional District and Sessions Judge
in 1991 and as a District and Sessions Judge in 1997. He was elevated
as an Additional Judge of Islamabad High Court, Islamabad on
04.01.2011 and was confirmed as a Judge of the said High Court on
21.11.2011.
48.
Both the learned Judges were appointed through the
same Notification, issued by the Ministry of Law, Justice &
Parliamentary Affairs, Government of Pakistan, Islamabad, wherein
the name of Mr. Justice Muhammad Anwar Khan Kasi appeared at
Sr.No.1, whereas the name of Mr. Justice Riaz Ahmed Khan
appeared at Sr.No.2. The Hon’ble Chief Justice of Islamabad High
Court, Islamabad, while fixing their seniority, vide his order dated
22.12.2011 treated Mr. Justice Riaz Ahmad Khan, being elder in age,
as senior to Mr. Justice Muhammad Anwar Khan Kasi. Mr. Justice
Muhammad Anwar Khan Kasi made a representation to the Chief
Justice
of
Islamabad
High
Court,
Islamabad,
against
the
determination of his seniority, which was forwarded to the Secretary
Ministry of Law, because the appointment notification issued by the
said Ministry had placed the name of Mr. Justice Muhammad
Reference No.1 of 2012 & Const.P.No.126 of 2012
39
Anwar Khan Kasi at a senior serial number of the notification, to
resolve the dispute of inter se seniority at the earliest. The President
of Pakistan decided the representation and declared Mr. Justice Riaz
Ahmad Khan senior to Mr. Justice Muhammad Anwar Khan Kasi in
the seniority of the Judges of Islamabad High Court, Islamabad.
49.
The letter No.F.12(5)/86-Add, dated 30.04.1987, issued
by the Ministry of Law for the purpose of laying down the principle
for inter se seniority of the Judges appointed on the same day, is
nothing more than an equitable principle consistently adopted but is
not backed by any provision of the Constitution or law. However,
the convention of inter se seniority of a Judge is on the basis of
‘senior in age’, which by passage of time has become convention and
ought to have been respected. We would like to reproduce
hereinbelow the letter dated 30.04.1087:-
“No.F.12(5)/87-AII
Dated 30.04.1987.
GOVERNMENT OF PAKISTAN
MINISTRY OF JUSTICE AND PARLIAMENTARY AFFAIRS
(JUSTICE DIVISION)
Subject:-
SENIORITY LIST OF HIGH COURT JUDGES
My dear Chief Justice,
Please refer to the correspondence resting with High
Court of Sindh letter No.Gaz-IV, Z, 14(i) dated the 30th March,
1987, on the subject noted above.
2.
An equitable principle consistently adopted in this
regard is that Judges whose appointments are made by a single
order take seniority according to age. If the appointment of two
or more service candidates is also simultaneously made with
that of candidate from the Bar, the service Judges will retain
their existing seniority in the department regardless of their age
which of course would be the determining factor in respect of
their seniority vis-à-vis candidates from the Bar. This principle
has the approval of the President.
3.
I am to request you to please confirm whether the
seniority list of Sindh High Court Judges has been prepared in
the light of the above principle.
Reference No.1 of 2012 & Const.P.No.126 of 2012
40
With kind regards.
Yours sincerely,
Sd/-
(Irshad Hussain Khan)”
50.
We have gone through various seniority lists of the
Judges of the superior
Courts and notifications of their
appointments which leave no room for doubt that the recognized
principle for determining seniority amongst the Judges of High
Courts appointed
on the same day irrespective of their
appointments from Subordinate Judiciary or Bars, is the seniority in
age, and the Law Secretary who issues the notifications of
appointment has no lawful authority to determine the same nor
does the serial-wise appearance of names in the notification have
any nexus with the determination of seniority. We would like to
reproduce hereinbelow, as illustration, some of the notifications,
issued by Ministry of Law, Justice & Parliamentary Affairs,
Government of Pakistan, Islamabad and seniorities as determined
by the High Courts:-
“As shown in the Notification, dated
14.09.2009, issued by Ministry of
Law, Justice & Parliamentary Affairs,
Government of Pakistan, Islamabad:-
As placed in the seniority list, prepared by the
Lahore High Court, according to their dates of
birth:-
Mr.
Justice
Sagheer
Ahmed
Qadri.
02.12.1951
Mr. Justice Nasir Saeed Sheikh.
12.12.1951
Mr. Justice Sh. Najam ul Hassan
15.03.1952
Mr. Justice Kh. Imtiaz Ahmed.
30.03.1953
Mr.
Justice
Manzoor
Ahmed
Malik
01.05.1956
Mr. Justice Sardar Tariq Masood
11.03.1959
Mr. Justice Ijaz ul Ahsan
05.08.1960
1.
Syed Mansoor Ali Shah.
2.
Sh. Najam ul Hassan.
3.
Mr. Manzoor Ahmad Malik.
4.
Mr. Asad Munir.
5.
Mr. Ijaz ul Ahsan.
6.
Hafiz Abdul Rehman Ansari.
7.
Sardar Tariq Masood.
8.
Mr. Tariq Javaid.
9.
Mr. Nasir Saeed Sheikh.
10.
Mr. Mansoor Akbar Kokab.
11.
Khawaja Imtiaz Ahmad.
12.
Mr. Sagheer Ahmad Qadri.
Mr. Justice Syed Mansoor Ali
Shah
28.11.1962
As shown in the Notification, dated
11.05.2011, issued by Ministry of
Law, Justice & Parliamentary Affairs,
Government of Pakistan, Islamabad:-
As placed in the seniority list, prepared by the
Lahore High Court, according to their dates of
birth:-
Mr. Justice Altaf Ibrahim Qureshi
06.03.1953
Mr. Justice Abdus Sattar Asghar
20.03.1953
Mr. Justice Mehmood Maqbool
Bajwa
27.09.1954
1.
Syed Kazim Raza Shamsi.
2.
Mr. Abdul Waheed Khan.
3.
Syed Iftikhar Hussain Shah.
4.
Mr. Abdus Sattar Asghar.
Mr. Justice Amin-ud-Din Khan
01.12.1960
Reference No.1 of 2012 & Const.P.No.126 of 2012
41
Mr. Justice Muhammad Ameer
Bhatti
08.03.1962
Mr.
Justice
Ch.
Muhammad
Younas
16.09.1951
Mr. Justice Iftikhar Hussain Shah
01.04.1953
Mr. Justice Syed Muhammad
Kazim Raza Shamsi
06.09.1956
5.
Ch. Muhammad Younas.
6.
Mr. Mehmood Maqbool Bajwa.
7.
Syed Ijaz Hussain Shah.
8.
Mr. Ameen-ud-Din Khan.
9.
Mr. Muhammad Ameer Bhatti.
10. Mr. Altaf Ibrahim Qureshi.
11. Malik Shahzad Ahmad Khan.
Mr.
Justice
Malik
Shahzad
Ahmed Khan
15.03.1963
As shown in the Notification, dated
24.10.2005, issued by Ministry of Law,
Justice
&
Parliamentary
Affairs,
Government of Pakistan, Islamabad:-
As placed in the seniority list, prepared by
the High Court of Sindh, according to their
dates of birth:-
Mr. Justice Shamsuddin
Hisbani
01.12.1946
Mr. Justice Munib Ahmed
Khan
08.05.1949
Mr. Justice Muhammad
Athar Saeed
29.09.1949
Justice Mrs. Yasmeen
Abbasey
05.01.1950
Justice Mrs. Qaiser Iqbal
13.12.1949
Mr. Justice Ali Sain Dino
Metlo
01.03.1950
Mr. Justice Faisal Arab
05.11.1955
Mr. Justice Sajjad Ali Shah
14.08.1957
1.
Mr. Justice Munib Ahmed Khan
2.
Mr. Justice Muhammad Athar
Saeed
3.
Mr. Justice Faisal Arab
4.
Mr. Justice Sajjad Ali Shah
5.
Mr. Justice Nadeem Azhar Siddiqui
6.
Mr. Justice Shamsuddin Hisbani
7.
Justice Mrs. Yasmeen Abbasey
8.
Justice Mrs. Qaiser Iqbal
9.
Mr. Justice Ali Sain Dino Metlo
Mr. Justice Nadeem Azhar
Siddiqui
22.01.1959
As shown in the Notification, dated
24.09.2009, issued by Ministry of Law,
Justice
&
Parliamentary
Affairs,
Government of Pakistan, Islamabad:-
As placed in the seniority list, prepared by
the High Court of Sindh, according to their
dates of birth:-
Mr.
Justice
Bhajandas
Tejwani
01.01.1950
Mr. Justice Shahid Anwar
Bajwa
05.10.1950
Mr. Justice Ali Bin Adam
Jaffery
14.01.1952
Mr. Justice Ghulam Sarwar
Kurai
05.04.1952
Justice Ms. Rukhsana Ahmed
Malik
15.04.1957
Mr. Justice Tufail H. Ibraim
10.05.1958
Mr.
Justice
Ahmed
Ali
Sheikh
03.10.1961
Mr. Justice Irfan Saadat Khan
07.02.1963
Mr. Justice Aqeel Ahmed
Abbasi
16.06.1963
1.
Mr. Justice Shahid Anwar Bajwa
2.
Justice Ms. Rukhsana Ahmed Malik
3.
Mr. Justice Ghulam Sarwar Kurai
4.
Mr. Justice Ahmed Ali Sheikh
5.
Mr. Justice Ali Bin Adam Jaffery
6.
Mr. Justice Bhajandas Tejwani
7.
Mr. Justice Irfan Saadat Khan
8.
Mr. Justice Aqeel Ahmed Abbasi
9.
Mr. Justice Muneeb Akhtar
10. Mr. Justice Tufail H. Ibrahim
Mr. Justice Muneeb Akhtar
14.12.1963”
51.
Likewise neither the Constitution nor any law
authorizes the President of Pakistan, who is a symbolic appointing
authority, to decide the inter se seniority of Judges, which even
otherwise is not only against the principles of Independence of
Judiciary but also violative of Article 175(3) of the Constitution,
which provides for separation of the Judiciary from the Executive.
Reference No.1 of 2012 & Const.P.No.126 of 2012
42
52.
Like the Supreme Judicial Council, a forum created by
the Constitution, as held “not a Court” in case of Chief Justice of
Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan
(PLD 2010 Supreme Court 61), the Judicial Commission is also
created by the Constitution and cannot be given the status of a Court
to decide the issue of inter se seniority between two persons. The
Commission, which is assigned the function of nominating the
names of the candidates for appointment of Chief Justices of High
Courts and the Judges of superior Courts by taking in consideration
their legal competency etc, who meet the minimum qualification
provided by Articles 177(2) and 193(2) of the Constitution has no
mandate to decide the inter se seniority of Judges. Anyone, if
aggrieved, by the determination of his seniority by the Chief Justice
of the High Court and or by the Chief Justice of Pakistan being
paterfamilias in the absence of rules, can seek remedy from the
Court of competent jurisdiction. However, in the absence of specific
guideline it is expected from the constitutional functionaries to
regulate the exercise of their discretionary power in the matter as
per norms emerging from the actual practice and convention, and
legitimate expectancies.
53.
Since no rules have been framed for determining the
inter se seniority of Judges in superior Courts appointed on same
day, we endeavor to draw out a criterion of inter se seniority from
the example of a neighboring country.
Reference No.1 of 2012 & Const.P.No.126 of 2012
43
54.
According to the seniority norm in India, a judge (X) is
considered to be senior to another judge (Y) if X was appointed to
the court prior in time to Y. The presumption here is that both X and
Y are appointed to the same court. If, say, X is appointed to the
Bombay High Court, and then Y is appointed to the Calcutta High
Court, it's not entirely clear if X is senior to Y. So let's assume that X
and Y are both appointed to the Bombay High Court. What if they
are appointed on the same date? If one of them is a lawyer being
appointed to the court, and another is a subordinate court judge, the
lawyer is considered senior to the subordinate judge, though they're
appointed on the same date. This is entirely based on convention,
however, at one point it was not - the Indian High Courts Act, 1861,
said that "Judges of each High Court shall have Rank and
Precedence according to the Seniority of their appointments". This
provision was also seen in the Government of India Act, 1915, and in
the Government of India Act, 1935.
55.
Interestingly, in the U.S. Supreme Court as well as in
Pakistan, associate justices have "precedence according to the
seniority of their commissions", and then according to age if they're
appointed on the same date; the same rule applies to US federal
circuit court Judges.
56.
Though it is not relevant for the purposes of giving
opinion on the questions referred to, but time has come to avoid
such an unpleasant situation in the future, instead of relying upon
Reference No.1 of 2012 & Const.P.No.126 of 2012
44
the opinion of Law Secretary given in the year 1987 rules should be
framed by the superior Courts as to what should be the criteria for
inter se seniority between (a) Judges appointed on the same day?; (b)
A lawyer and a Judge from the District Service? Should it be date of
appointment, age or date of registration as an advocate.
57.
To record our opinion on question Nos.(ii); (iii); and (x),
the same are reproduced hereinbelow:-
(ii)
Whether Mr. Justice Riaz had a legitimate expectancy to be
appointed as Chief Justice of the IHC on the ground that he
was the most senior Judge of that Court in the light of the
judgment of the Supreme Court in the Al-Jehad case
referred to above;
(iii)
Whether the JCP acted in accordance with the Constitution
and conventions thereof in recommending a junior Judge as
Chief Justice of the IHC; and
(x)
What should be the criteria for elevating a Judge/Chief
Justice of the High Court to the Supreme Court? Is it, their
seniority inter-se as Judge of the High Court or their
seniority inter-se as Chief Justice of respective High Court
be the consideration for elevation to the Supreme Court?
58.
The Hon’ble Chief Justice of Pakistan initiated the name
of Mr. Justice Iqbal Hameed-ur-Rahman, the Chief Justice of
Islamabad High Court, Islamabad, for appointment as a Judge of
this Court, in terms of Rule 3(1) of the Judicial Commission of
Pakistan Rules, 2010 framed in exercise of powers conferred on the
Commission by Clause 4 of Article 175A of the Constitution. After
deliberation and taking into consideration various aspects of the
matter including the criteria for elevation of a Judge in Supreme
Court, he was nominated as a Judge of this Court. In another
meeting, held on the same day, which was attended by Chief Justice
of Islamabad High Court, Islamabad, the name of Mr. Justice
Reference No.1 of 2012 & Const.P.No.126 of 2012
45
Muhammad Anwar Khan Kasi was initiated for appointment as
Chief Justice of the Islamabad High Court, Islamabad and after
deliberation he was nominated for Chief Justice of Islamabad High
Court, Islamabad and send the same to the Parliamentary
Committee.
59.
The names of Mr. Justice Iqbal Hameed-ur-Rahman, as
a Judge of this Court and Mr. Justice Muhammad Anwar Khan Kasi,
as Chief Justice of Islamabad High Court, Islamabad, were
confirmed by the Committee.
60.
As regards the legitimate expectancy of the most senior
Judge to be appointed as Chief Justice of the High Court, in the case
of Al-Jehad Trust (supra) it was held as under:-
“Article 193 of the Constitution empowers the President of
Pakistan to appoint the Chief Justice of the High Court.
Apparently there is no constitutional requirement to appoint
senior most Judge as Chief Justice of the High Court
whenever permanent vacancy occurs in the High Court, but
to secure the independence of Judiciary from the Executive, it
is necessary to advert to the Constitutional convention which
has developed by the continuous usage and practice over a
long period of time. The Constitutional convention to appoint
most Senior Judge of the High Court as a Chief Justice, had
been consistently followed in the High Courts since before
partition of the sub-continent. The senior most Judge has an
edge over rest of the Judges of the High Court on the basis of
his seniority and entertains a legitimate expectancy to be
considered for appointment as Chief Justice against
permanent vacancy of the office of the Chief Justice.
Apparently there is wisdom in following the Constitutional
convention of appointing most senior Judge of the High
Court as permanent Chief Justice, otherwise a junior most
Judge in the High Court may aspire to become Chief Justice
of the High Court by bypassing his seniors and to achieve
this object resort to undesirable conduct by going out of his
way to oblige the Government in power. It he succeeds in
securing his appointment as Chief Justice by superseding his
seniors, by resorting to such measures he will endanger the
independence of Judiciary and destroy the public confidence
in the Judiciary. If a departure to follow the established
convention of appointing the senior most Judge is to be
made, the appointing authority should record reasons for not
appointing most senior Judge as Chief Justice of the High
Court. The complexion of the Institution is likely to be
impaired by so doing.”
Reference No.1 of 2012 & Const.P.No.126 of 2012
46
61.
Having notice of the principles laid down by this Court
in the case of Al-Jehad Trust (ibid) that the most senior Judge has the
legitimate expectancy to be appointed as Chief Justice of the High
Court, the Parliament in its wisdom, while making it mandatory that
the most senior Judge of the Supreme Court will be appointed as the
Chief Justice of Pakistan under Article 175A(3) of the Constitution,
left the question of suitability for appointment of the Chief Justice of
the High Court to be decided by the Judicial Commission, a forum
created by the Constitution, having four most senior Judges of this
Court alongwith the Chief Justice of Pakistan and Chief Justice of the
concerned High Court with one vote each. The contention of the
learned counsel that if the principles of seniority and legitimate
expectancy linked therewith are ignored, it would give rise to the
whim and caprice of the person initiating the name, which will affect
the independence of the judiciary and its working. At first sight, it
seems to have force, but on a careful perusal of Clause 5 of Article
175A of the Constitution, it appears that the process of nomination
by one person, prior to Constitution (Nineteenth) Amendment now
vests in a body consisting of all stakeholders i.e. the Judiciary, the
Representatives of Bars and the Executive. The four most senior
Judges of this Court, the Chief Justice of the High Court, a retired
Judge of Supreme Court, persons of integrity, who have first hand
information about the administrative skill and other related matters,
decide who is the most suitable person to be appointed as Chief
Justice of the High Court. Knowing well the principles laid down by
Reference No.1 of 2012 & Const.P.No.126 of 2012
47
this Court in Al-Jehad Trust case, if the Commission decides to
nominate someone other than the most senior Judge as Chief Justice,
it may give cause to question before an adjudicatory forum, and the
issue may be decided there, but not in this (Reference) jurisdiction.
62.
In the Budget Reference (PLD 1989 Supreme Court 85),
this Court said “it cannot in this (reference) jurisdiction decide the
matter as a lis between the parties, wherein exercise of other powers
is available to the Court including discretionary and taking other
consequential actions”. But on this count nomination cannot be
termed as violative of the Constitution.
63.
We may mention here that after Al-Jehad Trust case
and even after Constitution (Nineteenth) Amendment, the President
of Pakistan appointed the Chief Justices of Lahore and Peshawar
High Court, who were not the most senior Judges of that Courts.
64.
The Constitution is an organic law which creates the
very Legislature which makes ordinary statutes.
65.
Prior to the Constitution (Nineteenth) Amendment, the
Chief Justice of Pakistan being the head of the judiciary nominates a
candidate for the post of Chief Justice of the High Court or Judges of
the Superior Courts. The “ability, competency, knowledge and
suitability” of the nominee were held to be determined by the Chief
Justice of Pakistan being pater familias, his view deserved due
deference, which power now is exercised by the Judicial
Reference No.1 of 2012 & Const.P.No.126 of 2012
48
Commission consisting of Senior Judges, including Chief Justice of
the High Court, Representative of Bar, Attorney General for
Pakistan and the Law Minister. The power to appoint a Judge of the
superior Courts was initially vested in the Chief Justice of Pakistan
prior to Constitution (Nineteenth) Amendment, which then
devolved upon the Judicial Commission. As held in the case of
Munir Hussain Bhatti, (supra) that the principle laid down in the
authoritative decision of Al-Jehad Trust case is still applicable. In the
said case, it was held that in the matter of Judges the “satisfaction”
of the Chief Justice of Pakistan (now Judicial Commission of
Pakistan) is “subjective” and that such satisfaction is not subject to
judicial review. In the case of Ghulam Hyder Lakho v. Federation of
Pakistan (PLD 2000 Supreme Court 179), it was held that
satisfaction of the Chief Justice of Pakistan is “subjective” and was
not justifiable. This view was again reaffirmed in the case of
Supreme Court Bar Association v. Federation of Pakistan (PLD 2002
Supreme Court 939).
66.
Although minutes of meeting of Judicial Commission
have been placed on record by referring authority. We are not taking
note of it nor making any comments on it for the reason that
satisfaction of the Chief Justice of Pakistan prior to 19th
Constitutional Amendment and of Judicial Commission now is
“subjective” as held in the cases of Al-Jehad Trust, Ghulam Hyder
Lakho and Munir Ahmed Bhatti and not open to judicial review.
Reference No.1 of 2012 & Const.P.No.126 of 2012
49
67.
In this view of the matter, when this Court, time and
again, by authoritative decisions held that the “satisfaction” in the
appointment of Judges of the superior Courts including the Chief
Justice of the High Court is “subjective” and not open to Judicial
Review, the question of nomination by the Commission and
confirmation by the Committee of a Judge who is not the most
senior Judge of that Court as Chief Justice of High Court, cannot be
answered in advisory jurisdiction and may be adjudicated upon in
other jurisdiction. Although the practice of appointment of a Judge
other than most senior Judge is against the convention and may not
be in the interest of the judiciary, however, the appointment of a
Judge not most senior as Chief Justice of the High Court cannot be
termed as violative of the Constitution.
68.
Proviso to Sub clause 5 (iv) of Article 175A provided
that for the appointment of a Chief Justice of the High Court the
most senior Judge mentioned in paragraph (ii) shall not be a
member of the Commission have wisdom in it. If it is supposed that
the Judicial Commission decided to nominate most senior Judge of
the High Court as a Chief Justice, it is not desirable that he should be
a part of such nomination process being one of the interested parties
and in case the Judicial Commission decided not to nominate the
most senior Judge as the Chief Justice to avoid embarrassment to
him because of his presence in the Commission, as various issues
may be related to him come under discussion.
Reference No.1 of 2012 & Const.P.No.126 of 2012
50
69.
In this view of the matter, the Advisory Jurisdiction of
the Court is not suitable for such a determination, as the person
whose rights are likely to be affected is not before us.
70.
When we analyze Clauses 3 and 5 of Article 175A
alongwith Article 180 and 96 of the Constitution, it appears that the
Constitution Framers made it mandatory under Clause 3 of Article
175A that the most senior Judge of the Supreme Court shall be
appointed as Chief Justice of Pakistan and during the absence of the
Chief Justice of Pakistan, the most senior Judge of the Supreme
Court shall be appointed as Acting Chief Justice of Pakistan,
whereas in the case of Chief Justice of the High Court neither Clause
5 of Article 175A nor Article 196 of the Constitution make it
mandatory that in the case of a vacancy, the most senior Judge of the
High Court will be appointed as Chief Justice of the High Court and
in case of absence of the Chief Justice of the High Court, the most
senior Judge of the High Court shall be appointed as Acting Chief
Justice.
71.
It is a principle of legal policy that law should be altered
deliberately rather than causally. When the Legislature provided
two different modes of appointment of the Chief Justice of Supreme
Court and the Chief Justice of the High Court, then so long as the
Article of the Constitution is not amended or in adjudicatory
jurisdiction, the Court has to follow the same criteria as in the case of
the Chief Justice of Pakistan, the appointment of a Judge other than
Reference No.1 of 2012 & Const.P.No.126 of 2012
51
most senior Judge cannot be held, in Advisory Jurisdiction, against
the Constitution.
72.
As regards the criteria for the appointment of a Judge of
the Supreme Court, the Chief Justice of Pakistan, pater familias of
the Judiciary, in terms of Rule 3 of the Judicial Commission of
Pakistan Rules, 2010, initiates nomination of a Judge in the Supreme
Court, keeping in view the number of sitting Judges from different
High Courts and in this Court, work load of High Courts, their
administrative difficulties and other related issues. The Supreme
Court is the highest Court of Pakistan and its Judges should reflect
the geographic diversity of Pakistan i.e. Judges are appointed to the
Supreme Court by taking into account all the Provincial High Courts
and Islamabad High Court. Justice Ahmadi while disagreeing with
the majority view in second Judge case (AIR 1994 Supreme Court
268) held that the seniority norm ought to be deviated from while
appointing Judges to the Supreme Court of India in order to achieve
a more representative course.
73.
The Judicial Commission consisting of four most senior
Judges of this Court; a retired Judge of Supreme Court; a senior
Advocate nominated by the Pakistan Bar Council; the Law Minister;
and the Attorney General for Pakistan, after deliberations, in terms
of Clause 8 of Article 175A, by majority decides whether to
nominate or not to nominate the candidate whose name was
initiated by the Chief Justice of Pakistan.
Reference No.1 of 2012 & Const.P.No.126 of 2012
52
74.
Generally, in interpreting statutes, it is presumed that the
Legislature chooses its words carefully. Therefore, if a word or
phrase has been added somewhere, such addition is not to be
deemed redundant; conversely, if a word or phrase has been left out
somewhere, such omission is not be deemed inconsequential.
Instead, a change in language implies a change in intent. Maxwell,
an authority on statutory interpretation remarks: “When precision is
required, no safer rule can be followed than always to call the same thing by
the same name.” (P.311, Maxwell on the Interpretation of Statures,
Eleventh Edition, 1962)
75
In any case, we work on the understanding that the
Parliament and its draftsmen are not so careless that they would,
within the space of a single article, make such a fatal error. We owe
the Legislature more deference that the Legislature is presumed to
have chosen its words even more carefully in this case, since we are
not talking of some obscure procedural statute over here; we are
dealing with a document no less sacred than the Constitution itself.
76
Although due consideration of every legitimate
expectation in the decision making process is a requirement of the
rule of non-arbitrariness therefore, it is expected that this norm to be
observed, while initiating the name in term of Rule 3 of Judicial
Commission Rules, 2010 and then by the Judicial Commission. A
three Member Bench of this Court in the case of Tariq Aziz-ud-Din:
in re (2010 SCMR 1301) held as under:-
Reference No.1 of 2012 & Const.P.No.126 of 2012
53
“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
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 juxtaposition 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].”
However, a perusal of Clause 3 of the Article 175A read
in juxtaposition with Clause 5 of Article 175A alongwith its proviso
indicates that instead of making it mandatory to appoint the most
senior Judge as Chief Justice of the High Court, as provided in
Clause 3 of Article 175A read with Rule 3 of the Judicial Commission
Reference No.1 of 2012 & Const.P.No.126 of 2012
54
of Pakistan Rules, 2010, the matter is left to the discretion of the
Chief Justice of Pakistan to initiate the name for Chief Justice of the
High Court and the Commission by majority of its total membership
to nominate one person for said post. When the Constitution
Framers in the case of the appointment of the Chief Justice of
Pakistan made it mandatory that only the most senior Judge of
Supreme Court shall be appointed as Chief Justice of Pakistan, it left
room to appoint a person, who may not be the senior most Judge as
Chief Justice of the High Court. Appointment of a Judge other than
most senior Judge though may be violative of the convention and is
not desirable, but cannot be termed as violative of the Constitution.
However, it may give cause to the aggrieved person to seek remedy
before the adjudicatory forum, and question can be answered in said
jurisdiction.
77.
As regards question No.(iv) “Whether JCP was properly
constituted as per provision of Article 175-A of the Constitution as Mr.
Justice Kasi who participated in the meeting was not a Member thereof and
was a stranger to the proceedings”. Mr. Justice Muhammad Anwar
Khan Kasi attended the meeting of the Commission, dated
22.10.2012. The Chief Justice of Islamabad High Court, Islamabad,
initiated the names of Mr. Shaukat Aziz Siddiqui, as a Judge and Mr.
Noor-ul-Haq N. Qureshi, as an Additional Judge [for a period of six
months] of Islamabad High Court, Islamabad. For this reason, the
notifications in respect of these learned Judges were not issued. The
Commission after deliberations nominated the above named learned
Reference No.1 of 2012 & Const.P.No.126 of 2012
55
Judges by majority of 7 to 2. Even if it is accepted that Mr. Justice
Muhammad Anwar Khan Kasi was not the most senior Judge of
Islamabad High Court, Islamabad, and attended the meeting of the
Commission, it is established from the record that on the date when
the meeting of the Commission was called for the purpose of
considering the appointment of three Additional Judges of the High
Court, Mr. Justice Riaz Ahmad Khan was on ex-Pakistan Leave and
the former (Mr. Justice Muhammad Anwar Khan Kasi) was the most
senior Judge available of the said High Court. The terms “Chief
Justice” and “Acting Chief Justice” have been defined by the
Constitution, whereas the term “most senior Judge” has not been
defined. However, even if it is accepted that Mr. Justice Muhammad
Anwar Khan Kasi, was not eligible to sit in the meeting of the
Commission, Clause 8 of Article 175A stipulates that the decision of
the nomination of a person for any vacancy of a Judge of the
superior Court is to be taken by the Commission, by majority of its
total members and as such, his attending the said meeting does not
vitiate the entire proceedings or makes the nomination invalid.
78
In the case of Managing Director, SSGC Ltd. v. Ghulam
Abbas (PLD 2003 Supreme Court 724), it was held that:-
“Perusal of subsection (1) of section 3-A of the Act, 1973
reveals that “minimum strength of a Bench to exercise or
perform functions of the Tribunal is two Members, including
the Chairman,” meaning thereby that while conducting
hearing, the status of a Chairman is also of a Member.
Whereas under clause (a) of section 3-A(2), decisions are to
be pronounced by the majority of the Members. Clause (b) of
section 3-A (2) further provides that in case of division
between Members of the Bench or in case of equal division of
the Members, the case shall be referred to the Chairman and
whatever opinion is expressed by him, would have
supremacy and constitute the decision of the Tribunal. In
Reference No.1 of 2012 & Const.P.No.126 of 2012
56
this case impugned judgment has been authored by the
Chairman and all the Members have concurred with him,
therefore, presuming that Mr. Aftab Ahmed joined
proceedings without lawful authority but nevertheless
impugned judgment can sustain, as it has been rendered by
the Bench comprising of more than two Members of the
Service Tribunal and apprehension of influencing the
judgment by Mr. Aftab Ahmed (Retired Member) stands
excluded as it was authored by a former Judge of High Court
being the Chairman of the Service Tribunal.
In addition to above legal position, the impugned
judgment can be treated to have been delivered validly
under de facto doctrine.
………………………………………………………………………
Thus endorsing the principles discussed in above
paras, the impugned judgment is declared to have been
passed validly because Mr. Aftab Ahmed immediately
before his retirement had been performing same functions,
therefore, it would be deemed that in exercise of same
powers in good faith he associated himself in the
proceedings.
Besides above conclusion, the inclusion of Mr. Aftab
Ahmed as a Member of the Bench, had also not caused
prejudice to any of the parties because he has not authored
the judgment nor there is any likelihood of his having
influenced the judgment in any manner as it was authored
by the Chairman and remaining two Members of the Bench
had concurred with him. No useful purpose as such would
be served by remanding the case to the Service Tribunal for
fresh decision because dispute is lingering on between the
parties for the last so many years, therefore, justice demands
that now cases should be decided finally unless remand of
the cases is inevitable under the circumstances of each case.”
79.
In the case of Muhammad Saleem and 12 others v.
Secretary Prosecution, Government of Punjab, Lahore and another
(2010 PLC (CS) 1), a three member Bench of the Lahore High Court,
while dealing with the question that the committee which conducted
the interviews of the petitioners did not comprise all the four
members, appointed by the Chief Minister of Punjab vis-à-vis the
persons (strangers), who have participated in the interview process,
applied the rule of severance, excluded the marks given by the
stranger and held that whatever result emerges on account of the
exclusion of the stranger’s marks, shall be taken to be the result of
the committee, as quorum of the selection committee was complete.
Reference No.1 of 2012 & Const.P.No.126 of 2012
57
80.
In the case of Anderson v. City of Persons (496, P.2d
1333-Kan: Supreme Court 1972), the Supreme Court of Kansas
while dealing with a question, “The appellants' first point involves an
alleged conflict of interest arising from the fact that City Commissioners
Myer S. Freshman and Barton Dean and all of the five urban renewal
commissioners owned property within the general urban renewal area at
the time they voted on various resolutions during the progress of the urban
renewal program. The legislature provided in the urban renewal law for a
special conflict of interest section to disqualify any officer or employee of the
city or of the urban renewal board who owned property included or planned
to be included in an urban renewal project.” noted as under:-
“It is undisputed in the evidence that on May 16, 1966, at the time
the resolutions were passed by the city commission declaring certain
areas of Parsons to be "slum and blight areas" and creating and
appointing the urban renewal agency, two of the three Parsons city
commissioners owned real estate in the slum or blight areas. The
same two commissioners continued to own their properties at the
time the urban renewal plan was adopted. The two commissioners
mentioned were Myer S. Freshman and Barton Dean. On January
22, 1969, the city commission by resolution approved the urban
renewal project. At that time commissioners Freshman and Dean
owned property within the urban renewal area but did not own any
land within the area covered by the urban renewal project. As
pointed out heretofore, at all stages in the development of the urban
renewal program, all of the five urban renewal commissioners had an
interest in property located within the general urban renewal area.
The first issue to be determined is whether or not the various actions
of the urban renewal board in establishing and developing the urban
renewal program and the various actions of the Parsons city
commissioners in approving the urban renewal plan and in
approving the urban renewal project were so tainted with conflict of
interest within the meaning of K.S.A. 17-4758 as to completely
invalidate ab initio all of the actions and steps taken by the urban
renewal board and by the city commissioners in developing the
Parsons urban renewal program. It should be emphasized that each
of the commissioners made a full disclosure of his property interest in
the urban renewal area before participating in any action of his
board.
We, of course, recognize the common law principle that a public
officer owes an undivided duty to the public whom he serves and is
not permitted to place himself in a position that will subject him to
conflicting duties or cause him to act other than for the best interests
of the public. If he acquires any interest adverse to those of the public,
without a full disclosure it is a betrayal of his trust and a breach of
confidence. (United States v. Carter, 217 U.S. 286, 54 L.Ed. 769, 30
S.Ct. 515.)
Reference No.1 of 2012 & Const.P.No.126 of 2012
58
The law, however, does not forbid the holding of an office and
exercising powers thereunder because of a possibility of a future
conflict of interest. (Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360, 89
A.L.R.2d 612.) It has generally been held that the vote of a council or
board member who is disqualified because of interest or bias in regard
to the subject matter being considered may not be counted in
determining the necessary majority for valid action. There are many
cases cited in the annotation in 42 A.L.R. 698 in support of this
principle. It is also the rule that where the required majority exists
without the vote of the disqualified member, his presence and vote
will not invalidate the result and further that a majority vote need
not be invalidated where the interest of a member is general or of a
minor character. (Beale v. City of Santa Barbara, 32 Cal.App. 235,
162 P. 657; Corliss v. Village of Highland Park, 132 Mich. 152, 93
N.W. 254, adhered to on rehearing 132 Mich. 159, 95 N.W. 416; 56
Am.Jur.2d, Municipal Corporations, Etc. Section 172.)
81.
As regards Pinochet case (R v Bow Street Metropolitan
Stipendiary Magistrate (1999) UK (H.L.52), the House of Lords on
allegation that one of the Law Lords member of majority decision
had links with Amnesty International complaining of the extradition
of Gen. Pinochet, set aside his earlier majority decision by 3 to 2.
82.
Consequently, in our opinion, in view of the principle
laid down in the cases of Ghulam Abbas and Muhammad Saleem
(supra), the proceedings of the Judicial Commission, thereby
nominating the names of two, mentioned above, as Judges of
Islamabad High Court, Islamabad, are not vitiated because of the
attendance of Mr. Justice Muhammad Anwar Khan Kasi in the
meeting.
83.
Attending to questions No.(vi), (vii), (viii) & (xii)
reproduced hereinbelow, which are interconnected and require to be
answered together:-
(vi)
What should be the manner, mode and criteria before the
Judicial Commission with respect to the nomination of a
person as a Judge of High Court, Supreme Court and
Federal Shariat Court in terms of Clause (8) of Article 175-
A of the Constitution of Islamic Republic of Pakistan, 1973;
Reference No.1 of 2012 & Const.P.No.126 of 2012
59
(vii)
What is the proper role of the Judicial Commission and
Parliamentary Committee under the Constitution of
Pakistan with respect to appointment of Judges of Supreme
Court, High Court and Federal Shariat Court;
(viii) What should be the parameters before the Parliamentary
Committee for the confirmation of the nominee of the
Judicial Commission in terms of Clause (12) of Article 175-
A of the Constitution of Islamic Republic of Pakistan, 1973;
and
(xii)
The Parliamentary Committee under Article 175-A of the
Constitution may confirm or may not confirm a
nomination in accordance with the provisions stated
therein. What is the true import and meaning of the word
“confirm” and what is the effect of the proviso to Clause 12
of Article 175-A which reads as follows:
“Provided further that if nomination is not
confirmed, the Commission shall send another
nomination;
Clause 9 of Article 175A of the Constitution provides for
the constitution of a Parliamentary Committee and Clause 10 thereof
provides for quorum of the Committee, whereas Clause 12 of the
said Article provides that the Committee on receipt of a nomination
from the Commission may confirm the nominee by majority of its
total membership within fourteen days, failing which the
nomination shall be deemed to have been confirmed. Proviso to
Clause 12 of Article 175A of the Constitution provides that the
Committee, for reasons to be recorded, may not confirm the
nomination by three-fourth majority of its total membership within
the said period and shall forward its decision with reasons so
recorded to the Commission through the Prime Minister. The role of
the Committee after receipt of nominations from the Commission
has been discussed in depth by a four Member Bench of this Court
in the case of Munir Hussain Bhatti (supra) and it was held as
under:-
Reference No.1 of 2012 & Const.P.No.126 of 2012
60
“The nominations made by the Judicial Commission and the
refusal of the Parliamentary Committee to confirm the same
appear to have generated considerable public interest,
providing a great deal of material for debate in the public, the
media and the legal fraternity. The Bar Associations of the
High Courts in the country have also debated the impugned
decisions of the Committee. The Sindh High Court Bar
Association, which is itself a petitioner in Constitution
Petition No.18 of 2011, has placed on record its resolution
dated 23.2.2011 “condemning” the action of the Committee.
The proceedings in these petitions and the short order of
4.3.2011 have also made headlines in the print and the
electronic media. More so, critical comments on our order
dated 4.3.2011 have been carried prominently in the media.
We, therefore, find little substance in the factual assertion
advanced by Mr. K. K. Agha.
“26. The repeatedly emphasized imperative of maintaining a
record both of the proceedings of the Committee and of the
“reasons” behind its decisions, very strongly suggests that
the Committee’s decisions were intended to be subject to
judicial review. Otherwise, if the Committee’s decisions were
meant to be non-justiciable, and beyond judicial scrutiny, the
insistence on recording reasons would not make much sense.
It is an established rule of interpretation that Parliament does
not waste words and redundancy should not be imputed to
it. This principle would apply with even greater force to the
Constitution - the supreme law of the land. On this point Mr.
K. K. Agha was hard pressed to respond. It will be seen that
even an insular reading of this Article, leaves the impression
that the decisions of the Committee are subject to review. He,
however, argued that even though the 19th amendment had
required the Committee to give reasons for its decisions, it
did not make any provision for these decisions to be
challenged in a court of law.
27. The above submission was augmented by Mr. K. K. Agha,
by adverting to the Order of the seventeen-member Bench
dated 21.10.2010 wherein it had, inter alia, been said that “in
case of rejection of nomination by the Parliamentary
Committee … [it] shall have to state reasons which shall be
justiciable”. The gist of this argument appears to be that in
view of the order of the larger Bench, this Court should infer
that through the 19th amendment, it was intended by
Parliament that decisions taken by the Parliamentary
Committee should not be subject to judicial review. Such
inference was sought on the basis that the suggestion in the
aforesaid Order as to justiciability was not incorporated in
the amended Article. The argument of the learned Additional
Attorney General, based on implication and not on the
wording of Article 175A as amended, is contrary to the
jurisprudence
that
has
evolved
in
our
jurisdiction.
Furthermore, the argument ignores the legal precept
explained above that the Constitution has to be construed as
an organic whole.”
34. On the other hand, Article 175A has set up an
independent constitutional body having a specific role
assigned to it relating to the appointment of Judges of this
Court and of the High Courts. This constitutional body, as
adverted to above, has been referred to as a Parliamentary
Committee but it is neither part of Parliament when acting
under Article 175A nor is it elected by or answerable to
Parliament. An examination of the Constitution and
established Parliamentary practice will further demonstrate
this distinction between the Committee set up under Article
Reference No.1 of 2012 & Const.P.No.126 of 2012
61
175A and a parliamentary committee. By virtue of Article 67
of the Constitution, each House of Parliament may “make
rules for regulating its procedure and the conduct of its
business”. This authority has been exercised by both Houses
of Parliament and as a result, rules have been framed. The
upper House has framed the “Rules of Procedure and
Conduct of Business in the Senate 1988” (the ‘Senate Rules’)
while the National Assembly has adopted its own rules
known as the “Rules of Procedure and Conduct of Business
in the National Assembly, 2007” (the ‘Assembly Rules’). From
the Senate Rules and the Assembly Rules, it is very clear that
a parliamentary committee is a body elected by the respective
houses of Parliament and answerable to such houses. For
instance, the Assembly Rules in Rule 200, state that “[e]xcept
as otherwise provided in these rules, each Committee shall
consist of not more than seventeen members to be elected by
the Assembly within thirty days after the ascertainment of
the Leader of the House.” Likewise, the Senate Rules in Rule
145(1) provide that “[e]ach Committee shall consist of not less
than six members and not more than twelve members to be
elected by the Senate…
38. It would be obvious from a plain reading of the above
provisions that the limited ouster of jurisdiction stipulated
therein is in respect of, inter alia, the proceedings and
conduct of business of the Parliament. The decisions of the
Committee (even if comprised of persons who are honorable
members of Parliament) cannot be considered immune from
judicial scrutiny by virtue of Article 69. This conclusion
necessarily follows from the fact that the Committee is a
creation of the Constitution and not of the Parliament.
Furthermore, it is independent of and separate from
Parliament notwithstanding its composition. It performs, as
noted above, an executive function relating to the Judiciary
and, therefore, has been placed in the Chapter relating to the
Judicature rather than in Chapter 2 [The Majlis-e-Shoora
(Parliament)] dealing with Parliament.
39. The justiciability of the decisions of the Parliamentary
Committee can also be approached from another angle,
which would be manifest from a holistic examination of the
Constitution. The governance of state organs in Pakistan is
based on checks and balances where the powers of each
organ are counter-balanced by some other organ of the State.
Thus, executive action taken by the various administrative
and executive functionaries of the State can be called in
question, inter alia, under Articles 199 and 184(3) of the
Constitution. Such executive action may additionally be
subject to Parliamentary review and over-sight in our
parliamentary system of governance. Legislative action can
also be called in question in Court, inter alia, on the
touchstone that it is violative of the Constitution. Likewise,
decisions rendered by this Court can be modified or reversed
by legislation (in recognized circumstances) and such
legislation may also be retrospective. Thus we see that each
organ of the State, be it the Judiciary, the Executive or the
Legislature, operates under constitutional constraints which
effectively make these organs of State limited in their actions.
84.
The principles laid down in the said case were
reiterated by another four Members Bench of this Court in the case
Reference No.1 of 2012 & Const.P.No.126 of 2012
62
of Federation of Pakistan v. Sindh High Court Bar Association (PLD
2012 Supreme Court 1067).
85.
The roles of the Committee and the Commission as well
as the parameters before the Committee for confirmation of a
nomination by the Commission in terms of Clause 12 of Article 175A
of the Constitution are well settled by the reading of the
Constitution itself and also by the principles laid down by this Court
in the afore-referred two judgments and in Advisory Jurisdiction the
same cannot be reviewed.
86.
In the matter of Cauvery Water Disputes Tribunal (AIR
1992 Supreme Court 522), the Supreme Court of India declined to
answer the question of law under Article 148 of the Indian
Constitution, which is parallel to Article 186 of the Constitution and
held that:-
“when the Supreme Court in its adjudicatory jurisdiction
pronounces its authoritative opinion on a question of law, it
cannot be said that there is any doubt about the question of
law or the same is res integra so as to require the President to
know what the true position of law on the question is. The
decision of the Supreme Court on a question of law is binding
on all Courts and authorities and under the said clause the
President can refer a question of law only when this Court has
not decided it. Secondly, a decision given by the Supreme
Court can be reviewed only under Article 137 read with Rule 1
of Order XL of the Supreme Court Rules, 1966 and on the
conditions mentioned therein. When, further, the Supreme
Court overrules the view of the law expressed by it in an
earlier case, it does not do so sitting in appeal and exercising
an appellate jurisdiction over the earlier decision. It does so in
exercise of its inherent power and only in exceptional
circumstances such as when the earlier decision is per
incuriam or is delivered in the absence of relevant or material
facts or if it is manifestly wrong and productive of public
mischief. Under the Constitution such appellate jurisdiction
does not vest in the Supreme Court, nor can it be vested in it
by the President under Article 148 of the Indian Constitution”.
Reference No.1 of 2012 & Const.P.No.126 of 2012
63
87.
For the foregoing reasons, it is not necessary to answer
questions No.(vi), (vii) & (viii) & (xii), as the same have already been
answered in the above referred cases.
88.
Now coming to questions No.(xi) & (xiii),which read as
under:-
(xi)
Whether the Constitution of Pakistan prohibits individual
Members of the JCP to initiate names for appointments of
Judges to the Supreme Court, the High Courts and the
Federal Shariat Court; and
(xiii) Whether by not providing in camera proceeding for JCP in
Article 175-A of Constitution of Pakistan, the intention of
the legislature is to ensure complete transparency and open
scrutiny?
Clause 1 of Article 175A of the Constitution provides
that there shall be a Judicial Commission of Pakistan for the
appointment of the Judges of the Supreme Court, High Courts and
the Federal Shariat Court. The composition of the Commission is
provided in Clauses 2 and 5 of Article 175A of the Constitution for
appointment of Judges of the Supreme Court and of the High
Courts, respectively, and Clause 6 thereof relates to the composition
of the Commission for appointment of Judges of the Islamabad High
Court, whereas Clause 7 of the Article deals with the appointments
of Judges of the Federal Shariat Court. The Constitution itself has
not provided a mechanism by which the name of the proposed
Judge for appointment in the Supreme Court, High Courts or
Federal Shariat Court can be placed before the Commission except
providing qualification in terms of Articles 177(2) and 193(2).
However, Clause 4 of Article 175A of the Constitution confers
Reference No.1 of 2012 & Const.P.No.126 of 2012
64
powers upon the Commission to make rules regulating its
procedure and Clause 15 thereof empowers the Committee to make
rules to regulate its proceeding.
89.
The Commission, in exercise of the powers conferred on
it by Clause 4 of Article 175A (1), framed the Judicial Commission of
Pakistan Rules, 2010, which were duly published in the Gazette of
Pakistan, dated 08.11.201. Rule 3 of the said Rules reads as under:-
“3. Nominations for Appointments.(1) For each
anticipated or actual vacancy of a Judge in the
Supreme Court or the Chief Justice of Federal
Shariat Court or the Chief Justice of a High Court,
the
Chief
Justice
of
Pakistan
shall
initiate
nominations in the Commission for appointment
against such vacancy.
(2). For each anticipated or actual vacancy of a
Judge in the Federal Shariat Court or Judge in the
High Court, the Chief Justice of the respective
Court shall initiate and send nomination for
appointment against such vacancy to the Chairman
for convening meeting of the Commission.
5(4). The proceedings of the Commission shall be
held in camera. A record of the proceedings shall
be prepared and maintained by the Secretary duly
certified by the Chairman under his hand.”
Till date, the said Rules are not amended. No Member
of the Commission, in terms of the Rules duly framed and not in
conflict with any provision of Article 175A, except the Chief Justice
of Pakistan or the Chief Justice of the Federal Shariat Court or of a
High Court, can initiate the nomination for appointment against
anticipated or actual vacancy therein.
90.
In terms of the said Rules, the Commission itself in its
wisdom decided and rightly so that for each anticipated or actual
Reference No.1 of 2012 & Const.P.No.126 of 2012
65
vacancy of a Judge in the Supreme Court, High Courts and Federal
Shariat Court, the Chief Justices of the said Courts shall initiate
nomination in the Commission for appointment against such
vacancy of a person duly qualified in terms of Articles 177(2) and
193(2) of the Constitution and sent to the Chairman of the
Commission. The Chairman of the Commission shall then call a
meeting of the Commission where such nomination shall be
discussed and deliberated upon and then either it will be approved
or rejected. The wisdom behind the Rules framed by the
Commission is that the Chief Justice of Pakistan or the Chief Justice
of
the
concerned
High
Court
is
the
best
person
to
practically/technically evaluate a person’s caliber to be nominated
as a Judge, including his legal competence and integrity. The Chief
Justice of the High Court holding the highest office in the judicial
hierarchy of the Province is the best person to know about all the
Judicial Officers working in the Province and Advocates appearing
before the High Court and on the basis of such personal knowledge,
information and material before him, he recommends a person to be
appointed as a Judge of the superior Courts.
91.
Except initiating the nomination of a person, the Chief
Justice of Pakistan or the Chief Justice of the High Court has no
other special role in the appointment process and is just like any
other member of the Commission and merely because he initiates
the nomination, the same itself cannot be recommended, but to be
considered as an act of mere procedure. The name initiated by the
Reference No.1 of 2012 & Const.P.No.126 of 2012
66
Chief Justice of Pakistan or the Chief Justice of the Provincial High
Court is discussed in the Commission comprising all members from
different spheres including the Executive, Representatives of Bars
and Senior Judges of the Supreme Court and the High Courts. After
deliberations and technical/professional evaluation of person’s
caliber as a Judge, the Commission nominates the name of such
person to be appointed as a Judge of the superior Courts by majority
of its total membership of the Commission.
92.
In the case of Sindh High Court Bar Association, Sukkur
through President versus Pakistan through Secretary, Ministry of
Law, Parliamentary Affairs & Justice, Islamabad and another (PLD
2012 Sindh 531), the learned High Court of Sindh while dealing
with the question of nominating a person as a Judge or an
Additional Judge, in the meeting of the Commission held as under:-
“We had the benefit of going through the judgment
proposed to be delivered by our learned brother Maqbool Baqar
J. We are in agreement with the conclusion drawn by him.
However we intend to append our own reasoning in order to
clarify that initial nomination for appointment as Additional
Judge or a Judge in the High Court is to be made exclusively by
the Chief Justice of the concerned High Court and after receiving
the initial nomination, the Chairman, convenes meeting of the
Judicial Commission of Pakistan where the nomination is
considered. Judicial Commission then either recommends or
rejects such nomination but on its own does not initiate the
process of nomination. The reasons for stating so are as follows.
Appointment of Judges of the superior courts are made
under the provisions of Article 175-A of the Constitution. The
said Article provides the procedure that is to be followed by the
Parliamentary Committee but is does not provide the procedure
that is to be followed by the Judicial Commission. Under sub-
Article (4) of Article 175-A of the Constitution it was left to the
Judicial Commission to devise its procedure by framing its own
rules. Such rules were framed by the Judicial Commission
described as Judicial Commission of Pakistan Rules, 2010. Rule 3
(2) of the said Rules provide that for each vacancy of a Judge in a
High Court, nomination for appointment is to be initiated by the
Chief Justice of the concerned High Court. Hence under the new
dispensation also it is the Chief Justice of the concerned High
Court who initially proposes a name against an anticipated or
actual vacancy in his Court and sends it to the Chairman of the
Judicial Commission. The Chairman then convenes meeting of
Reference No.1 of 2012 & Const.P.No.126 of 2012
67
the Judicial Commission. The nomination is discussed and
deliberated and then either it is approved or rejected.
We may add here that in case it is interpreted in a way
that initial nomination of the person as a Judge or Additional
Judge can also be made by other members of the Judicial
Commission then it might lead to a bizarre situation. The
Judicial Commission for appointment in the High Courts
comprises of thirteen members. Apart from five sitting judges of
the Supreme Court and two of the concerned High Court, the
other six members of the Judicial Commission comprise of a
retired judge, Federal Law Minister, Provincial Law Minister,
Attorney General and one representative each from Pakistan Bar
Council and Provincial Bar council. If they as members of
Judicial Commission also become entitle to nominate persons for
the consideration of the Judicial Commission in addition to the
nominations sent by the Chief Justice of the concerned High
Court then each of such members would be coming up with his
own list of nominees whom he might consider suitable for
appointment. There is strong possibility that at a time scores of
nominations would be before the Judicial Commission for
consideration. Pressure groups might also emerge lobbying with
certain members of Judicial Commission to initiate nomination
of persons of their choice. The entire process of appointment
might get confused and become unworkable. It is to avoid all
this that Rule 3(2) of Judicial Commission of Pakistan Rules, 2010
provides that initial nomination for appointment, be it for a
Judge or Additional Judge of a High Court, is to be sent to the
Judicial Commission by the chief Justice of the concerned High
Court. This has always been the procedure in the previous
dispensation and has also been recognized under the present
dispensation under Rule 3(2) of Judicial Commission of Pakistan,
Rules, 2010. The only change that has been brought about after
the 18th amendment to the Constitution is that determination of
capability of a nominee of the Chief Justice of the High Court is
not left to be decided by the Chief Justice of the concerned High
Court and the Chief Justice of Pakistan only but to a thirteen
member body called Judicial Commission of Pakistan.”
93.
Rules being delegated Legislation are subject to certain
fundamental factors. Underlying the concept of delegated legislation
is the basic principle that the Legislature delegates because it cannot
directly exert its will in every detail.
94.
The Judicial Commission of Pakistan Rules, 2010 are not
in contravention with or inconsistent or repugnant to any provision
of the Constitution, and have been made and promulgated in
exercise of the authority conferred on it by the Constitution.
Reference No.1 of 2012 & Const.P.No.126 of 2012
68
95.
On having dilated upon the questions referred to by the
President of Pakistan and opinion recorded hereinabove, we are of
the opinion that Mr. Justice Riaz Ahmad Khan is senior most Judge
of the Islamabad High Court.
96.
Though it is desirable that the most senior Judge of the
High Court should be appointed as Chief Justice of that Court,
however, in view of Clauses 2 and 3 of Article 175A read with
Clause 5, appointment of a Judge not most senior Judge as a Chief
Justice of the High Court is not violative of any provision of
Constitution.
97.
The
recommendations
made
by
the
Judicial
Commission in its meeting dated 22.10.2012 are not vitiated merely
because Mr. Justice Muhammad Anwar Khan Kasi attended the said
meeting.
98.
In terms of Article 175A of the Constitution, the
President of Pakistan has no discretion to send the name of nominee
of the Judicial Commission and confirmed by the Parliamentary
Committee for reconsideration.
99.
The Judicial Commission in exercise of powers
conferred by Clause 4 of Article 175A framed rules who can initiate
.the name of a person as a Judge of the High Court, Federal Shariat
Court and the Supreme Court and the Chief Justice of the High
Courts and Federal Shariat Court, as the case may be.
Reference No.1 of 2012 & Const.P.No.126 of 2012
69
100.
The roles of the Parliamentary Committee and the
Judicial Commission and parameters for the confirmation of the
nominee of the Judicial Commission, have been dealt with, in detail,
by this Court in the case of Munir Hussain Bhatti (supra).
Judge
Judge
Judge
Judge
Judge
EJAZ AFZAL KHAN, J. – I have gone through the judgment
authored by my brother Mr. Justice Khilji Arif Hussain. I have also
gone through the answers to the questions and the reasons
recorded therefor. I am not inclined to agree with some of them
and thus answer the questions in my note recorded as under.
2.
Brief facts leading to the institution of the reference and
the Constitution Petition are that a vacancy occurred in this Court
on the retirement of Mr. Justice Mian Shakirullah Jan. In order to fill
the said vacancy, the Judicial Commission of Pakistan in its meeting
held on 27.09.2012 nominated Mr. Justice Iqbal Hameed-ur-Rehman
as a Judge of this Court. His nomination as such necessitated the
nomination of a Judge of the said High Court for appointment as
Chief Justice. Mr. Justice Muhammad Anwar Khan Kansi was
nominated for appointment as Chief Justice of the High Court on
the ground that he was the most Senior Judge of the said Court. His
nomination was confirmed by the Parliamentary Committee and
sent to the Prime Minister, who forwarded it to the President for
appointment. The President having serious reservations to the status
of Mr. Justice Muhammad Anwar Khan Kansi as the most Senior
Judge declined to appoint him and thus filed the reference raising
the questions recounted above. Constitution Petition mentioned
above is also a corollary of the same episode.
3.
Mr. Waseem Sajjad, learned Sr. ASC while appearing on
behalf of the President contended that when the principle
underlying determination of seniority of the Judges elevated on the
same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being
senior in age is the most Senior Judge to be nominated as Chief
Justice, Islamabad High Court. This practice, the learned counsel
added, being more than a century old has been consistently
followed in the Indian sub-continent and even after its partition. The
learned counsel to substantiate his argument referred to the letter
No.F.12(5)/86-AII, dated 30.04.1987, Government of Pakistan, Ministry
of Justice and Parliamentary Affairs (Justice Division). The learned
counsel by elaborating his argument contended that when
according to the dictum laid down by this Court in the case of “Al-
Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi
and others. Vs. Federation of Pakistan and others” (PLD 1996 S.C.
324), the most senior Judge of a High Court has a legitimate
expectancy to be appointed as Chief Justice, Mr. Justice Riaz
Ahmed Khan being the most senior Judge of the High Court, would
be entitled to be nominated for appointment as Chief Justice in the
absence of any valid reason and that the nomination of Mr. Justice
Muhammad Anwar Khan Kasi is not only an out right departure from
the century’s old practice but also against the law of the land,
therefore, the President is not bound to appoint such person as
Chief Justice. The learned counsel next contended that the Judicial
Commission, nominating Mr. Justice Shaukat Aziz Siddique for
appointment and Mr. Justice Noor-ul-Haq Qureshi for extension as
Judges of the High Court, cannot be said to have been properly
constituted in the absence of most senior Judge, therefore, their
nomination will not have any legal or constitutional sanctity
notwithstanding it having been confirmed by the Parliamentary
Committee was sent to the Prime Minister and then forwarded to the
President. This nomination would be all the more without any legal
and Constitutional sanctity, argued the learned counsel, when the
proceedings before the Commission have not been conducted in
the manner prescribed by the Constitution. The learned counsel to
support his contention referred to the cases of “Human Rights Cases
No. 4668 of 2006, 1111 of 2007 and 15283-G of 2010, (Action taken
on news clippings regarding Fast Food Outlet in F-9 Park,
Islamabad). (PLD 2010 Supreme Court 759), and “Federation of
Pakistan
through
Secretary,
Ministry
of
Law,
Justice
and
Parliamentary Affairs, Islamabad and others. Vs. Aftab Ahmad Khan
Sherpao and others” (PLD 1992 S.C. 757(K). The fact, maintained the
learned counsel, that a non-entity, sat, voted and took part in the
proceedings of the Judicial Commission would alone call for their
annulment. The learned counsel to support his contention placed
reliance on the case of “Regina. Vs. Bow Street Metropolitan
Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2).
Even otherwise, the learned counsel submitted, the President being
appointing authority is duty bound to ensure obedience to the
Constitution and the law cannot appoint a person who has not
been nominated in accordance with the provisions of the
Constitution.
4.
During the course of arguments I asked the learned
counsel for the President that when the proceedings in the house in
view of the provision contained in Article 67 of the Constitution do
not become invalid on the ground that some persons who were not
entitled to sit, vote or otherwise take part in the proceedings, sat,
voted and took part therein, how a proceedings of the Commission
can become invalid on this score, the reply of the learned counsel
was that the proceedings in the former case do not become invalid
because it has been so provided in the aforesaid article but there is
nothing of that sort in Article 175-A of the Constitution. The learned
counsel by referring to Article 48 of the Constitution contended that
despite insertion of Article 175-A in the Constitution, the President still
has the power to send back a nomination to the Judicial
Commission for reconsideration. But when asked whether a
nomination originating from the Judicial Commission, confirmed by
the Parliamentary Committee, and forwarded by the Prime Minister
to the President could be treated as an advice and returned as
such for reconsideration in terms of Article 48 of the Constitution
when it does not provide for any such eventuality, the learned
counsel did not give any satisfactory answer. The fact is that his own
reply to our query with reference to Article 67 of the Constitution
barricaded his way to take a U-turn. Though he swang to yet
another argument by submitting that the Constitutional provisions
have to be interpreted as a whole and not in isolation but that
would not be of any help to him. The learned counsel further
contended that if the principle of seniority and that of legitimate
expectancy linked therewith, are ignored without reasons to be
recorded, it would give rise to the whim and caprice of the person
sitting at the peak which is not conducive for independence of
judiciary. The learned counsel also waxed eloquent by asking this
Court to redefine the mode and manner of appointing judges but
when I observed that all these questions have been elaborately
dealt with in the case of “Munir Hussain Bhatti, Advocate and others.
Vs. Federation of Pakistan and another” (PLD 2011 S.C. 407), the
learned counsel submitted that they have been, but since they
have been dealt with collaterally, the judgment so rendered being
obiter dicta will not have a binding force. I would have agreed with
the learned counsel for the President but he could not point out
anything striking or significant in the judgment which went un-
noticed and unattended. It is, therefore, not obiter dicta by any
attribute. This judgment could have been treated as sub-silentio: a
precedent not fully argued, but again the learned counsel could
not advert to any legal or Constitutional aspect of the case which
escaped the notice of the Bench rendering the judgment, so as to
relegate it to the status of sub-silentio. The learned counsel next
contended that Mr. Justice Muhammad Anwar Khan Kasi could not
be held as most senior Judge on the strength of the judgment
rendered in the case of “Federation of Pakistan through Secretary,
Ministry of Law and Parliamentary Affairs and Justice, Islamabad. Vs.
Sindh High Court Bar Association through President and another”.
(PLD 2012 Supreme Court 1067), as it does not provide any premises
for such conclusion. How the proceedings in the Judicial
Commission could be held in camera, asked the learned counsel,
when the legislature in its wisdom purposely provided otherwise, so
as to ensure complete transparency and open scrutiny. What would
be the criterion, asked the learned counsel, for elevating a Judge or
a Chief Justice of a High Court to the Supreme Court and how far
the inter se seniority of the Judges or the Chief Justices of the High
Courts would be relevant in this behalf?.
5.
Mr.
Muhammad
Akram
Sheikh,
learned
Sr.
ASC
appearing on behalf of the petitioner contended that once the
Judicial Commission nominated Mr. Justice Shaukat Aziz Siddique for
appointment and Mr. Justice Noor-ul-Haq Qureshi for extension for a
period six months as Judges of the Islamabad High Court, the
Parliamentary Committee after having confirmed their nomination
sent it to the Prime Minister and the Prime Minister forwarded it to the
President for appointment, the President has no other option but to
do the needful. The learned counsel next contended that Mr.
Justice Muhammad Anwar Khan Kasi being the most Senior Judge
rightly
participated
in
the
meeting
of
the
Judicial
Commission nominating the Judges mentioned above, therefore,
the President has no power whatsoever to delay or decline the
appointment on any pretext if it is seen in the light of Eighteenth and
Nineteenth Amendment. Even if it is assumed, added the learned
counsel, that the Judge participating in the meeting was a non-
entity, it would not materially affect the result if the doctrine of
severance is applied. The learned counsel to support his contention
placed reliance on the case “Managing Director, Sui Southern Gas
Company Ltd., Karachi. Vs. Ghulam Abbas and others” (PLD 2003
S.C. 724). The learned counsel next contended that had the
decision been made by a margin of one, the argument of the
learned counsel for the President and the judgment rendered in the
case of “Regina. Vs. Bow Street Metropolitan Stipendiary Magistrate
and others, Ex-parte Pinochet Ugarte (No.2) would have had some
relevance but where the decision is by the majority of 7 against 2,
absence of the persona designata or participation of a non-entity
would be of little consequence. When I asked what course of action
would be open before the President if a person nominated for
appointment of a Judge of the Supreme Court does not fulfill the
requirements laid down by Article 177(2) or a person nominated for
appointment of a Judge of the High Court does not fulfill the
requirements laid down by Article 193 (2) of the Constitution, the
learned counsel except referring to the stance taken by the
Government in C.M.A. No. 1602 of 2010 in Constitution Petition No.
11 of 2010 could not state anything more.
6.
Learned Attorney General appearing on the Court’s
notice contended that the Judicial Commission was not properly
constituted, as the persona designata did not attend the meeting
and the person who attended the meeting was just a non-entity
therefore, the whole process shall stand vitiated. The President, the
learned Attorney General submitted, is not bound to appoint a
nominee
of
such
Judicial
Commission
notwithstanding
his
nomination was confirmed by the Parliamentary Committee and
forwarded to the President by the Prime Minister on its receipt. The
learned Attorney General next contended that when in the
judgment rendered in the case of “Sindh High Court Bar Association
through its Secretary and another. Vs. Federation of Pakistan through
Secretary, Ministry of Law and Justice, Islamabad and others” (PLD
2009 S.C. 379), this Court annulled the appointment of many Judges
for want of recommendation by the consultee, a nomination
originating from the Judicial Commission which was not properly
constituted has to be given alike treatment. The learned Attorney
General by referring to the commentary on the Constitution of India
by Durga Das Basu argued that the President is not a robot placed
in the President House nor a Computer controlled automation, nor a
figure head nor ornamental piece placed in the show window of
the nation called the President’s House. Instead, the learned
Attorney General submitted, he is a living human who on being
selected by the nation is endowed with all dignity, honour and
prestige as head of the republic for upholding the Constitution and
the laws, therefore, his role as such cannot be doubted in any
situation. Seen from such angle, the learned Attorney General
concluded, the President cannot be kept off the affairs regulating
the appointment of Judges.
7.
Mr. Makhdoom Ali Khan, learned Sr. ASC appeared as
Amicus Curie on Court’s notice. The learned counsel in the first
instance addressed the Court as to the binding nature of an advice
rendered by this Court in the exercise of its advisory jurisdiction. The
learned counsel by referring to the relevant paragraph of the
judgment rendered in “Reference No. 02 of 2005 by the President of
Pakistan” (PLD 2005 Supreme Court 873) submitted that though an
opinion given by the Court on a reference filed by the President is
not a decision between the parties but since it is handed down after
undertaking an
extensive judicial exercise and hearing of
Advocates it has a binding force. Such advice, the learned counsel
submitted has to be accepted and acted upon with utmost
respect. The learned counsel then by referring to various Articles of
the Constitution in general and Article 175-A in particular contended
that mode and manner of appointing Judges of the superior Courts
has under gone a change and that the whole process from the
inception to the last is now regulated by the latter. The learned
counsel argued that once Judicial Commission has nominated a
person, the Parliamentary Committee after having confirmed his
name has sent it to the Prime Minister and the Prime Minister has
forwarded it to the President for appointment, the President will
have no choice but to appoint him. While commenting on the
mode and manner of appointment of Judges and things ancillary
thereto, the learned counsel submitted that an exhaustive exercise
has been taken in the cases of “Al-Jehad Trust through Raeesul
Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of
Pakistan and others” (supra), and “Munir Hussain Bhatti, Advocate
and others. Vs. Federation of Pakistan and another” (supra),
therefore, yet another exercise is hardly called for. The learned
counsel, however, submitted that the principle and practice of
appointing most Senior Judge as Chief Justice is not open to any
dispute and thus cannot be departed from without reasons to be
recorded as held in the case “Al-Jehad Trust through Raeesul
Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of
Pakistan and others” (supra). The President or for that matter any
other person performing in the affairs of Federation, the learned
counsel submitted, is duty bound to protect the Constitution and
that the instant reference appears to be an effort in this behalf.
When asked, whether the President shall appoint a person a Jude of
the Supreme Court, if he does not fulfill the requirements laid down
by Article 177(2) or a Judge of a High Court if he does not fulfill the
requirements laid down by Article 193 of the Constitution,
notwithstanding Clause 13 of Article 175-A of the Constitution, the
learned counsel readily replied in no. But when asked, how a
deadlock occasioning due to refusal of the President to appoint a
person nominated, who does not fulfill the requirements laid down
by the Articles mentioned above, would be brought to an end
especially when the President in view of the provision contained in
Article 175-A cannot send the nomination back to the Commission
for reconsideration, the learned counsel could not give any
satisfactory reply.
8.
Khawaja Haris Ahmed, Sr. ASC who was also asked to
assist the Court as Amicus Curie, highlighted the salient features of
his written submissions. He by referring to Article 175-A of the
Constitution submitted that the role of the President in appointment
of Judges, is more or less ministerial when the Judicial Commission
has nominated a person, the Parliamentary Committee after having
confirmed his name has sent it to the Prime Minister and the Prime
Minister has forwarded it to the President for appointment. He by
referring to the judgment rendered in the case of “Munir Hussain
Bhatti, Advocate and others. Vs. Federation of Pakistan and another”
(supra), submitted that where almost all of the questions raised in
the reference have been answered in the judgment, it would be just
futile to rehearse the same.
9.
With regard to the question relating to seniority, the
learned counsel submitted that the same being person specific is
not one of law, therefore, this Court cannot afford to decide such
question in its advisory jurisdiction. The learned counsel next
contended that omission to mention the expression most senior
Judge in the provision relating to appointment of Chief Justice of a
High Court is significant and that in the absence of any express
provision even the most senior Judge cannot have legitimate
expectancy, as the Constitution on this score has remained the
same even after the dictum laid down in the case of “Al-Jehad Trust
through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others.
Vs. Federation of Pakistan and others” (supra).
10.
I have gone through the relevant record carefully and
considered the submissions made by the learned counsel for the
parties as well as amicus curie.
11.
Before I discuss the arguments addressed at the bar by
the learned counsel and answer the questions raised in the
reference and the petition, it is worthwhile to mention that the mode
and manner of appointing Judges underwent a radical change
after Eighteenth and Nineteenth Amendments of the Constitution.
Almost all the process of appointing Judges, Chief Justices of the
High Courts, the Federal Shariat Court and Judges of the Supreme
Court has been capsuled in Article 175-A of the Constitution. A
reference to the said Article would, therefore, be relevant which
reads as under :-
“175-A, (1). There shall be a Judicial Commission of Pakistan,
hereinafter in this Article referred to as the Commission, for
appointment of Judges of the Supreme Court, High Courts and the
Federal Shariat Court, as hereinafter provided.
(2) For appointment of Judges of the Supreme Court, the
Commission shall consist of ---
i) Chief Justice of Pakistan.
ii) (four) most senior Judges of the Supreme Court;
iii) a former Chief Justice or a former Judge of the Supreme
Court of Pakistan to be nominated by the Chief Justice of
Pakistan, in consultation with the (four) member Judges, for a
term of two years;
iv) Federal Minister for Law and Justice;
v) Attorney-General for Pakistan; and
vi) a Senior Advocate of the Supreme Court of Pakistan
nominated by the Pakistan Bar Council for a term of two
years.
3)
Notwithstanding
anything
contained
in
clause
(1)
or
clause (2), the President shall appoint the most senior Judge of the
Supreme Court as the Chief Justice of Pakistan.
4) The Commission may make rules regulating its procedure.
5) For appointment of Judges of a High Court, the Commission in
clause (2) shall also include the following, namely :----
i) Chief Justice of the High Court to which the appointment is
being made;
ii) the most senior Judge of that High Court;
iii) Provincial Minister for Law; and
iv) an advocate having not less than fifteen years practice in
the High Court to be nominated by the concerned Bar
Council for a term of two years;
[Provided that for appointment of the Chief Justice of a
High Court the most Senior Judge mentioned in paragraph (ii)
shall not be member of the Commission:
Provided further that if for any reason the Chief Justice
of High Court is not available, he shall be substituted by a
former Chief Justice or former Judge of that Court, to be
nominated by the Chief Justice of Pakistan in consultation with
the four member Judges of the Commission mentioned in
paragraph (ii) of clause (2)].
6) For appointment of Judges of the Islamabad High Court, the
Commission in clause (2) shall also include the following, namely :-----
i) Chief Justice of the Islamabad High Court; Member and
ii) the most senior Judge of that High Court;
Provided that for initial appointment of the [Chief
Justice and the] Judges of the Islamabad High Court, the
Chief Justices of the four Provincial High Courts shall also be
members of the Commission:
Provided further that subject to the foregoing proviso, in
case of appointment of Chief Justice of Islamabad High
Court, the provisos to clause (5) shall, mutatis mutandis, apply.
7)
For appointment of Judges of the Federal Shariat Court, the
Commission in clause (2) shall also include the Chief Justice of the
Federal Shariat Court and the most senior Judge of that Court as its
member:
Provided that for appointment of Chief Justice of Federal
Shariat Court, the provisos, to clause (5) shall, mutatis mutandis,
apply.
8)
The Commission by majority of its total membership shall
nominate to the Parliamentary Committee one person, for each
vacancy of a Judge in the Supreme Court, a High Court or the
Federal Shariat Court, as the case may be.
9)
The Parliamentary Committee, hereinafter in this Article
referred to as the Committee, shall consist of the following eight
members, namely :-------
i) four members from the Senate; and
ii) four members from the National Assembly [:]
[Provided that when the National Assembly is dissolved, the
total membership of the Parliamentary Committee shall consist of the
members from the Senate only mentioned in paragraph (i) and the
provisions of this article shall, mutatis mutandis, apply.].
10)
Out of the eight members of the Committee, four shall be
from the Treasury Benches, two from each House and four from the
Opposition Benches, two from each House. The nomination of
members from the Treasury Benches shall be made by the Leader of
the House and from the Opposition Benches by the Leader of the
Opposition.
11)
Secretary, Senate shall act as the Secretary of the Committee.
12)
The Committee on receipt of a nomination from the
Commission may confirm the nominee by majority of its total
membership within fourteen days, failing which the nomination shall
be deemed to have been confirmed:
[Provided that the Committee, for reasons to be recorded,
may not confirm the nomination by three-fourth majority of its total
membership within the said period:]
[Provided further that if a nomination is not confirmed by the
Committee it shall forward its decision with reasons so recorded to
the Commission through the Prime Minister:
[Provided further that if a nomination is not confirmed, the
Commission shall send another nomination.]
[13) The Committee shall send the name of the nominee
confirmed by it or deemed to have been confirmed to the Prime
Minister who shall forward the same to the President for
appointment]
14)
No action or decision taken by the Commission or a
Committee shall be invalid or called in question only on the ground
of the existence of a vacancy therein or of the absenee of any
member from any meeting thereof.
[15) The meetings of the Committee shall be held in camera and
the record of its proceedings shall be maintained.
16)
The provisions of Article 68 shall not apply to the proceedings
of the Committee.]
[(17)] The Committee may make rules for regulating its procedure.]”
12.
A look at the above quoted provision would reveal that
it prescribed the mode and manner as to how the judicial
Commission shall proceed to nominate a person for appointment as
a Judge or Chief Justice of a High Court, the Federal Shariat Court
or a Judge of the Supreme Court and how the Parliamentary
Committee would look at such nomination while confirming or
refusing to confirm it. Who is eligible to be appointed as a Judge or
Chief Justice of a High Court, the Federal Shariat Court or a Judge
of the Supreme Court and whether the person sought to be
nominated possesses the caliber, capacity and conduct befitting
the slot, are the questions to be considered by the tiers listed in the
provision mentioned above. Once a person is nominated by the
Judicial Commission his name will go to the Parliamentary
Committee. The Parliamentary Committee may confirm such
nomination by majority of its total membership within fourteen days.
If it fails to confirm a nomination within fourteen days it shall be
deemed to have been confirmed. It may refuse to confirm a
nomination by 3/4th and send it back to the Commission through the
Prime Minister for reconsideration but after recording reasons
therefor. The Commission shall, then, send another nomination. The
Committee shall send the name of the nominee confirmed by it or
deemed to have been confirmed to the Prime Minister who shall
forward the same to the President for appointment.
13.
Now the questions arise what is nomination in its pith and
substance; whether it can be treated as an advice to the President
and if so whether it can be returned for reconsideration to the
source it has originated from or processed through. Before I answer
these questions, a careful look at Article 48 of the Constitution would
be quite advantageous. It, thus, reads as under :-
“President to act on advice, etc.
[48.
(1)
In the exercise of his functions, the President shall act
[on and] in accordance with the advice of the Cabinet [or the
Prime Minister]:
[Provided that [within fifteen days] the President may require
the Cabinet or, as the case may be, the Prime Minister to
reconsider such advice, either generally or otherwise, and the
President shall [, within ten days,] act in accordance with the
advice tendered after such reconsideration.]
(2)
Notwithstanding anything contained in clause (1), the
President shall act in his discretion in respect of any matter in
respect of which he is empowered by the Constitution to do so
[and the validity of anything done by the President in his discretion
shall not be called in question on any ground whatsoever].
(3)
Clause (3) omitted.
(4)
The question whether any, and if so what, advice was
tendered to the President by the Cabinet, the Prime Minister, a
Minister or Minister of State shall not be inquired into in, or by, any
court, tribunal or other authority.
(5)
Where the President dissolves the National Assembly,
notwithstanding anything contained in clause (1), he shall,---
(a)
appoint a date, not later than ninety days from the
date of the dissolution, for the holding of a general
election to a Assembly; and
(b)
appoint a care-taker Cabinet [in accordance with
the provisions of Article 224 or, as the case may be,
Article 224A]]
[(6)
If at any time the Prime Minister considers it necessary to
hold a referendum on any matter of national importance, he may
refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament)
and if it is approved in a joint sitting, the Prime Minister may cause
such matter to be referred to a referendum in the form of a
question that is capable of being answered by either --- Yes” or ---
Not”.]
(7)
An Act of Majlis-e-Shoora (Parliament) may lay down the
procedure for the holding of a referendum and the compiling and
consolidation of the result of a referendum.]
14.
A bare reading of this Article would reveal that the
President in the exercise of his functions shall act in accordance with
the advice of the Cabinet or the Prime Minister. The President in view
of the proviso to Article 48(1) has the power to require the Cabinet
or the Prime Minister as the case may be, to reconsider such advice
generally or otherwise. Similarly, the President, in view of the
provision contained in Article 75 of the Constitution, has the power
to return a bill, other than a money bill, presented to him for his
assent, for reconsideration. A nomination originating from the
Commission, confirmed by the Committee is also an advice in its
pith and substance inasmuch as it is forwarded by the Prime Minister
to the President for being acted upon. But since it originates from
the Commission in terms of Article 175-A of the Constitution, it is not
an advice in terms of Article 48 of the Constitution. Nor is it open to
the incidence of return for reconsideration because Article 175-A of
the Constitution does envision any such thing. This omission appears
to be deliberate and purposeful. For whatever power the President
had before Eighteenth and Nineteenth Amendments, including the
power to return a nomination for reconsideration to the source it has
originated from, has now been conferred on the Parliamentary
Committee. If a power requiring the Prime Minister or the Cabinet to
reconsider an advice, under Article 48, or a power requiring the
Parliament to reconsider a bill, under Article 75 of the Constitution,
has been conferred on the President, a power requiring the
Commission or the Parliamentary Committee, to reconsider a
nomination, too, could have been conferred on him, but it has not
been conferred. When it has not been conferred, I am bound to
take the Constitutional provisions as they are. A Causus Omissus can,
in no case, be supplied by the Court of law as that would amount to
altering the provision. “It is not our function, as was held by Mr.
Justice Walsh, in the case of “Attorney General. Vs. Bihari, re
Australia Factors Limited (1966) 67 S.R. (N. S. W) 150; to repair the
blunders that are to be found in the legislation”. They must be
corrected by the legislator”. A Court of law is not entitled to read
words into the Constitution or an Act of Parliament unless clear
reason is found within the four corners of either of them. Yes, the
President can act in the exercise of his discretionary powers under
Article 48 (2) of the Constitution but the areas of such powers are
well defined and well marked. He cannot return a nomination for
reconsideration even under the garb of his discretionary power
when it in its origin and specie is not an advice in terms of Article
48(1) of the Constitution. I, therefore, hold that the President has no
power to return a nomination to any of the tiers it has passed from,
even if it is violative of the Constitution or the law. But at any rate the
President shall not appoint a person a Judge of the Supreme Court
or a Judge or Chief Justice of a High Court as the case may be,
whose nomination, in his opinion, is against the Constitution and the
law. For
the
Constitution
which makes
obedience
to
the
Constitution and the law the inviolable obligation of every citizen
would never ever require a person no less than the President to do
something against the Constitution and the law. Nor would his oath
of office, which requires him to discharge his duties and perform his
functions in accordance with the Constitution and the law, permit
him to do any such thing. Reference may well be made to Article
177 and 193 of the Constitution and Oath of the President which
read as under :-
“Article 177: Appointment of Supreme Court Judges.
[(1)
The Chief Justice of Pakistan and each of the other
Judges of the Supreme Court shall be appointed by the
President in accordance with Article 175A.]
(2)
A person shall not be appointed a Judge of the
Supreme Court unless he is a citizen of Pakistan and-
(a) has for a period of, or for periods aggregating, not less
than five years been a judge of a High Court (including a
High Court which existed in Pakistan at any time before the
commencing day); or
(b) has for a period of, or for periods aggregating, not less
than fifteen years been an advocate of a High Court
(including a High Court which existed in Pakistan at any time
before the commencing day)”.
“Article: 193: Appointment of High Court Judges
[(1)
The Chief Justice and each of other Judges of a High
Court shall be appointed by the President in accordance with
Article I75A.]
(2)
A person shall not be appointed a Judge of a High
Court unless he is a citizen of Pakistan, is not less than [forty-five]
years of age, and –
(a) he has for a period of, or for periods aggregating, not
less than ten years been an advocate of a High Court
(including a High Court which existed in Pakistan at any time
before the commencing day); or
(b) he is, and has for a period of not less than ten years
been, a member of a civil service prescribed by law for the
purposes of this paragraph, and has, for a period of not less
than three years, served as or exercised the functions of a
District Judge in Pakistan; or
(c) he has, for a period of not less than ten years, held a
judicial office in Pakistan.
[Explanation.— In computing the period during which a person
has been an advocate of a High Court or held judicial office,
there shall be included any period during which he has held
judicial office after he became an advocate or, as the case
may be, the period during which he has been an advocate
after having held judicial office.]”
And
“OATHS OF OFFICE
President
[Article 42]
(In the name of Allah, the most Beneficent, the most Merciful.)
I, ____________, do solemnly swear that I am a Muslim and believe in
the Unity and Oneness of Almighty Allah, the Books of Allah, the
Holy Quran being the last of them, the Prophethood of
Muhammad (peace be upon him) as the last of the Prophets and
that there can be no Prophet after him, the Day of Judgment, and
all the requirements and teachings of the Holy Quran and Sunnah:
That
I
will
bear
true
faith
and
allegiance
to
Pakistan:
That, as President of Pakistan, I will discharge my duties, and
perform my functions, honestly, to the best of my ability, faithfully in
accordance with the Constitution of the Islamic Republic of
Pakistan and the law, and always in the interest of the sovereignty,
integrity, solidarity, well- being and prosperity of Pakistan:
That I will not allow my personal interest to influence my
official
conduct
or
my
official
decisions:
That I will preserve, protect and defend the Constitution of
the
Islamic
Republic
of
Pakistan:
That, in all circumstances, I will do right to all manner of
people, according to law, without fear or favor, affection or ill- will:
And that I will not directly or indirectly communicate or
reveal to any person any matter which shall be brought under my
consideration or shall become known to me as President of
Pakistan, except as may be required for the due discharge of my
duties as President.
[ay Allah Almighty help and guide me (A'meen)]”
15.
The above quoted provisions of the Constitution as well
as the oath of his office would show that the President before
appointing a person, a Judge or a Chief Justice of a High Court or a
Judge of the Supreme Court shall ensure that his nomination is in
accordance with the Constitution and the law. He shall not appoint
a person, a Judge or a Chief Justice of a High Court or a Judge of
Supreme Court, if his nomination does not conform to the
Constitution and the law. Especially when there is no provision in
Article 175-A of the Constitution, in paramateria with that of Article
48 requiring the President to do the needful within ten days, or a
deeming provision in paramateria with that of Article 75 of the
Constitution requiring the President to do the needful within ten days
failing which the needful shall be deemed to have been done. A
deadlock, would inevitably be the consequence as the President
can neither return the nomination to the source it has originated
from or processed through nor can he appoint the person, thus
nominated. As the deadlock revolves around the constitutionality,
legality or otherwise of the nomination recourse to an advisory or
adjudicatory jurisdiction of this Court would be the only way out. If
the Court upholds the opinion of the President, the Commission shall
initiate proceedings denovo in accordance with the opinion of the
Court. If it does not, the President shall appoint the person
nominated accordingly.
16.
Who is senior, what is the criterion for determining
seniority amongst the Judges elevated on the same day and what is
the way of deciding about the most senior Judge for appointment
as Chief Justice? Answers to these questions have been provided in
the letter of Law Department dated 30.04.1987 which reads as
under :-
“No.F.12(5)/86-AII.
Dated . 30.04.1987.
GOVERNMENT OF PAKISTAN
MINISTRY OF JUSTICE AND PARLIAMENTARY AFFAIRS
(JUSTICE DIVISION)
SUBJECT:
SENIORITY LIST OF HIGH COURT JUDGES.
My dear Chief Justice,
Please refer to the correspondence resting with High Court of
Sindh letter No. Gaz-IV,Z,14(i) dated the 30th March, 1987, on the
subject noted above.
2.
An equitable principle consistently adopted in this regard is
that Judges whose appointments are made by a single order, take
seniority according to age. If the appointment of two or more service
candidates is also simultaneously made with that of candidate from
the Bar, the service Judges will retain their existing seniority in the
department regardless of their age which of course would be the
determining factor in respect of their seniority viz-a-viz candidates from
the Bar. This principle has the approval of the President.
3.
I am to request you to please confirm whether the seniority list
of Sindh High Court Judges has been prepared in the light of the
above principle.
With kind regards.
Yours sincerely,
Sd/-
(Irshad Hassan Khan)”
17.
A perusal of the letter reproduced above leaves no
doubt that the established practice and the time honoured
yardstick for determining seniority amongst the Judges of a High
Court, elevated on the same day, is seniority in age except in the
case of Judges from service whose inter se seniority remains intact
even on their elevation irrespective of their age. This principle has
been consistently followed hitherto without exception ever since the
establishment of the High Courts in the Indian Subcontinent and also
after its partition. This principle even otherwise merits respect and
reverence because it not only rules out personal whim and caprice
of the person at one peak or another and shuts doors and windows
for manipulation at ministerial level but also creates an environment
which is conducive for the rule of law, supremacy of the Constitution
and independence of Judiciary. This principle being too clear and
conspicuous cannot be disputed. At times it has been departed
from but that was only when there was something concrete against
the Judge. This is what was laid down in the case of “Al-Jehad Trust
through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others.
Vs. Federation of Pakistan and others” (supra). The relevant
paragraph would be germane to the case in hand which reads as
under:-
“It is true that in Article 193 of the Constitution which relates to inter
alia to the appointment of a Chief Justice in a High Court, it has not
been provided that most of the senior of Judges shall be made as the
Chief Justice. The reason seems to be obvious, namely, it is possible
that the senior most Judge, at the relevant time, may not be physically
capable to take over the burden of the office or that he may not be
willing to take upon himself the above responsibility. The Chief Justice
of Pakistan, who is one of the consultees under Article 193 will be
having expertise knowledge about the senior most Judges of a High
Court. If the senior most Judge is bypassed for any of the above
reasons, he cannot have any grievance but if he is superseded for
extraneous considerations, the exercise of power under Article 193 of
the Constitution will not be in accordance therewith and will be
questionable.
I am, therefore, of the view that keeping in view the provisions of
the Constitution as a whole and the well-established convention as to
the appointment of the senior most Judges in the High Court as the
Chief Justice followed consistently in conjunction with the Islamic
concept of 'Urf'. The most senior Judge of a High Court has a
legitimate expectancy to be considered for appointment as the Chief
Justice and in the absence of any concrete and valid reasons to be
recorded by the President/Executive, he is entitled to be appointed as
such in the Court concerned.
Before parting with the discussion on the above question, I may
observe that there seems to be wisdom in following the convention of
seniority. If every Judge in a High Court aspires to become Chief
Justice for the reason that he knows that seniority rule is not to be
followed, it will adversely affect the independence of judiciary. The
junior most Judges may feel that by having good terms with the
Government in power he can become the Chief Justice. This will
destroy the institution and public confidence in it. The Chief Justices of
the High -Courts have the power to fix the roster i.e. to decide when a
case is to be fixed and before whom it is to be fixed. In other words,
they regulate the working of the forum It is, therefore, very important
that the Chief Justices should not be pliable and they should act
independently”.
The word “Urf” used in the above quoted paragraph is of
tremendous
significance
which
means
commonly
known,
commonly received and commonly approved of. This principle
was reiterated in the case of “Malik Asad Ali and others vs.
Federation of Pakistan and others”( PLD 1998 SC 33), the relevant
paragraph for the facility of reference is reproduced as under:-
“6.
This Court in case of Al-Jehad Trust v. Federation of
Pakistan PLD 1996 SC 324 while interpreting the provisions
of Article 193 of the Constitution, relating to the
appointment of Chief Justice of a Provincial High Court, on
the basis of convention followed in this behalf held, that
the senior most Judge of the High Court, in the absence of
any concrete and valid reason has to be appointed as the
Chief Justice of the High Court. We are of the view that
the above rationale laid down by this Court for
appointment of the Chief Justice of High Court applied
with greater force in the case of appointment of Chief
Justice of Pakistan under Article 177 of the Constitution, in
view of the more consistent practice and convention
followed in this regard for appointment of Chief Justice of
Pakistan in the past and especially in view of the provisions
contained in Article 180 of the Constitution which
recognizes the principle of seniority as the sole criteria for
appointment of Acting Chief Justice of Pakistan.”
This Court in the case of “Munir Hussain Bhatti, Advocate and others.
Vs. Federation of Pakistan and another” (supra) while reaffirming the
dicta laid down in the cases of “Al-Jehad Trust through Raeesul
Mujahideen Habib-ul-Wahabb-ul-Khairi and others. Vs. Federation of
Pakistan and others”(supra) and “Malik Asad Ali and others vs.
Federation of Pakistan and others” (supra) held as under:-
“31. At this stage, it would also be appropriate for us to
note that the contention of the AAG that earlier judgments
on the issue of appointment of Judges are irrelevant is a bit
misconceived. The change in the appointment process
has merely diversified decision making amongst the many
members of the two new collegiate bodies, but essentially
the roles of these bodies, looked at collectively, remains
the same. So as such the principles of law enunciated in
earlier judgments such as Al-Jehad Trust case, Malik Asad
Ali and several others would continue to apply to the new
mechanism with full force. In face, these principles can be
said to be applicable even more strongly after the
introduction of the newly constituted bodies under Article
175-A.”
It, irresistibly, follows that this principle, practice or convention,
whatever one may like to call it, besides being esteemed, honoured
and upheld throughout has also been blessed with the approval of
this Court in the judgments cited above. It is now a declared law of
the land to all intents and purposes. I, therefore, do not see any
reason much less tenable warranting any deviation therefrom.
18.
Yet another provision contained in the first proviso to
Clause 5(iv) of Article 175-A of the Constitution, which provides that
for appointment of the Chief Justice of a High Court the most senior
Judge mentioned in Clause 5(ii) of the Article shall not be member
of the Commission, unmistakably indicates that it has all along been
taken for granted that it is the most senior Judge of the High Court
who shall be nominated as Chief Justice in the absence of any valid
reason. Otherwise, it would have been provided in the aforesaid
clause that the Judge whose nomination for appointment as Chief
Justice is in the offing shall not be member of the Commission.
Therefore, the argument advanced by Kh. Haris Ahmed, learned Sr.
ASC that the Constitutional provisions on this score have remained
the same even after the dictum laid down in the case of “Al-Jehad
Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others.
Vs. Federation of Pakistan and others” (supra) is without force. I am,
therefore of the opinion, that Mr. Justice Riaz Ahmed Khan, being
the most senior Judge of the High Court has a legitimate
expectancy to be appointed as Chief Justice and that subject to
any valid reason which is yet to be recorded by the Commission, he
would be entitled to be appointed as such.
19.
Next question in the sequence is as to who determines
seniority amongst the Judges appointed on the same day? Again
the answer can be found in the long standing practice. It is the
Chief Justice of the respective High Court who determines inter se
seniority of the Judges in the light of the principle mentioned above.
It is, then, the Judicial Commission nominating the most Senior Judge
for appointment as Chief Justice, which determines inter se seniority
of the Judges so elevated. The President in this scheme does not
figure anywhere. It is, however, a fact well worth remarking that
seniority in this case has been determined by the Chief Justice of the
Islamabad High Court and that Mr. Justice Riaz Ahmed Khan being
senior in age has already been declared the most senior Judge of
the High Court. Needless to say that settling the principle
underlying the determination of a question can never become
person specific.
20.
Then comes the question as to whether the well
established principle underlying the determination of inter se
seniority amongst the Judges has been departed from by the
Commission on correct premises. Reference has been made to a
paragraph from the judgment rendered in the case of “Federation
of Pakistan. Vs. Sindh High Court Bar Association through its
President” (CPLA No. 1390 of 2012) (supra) which runs as under :-
“…………… It is for this reason that in number of
judgments of the Apex Court, out of which two have
been referred to above, in service matters, concept of
reinstatement into service with original seniority and
back benefits has been developed and followed on
case to case basis to give complete relief to an
aggrieved
party.
Following
the
same
equitable
principle, while passing our short order, we have
specifically mentioned that the issuance of notification
for permanent appointment of the two Judges shall
have its effect from 17.9.2011 when four other
recommendees of the Commission in the same batch
were notified after clearance by the Committee, so
that they shall have their respective seniority and all
other benefits as permanent judges of the High Court”.
But a careful reading of the above quoted paragraph would
reveal that it has not judicially laid down any criterion for
determining, inter se seniority among the Judges appointed on the
same day. Nor has it justified a deviation from the recognized
course. It, when read with reference to the context, deals with a
situation different altogether. No such question was involved in that
to draw a parallel between this case and that case or to treat them
alike. I, therefore, have no hesitation to hold that the premises
recorded by the Commission for departing from the well established
principle of determining seniority are not correct.
21.
The next question emerging for the consideration of this
Court on its advisory as well as adjudicatory side is whether the
Judicial Commission in this case was properly constituted in the
absence of a persona designata and whether the presence or
participation of a person, who was a non-entity in the Commission,
case, nor has it been decided as such. It would thus be ominous
could vitiate the nomination for the appointment of Mr. Justice
Shukat Aziz Siddique and extension of Mr. Justice Noor-ul-Haq
Qureshi ? Answers to these questions are simple and straightforward.
Accepting that Mr. Justice Riaz Ahmed Khan being the most Senior
Judge was required to attend the meeting of the Commission but
his failure to do so for any reason, would not vitiate the proceedings
of the Commission. For clause 14 of Article 175-A of the Constitution
clearly provides that no action or decision taken by the Commission
or a Committee shall be invalid or called in question only on the
ground of the existence of a vacancy therein or of the absence of
any member from any meeting thereof. Accepting that Mr. Justice
Muhammad Anwar Khan Kasi being a non-entity sat, voted and
took part in the proceedings culminating in the nomination of the
Judges mentioned above, yet it would not vitiate the proceedings
when the Judicial Commission, in view of Clause 8 of Article 175-A of
the Constitution, has nominated the Judges by majority of its total
membership. It would have vitiated or materially affected the
proceedings of the Commission if it had nominated the Judges for
appointment and extension with a margin of one. But where the
Commission nominated the Judges by majority of 7 against 2, the
presence or participation of Mr. Justice Muhammad Anwar Khan
Kasi in the meeting would not be of any consequence. The case of
“Managing Director, Sui Southern Gas Company Ltd., Karachi. Vs.
Ghulam Abbas and others” (supra) may well be referred to in this
behalf wherein it was held as under: -
“Perusal of subsection (1) of section 3-A of the Act, 1973
reveals that “minimum strength of a Bench to exercise or
perform functions of the Tribunal is two Members, including
the Chairman,’ meaning thereby that while conducting
hearing the status of a Chairman is also of a Member.
Whereas under clause (a) of section 3-A(2), decisions are to
be pronounced by the majority of the Members. Clause (b)
of section 3-A(2) further provides that in case of division
between Members of the Bench or in case of equal division
of the Members, the case shall be referred to the Chairman
and whatever opinion is expressed by him, would have
supremacy and constitute the decision of the Tribunal. In
this case impugned judgment has been authored by the
Chairman and all the Members have concurred with him,
therefore,
presuming
that
Mr.
Aftab
Ahmed
joined
proceedings without lawful authority but nevertheless
impugned judgment can sustain, as it has been rendered by
the Bench compromising of more than two Members of the
Service Tribunal and apprehension of influencing the
judgment by Mr. Aftab Ahmed (Retired Member) stands
excluded as it was authored by a former Judge of High
Court being the Chairman of the Service Tribunal.”
22.
The principle enunciated in the aforesaid judgment is not
alien or extraneous, on any account, to our jurisprudence. It has also
been recognized by Article 67 of the Constitution, which does not
allow a proceedings of the House to become invalid simply
because a person who was not entitled to sit, vote or otherwise take
part in the proceedings, sat, voted or took part therein. The case of
“Regina. Vs. Bow Street Metropolitan Stipendiary Magistrate and
others, Ex-parte Pinochet Ugarte (No.2), therefore, has no relevance
to the case in hand.
23.
Mr. Muhammad Akram Sheikh, learned Sr. ASC also
referred to Establishment Manual but could not cite any clear and
definite provision of law, rule or convention as could justify a
deviation from the course which has been consistently followed till
date. He failed to refer to any precedent much less relevant to
support his stance. He also failed to bring anything exceptional,
extraordinary or outstanding in our notice as could dilute, diminish or
discount the binding force of the said principle. Even otherwise, I
would not approve substitution or replacement of a principle which
has unquestionably been accepted and acted upon throughout.
24.
The argument addressed by the learned Attorney
General on the strength of “Sindh High Court Bar Association
through its Secretary and another. Vs. Federation of Pakistan through
Secretary, Ministry of Law and Justice, Islamabad and others”
(supra) that if this Court annulled the appointment of many Judges
for want of recommendation of the consultee, the nomination
originating from the Judicial Commission which was not properly
constituted has to be given alike treatment is wholly misconceived
inasmuch as the status of the Chief Justice of Pakistan before the
amendments has been brought at par with the status of a member
after the amendments without appreciating that the Chief Justice
of Pakistan before such amendments was the chief consultee. Even
after the amendments he being the Chairman of the Commission is
not only the chief consultee but no meeting of the Commission can
be held in his absence. Whereas absence of any other member or
vacancy in view of clause 14 of Article 175-A of the Constitution is of
no consequence whatever.
25.
The argument of the learned counsel for the President
that such nomination would be all the more without any legal or
constitutional sanctity when the proceedings before the Commission
were not conducted in the manner prescribed by the Constitution is
also devoid of force as this provision for want of envisaging the
consequence of failure or neglect to comply therewith cannot be
treated as mandatory.
26.
The argument that the proceedings in the Judicial
Commission could not be held in camera when the legislature
purposely
provided
otherwise
so
as
to
ensure
complete
transparency and open scrutiny appears to be ornamental as its
members not only represent all the essential segments of the Bar
and Bench but also those of the Federation and the Province
through Attorney General for Pakistan, Minister for Law and Justice
of the Federation and Minister for Law of the Province. The scrutiny is
open in the truest sense of the word when each member is at liberty
to present his point of view one way or the other. Transparency in
the proceedings cannot be affected by holding it in camera if
every member consciously and conscientiously gives his input in the
nomination, keeping in view its overall impact on the Institution on
the one hand and society at large on the other. I do not understand
what does the learned counsel for the President want to project by
using the expressions “complete transparency and open scrutiny”. If
he by using these expressions wants the inclusion and intrusion of all
and sundry, I am afraid, he is far off the lines drawn by the
Constitution. It was in view of this backdrop, that the Judicial
Commission while framing the rules in exercise of the powers
conferred on it under clause 4 of Article 175-A of the Constitution
provided for holding the proceedings in camera.
27.
Question relating to criterion for elevating a Judge or
Chief Justice of a High Court to the Supreme Court has been fully
answered by Article 177 of the Constitution reproduced above. I,
therefore, would not like to add anything thereto. The more so when
the convention followed thus far is also in conformity with the letter
and spirit of the Article mentioned above.
28.
Having thus considered, I answer the questions raised in
the reference accordingly. The detailed reasons for the Short Order
dated 21.12.2012 in the Constitution Petition No. 126 of 2012 are also
included in the Judgment.
29.
While parting of the judgment, we would appreciate the
enlightened assistance rendered by Mr. Makhdoom Ali Khan and
Khawaja Haris Ahmed, learned Senior Advocates Supreme Court.
(Ejaz Afzal Khan)
Judge
2012
1
186
1
.i
.ii
2012
14
186
27-09-2012
07:02
2
08:02
186
i
ii
iii
3
175(a)
iv
v
175(a)(8)
vi
vii
12
175(a)
viii
ix
x
xi
4
175(a)
xii
12
175(a)
175(a)
xiii
13
5
PLD 2005 SC 873
175(a)
13
(vires)
175(a)
186
6
10 5
175(a)
213
224(1)(a)
224(a)
58
7
PLD 2011
175(a)
SC 407
175(A)
12
175(a)
175(3)
8
i
15-05-1952
21-11-2011
04-01-2011
28-11-1956
0 4 - 0 1 - 2 0 1 1
21-11-2011
175(3)
9
2010
3
iv
22-10-2012
(Ex Pakistan
Leave)
175(a)
8
10
xii viii, vii, vi
12
175(a)
12
175(a)
xii viii,vii,vi
xiii xi
1
175(a)
175(a)
193(2) 177(2)
15
4
11
175(a)
2010
5
3 2
175(a)
22-10-2012
175(a)
12
4
175(a)
13
| {
"id": "REFERENCE.1_2012.pdf",
"url": ""
} |
SUPREME COURT OF PAKISTAN
(Advisory Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Mushir Alam
Mr. Justice Umar Ata Bandial
Mr. Justice Ijaz ul Ahsan
Mr. Justice Yahya Afridi
REFERENCE NO.1 OF 2020
[Reference by the President of the Islamic Republic of Pakistan, under Article 186 of the
Constitution of the Islamic Republic of Pakistan, 1973]
For the Federation
[in Reference No.1/2020]
[in CMA.127-128, 170,
989,1293/2021]
: Mr. Khalid Jawed Khan,
Attorney General for Pakistan
Mr. Sohail Mehmood, Addl. AGP
Mr. Ayaz Shaukat, DAG
[Assisted by Ms. Maryum Rasheed, Advocate]
For the National Assembly
[in CMA.278/2021]
: Mr. Abdul Latif Yousafzai, Sr. ASC
Mr. Muhammad Mushtaq, Addl.
Secretary (Legislation)
Mr. Muhammad Waqar, DPO (Lit.)
For the Senate of Pakistan
[in CMA.296/2021]
: Senator Muhammad Ali Khan Saif
Mr. Muhammad Javed Iqbal, DD
For the Election Commission
[in CMA.210, 808, 880, 983,
1010/2021]
: Mr. Sikandar Sultan Raja, Chief
Election Commissioner
Mr. Justice (R) Muhammad Iltaf
Ibrahim Qureshi, Member (Punjab)
Mrs. Justice (R) Irshad Qaiser,
Member (KP)
Mr. Shah Mehmood Jatoi, Member
(Balochistan)
Mr. Nisar Ahmed Durrani, Member
(Sindh)
Mr. Sajeel Shehryar Swati, ASC
Mr. Sana Ullah Zahid, ASC, L.A.
Dr. Akhtar Nazir, Secretary
Mr. Muhammad Arshad, DG (Law)
For Government of Punjab
[in CMA.95/2021]
: Mr. Ahmed Awais, AG
Barrister
Qasim
Ali
Chohan,
Addl.AG
Ms. Imrana Baloch, AOR
For Government of Sindh
[in CMA.386/2021]
: Mr. Salman Talib ud Din, AG
Mr. Sibtain Mahmud, Addl.AG
(via video link from Karachi)
For Government of KP
[in CMA.104/2021]
: Mr. Shumail Ahmad Butt, AG
Mr. Atif Ali Khan, Addl.AG
For Government of Balochistan
: Mr. Arbab M. Tahir, AG
Reference No.1 of 2020
- 2 -
[in CMA.185/2021]
Mr. Muhammad Ayaz Khan Swati, Addl.AG
Mr. Muhammad Fareed Dogar, AAG
For ICT
[in CMA.149/2021]
: Mr. Niazullah Khan Niazi, AG
For JUI
[in CMA.129, 541/2021]
: Mr. Kamran Murtaza, Sr. ASC
Mr. Jehangir Khan Jadoon, ASC
For SHCBA
[in CMA.297, 1119/2021]
: Mr. Salahuddin Ahmed, ASC
Barrister Omer Soomro, ASC
Syed Riffaqat Hussain Shah, AOR
[Assisted by Ravi Pinjani, ASC]
[in CMA.130, 1201, 1292/2021]
: Mr. Hassan Irfan Khan, ASC
For PPP
[in CMA.131, 704, 1217/2021]
: Mian Raza Rabbani, Sr. ASC
Mr. Mehmood A. Sheikh, AOR
[in CMA.154,1295/2021]
: Malik Qamar Afzal, ASC
For JI
[in CMA.211/2021]
: Mr. Ishtiaq Ahmed Raja, ASC
[in CMA.231/2021]
: Syed Iqbal Hashmi, ASC
For PML (N)
[in CMA.784, 1231/2021]
: Barrister Zafar Ullah, ASC
For Pakistan Bar Council
[in CMA.807, 1200/2021]
: Mr. Mansoor Usman Awan, ASC
For PPP (P)
[in CMA.872,1218/2021]
: Mr. Farooq H. Naek, Sr. ASC
[in CMA.908, 1008, 1026-1030/2021]
: Mr. Khurram Shehzad Chughtai,
Advocate High Court, in person
[in CMA.1115/2021]
: Mr. Azhar Iqbal, ASC
[in CMA.1233/2021]
: Mr. Waheed Ahmed Kamal, in person
Dates of Hearing
:
04.01.2021, 11.01.2021, 13.01.2021,
14.01.2021, 02.02.2021, 03.02.2021,
04.02.2021, 08.02.2021, 10.02.2021,
11.02.2021, 15.02.2021, 16.02.2021,
17.02.2021, 18.02.2021, 19.02.2021,
22.02.2021, 23.02.2021, 24.02.2021; and
25.02.2021
O P I N I O N
The President of the Islamic Republic of Pakistan has sent a
REFERENCE under Article 186 of the Constitution of the Islamic
Republic of Pakistan, 1973 (hereinafter to be referred to as “the
Reference No.1 of 2020
- 3 -
Constitution”), for opinion of this Court. The question asked in
the REFERENCE is as follows:
“Whether the condition of ‘secret ballot’ referred to in Article 226 of the
Constitution of Islamic Republic of Pakistan, is applicable only for the
elections held ‘under’ the Constitution such as the election to the office of
President of Pakistan, Speaker and Deputy Speaker of National Assembly,
Chairman and Deputy Chairman of Senate, Speakers and Deputy
Speakers of the Provincial Assemblies and not to other elections such as
the election for the members of the Senate of Pakistan held under the
Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41,
Part 1, Fourth Schedule to the Constitution, which may be held by way of
secret or open ballot, as may be provided for in the Election Act, 2017.?”
2.
We have heard learned Attorney General for Pakistan,
learned Advocate Generals of all four Provinces and ICT, learned
counsel appearing for the National Assembly, the Senate of
Pakistan, the Election Commission, Political Parties, Pakistan Bar
Council, Sindh High Court Bar Association and the individuals,
who have appeared in person.
3.
For the detailed opinion to be recorded later, the
REFERENCE is answered as follows:
(i)
The Elections to the Senate of Pakistan are held
“under the Constitution” and the law;
(ii)
It is the duty of the Election Commission of Pakistan
in terms of Article 218(3) of the Constitution, to ensure
that the election is conducted honestly, justly, fairly
and in accordance with law and that corrupt practices
are guarded against on which this Court has given
successive judgments and the most exhaustive being
Workers’ Party Pakistan through Akhtar Hussain,
Advocate, General Secretary & 6 others v.
Federation of Pakistan & 2 others (PLD 2012 SC
681);
Reference No.1 of 2020
- 4 -
(iii)
The Election Commission of Pakistan is required by
the Constitution to take all necessary steps in order to
fulfil the above mandate/duty in terms of Article 222
of the Constitution, which empowers the Parliament,
subject to the Constitution to legislate, inter alia, on
the conduct of elections and matters relating to
corrupt practices and other offences in connection
with elections but categorically provides that, “no such
law shall have the effect of taking away or abridging
any of the powers of the Commissioner or the Election
Commission” under Part VIII, Chapter 1 of the
Constitution;
(iv)
Further in terms of Article 220 of the Constitution, all
the executive authorities in the Federation and
Provinces are obliged to assist the Commissioner and
the Election Commission of Pakistan in discharge of
his or their functions, as provided for in Article 218(3)
of the Constitution;
(v)
As far as the secrecy of ballot is concerned, this Court
has already answered this question in a judgment of a
5-member Bench of this Court reported as Niaz
Ahmad v. Azizuddin & others (PLD 1967 SC 466),
where it has been held that secrecy is not absolute and
that “the secrecy of the ballot, therefore, has not to be
implemented in the ideal or absolute sense but to be
tempered by practical considerations necessitated by
the processes of election”;
(vi)
Furthermore, in order to achieve the mandate of the
Election Commission in terms of Article 218(3) read
with Article 220 and other enabling provisions of the
Constitution and the law, the Election Commission is
required to take all available measures including
utilizing technologies to fulfil the solemn constitutional
duty to ensure that the election is “conducted
honestly, justly, fairly and in accordance with law and
that corrupt practices are guarded against”.
Reference No.1 of 2020
- 5 -
The REFERENCE is answered accordingly.
CHIEF JUSTICE
JUDGE
JUDGE
JUDGE
With utmost respect the opinion
sought being not a question of
law within the contemplation of
Article 186 of the Constitution is
returned unanswered.
JUDGE
Reference No.1 of 2020
- 6 -
YAHYA AFRIDI, J.- For the reasons to be recorded later,
with utmost respect, the opinion sought by the Worthy President,
Islamic Republic of Pakistan in the instant Reference, is not a
question of law within the contemplation of Article 186 of the
Constitution
of
the
Islamic
Republic
of
Pakistan,
1973,
accordingly, the same is returned unanswered.
Judge
Reference No.1 of 2020
- 7 -
OPINION OF THE COURT
For the detailed opinion to be recorded later, by majority of 4
against 1 (Yahya Afridi, J.) dissenting, the REFERENCE is
answered as follows:
(i)
The Elections to the Senate of Pakistan are held
“under the Constitution” and the law;
(ii)
It is the duty of the Election Commission of Pakistan
in terms of Article 218(3) of the Constitution, to ensure
that the election is conducted honestly, justly, fairly
and in accordance with law and that corrupt practices
are guarded against on which this Court has given
successive judgments and the most exhaustive being
Workers’ Party Pakistan through Akhtar Hussain,
Advocate, General Secretary & 6 others v.
Federation of Pakistan & 2 others (PLD 2012 SC
681);
(iii)
The Election Commission of Pakistan is required by
the Constitution to take all necessary steps in order to
fulfil the above mandate/duty in terms of Article 222
of the Constitution, which empowers the Parliament,
subject to the Constitution to legislate, inter alia, on
the conduct of elections and matters relating to
corrupt practices and other offences in connection
with elections but categorically provides that, “no such
law shall have the effect of taking away or abridging
any of the powers of the Commissioner or the Election
Commission” under Part VIII, Chapter 1 of the
Constitution;
(iv)
Further in terms of Article 220 of the Constitution, all
the executive authorities in the Federation and
Provinces are obliged to assist the Commissioner and
the Election Commission of Pakistan in discharge of
his or their functions, as provided for in Article 218(3)
of the Constitution;
Reference No.1 of 2020
- 8 -
(v)
As far as the secrecy of ballot is concerned, this Court
has already answered this question in a judgment of a
5-member Bench of this Court reported as Niaz
Ahmad v. Azizuddin & others (PLD 1967 SC 466),
where it has been held that secrecy is not absolute and
that “the secrecy of the ballot, therefore, has not to be
implemented in the ideal or absolute sense but to be
tempered by practical considerations necessitated by
the processes of election”;
(vi)
Furthermore, in order to achieve the mandate of the
Election Commission in terms of Article 218(3) read
with Article 220 and other enabling provisions of the
Constitution and the law, the Election Commission is
required to take all available measures including
utilizing technologies to fulfil the solemn constitutional
duty to ensure that the election is “conducted
honestly, justly, fairly and in accordance with law and
that corrupt practices are guarded against”.
CHIEF JUSTICE
JUDGE
JUDGE
LARGER BENCH
ISLAMABAD
01.03.2021
*Hashmi*
JUDGE
JUDGE
APPROVED FOR REPORTING
Announced in open Court on
01.03.2021
CHIEF JUSTICE
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IN THE SUPREME COURT OF PAKISTAN
(Original/Advisory Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Munib Akhtar
Mr. Justice Jamal Khan Mandokhail
CONSTITUTION PETITION NO.2 OF 2022
(Re: restraining Political Parties from holding Public Meetings in
Islamabad before Voting on No-confidence Motion)
REFERENCE NO.1 OF 2022
(Reference by the President of Islamic Republic of Pakistan under
Article 186 of the Constitution, seeking interpretation of Article
63-A of the Constitution)
CONSTITUTION PETITION NO.9 OF 2022
(Re: Imposing Life Time Ban from contesting Elections on defection
from Political Party)
Supreme Court Bar Association of Pakistan
through its President, Supreme Court Building,
Islamabad
(in Const. P. 2 of 2022)
Pakistan Tahreek-e-Insaf through its Chairman
Imran Khan
(in Const. P. 9 of 2022)
…Petitioner(s)
Versus
Federation of Pakistan through
M/o Interior Islamabad and others
(in Const. P. 2 of 2022)
The Election Commission of Pakistan,
Islamabad and others
(in Const. P. 9 of 2022)
…Respondent(s)
For Federation
: Mr. Ashtar Ausaf Ali, AGP
Mr. Khalid Javed Khan, AGP(Former)
Ch. Aamir Rehman, Addl. AG
Mr. Sohail Mehmood, Addl. AGP
Syed Nayyab Hassan Gardezi, DAG
Assisted by:
Mr. Munawar Duggal, ASC
Barrister Asad Rahim Khan
Barrister M. Usama Rauf
Mr. M. Usman Peracha, Adv.
Mr. M. Ibrahim Khan, Adv.
For PTI
: Mr. Ali Zafar, ASC
Dr. Babar Awan, ASC
Reference No.1 of 2022 etc.
2
For SCBA
: Mr. Mansoor Usman, ASC
Assisted by:
Mr. Asfandyar Khan, Adv.
Mr. Ahsan Bhoon, President (SCBAP)
Mr. Waseem Mumtaz Malik, Sec.
(SCBAP)
Mr. Anis M. Shahzad, AOR
For PPPP
: Mr. Farooq H. Naek, Sr. ASC
Mian Raza Rabbani, Sr. ASC
Assisted by:
Mr. Zeeshan Abdullah, Adv.
For JUI(P)
: Mr. Kamran Murtaza, Sr. ASC
Qari Abdul Rasheed, ASC
For PML(N)
: Mr. Makhdoom Ali Khan, Sr. ASC
a/w Saad M. Hashmi, Advocate
Mr. Sarmad Hani, Advocate
Mr. Ammar Cheema, Adv.
Mr. Yawar Mukhtar, Adv.
For BNP(M)
: Mr. Mustafa Ramday, ASC
Mr. Rashid Hafeez, ASC
Assisted by:
Mr. Ahmed Junaid, Adv.
Mr. Akbar Khan, Adv.
Barrister Maria Haq, Adv.
Ms. Zoe Khan, Advocate
For NA
: Mr. Abdul Latif Yousafzai, ASC
Mr. Tahir Hussain, Sec. NA
Mr. M. Mushtaq, Addl. Sec.
For PML (Q)
: Mr. Azhar Siddiqui, ASC
For Bal.
: Mr. M. Asif Reki, AG
Mr. M. Ayaz Sawati, Addl AG
For ICT
: Mr. Niazullah Khan Niazi, AG ICT
For KP
: Mr. Shumail Butt, AG KP
Mr. Atif Ali Khan, Addl. AG
Mian Shafaqat Jan, Addl. AG
For Punjab
: Mr. Ahmed Awais, AG (Punjab)
Mr. Qasim Ali Chohan, Addl. AG Punjab
For Sindh
: Mr. Suleman Talibuddin, AG Sindh
Mr. Fauzi Zafar, Addl. AG
: Mr. Hassan Irfan Khan, ASC
Reference No.1 of 2022 etc.
3
Date of Hearing
: 19, 21, 24, 25, 28 to 30.03.2022,
04.04.2022 to 07.04.2022, 18.04.2022
to 22.04.2022, 09.05.2022 to
11.05.2022, 16 & 17.05.2022.
O R D E R
For detailed reasons to be recorded later and subject
to what is set out therein by way of amplification or otherwise,
by majority of three to two (Justice Mazhar Alam Khan Miankhel
and Justice Jamal Khan Mandokhail dissenting) these matters
are disposed of together in the following terms:
1.
The first question referred by the President relates to the
proper approach to be taken to the interpretation and
application of Article 63A of the Constitution. In our view,
this provision cannot be read and applied in isolation and
in a manner as though it is aloof from, or indifferent to,
whatever else is provided in the Constitution. Nor can
Article 63A be understood and applied from the vantage
point of the member who has earned opprobrium and
faces legal censure as a defector by reason of his having
acted or voted (or abstained from voting) in a manner
contrary to what is required of him under clause (1)
thereof. Rather, in its true perspective this Article is an
expression in the Constitution itself of certain aspects of
the fundamental rights that inhere in political parties
under clause (2) of Article 17. The two provisions are
intertwined. In its essence Article 63A functions to protect,
and ensure the continued coherence of, political parties in
the legislative arena where they are the primary actors in
our system of parliamentary democracy, which is one of
Reference No.1 of 2022 etc.
4
the salient features of the Constitution. Political parties
are an integral aspect of the bedrock on which our
democracy rests. Their destabilization tends to shake the
bedrock, which can potentially put democracy itself in
peril. Defections are one of the most pernicious ways in
which political parties can be destabilized. Indeed they
can delegitimize parliamentary democracy itself, which is
an even more deleterious effect. Defections rightly stand
condemned as a cancer afflicting the body politic. They
cannot be countenanced.
2.
It follows that Article 63A must be interpreted in a
purposive and robust manner, which accords with its
spirit and intent. Ideally, the Article should not need to be
invoked at all; its mere existence, a brooding presence,
should be enough. Put differently, the true measure of its
effectiveness is that no member of a Parliamentary Party
ever has to be declared a defector. Article 63A should
therefore be given that interpretation and application as
accords with, and is aligned as closely as possible to, the
ideal situation. The pith and substance of Article 63A is to
enforce the fundamental right of political parties under
Article 17 that, in particular in the legislative arena, their
cohesion
be
respected,
and
protected
from
unconstitutional and unlawful assaults, encroachments
and erosions. It must therefore be interpreted and applied
in a broad manner, consistent with fundamental rights. It
also follows that if at all there is any conflict between the
Reference No.1 of 2022 etc.
5
fundamental rights of the collectivity (i.e., the political
party) and an individual member thereof it is the former
that must prevail. The first question is answered
accordingly.
3.
Turning to the second question and keeping in mind the
answer to the first, it is our view that the vote of any
member (including a deemed member) of a Parliamentary
Party in a House that is cast contrary to any direction
issued by the latter in terms of para (b) of clause (1) of
Article 63A cannot be counted and must be disregarded,
and this is so regardless of whether the Party Head,
subsequent to such vote, proceeds to take, or refrains
from taking, action that would result in a declaration of
defection. The second question referred to this Court
stands answered in the foregoing terms.
4.
As regards the third question, it is our view that a
declaration of defection in terms of Article 63A can be a
disqualification under Article 63, in terms of an
appropriate law made by Parliament under para (p) of
clause (1) thereof. While it is for Parliament to enact such
legislation it must be said that it is high time that such a
law is placed on the statute book. If such legislation is
enacted it should not amount to a mere slap on the wrist
but must be a robust and proportionate response to the
evil that it is designed to thwart and eradicate. The
question stands answered accordingly.
Reference No.1 of 2022 etc.
6
5.
The fourth question referred to this Court is stated in
terms that are vague, and too broad and general. It is
therefore returned unanswered.
6.
This short order disposes of pending matters under Article
186 as well as Article 184(3). What has been said herein
above is to be read and understood as a simultaneous
exercise of (and thus relatable to) both the jurisdictions
that vest in this Court under the said provisions, read also
in the case of the latter with the jurisdiction conferred by
Article 187.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
I am not in agreement with the majority decision and have
appended a separate note.
Sd/
JUDGE
Sd/-
JUDGE
I am also not in agreement with majority decision. I have
annexed a separate note.
Sd/-
JUDGE
Announced in Court
on 17.05.2022.
Sd/-
CJ.
APPROVED FOR REPORTING
Reference No.1 of 2022 etc.
7
ORDER
Mazhar Alam Khan Miankhel and Jamal Khan
Mandokhail, JJ.- We have had the privilege of going through
the short order of our learned brothers. For the reasons to be
recorded later, with great respect, we are not in agreement with
the same. Article 63A of the Constitution of Islamic Republic of
Pakistan (the Constitution) is a complete code in itself, which
provides a comprehensive procedure regarding defection of a
member of the Parliament and consequences thereof. In case the
Election Commission of Pakistan confirms the declaration sent
by a Party Head against a member, he/she shall cease to be a
Member of the House. As a result thereof, his/her seat shall
become vacant. A right of appeal to this Court has also been
provided under sub-Article (5) of Article 63A of the Constitution,
to either of the party, aggrieved by the decision of the Election
Commission. Any further interpretation of Article 63A of the
Constitution, in our view, would amount to re-writing or reading
into the Constitution and will also affect the other provisions of
the Constitution, which has not even been asked by the
President through this Reference. Therefore, it is not our
mandate. We see no force in the questions asked through this
Presidential Reference, which are answered in the negative.
However, if the Parliament deems fit or appropriate may impose
further bar or restrictions upon the defectors.
Similarly Constitution Petitions No. 2 and 9 of 2022 are
dismissed.
Sd/-
(Mazhar Alam Khan Miankhel)
Judge
Sd/-
(Jamal Khan Mandokhail)
Judge
Reference No.1 of 2022 etc.
8
ORDER OF THE BENCH:
The Presidential Reference No.1 of 2022 is answered
and the Constitution Petitions No.2 and 9 of 2022 are disposed
of in the terms of majority view.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Sd/-
JUDGE
Islamabad,
17.05.2022.
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(Advisory Jurisdiction)
Present
Mr.Justice Iftikhar Muhammad Chaudhry, CJ.
Mr.Justice Javed Iqbal
Mr.Justice Abdul Hameed Dogar
Mr.Justice Sardar Muhammad Raza Khan
Mr.Justice Muhammad Nawaz Abbasi
Mr.Justice Faqir Muhammad Khokhar
Mr.Justice Mian Shakirullah Jan
Mr.Justice M. Javed Buttar
Mr.Justice Saiyed Saeed Ashhad
REFERENCE NO. 2 OF 2005
Reference by the President of Pakistan
under Article 186 of the Constitution of
the Islamic Republic of Pakistan, 1973.
For the President
:
Mr. Makhdoom Ali Khan,
Attorney General for Pakistan.
Raja Muhammad Irshad, Dy. Att: Gen.
Mr. Nasir Saeed Sheikh, Dy. Att: Gen.
Ms. Nahida Mehboob Ellahi, Dy: Att: Gen.
Mr. Faisal H. Naqvi, Advocate.
Mr. Uzair Karamat Bhandari, Advocate.
Mr. Khurram M. Hashmi, Advocate.
Mr. M.S. Khattak, AOR.
For the Government of NWFP:
Mr. Khalid Anwar, Sr. ASC.
Haji M.A. Qayyum Mazhar, AOR.
assisted by
Mr. Muneeb Akhtar, Advocate.
Mr. Bilal Shaukat, Advocate.
Mr. Younas Tanoli, AG NWFP.
Pir Liaqat Ali Shah, Addl: AG NWFP.
On Court notice
:
Mr. Aftab Iqbal Chaudhry,
Advocate General (Punjab).
Mrs. Afshan Ghazanfar Asstt: AG(Pb.)
Syed Sajjad Hussain Shah, Ass: AG (Pb).
Dr. Qazi Khalid Ali, Addl: AG Sindh.
Mr. Salah-ud-Din Mengal, AG (Balochistan)
Dates of hearing
:
1st, 2nd, 3rd, and 4th August, 2005.
…………………………
Reference No.2/2005
2
OPINION
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – The President
of Pakistan has referred the following questions of law for opinion of
this Court under Article 186 of the Constitution of the Islamic
Republic of Pakistan, 1973 (hereinafter referred to as the
Constitution):-
“i)
Whether the Hisba Bill or any of its provisions
would be constitutionally invalid if enacted?
ii)
Whether the Hisba Bill or any of its provisions,
would,
if
enacted;
be
violative
of
the
fundamental rights guaranteed in Part-II,
Chapter 1 of the constitution, including but not
limited to Articles, 9, 14, 16 to 20, 22 and 25
thereof?
iii)
Whether the Hisba Bill or any of its provisions
would, if enacted, be violative of Articles 2A, 4,
203G, 212, 229 and 230 of the Constitution?
iv)
Whether the enactment of the Hisba Bill would
encroach on an occupied field, violative of the
Constitution by creating a parallel judicial
system, undermine judicial independence and
deny citizens their right of access to justice?
v)
Whether the enactment of the Hisba Bill would
violate the principle of separation of powers
enshrined in the Constitution?
vi)
Whether the Hisba Bill, and in particular
Sections 10 and 23 thereof, is unconstitutionally
overbroad and vague and suffers from excessive
delegation?
vii)
If the answer to any one or more of the above
questions is in the affirmative, whether the
Governor, NWFP is obliged to sign into law the
Hisba Bill passed by the NWFP Assembly?”
2.
Precisely stated, the circumstances which necessitated the
seeking of opinion from this Court by the President of Pakistan, are
that on 19th June, 2003, a draft Bill titled “HISBA BILL” was
submitted under the N.W.F.P Rules of Business, 1985, to the
Governor of NWFP for his approval prior to its presentation before
the N.W.F.P Assembly. The Governor returned the draft bill to the
Reference No.2/2005
3
N.W.F.P Government (hereinafter referred to as the Provincial
Government) on 26th June, 2003, with the advice that before moving it
for leave to introduce, it may be appropriate, inter alia, to take the
following into consideration:-
(i)
It is an established principle that
legislation should be precise, clear and
unambiguous so that the legitimate
rights of the citizens are protected from
the abuse or excess of powers vested in
an authority. The draft bill in its present
form is vague, more particularly the
powers envisaged to be vested in the
proposed Mohtasib. This lack of clarity
and precision could lead to unnecessary
and unlawful infringement of the rights
of the citizens besides intrusion in the
realm of such areas of private morality
which may neither be desirable nor just
and fair. Moreover, terms used in the
draft Bill need to be clearly defined,
such as, inter-alia, un-Islamic social
etiquettes, Islamic moral values, respect
and etiquettes for prayers etc.
(ii)
Islam is indeed a complete code of life
and any legislation in the name of Islam
has to be exercised with caution and
utmost care because if the powers
thereunder are abused it inevitably
damages the image of a dynamic
religion. The draft Bill envisages to give
wide
discretionary
powers
to
the
proposed Mohtasib, particularly in
section 23 thereof, however the powers
have been vaguely worded. Such wide,
vague
and
loosely
worded/drafted
legislation
will
inevitably
cause
immense difficulties for the citizens
besides jeopardizing their civil liberties,
privacy and constitutional rights.
Reference No.2/2005
4
(iii)
The EXPLANATION to sub-section (iii)
of section 2 of the proposed Bill
categorically points out that this law
would be invoked, when no other legal,
judicial or administrative remedy is
available. Contrary to it, five cases
mentioned in sub-section (v) of Section 2
and various sub-sections of Section 9
are dealt by comprehensive Efficiency &
Disciplinary laws/rules, NAB Ordinance
and other punitive laws/rules.
(iv)
There are valid and enforced laws
relating
to
most
of
the
powers
mentioned in section 23 of the draft Bill.
All such laws, inter-alia, relating to
employment of children, Ehtaram-e-
Ramazan,
hoarding
and
black
marketing,
prohibition
of
wasteful
expenditure in marriages, weights and
measures, prevention of cruelty to
animals,
gambling,
regulation
of
loudspeakers, vagrancy, price control
and prevention of profiteering and many
others are not only in existence and
enforced by various institutions and
authorities are provided there-under for
administering these laws and the
expenditure for which is paid by the
exchequer. There is a need to examine
all the laws, which are already in
existence, and to make the respective
executing authorities/ agencies more
effective and accountable rather than
creating
parallel
institutions
and
authorities in haste and vesting them
with unbridled and vague powers. This
would neither be in the interest of good
governance or the citizens. Moreover, it
will be an unnecessary burden on the
already strained exchequer of the
province.
Reference No.2/2005
5
(v)
The draft bill proposes to touch upon
certain laws which fall under the
domain of Federal Legislation, inter-
alia the Police order. Section 2 sub-
section (iii) read with Section 20 of this
proposed Bill refers to creation of Hisba
force which is contrary to the Police
Ordinance,
2002.
Any
change/
amendment in this Order would require
permission
from
the
President
of
Pakistan as it is included in Schedule-VI
of the 1973 Constitution of the Islamic
Republic of Pakistan.
(vi)
Prior approval of the President would
be required for extension of the
proposed
law
to
Provincially
Administered Tribal Areas (PATA). It is
therefore advisable to consult the
Federal Government through Law and
Justice Division and Interior Division
before taking further action on the
proposed bill.
(vii)
Vide sub-section (16) of Section 2 of the
proposed
Bill,
the
definition
of
journalist is very vague. It accepts any
person as a journalist who is MA
(Journalism) or has attachment with
journalism for ten years irrespective of
the fact whether he holds journalism
degree or any other such equivalent
qualification.
(viii)
The proposed appointment and removal
of the Mohtasib and the procedure for
conducting inquiries and investigations
also need to be reviewed so as to make
the respective procedures transparent
and more accountable.
(ix)
The matter being of a sensitive and
important nature, instead of legislating
in a haste, as a first stage the treasury
benches may consider seeking the
opinion of the Council of Islamic
Ideology for the purposes of Article 230
Reference No.2/2005
6
of the Constitution in respect of all the
existing laws relating to the proposed
powers enumerated in the draft Bill and
to seek recommendations as to the
measures of bringing such existing laws
in conformity with the injunctions of
Islam. In the second stage, clear precise
and unambiguous legislation may be
proposed in relation to areas/issues,
which are not covered in the existing
laws. It would also require taking into
consideration
prudent
and
diligent
regard vis-à-vis the exchequer.”
3.
The Provincial Government in compliance with the above
advice of the Governor, agreed to refer the matter to the Council of
Islamic Ideology (hereinafter referred to as CII). The CII rendered its
opinion and pointed out inherent defects in the proposed legislation
and specifically stated that the draft Hisba Bill violated a number of
constitutional provisions and was capable of being exploited for
political motives. The opinion of the Council was communicated to the
Provincial Government on 18th September, 2004. The Provincial
Government, without taking into consideration the opinion of the CII,
tabled the draft Hisba Bill in the N.W.F.P Provincial Assembly on 11th
July, 2005 and got it approved. The Governor of NWFP, on 11th July,
2005, requested the Prime Minister to make a request to the President
of Pakistan for making a Reference to this Court for its opinion on the
constitutionality of the draft Hisba Bill under Article 186 of the
Constitution as serious questions of law of public importance are
involved in the matter.
Reference No.2/2005
7
4.
In the light of the request of the Governor and the attending
controversy, the Hisba Bill which generated serious and substantial
questions of constitutionality of fundamental human rights, the Prime
Minister of Pakistan was pleased to advise the President of Pakistan
to seek opinion of this Court and refer the above questions of law of
public importance for opinion on the constitutionality of the draft
Hisba Bill. As this Court is required to give its opinion about the
constitutionality of the draft Hisba Bill, therefore, it is deemed
appropriate to reproduce herein-below the following provisions from
the draft Hisba Bill:-
“ A BILL to provide for the establishment of the institution
of Hisba in the North-West Frontier Province.
WHEREAS sovereignty over the entire Universe belongs to
Almighty Allah alone and the authority to be exercised by the
people of Pakistan through their chosen representatives within the
limits prescribed by Him is a sacred trust;
AND WHEREAS implementation of Islamic way of life revolves
around Amer-bil-Maroof and Nahi-unal-Munkir and to achieve
this objective it is necessary apart from other steps to establish an
institution of accountability which could keep a watch on securing
legitimate rights of various classes of the society, including
females, minorities and children and to protect them from
emerging evils and injustices in the society;
AND WHERE it is further necessary to extend the jurisdiction of
Mohtasib to Government’s administration and offices in order to
have a check upon injustices, abuse of powers and other similar
excesses;
It is hereby enacted as follows :
“1. .Short title and commencement
(1) This Act may be called the North-West Frontier
Province Hisba Act, 2005.
(2) It shall extend to whole of the North-West Frontier
Province.
(3) It shall come into force at once.
2. Definitions. --- In this Act, unless the context otherwise
requires,
(a)
“Agency” means a Department, Commission or
any office of Provincial Government, a Corporation or
similar
other
institutions
which
the
Provincial
Government may have established or which may be
working under its control, the Secretariat of the
Provincial Assembly of the North West Frontier
Province, but does not include the High Court and the
Courts working under its administrative control;
Reference No.2/2005
8
(b)
“Amer-bil-Maroof”
means
fulfilling
the
obligations of enjoining the good as laid down in Holy
Quran and the Sunnah;
(c)……………………………………………………………….
(d)……………………………………………………………….
(e)……………………………………………………………….
(f)……………………………………………………………….
(g)……………………………………………………………….
(h)……………………………………………………………….
(i)
“Mal-administration”
includes
all
such
decision,
processes,
recommendations,
acts
and
deficiencies which –
(i)
Is contrary to law, rules or regulations
or is a departure from established
practice or procedure, unless it is bona
fide and for valid reasons; or
(ii)
Is perverse, arbitrary, unreasonable,
unjust,
biased,
oppressive
or
discriminatory; or
(iii)
Is based on irrelevant grounds; or
(iv)
Involves the exercise of powers or the
failure or refusal to do so, for corrupt or
improper motives, such as bribery,
jobbery,
favoritism,
nepotism
and
administrative excesses; or
(v)
Amounts to negligence, inattention,
delay, incompetence, inefficiency and
inaptitude in the administration or
discharge of duties and responsibilities;
(j)……………………………………………………………….
(k)
“Nahi-unal-Munkir”
means
fulfilling
the
obligations of forbidding the evil as laid down in the
Holy Quran and the Sunnah;
(l)……………………………………………………………….
(m)………………………………………………………………
(n) “Provincial Advisory Council” means the Council
established under this Act;
(o) ………………………………………………...…………….
(p)……………………………………………………………….
(q)……………………………………………………………….
(r)……………………………………………………………….
3…………………………………………………………………..
4…………………………………………………………………..
5…………………………………………………………………..
6………………………………………………………………….
7……………………………………………………………..
8……………………………………………………………..
9……………………………………………………………..
10.
Powers and duties of Mohtasib.
The Mohtasib shall, on a written complaint of any person, or on
reference from the High Court, the Supreme Court or the
Provincial Assembly, or suo motu, shall have the power to-
(a)
Enquire
into
the
allegations
of
mal-
administration against any Agency or its employees:
Reference No.2/2005
9
Provided that no Government servant, during his service, shall
be entitled, in relation to affairs of his employment, to lodge a
complaint with the Mohtasib;
(b)
Protect/watch the Islamic values and etiquettes
at the provincial level;
(c)
Watch the media established by Government or
working under the administrative control of Government
to ensure that its publications are useful to the purpose
of upholding Islamic values;
(d)
Forbid persons, Agencies and authorities
working under the administrative control of Government
to act against shariah and to guide them to good
governance;
(e)
Formulate such directives and principles, which
may help in making the conduct of authorities working
under this section to be effective and purposeful;
(f)
Extend help to the provincial administration in
discharging its functions smoothly and effectively;
provided that the Mohtasib shall not interfere in any
mater which is sub-judice before a court of competent
jurisdiction or which relates to external affairs of
Pakistan or the relations or dealings of Pakistan with
any foreign State or Government or relates to or is
connected with the defence of Pakistan or any part
thereof, the Military, Naval and Air Forces of Pakistan
or the matters covered by laws relating to these forces;
(g)
For the purposes of attaining the objectives of
this Act, with particular reference to doing away with
the mal-administration and to remove social injustices,
take steps for providing facilities of training, study and
research; and
(h)
Mohtasib shall, in the discharge of his duties
and functions, be entitled to engage the services of
experts and Consultants with or without remuneration.
11……………………………………………………………
12.
Implementation of orders, etc.
(1)
On completion of the action in relation to a
complaint, the Mohtasib shall have the power to issue
directive to the competent officer of the Department
concerned for its implementation and may, at the same
time, take up such steps as he considers expedient. The
concerned Agency within the time limit mentioned in the
directive, inform the Mohtasib about the action taken in
that behalf, failing which the concerned Agency or
competent officer, on the recommendation of the
Mohtasib, shall render itself or himself, as the case may
be, to the following actions:
(a) One or more actions under the law relating
to removal from Service;
(b) In case of non-cooperation with the
Mohtasib or his staff during investigation, legal
action for interference in smooth functioning of
Government.
Reference No.2/2005
10
(c) Where the Mohtasib is satisfied in respect of
a complaint under consideration that any
functionary of Government has committed a
cognizable offence or rendered himself to civil
liability, he shall direct the concerned Agency to
initiate action as aforesaid in accordance with
law.
(2)
In case of non-compliance of the directive of the
Mohtasib, he shall refer the matter to Government,
which shall ensure its compliance and inform the
Mohtasib of its compliance.
(3)
A report of such non-compliance of the official
shall form part of his personal file.
(4)
The official concerned shall have the right of
representation to the Chief Minister within a period of
30 days from the date of recommendation under sub-
section(1).
14.
Contempt of Mohtasib .
The Mohtasib shall mutatis mutandis have the same powers
which are available to the High Court to punish a person
who-
(a)
Hinders or becomes a source of
hindrance in the smooth proceedings before the
Mohtasib or does any act causing difficulties in
the completion of such proceedings;
(b)
Gives such statement which defames
Mohtasib,
or
any
of
his
officials
or
representatives;
(c)
Acts in a manner which, in relation to
proceedings before the Mohtasib, influence the
mind of the Mohtasib to take a partial decision;
or
(d)
Acts in a manner which, under any law
for the time being in force, falls within the
definition of contempt; provided that any
comments made in good faith and in the public
interest on any act or on report of the Mohtasib
or his employer or representative shall not be
treated as contempt.
(2)
The person aggrieved against any order of the
Mohtasib under sub-section (1) may, within thirty days
of such order, appeal in the High Court, which shall be
heard by a Division Bench of the said Court.
15………………………………………………………...
16………………………………………………………...
17………………………………………………………...
18………………………………………………………...
19………………………………………………………...
20………………………………………………………...
21………………………………………………………...
22………………………………………………………...
Reference No.2/2005
11
23.
Special powers of Mohtasib.
Without prejudices to the powers conferred by
section 10, the Mohtasib shall have the following
powers:-
(i) To monitor adherence of moral values of
Islam at pubic places;
(ii)
To discourage Tabdhir or extravagance,
particularly at the time of marriages and other
family functions;
iii)
To follow code of Islam in giving dowry;
(iv)
To discourage beggary;
(v)
To monitor adherence of Islamic values
and its respect and regard at the times of ‘Iftar”
and Taravih’;
(vi)
To discourage entertainment shows and
business transactions at the times of Eideen and
Jumma’ah prayers around mosques where such
prayers are being held;
(vii)
To remove causes of dereliction in
performance and proper arrangement of Eidain
and Jumu’ah prayers;
(viii)
To discourage employment of under-age
children;
(ix)
To
remove
unnecessary
delay
in
discharge of civil liability which is not disputed
between the parties;
(x)
To prevent cruelty to animals;
(xi)
To remove causes of negligence in the
maintenance of mosques;
(xii)
To observe decorum of Islam at the
times of Azan and Fard prayers;
(xiii)
To prevent misuse of loud-speakers and
sectarian speeches in mosques;
(xiv)
To discourage un-Islamic and inhuman
customs;
(xv)
To check the tendency of indecent
behaviour
at
public
palaces
including
harassment of female;
(xvi)
To eradicate the deal as profession in
‘Taweez’, ‘Gunda’, palmistry, sorcerery, etc;
(xvii)
To protect the rights of minorities,
particularly to regard the sanctity of their
religious places and places where they perform
their religious ceremonies;
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12
(xviii) To eliminate un-Islamic traditions which
effect the rights of women, particularly taking
measures against their murder in the name of
‘Ghairat’, to remove the tendency of depriving
them of their rights of inheritance, to eliminate
the tradition of ‘sura’, and to protect their rights
conferred by Shariah and law;
(xix)
To monitor weights and measures and
eliminate impurity;
(xx)
To eliminate artificial price-hike;
(xxi)
To protect Government properties;
(xxii)
To eliminate bribery from Government
Departments/offices;
(xxiii) To incite feelings of service to people at
large amongst Government functionaries;
(xxiv) To advise those who are found to be
disobedient to their parents;
(xxv)
To perform any other function or
functions
which
the
Provincial
Mohtasib
determines from time to time in consultation
with the Advisory Council;
(xxvi) To mediate amongst parties and tribes
in matters pertaining to murders, attempts to
murder and similar other crimes threatening to
law and order situation.
(xxvii) To perform any other function/functions
which the Provincial Mohtasib determines from
time to time in consultation with the Advisory
Council.
24………………………………………………………...
25.
Restriction on the rights of hearing.
(1)
No court or authority shall be competent to
question the legal status of the proceedings before a
Mohtasib.
(2)
No court or authority shall have the power to
pass any injunction or any interim or a stay order with
regard to any matter under consideration of the
Mohtasib.
(3)
No suit or legal proceeding shall lie against the
Mohtasib or his employees for anything in good faith
done or intended to be done.
26………………………………………………………...
27………………………………………………………...
28.
Offences to be non-cognizable.
(1)
Defiance of the order of the concerned Mohtasib
in the performance of his duties under section 23 of this
Act shall be a non-cognizable offence punishable with
Reference No.2/2005
13
imprisonment for a term up to six months and a fine up
to two thousand rupees. No court shall take cognizance
of an offence under this section, except on a complaint in
writing of the Mohtasib or his authorized representative.
(2)
The offence under sub-section (1) shall be tried
by the court in accordance with Code of Criminal
Procedure, 1898 (V of 1898) and the order shall be
appealable.
29…………………………………………………………..
30…………………………………………………………..
31…………………………………………………………..
5.
Notices were issued to the Provincial Government of NWFP
through Chief Secretary as well as Secretary Assembly, its Advocate
General as well as the Advocates Generals of all other Provinces.
6.
“Hisba” is an Arabic word, which in the plain language means “to
count” or “accountability” or “to prohibit from evil things,” as per
available literary sources. The Institution of the office of “Hisba” did not
exist at the time of Holy Prophet (PBHU) and the Khulafa-e-Rashideen.
Initially the office of “Amil al-suk” was created by “Umayyads” to
regulate markets. However, later on it was expended into the office of the
“Mohtasib” by the “Abbasids.” Reference in this behalf may be made to
the following:---
1. An Introduction to Islamic Law ”
by Joseph Schacht
“…………The office of the ‘inspector of the market'
(ayopavouos, in Arabic amil al- suk or sahib al-suk, a literal
translation) who had a limited civil and criminal jurisdiction;
it was later, under the early 'Abbasids’ to develop into the
Islamic office of the muhtasib. Similarly, the Muslims took
over from Sassanian administration the office of the ‘clerk of
the court' who became an assistant of the kadi; this was well
known to the ancient authors.”
2. “A history of Islamic Law ”
by N.J Coulson
“One particular administrative office taken over by the
Umayyad regime was that of the Byzantine market inspector,
or agronomos. This official, bearing the equivalent Arabic
title of ‘amil as-suq, possessed limited powers of jurisdiction
Reference No.2/2005
14
concerning such things as weights and measures used in the
market and petty offences committed there. At a later stage he
was entrusted with the peculiarly Islamic function of hisba, or
the duty of safeguarding the proper standards of religious
morality. Accordingly he now took the title of muhtasib, but
still retained the market-place jurisdiction as a legacy of his
historical origin.”
3. “A History of the Arab People”
by Albert Hourani
“…………In the market there was a special official, the
muhtasib, who supervised prices, weights and measures, the
quality of goods and the conduct of business; his authority
was derived from, a verse of the Qur’an which enjoined upon
Muslims the duty of 'bidding unto good and rejecting what is
disapproved', and in some circumstances he was appointed
from among the religious class, but in others from the
military………”
4. “Islami Riasat Main Mohtasib Ka Kirdar ”
by Dr. M.S. Naz.
8.
To substantiate the above definitions, a good number of books can
be quoted including “the Concept of Administrative Accountability in
Islam” by Dr. Riaz Mehmood, Urdu Daira Ma’arif-e-Islamia (Urdu
Encyclopedia of Islam) Vol. VIII, published under the auspices of
University of Punjab Lahore, “Ehkamul Sultania” by Imam-Abul-Hassan
Bin Muhammad Bin Habib-e-Baseeri (translated by Maulvi Syed
Muhammad Ibrahim), “Adbul Qazi” by Dr. Mehmood Ahmed Ghazi,
Edarai-e-Tehkekqat-e-Islami, “Badae-ul-Sana’ay” by Alama Allauddin
Abubakar Bin Sulemani (translated by Prof. Khan Muhammad Chawla)
and “The Concise Encyclopedia of Islam” by Cyril Glasse. Relevant
portion from the last mentioned book is reproduced below:-
Reference No.2/2005
15
“Muhtasib. A public functionary whose task, as it has
existed since 'Abbasid times, has been that of
supervising the merchants' quality and prices. The
muhtasib checks and verifies weights and measures and
the use of materials in crafts. He gives expert appraisal
of the value of cloth, rugs, woven articles brass and
copper utensil. These estimates are not binding as a
price between buyer and seller, but are indicative of the
fair market price. The muhtasib is still found in some
traditional markets.”
9.
A study of the definitions of “Hisba” from the above books indicates
that although it was a very old institution but its inception is not well
known. Some of the authors, as is evident from the above definitions, say
that in the beginning, the terms “Hisba” and “Mohtasib” were not used
but the terms “Sahib al-Suk” or “Amil ul-rusul ” [incharge of Trade or
Trade administrator/administrator of streets] were used. The word “Sahib
ul-Suk” is said to be a translation of Greek term. However, history reveals
that the term “Mohtasib” was started to be used instead of “Sahib ul-Suk”
during the Khilafat of “Qazi Mamoon-ur-Rashid” and the “Mohtasib”
used to look-after the market business in addition to his religious duties,
such as to bring reformation in social life. A careful perusal of the
documents on the subject, clearly depicts the fact that duties of the
“Mohtasib” were to inspect instruments of the scales of weights and
measures. These scales were so complicated and different that the peoples
could easily deceive each other. In addition to it he had also to keep a
vigilant eye over each kind of shortcoming and dishonesty that could be
committed during the preparation and sale of commodities. It is also
evident from the history books that keeping in view economic conditions of
Muslims, the “Mohtasib” used to check prices of the goods but he had no
power to determine them. He had also to ensure that construction and
repairing of houses and the shops would not endanger the peace of the
Reference No.2/2005
16
public or cause hurdles in the way of pedestrian and traffic. Streets
cleanliness, repair of shelters for commuters and supply and drainage of
water were amongst his duties and due to such functions “Mohtasib” in
Islamic period used to be considered a City Officer. Unfortunately, at the
end of middle ages, with the economic downturn and social crises, the
office of “Mohtasib” started loosing its respect. During the era of
“Mamlik” sometime the posts of Mohtasib, like other institutions, were
grabbed by giving bribes. The buyer of this office reimbursed this money by
imposing illegal levies. Eventually, fighting started to occur among the
contenders of this post. Sometime this post was given to an Army Officer in
reward to his performance or from strategic point of view. This office
remained established in Muslim countries till the inception of 20th Century.
It is most important to note that the office of “Mohtasib” effectively
functioned, even when there was no codified law and there were no regular
Governments to control the State affairs, to spread virtues and battle
against evils as per the comprehensive meanings of the word “Hisba.” In
this behalf every Muslim can act as “Mohtasib” for himself as well as for
others, in view of the Injunction of Holy Quran, (Surah Al-Imran verse
104), translation of which is “And there must be a section among you to
call towards good, to order the right and prevent the bad.” Similarly,
Holy Quran in Surah Al-Nisa verse 59 ordained “O Muslims, obey Allah,
His Prophet (PBUH) and those in authority from amongst you.” Dr. Riaz
Mehmood in his book “the Concept of Administrative Accountability in
Islam,” while taking into consideration both these Injunctions of Holy
Quran and dealing with the subject of “Hisba” and “Legislature” (Chapter
IX page 173), has opined as follows:-
“………...In the third verse it is emphatically proposed
that there must be a body to call to good, to beneficial
Reference No.2/2005
17
state of affairs, to order good and to check bad. Lastly the
men in authority or the men who have been assigned
some work, who have been deputed or are engaged in the
task of some peremptory nature must be obeyed. So a
representative or consultative body has been provided. In
Ul-Al-AMR the legislature, the executive and judiciary all
are encompassed.
Dr. Sabhi Mehmasani has concluded by referring
to many Quranic verses and traditions that Ijma is an
admitted and proved source of Islamic law.
So the entity of Shura is established. Hadrat
Umer formed a Shura.
It has also been discussed in the preceding
chapters that the Holy Prophet (P.B.U.H.) and the rightly
guided Caliphs conducted Ihtisab themselves. lhtisab of
the public and officials had all along been there.
However the nomenclature Muhtasib, appeared in the
time of Caliph Mehdi.
The muhtasib and the shura are therefore to
consult each other. Hisba and shura may coincide in a
single body notwithstanding whatever qualification of
piety or fiqh be laid down for them. Muhtasib is a
successors wing of the ruler and the legislature i.e.
parliament is the successor of shura.
Shura's link as mentioned in the encyclopaedia be
reproduced below.
"Linked with these tasks was another
which has caused modern scholars to
stress the view that the traditions of
antiquity concerning the councillors of
the town were perpetuated in the duties
of the Muhtasib.”
The councillor is the representative of the urban
electorate at the local councils level. He too is often
elected on party basis. The members of the parliament
have comparatively larger constituencies. The functions
are almost the same. They attend to the small disputes of
the voters, redress their complaints and are the overall
overseers of public officials. The councillors are also
invested with some judicial matters.
The legislators move the bills in parliament
keeping in view the problems of their respective areas.
The parliament of Pakistan is officially called MAJLIS-I-
SHURA.
Reference No.2/2005
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Thus the members of the parliament (Legislature)
themselves act as Muhtasibs in their areas and also
advise the rulers.
In all countries where there is parliamentary
form of government, the parliament (Legislature) almost
acts as the Muhtasib of the executive. The same is the
position in Pakistan. The relevant articles of the
constitution of Islamic republic of Pakistan be referred in
this respect.
"Article 9: THE CABINET
1. There shall be a cabinet of ministers
with the Prime Minister at its head, to
aid and advise the president in the
exercise of his functions."
4. The cabinet, together with the
Minister of State, shall be collectively
responsible to the National Assembly.”
There is a bit of difference between the
Ombudsman and Hisba, which would be discussed in
chapter xi. However their relationship with the
Legislature is almost the same. An excerpt from the
annual report of Wafaqi Muhtasib of Pakistan, 1992 may
be adverted to in this connection.
WAFAQI MOHTASIB VIS-A-VIS THE PARLIAMENT:
The institution of Wafaqi Mohtasib was
established through a presidential order
in 1983 (p.o. of 1983), during the days
when the country was under Martial
Law. The Ombudsman law thus does not
stipulate linkage between this institution
and the parliament which has created a
contradiction in the context of the
world-wide
practice
in
similar
institutions. In all the countries of the
world, where this institution exists, the
Ombudsman is considered to be a
Parliamentary watchdog operating in
administrative domain on behalf of the
Parliament, to which alone he is
responsible.
After the restoration of democracy in Pakistan in 1985,
this office has continuously been demanding creation of
formal linkage between this institution and the parliament
either through a constitutional amendment or by setting
up of a Public Administration Committee of the
Parliament, on the pattern of Public Accounts Committee
but to no effect. All efforts seem to have been wasted.
Reference No.2/2005
19
Committee of this nature, would not only act as a liaison
between the Mohtasib and the Parliament but would also
provide necessary guidance and support to this institution
in the performance of its functions in various fields.
Matters relating to the Ombudsman institutions like its
Annual report, budget proposal and amendments in the
law, prudence demands, are required to be scrutinized
first by that committee for the purposes of evolving
bipartisan consensus before these are placed before the
Parliament for consideration.
10.
NWFP Assembly, despite having all functional democratic
institutions under the Constitution, intended to establish the institution of
“Hisba,” as per draft Hisba Bill. Its preamble identifies the following two
objects :---
“i)
Whereas implementation of Islamic way of life revolves
around Amar-bil-Maroof and Nahi-unal-Munkir and to
achieve this object, it is necessary apart from other steps
to establish an institution of accountability, which could
keep a watch on securing legitimate rights of various
classes of the society, including females, minorities and
children and to protect them from emerging evils and
injustices in the society;
ii)
And whereas it is further necessary to extend the
jurisdiction
of
Mohtasib
to
Government’s
administrations and Offices in order to have a check
upon injustices, abuse of powers and other similar
excesses.
A careful perusal of above preamble demonstrates that the “Hisba Bill”
was drafted to achieve two-fold objectives; one to establish an institution of
accountability to fulfil the command of “Amar-bil-Maroof and Nahi-unal-
Munkir,” as far as personal lives of the different segments of the society are
concerned; and second to extend the jurisdiction of “Mohtasib” to official
affairs of the Provincial Government. So far as the second part is
concerned, its object seems to be inline with the legislation already
available on the subject i.e. the Establishment of Office of the Wafaqi
Reference No.2/2005
20
Mohtasib Order 1983, which has been mandated by the Constitution under
Item 13 of the Federal Legislative List; Establishment of the Office of
Ombudsman for the Province of Balochistan Ordinance, 2001; Punjab
Office of the Ombudsman Act, 1997; Establishment of the Office of
Ombudsman for the Province of Sindh Act, 1991, respectively. Definition
clauses in the “Hisba Bill” and the other laws on the subject, relating to
mal-administration in Government offices, are identical in substance.
11.
The concept of Ombudsman has been discussed in a “Commentary
on Ombudsman” by Mubeen Ahmed Khan, substance whereof is that it is
an institution which takes care of a large segment of population or the
large number of the residents against the mal-administration of the
Government functionaries. Dr. Riaz Mehmood in “The Concept of
Administrative Accountability in Islam” in chapter Ombudsman: concept
and growth: has described that Ombudsman is a person or an office which
on complaint or reference or even suo motu can look into administrative
actions, omissions and commissions of Government or Semi-Governmental
agencies, affecting their subjects in case they in their own place term them
a partial, improper, arbitrary, oppressive, harsh, discriminatory, biased,
victimizing, or the result of neglect, lethargy or incompetence, and after
necessary investigation, offer possible redressal, within statutory spheres.
Three renowned scholars on the subject i.e. Geraled E. Caiden, Nail
Macdermot and Ake Sandler have detailed the concept of Ombudsman in
lucid manner: “ a new and to many people, a foreign word is being heard
more frequently, it is “Ombudsman.” A term that refers to special office or
officer to whom people can go with their grievances about the way their
business with large anonymous bureaucracies has been handled. The
Ombudsman records public complaints, investigates them, and reports the
Reference No.2/2005
21
findings to the complainants and the organizations investigated. Should any
wrong be discovered, it is expected that it will be put right, if not to the
complete satisfaction of aggrieved party, then at least better than it would
have been without the Ombudsman’s intervention. For the public, the
Ombudsman is a welcome device for assuring that justice is done and that
bureaucracies treat their clients fairly, promptly and respectfully. For
bureaucracy, it is an additional failsafe check on their operations, thus it
provides additional protection for both public and bureaucracy, something
that seems required as the transactions between them multiply.”
12.
It may be noted that in Pakistan, besides the offices of Ombudsman
referred to herein before, at the Federal level, there is yet another office of
Tax Ombudsman, established under Ordinance No.XXXV of 2000 titled as
Establishment of Office of Federal Tax Ombudsman Ordinance 2000. The
objects and the functions of the Tax Ombudsman are to diagnose,
investigate, redress and rectify any injustice done to a person through mal-
administration by functionaries, administering tax law. Thus, establishment
of Federal and Provincial Ombudsman Offices including the Tax
Ombudsman, are successfully serving the object of checking mal-
administration in Government offices on the complaints of aggrieved
persons.
13.
The Government of NWFP is legally bound to establish the offices of
the Zilla Mohtasibs, under Section 134 read with Third Schedule of the
NWFP Local Government Ordinance, 2001. The functions and purposes of
the Zilla Mohtasib are enumerated as follows :--
134.
Zilla Mohtasib.
(1)
Without prejudice to the provisions as contained
in the North-West Frontier Province end enactment
regarding Provincial Mohtasib, in every district there
may be a Zilla Mohtasib.
Reference No.2/2005
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(2)
The Zilla Mohtasib shall redress citizen’s
complaints against mal-administration of the holders of
public offices in the local governments within the
district.
Explanation.
For the purpose of this section, the
expression ‘holders of public office’ includes all
functionaries of the District Government, Tehsil
Municipal
Administration,
Union
Administration,
Nazimeen, Naib Nazimeen, District Police Officers and
officials, members of the Councils and all officials of the
Council.
(3)
All holders of public offices shall aid and assist
the Zilla Mohtasib in exercise of his functions.
(4)
The Zilla Mohtasib shall hold office for a term
of four years and shall be eligible for reappointment for
a similar term.
(5)
The Zilla Mohtasib may resign his office by
writing under his hand addressed to the Zilla Council
through Naib Zilla Nazim.
(6)
The manner of selection, appointment, removal,
terms and conditions of service, functions, and powers of
the Zilla Mohtasib and procedures relating thereto shall
be as given in the Third Schedule.
14.
The NWFP Local Government Ordinance, 2001 has constitutional
protection as its alteration, repeal or amendment, without the previous
sanction of the President, has been prohibited under Article 268 (2) read
with Sixth Schedule of the Constitution of the Islamic Republic of Pakistan.
15.
A comparative study of the duties and the powers of Zilla Mohtasib
appointed under Section 134 of the NWFP Local Government Ordinance,
2001 reveals that the duties assigned to District Mohtasib appointed under
Section 17 of Hisba Bill, relating to redress the grievances of the citizens
against mal-administration by the holders of the public offices, are
identical. Therefore, Provincial Government by creating Offices of “ Zilla
Mohtasib” under the Hisba Bill is not authorized to delegislate a provision
of law having constitutional protection.
Reference No.2/2005
23
16.
A cursory perusal of the laws on the establishment of the federal and
provincial offices of the Ombudsman, makes it clear that under Section
12(1) of the Hisba Bill enormous powers have been given to “Mohtasib” to
check the cases of mal-administration and implementation of its orders.
Regarding disobeying the order of “Mohtasib” in terms of Section 10(b),(c)
& (d) for non-performance of personal religious obligations by a citizen,
the “Mohtasib” is competent to punish him for contempt. He can also lodge
a complaint before a Magistrate, if there is ‘Khilaf-warzi’ of his orders,
issued by him under Section 23(1), (2), (3), (5), (6), (7), (12), (14) and (27)
of the Hisba Bill, which can entail imprisonment up to a period of six
months and fine up to Rs.2000/-. Thus, the “Mohtasib” enjoys dual powers
i.e. as an authority, exercising powers of a judicial officer, competent to
punish a person for noncompliance of his orders and at the same time, as
an investigator and prosecutor; authorized to submit complaint against a
citizen, who in his arbitrary wisdom, failed to oblige him by accepting his
orders, refraining him from or ordering him to perform certain actions,
which in Mohtasib’s view are in accordance with Islamic thoughts,
etiquettes and faith as believed by him.
17.
Plurality of powers at the command of “Mohtasib,” as noted above,
distinguish him from the “Ombudsman” functioning under other laws,
which give Ombudsman an authority only to make recommendatory
directions, having no binding effect, as held in National Bank of Pakistan
v.Wafaqi Mohtasib (NLR 1993 CLJ 171), Tariq Majeed Chaudhry v.
Lahore Stock Exchange (PLD 1995 Lahore 572), Pakistan International
Airlines Corporation v. Wafaqi Mohtasib (1998 SCMR 841), East West
Insurance Company Ltd. V. Wafaqi Mohtasib (1999 MLD 3050),
Punjab Agricultural Development and Supplies Corporation v.
Reference No.2/2005
24
Muhammad Rafiq Khan (2002 PLC (CS) 1133), Muslim Commercial
Bank Ltd. v. Momin Khan (2002 SCMR 958) and Nazir Ahmed Khan
v. Pakistan International Airlines Corporation (2004 PLC (CS) 119).
18.
Article 175 (3) of the Constitution mandates that judicial powers of
binding nature are not to be conferred upon the Authority exercising
Executive powers of an investigator, prosecutor, etc. Section 10 of Hisba
Bill, defines powers and duties of “Mohtasib” AND Section 12 prescribes
the mode of implementation of orders of “Mohtasib.” Section 14 gives him
powers of contempt, as are vested under Contempt of Court Act, 1976, etc.
19.
It is significant to note that Section 25 had placed a restriction on
the rights of hearing. Analysis of this Section suggests that the powers of
judicial review against the orders of “Mohtasib” have been excluded
against all cannon of justice with an object to enforce broad, uncontrolled,
open and oppressive authority of “Mohtasib,” knowing well that the Courts
functioning under Civil Procedure Code and Constitution had always
exercised statutory and inherent jurisdiction to control sweeping powers of
an Authority, particularly in penal acts, when considering them vague,
arbitrary, unreasonable, etc.
20.
Mr.Makhdoom Ali Khan, learned Attorney General contended that
the judicial powers are to be exercised by Courts and not by Executives like
“Mohtasib” under Hisba Bill. Such exercise of powers deny the right of
access to justice to a citizen. [See Mehram Ali v. Federation of Pakistan (PLD
1998 SC 1445), Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504),
Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607)].
21.
Learned counsel for Government of NWFP stressed that no judicial
powers have been conferred upon the “Mohtasib” by Hisba Bill. The
Reference No.2/2005
25
powers exercisable by “Mohtasib” are corresponding to powers of
“Wafaqi Mohtasib” and by the Mohtasibs of Provinces.
22.
Section 12 of the Hisba Bill prescribes implementation powers of
“Mohtasib,” and Article 11 of the President’s Order No. 1 of 1983
Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983
[herein after referred to as “Wafaqi Mohtasib Order”] deals with the same
subject. Same is the position in Provincial laws dealing with the Offices of
Ombudsman. The Federal and Provincial “Mohtasibs” after having
considered a matter communicate their findings; (a) to consider the matter
further; (b) to modify or cancel the decision, process, recommendations,
act or omission; (c) to explain more fully the act or decision in question;
(d) to take disciplinary action against any public servant of any agency,
under the relevant laws applicable to him; (e) to dispose of the matter or
case within a specified time; (f) to take action on its findings and
recommendations to improve the working and efficiency of the agency
within a specified time; (g) to take any other step specified by the
“Mohtasib.” Whereas, under Section 12 of the Hisba Bill, “Mohtasib” has
been given power to issue Hukam-nama [order] to the competent officer of
the department concerned for implementation and at the same time he is
authorized to take such steps as he considers necessary. On receipt of
“Hukam-nama” [order], concerned agency is bound to implement the
same, failing which the action against concerned agency or delinquent
officer under the law relating to removal from service or any other action,
including criminal and civil proceedings, shall be directed by him.
Difference between recommendation i.e. advice, proposal, suggestion,
counsel, etc. and “Hukam-nama” [order] i.e. command, direction,
instruction, etc. is well understood as per their plain dictionary meanings.
Reference No.2/2005
26
Interpretation of both these expression by following golden rules of
construction of statutes, to adhere to the ordinary meanings of the words
used, and to the grammatical construction, unless that is at variance with
the intention of the legislature, to be collected from the statute itself, or
leads to any manifest absurdity or repugnancy, in which case the language
may be varied or modified, so as to avoid such inconvenience, but no
further.”
23.
Learned Attorney General explained that under the Wafaqi
Mohtasib Order, an agency has either to comply with recommendations on
receipt of communication from “Mohtasib” or to inform him the reasons
for not complying with the recommendations. But under Hisba Bill, an
agency is bound to obey the “Hukam-nama” [order] of Mohtasib,
otherwise it is to be implemented in the manner as liked by him as he has
an authority under Section 12(1) to take up such steps as he considers
expedient. He apprehended that “Mohtasib” would not be precluded to
exercise such powers, under the garb of this authority, arbitrarily and
callously for want of any check on him. He argued that it can also give rise
to corruption and corrupt practices as historically and in the recent past,
the office of Hisba had earned a bad name. In this behalf he invited
attention to the references given herein before.
24.
Learned Attorney General also contended that the “Hukam-nama”
[order] of “Mohtasib” under Section 12(2) of the Hisba Bill is not confined
to the extent of an agency in respect of official mal-administration but also
is applicable to personal/individual religious rights of the citizens qua
powers of “Mohtasib” under Section 10(b), (c) and (d). Whereas, in the
Federal Mohtasib law and the laws prevailing on the subject in other
Provinces, no such “Hukam-nama” [order] of binding nature can be
Reference No.2/2005
27
issued by the “Mohtasib.” In case of non-compliance of “Hukam-nama”
[order] of “Mohtasib,” within stipulated time, the Officer of agency will
expose himself for one or more actions, on recommendations of
“Mohtasib” under the law relating to removal from service including
facing criminal proceedings, if “Mohtasib” is satisfied that he has
committed a cognizable offence and even a civil suit can also be registered
against him under Section 12(1)(c) of the Hisba Bill. Surprisingly, against
such a binding order of the Mohtasib, a right of appeal has been given to
an aggrieved person before the Executive Head of the Province i.e. Chief
Minister under Section 12(4) of the Hisba Bill. The official of the agency as
an individual, to whom binding “Hukam-nama” [order] has been given,
relating to his personal rights, could also face contempt proceedings, under
Section 14 of the Hisba Bill. It may be visualized that a binding “Hukam-
nama” [order] issued by the Mohtasib, under Section 12(1) has to be
obeyed even if it is an unlawful “Hukam-nama” [order], though against
illegal orders/unlawful orders, this Court in the case of Zahid Akhtar v.
Government of Punjab (PLD 1995 SC 530) and Ramesh M. Udeshi v.
The State (2005 SCMR 648), has forbidden the Government Officials to
implement such orders. Likewise, an individual having different religious
standards/values of understanding the Sharia, as per his sect, is not bound
to obey “Hukam-nama” [order] of “Mohtasib” but due to unbridled/
unfettered/arbitrary powers of “Mohtasib” he would have no option but to
obey it. Thus, such conduct of “Mohtasib” is bound to create ‘Fasad’
among different sects of Islam, particularly between Sunnis and Ahl-e-
Tashees. For exercising powers under Section 10( b) ( c) & (d) and for
implementation of “Hukam-nama” [order] under Section 12(1) of Hisba
Bill, the citizens and “Mohtasib” both are required a lot of preparation,
Reference No.2/2005
28
otherwise, it would be enough for fueling enormous sectarianism not only
in NWFP but also in other parts of the country, including a serious threat
to law and order and breaking down of constitutional apparatuses,
prevailing in the country as well. The prominent jurists had always
emphasized for adherence to rule of law acceptable to all the citizens and
no sooner a distinction is created between man to man, in exercise of wide
ranged unbalanced and un-Constitutional powers, by a particular
individual like “Mohtasib,” it will give rise to intolerance in the society as
a whole and cause to increase against each other which may endanger
peace and tranquility.
18.
We are in quite agreement with the contention of learned Attorney
General that private life, personal thoughts and the individual beliefs of
citizens cannot be allowed to be interfered with. The above discussion
persuades us to hold that powers of passing order of judicial nature have
been conferred upon “Mohtasib,” being an Executive Officer, basically
appointed under the Hisba Bill, to inquire/investigate into the cases of mal-
administration of Government Agencies as well as in respect of the
religious/personal affairs of the individuals and at the same time blocking
the powers of judicial review by the Civil/Criminal Courts, which are under
the protection of the Constitutional law. A right of appeal against a binding
“Hukam-nama” [order] of “Mohtasib” has been made available to an
Officer of agency before the Chief Minister, who being a political Head and
Chief Executive of the Province, ordinarily is not expected to give
independent decision. Strangely, against a binding “Hukam-nama” [order]
of “Mohtasib” issued by him under Section 10 ( b ) ( c ) and ( d ) a citizen
has no remedy and if he fails to obey such “Hukam-nama” [order] of
“Mohtasib,” he is liable to face contempt proceedings. The Hisba Bill to
Reference No.2/2005
29
facilitate the citizens could have defined exhaustively number of terms used
in Section 10 i.e. Islamic values etiquettes and Sharia, exhaustively, which
should have been acceptable to the Muslims of all sects, including Sunnis,
Ahl-e-Tashees, Brailvees, etc. but by using ambiguous terms of these
expressions, citizens belonging to different sects have been led into
absurdity. Admittedly, the Wafaqi Mohtasib has no authority to issue orders
of binding nature, while implementing its findings. Under Article 11(2) of
Presidential Order 1983, the agency can inform “Mohtasib” about the
action taken on his recommendations or the reasons for not complying with
the same and in any one of these situations, no action can be contemplated
against the officer of the agency.
25.
It is important to note that the Federal Mohtasib can only take
action of defiance against an agency, if his recommendations are not
complied with or no reason has been given to his satisfaction for non-
compliance; otherwise he has no power to punish the officer/official of the
agency. Moreover, against the recommendations of the Mohtasib, the
aggrieved person including the complainant as well as the agency is
competent to file a representation before the President, and not before the
Prime Minister qua the Hisba Bill, whereas under Section 12 (4) of Hisba
Bill, representation is maintainable before the Chief Minister. It is not
understandable as to why powers of implementation of orders of Mohtasib,
revolve around the Executive functionaries, instead of conferring such
powers upon the Head of the Province i.e. the Governor. In the case of
Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC 142) it is
held that the Office of Mohtasib has been created to redress the
grievances of the citizens; findings of the “Mohtasib” are of
recommendatory nature and not a judgment or decision; performance of
Reference No.2/2005
30
quasi judicial functions by itself does not confer an authority onto a Court;
whether an action is quasi judicial or purely executive, it depends upon the
interpretation of the rules and the law, which the authority exercises.
Similarly, in Mehram Ali’s case (ibid), it is held that “the Courts/Tribunals
which are manned and run by Executive Authorities, without being under
the control and supervision of the High Court, in terms of Article 203 of the
Constitution, can hardly meet the mandatory requirement of the
Constitution.” Relevant portion therefrom, is reproduced herein below:--
(iii)
That our Constitution recognizes only such specific
Tribunal to share judicial powers with the above Courts,
which have been specifically provided by the Constitution
itself Federal Shariat Court (Chapter 3-A of the
Constitution), Tribunals under Article 212, Election
Tribunals (Article 225). It must follow as a corollary that
any Court or Tribunal which is not founded on any of the
Articles of the Constitution cannot lawfully share judicial
power with the Courts referred to in Articles 175 and 203
of the Constitution.
(iv)
That in view of Article 203 of the Constitution read with
Article 175 thereof the supervision and control over the
subordinate judiciary vests in High Courts, which is
exclusive in nature, comprehensive in extent and effective
in operation.
(v)
That the hallmark of our Constitution is that it envisages
separation of the Judiciary from the Executive (which is
founded on the Islamic Judicial System) in order to
ensure independence of Judiciary and, therefore, any
Court or Tribunal which is not subject to judicial review
and administrative control of the High Court and/or the
Supreme Court does not fit in with the judicial framework
of the Constitution.
(vi)
That the right of “access to justice to all” is a
fundamental right, which right cannot be exercised in the
absence of an independent judiciary providing impartial,
fair and just adjudicatory framework i.e. judicial
hierarchy. The Courts/Tribunals which are manned and
run by executive authorities without being under the
Reference No.2/2005
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control and supervision of the High Court in terms of
Article 203 of the Constitution can hardly meet the
mandatory requirement of the Constitution.
(vii)
That the independence of judiciary is inextricably linked
and connected with the process of appointment of Judges
and the security of their tenure and other terms and
conditions.
26.
Above principles of law have been reiterated in Liaqat Hussain and
Khan Asfand Yar Wali (ibid). Relevant para from the latter judgment is
reproduced herein below :-
“192. Section 9(c) read with Section 24(d) of the NAB
Ordinance vests the power to release any person,
accused of an offence under the NAB Ordinance, in the
Chairman NAB, and that too on the basis of any
conditions as he may think fit are unwarranted. The
powers to set conditions for the release of an accused
from custody or detention is a judicial power which
ought not to be exercised except by a Court which is
established under Article 175 of the Constitution and is
subject to the supervisory jurisdiction of the High Court
in terms of Articles 202 and 203.”
27.
Mr. Khalid Anwar, learned Sr. ASC for Government of NWFP
contended that under Section 14 of the Hisba Bill same powers of contempt
of Court are available to “Mohtasib” which are being exercised by the
Federal Mohtasib under Section 16 of Wafaqi Mohtasib Order, therefore,
the authority to punish for contempt of the “Mohtasib” cannot be
questioned.
28.
In this behalf it may be noted that according to Section 14 of the
Hisba Bill, “Mohtasib” enjoys powers to punish for contempt, a person
who acts in a manner which under any law for the time being in force falls
within the definition of the contempt; provided that any comments, made in
good faith and in the public interest, on any act or on report of the
“Mohtasib” or his employee or representative, shall not be treated as
Reference No.2/2005
32
contempt. Whereas under Article 16(d) of the Wafaqi Mohtasib Order, the
“Mohtasib” has the same powers to punish a person for contempt as the
Supreme Court enjoys for its contempt. Under the Contempt of Court Act,
1976, inter alia, a person is said to be guilty of contempt of Court, who
disobeys or disregards any order, direction or process of a Court, which he
is legally bound to obey. Admittedly, recommendation made by the Wafaqi
Mohtasib does not enjoy the status of an order or direction, as discussed
herein-above, whereas under Section 12 (1) of the Hisba Bill, the
“Mohtasib” seeks the implementation of a “Hukam-nama” [order] of a
binding nature, therefore, its disobedience would call for action of
contempt of Court. Likewise, under Chapter X of PPC, non-compliance
with the recommendations, has not been made punishable as contempt of
Court, but disobedience to the order duly promulgated by public servant
under Section 188 PPC is punishable. In Section 12 of the Hisba Bill,
“Mohtasib” is authorized to issue directives to the competent officer of the
department concerned, to implement his “Hukam-nama” [order] and he
may take up at the same time, such steps, as he considers appropriate for
implementation of “Hukam-nama” [order] as it is of binding nature by its
implication, therefore, in exercise of these powers he can also direct to
proceed against such persons (both officers of the agency and private
citizens) under Section 188 PPC, whereas the Wafaqi Mohtasib in view of
the recommendations made by him cannot issue such type of directions.
Therefore, on account of the distinction between “Hukam-nama” [order]
of a binding nature and recommendations of directory nature, issued by
the “Mohtasib” under the Hisba Bill and Federal Ombudsman, under
Wafaqi Mohtasib Order, respectively, the action initiated for contempt of
Court by the former would be more oppressive. Thus for these reasons, the
Reference No.2/2005
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power of contempt of Court conferred upon the “Mohtasib” under the
Hisba Bill cannot be equated with that of the Federal Ombudsman.
29.
There is yet another interesting aspect of the Hisba Bill namely as
per Section 24, the “Mohtasib” with all his staff including Hisba Force
shall be deemed to be a Public Servant within the meaning of Section 21 of
the Pakistan Penal Code, therefore, in such capacity, after having passed a
binding order in exercise of the powers, conferred upon him, under Section
10 with the aid and assistance of Hisba Police, which is provided to him
according to Section 26 of the Act to conduct his affairs, he himself would
be the strongest functionary to ensure the implementation of his orders,
otherwise, any one either being the officer of the agency or an individual
would face the extreme consequences, as discussed herein before.
30.
By making available Hisba Police to the Mohtasib, another
distinction has been created in between the Hisba Bill and the Wafaqi
Mohtasib Order. The object of strengthening the arms of the “Mohtasib,”
under the Hisba Bill, is nothing but to implement his “Hukam-nama”
[order] per force, if need be.
31.
Learned counsel for the Government of NWFP contended that under
Section 2 (h) of the Hisba Bill, definition of Hisba Police has been
provided, according to which a police force will be deputed to work for the
purposes of this Act. According to him the “Mohtasib” would be exercising
the supervisory role and that “Mohtasib” will not go on roaming missions,
catching hold of an axe, prosecuting and sending people to jail. He stated
that according to his instructions, the Provincial Assembly believes not to
arm any one with a general warrant to go and arrest to whom he pleased. It
was pointed out to learned counsel that such assurances do not seem to be
in consonance with the language as used in the Hisba Bill itself. Besides,
Reference No.2/2005
34
the questions posed by the President in this reference cannot be answered
in view of instructions and assurances, whatsoever that may have been
received by him from the NWFP Government.
32.
On the other hand, learned Attorney General contended that as per
Section 10 in general and Section 23 in particular of Hisba Bill, there is
great assortment of activity and due to which the “Mohtasib” is authorized
to pickup any one and then apply the provisions or put the investigator to
work to pin such provision. According to him “Mohtasib” can virtually
pickup a person to whom he may not like or select a group of unpopular
persons and then look for their offence and that if such powers are allowed
to continue to be exercised by an Executive Authority, there would be a
great apprehension and danger of abuse of his powers.
33.
It may be recalled that before the separation of Judiciary from the
Executive, such powers were used by the Police as well as Executive
Magistrates and in this conduct this Court had observed in the case of
Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341)
that “one of the modes for blocking the road of free access to justice is to
appoint or handover the adjudication of rights and trial of offence in the
hands of the Executive Officers.” Ultimately, it held that “such provision
incorporated in such like legislation shall be declared to be void being in
conflict with Articles 9, 25, 175 and 203 of the Constitution.” Thus,
following the dictum laid down therein, we are of the opinion that the
“Mohtasib” under Hisba Bill has been authorized to issue binding
“Hukam-nama” [order] to implement the result of his investigation to the
officer of the agency, relating to the Government affairs as well as to
individuals in respect of their personal religious rights and due to non-
compliance of the same, they would have to face penal consequences,
Reference No.2/2005
35
details of which have been mentioned herein before. Thus, an Executive
Authority, by issuing judicial orders of binding nature violates the
fundamental right of the citizens enshrined in Articles 9, 25 read with
Article 175 and 203 of the Constitution. The “Mohtasib” had not been
appointed in accordance with the provision of Article 175 (1) and (2) of the
Constitution, therefore, any order of penal nature passed by him against an
agency or individual, would be in violation of the right of access to justice
and would also tantamount to setting up a parallel judicial system,
recognition whereof is not possible within the present constitutional
judicial system prevailing in the country.
34.
Learned Attorney General contended that the duty of Amar-bil-
Maroof and Nahi-unal-Munkir, however, must be performed by the State in
accordance with the Constitutional norms and the fundamental rights of the
citizens, thus there is no room for the creation of an office of Hisba with
penal powers of “Mohtasib” to implement his “Hukam-nama” [order].
The “Mohtasib” cannot be vested with the authority to decide in his
discretion, whether an act is inconsistent with Islamic morals and etiquettes
or not. To substantiate his arguments he referred to :---
1.
“A brief on the Hisba Bill” by Javed Ahmed Ghamedi.
2.
“Commanding Right and forbidding wrong" by Michael Cook.
(relevant at pages 186, 187, 474, 490, 491, 509, 510, 522-524)
3.
“Islami Riyasat Main Mohtasib Ka Kirdar” by Dr. M.S. Naz.
(relevant at pages 212, 279).
4.
“Three Year Report” of Council of Islamic Ideology (1974-1977)
(relevant pages 220, 222, 224, 225, 230, 231, 233, 236, 238, 242).
35.
On the other hand learned counsel for the NWFP Government
contended that the Hisba Bill had focused mainly on mal-administration in
government department/agency, and incidentally in the field of personal
conduct on the basis of what is contained in the preamble of the
Reference No.2/2005
36
Constitution of Pakistan. He further stated that Islam is a religion, both for
the individual and the society as a whole, being a complete “Deen” and a
complete code of life. Therefore, every law promulgated for an individual
or for Government Agencies must be in accordance with Islam. He read
the definition of “Amar-bil-Maroof-wa-Nahi-unal-Munkir,” under Section
2(b) and 2 (k) of the Hisba Bill and stated that as per this definition no
powers are being conferred upon the “Mohtasib” except that as per the
Quranic obligation, he has to fulfil the obligation of enjoining telling
people to do the good and forbid wrong, and to achieve the object, Hisba
Police has been deputed with the “Mohtasib” under the law to go and
enquire, therefore, the role of “Mohtasib” is “supervisory enquiry role to
ask question.” He read out different parts of the Hisba Bill to substantiate
that the Provincial Assembly has not promulgated it to violate the
fundamental rights of the individuals and stated that in view of the simple
provisions of the Bill this Court is not bound to answer the reference in
affirmative.
36.
Islamic jurists are unanimous on the point that except “Sallat” and
“Zakat” no other religious obligation stipulated by Islam can be enforced
by the State. There is also unanimity that the “Zakat” obligation was
seriously enforced through State coercion by Hazrat Abu Bakar and for
“Sallat” the only way is through ‘Taleem, Tableegh, Talkeen and
Targheeb.’ Article 2 of the Constitution provides that Islam shall be the
State religion of Pakistan. Article 227 of the Constitution stipulates that all
existing laws shall be brought in conformity with the Injunctions of Islam as
laid down in Holly Quran and Sunnah and no law shall be enacted, which
is repugnant to such injunctions. Explanation attached thereto, being very
important lays down that in the application of this clause to the personal
Reference No.2/2005
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law of any Muslim sect, the expression ‘Quran and Sunnah’ shall mean, the
‘Quran and Sunnah’ as interpreted by that sect. Its sub-Article (2) says that
the effect shall be given to the provisions of clause (1) only in the manner
provided in that part and according to sub-Article (3) nothing in that part
shall affect the personal laws of non-Muslim citizens or their status as
citizens.
37.
The explanation to Article 227 of the Constitution defining the
expression ‘Quran and Sunnah’ was added by Constitution (Third
Amendment) Order, 1980 (P.O. 14 of 1980). Addition of this explanation
was considered necessary as there are more than one sect in Islam like
Sunnis and Ahl-e-Tashee, etc. It is important to note that there had been
remarkable differences between various schools of thought even on
common interpretation, like what is the definition of Muslim. Learned
Attorney General had referred to report of the Court of Enquiry,
constituted under Punjab Act (II) 1954, to inquire into the Punjab
Disturbances of 1953 and stated that Ulemas’ had no unanimity before the
Court of inquiry on the definition of ‘Muslim,’ because, everyone being a
Muslim has his own interpretation of Quran and Sunnah. Therefore,
Mohtasib, under the Hisba Bill cannot be empowered to determine in his
discretion whether any act is consistent with Islamic moral values and
etiquettes or not. A perusal of Section 10 clauses (Bey )(Jeem) and (Dal),
shows that the “Mohtasib” has been authorized to protect/watch the
Islamic values and etiquettes at the provincial level; watch the media
established by Government or working under the administrative control of
the Government to ensure that its publications are useful to the purpose of
Islamic values; forbid persons, agencies and authorities working under the
administrative control of Government to act against Sharia and to guide
Reference No.2/2005
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them to good governance. Similarly, his powers and duties have been
extended by conferring upon him special powers, under Section 23 of the
Hisba Bill, which includes (1) to monitor adherence of moral values of
Islam at public places, (2) to discourage ‘Tabdhir’ or extravagance,
particularly, at the time of marriages and other family functions; (3) to
follow code of Islam in giving dowry; (5) to monitor adherence of Islamic
values and its respect and regard at the times of ‘Iftar’ and ‘Traveeh’;
(6) to discourage entertainment shows and business transactions at the
times of ‘Eidain’ and ‘Jumma'hs’ prayers around mosque, where such
prayers are being held; (7) to remove causes of dereliction in performance
and proper arrangement of ‘Eidain’ and ‘Jumm’ah’ prayers; (12) to
observe decorum of Islam at the time of ‘Azan’ and ‘Fard’ prayer; (14) to
discourage un-Islamic and inhuman customs; and (27) to perform any
other function or functions, which the Provincial Mohtasib determines from
time to time in consultation with the Advisory Council. Defiance (Khilaf-
warzi) of the order of the Mohtasib, in the performance of his duties under
Section 23 of the Bill has been made a non-cognizable offence punishable
with an imprisonment, for a term up to six months and a fine up to
Rs.2000/- as per Section 28 of the Hisba Bill and cognizance will be taken
on the complaint of “Mohtasib” or his authorized representative. No Court
shall take cognizance of an offence under this Section except on a
complaint in writing to “Mohtasib” or its authorized representative and as
per sub-Section (2), the offence under Section (1) shall be tried by the
Court in accordance with Code of Criminal Procedure, 1898 and the order
shall be appealable. It is quite interesting to note that in respect of most of
the personal rights of the individual Muslims, an offence has been created,
if he/they had done “Khilaf-warzi” of the order passed by him.
Reference No.2/2005
39
38.
Learned Attorney General contended that the provisions of Sections
10, 12, 23 and 28 of the Hisba Bill are vague in nature and particularly,
being penal, are liable to be declared un-constitutional. He further stated
that such penal provisions must explicitly define the conduct of a criminal
and unless it clearly and categorically defines its boundaries, it would be
treated as an arbitrary enactment, because the citizens against whom a
penal action is proposed, has no notice that on account of what type of
conduct he is being charged and has been held responsible for penal
consequences. Reference is made to Mehram Ali (ibid), Jamat-i-Islami
Pakistan v. Federation of Pakistan (PLD 2000 SC 111), Kartar Singh v.
State of Punjab ([1994] 3 SCC 569) Dick Gragory v. City of Chicago [22
L. Ed. 2d 134], Margarete Papachristou v. City of Jacksonville [31 L.
Ed. 2d 110].
39.
He further contended that the State can control the fundamental
rights by imposing reasonable restriction, in order to survive the test of
Constitutional scrutiny, as it has been held in the case of Saiyyid Abul A’la
Maudoodi v. Government of West Pakistan (PLD 1964 SC 673),
Universal Tobacco Co. v. Pakistan Tobacco Board (1998 CLC 1666),
Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193), R.
v. Chaulk [1990] 3 SCR 1303 (Canada)], Article 26 and the Employment
Equality Bill 1996 [1997] 2 IR 321], Article 26 and the Planning and
Development Bill 1999 [2000 (2) IR 321], Treatise on Constitutional Law
by Rotunda [3rd Edition Vol. IV 263-264], Coates v. Cincinnati [29 L.Ed.
2d 214], Kunz v. New York [95 L. Ed. 280].
40.
Mr. Khalid Anwar, learned counsel for Government of NWFP
contended:-
a)
That the “Mohtasib” under the ‘Hisba Bill’ is
being appointed keeping in view the concept of
Reference No.2/2005
40
accountability,
therefore,
office
of
the
“Mohtasib” is indeed integral to Islam.
He stated that the first “Mohtasib” was the Holy
Prophet (PBUH) himself. He quoted that “the
Holy Prophet (PBUH) checked the market and
found that in a heap of corn, the wet corn had
been placed under the dry corn; he said “he who
deceives is not from me i.e. my class.”
b)
That this reference has been mainly filed, as per
its contents, because in ‘Hisba Bill’ NWFP
Assembly has not taken into consideration the
recommendations of the CII. According to him a
perusal of the report indicates that no
recommendations were made in accordance with
‘Sharia.’
c)
That the Hisba Bill is strictly as per the final
report of CII, published in 1996 and this report
has not been brought before the Court by the
Federation intentionally.
d)
That the Hisba Bill is not unconstitutional,
vague and is not a penal law. According to him,
it does not suggest any criminal action and the
powers have only been given to “Mohtasib” to
educate the general public to spend their lives
according to injunction of Islam and he has not
been authorized to send a person into jail.
However, he admitted that only those citizens,
who commit defiance of the “Mohtasib” order
will be liable to prosecution under Section 28 of
the Hisba Bill. He stressed that simple
disobedience would not make a citizen liable to
be punished.
e)
That the framers of Hisba Bill have not acted
unconstitutionally by leaving a number of key
Reference No.2/2005
41
concepts undefined, particularly as these terms
are incapable of precise definition. According
to him some degree of vagueness if inevitable,
particularly with respect to Islamic issues, as
Islam is like a vast ocean; those standing on its
shore cannot even guess its depth and due to this
reason,
the
framers
of
the
Constitution
deliberately did not even define Muslim
exhaustively.
f)
That in the modern countries, like United
Kingdom, general laws are being framed for
anti-social behaviour. He referred to Anti-Social
Behviour Order Law.
g)
That the Hisba Bill is not an unreasonable
restriction on fundamental rights. Legislature
can make laws, which can place restriction upon
personal matters. He quoted example of Muslim
Family Laws Ordinance 1961, which controls
the right of second marriage of a Muslim.
h)
That the Hisba Bill is not discriminatory because
“Mohtasib” will only decide issues according to
the belief of that particular sect. He quoted an
example that if “Mohtasib” goes and inquires
from a particular individual as to why he is not
saying his Zohar prayer; that person may then
respond by saying that he belongs to Fiqa Jafria
and he will say his “Zoharain” prayer.
i)
That the “Mohtasib” will not be exercising
judicial powers as he will only seek to enforce
laws already on the books. For example if an
FIR is not being registered, a citizen can
approach to the “Mohtasib” who will then direct
the SHO to register the FIR. “Mohtasib” can
Reference No.2/2005
42
only ask Police to act expeditiously and to fulfil
its duties; it cannot order them to arrest people.
j)
That the “Mohtasib” has no power with regard
to private media organizations.
41.
First of all it may be noted that the recommendations of CII, dated
6th September 2004, were compiled/prepared by one of the members, i.e.
Justice (R) Haziq-ul-Khairi. This report was considered by the Council in
its 154th meeting, held on 12th/13th August 2004, and finalized after
thorough consideration, wherein CII strongly advised against the
enactment of the proposed legislation. In the report, it was also notified
that the draft Hisba Bill has violated a number of constitutional provisions
and was capable of being exploited for political ends. Reference in
particular is required to be made to the following para of the above
report:----
The reference of above para is sufficient to counter the arguments of
learned counsel about non-expressing of opinion by the CII in accordance
with Article 230 of the Constitution.
42.
It is surprising to note that learned counsel for Government of
NWFP read some portion from previous report including the final report of
1996 of CII, wherein general recommendations on proposed draft of
legislation were made and finally in para- 30, the following five measures
were suggested.
Reference No.2/2005
43
i)
The institution of Hisba will be established on the pattern
of Ombudsman by an Act of Parliament or by the order of
the President.
ii)
The laws relating to the matters and functions under the
jurisdiction of the Hisba will be properly amended to
facilitate the working of this Institution.
iii)
For the education and guidance of the officials,
appointed for the purpose of Hisba, a comprehensive
guide book must be compiled and published, preferably
by the Islamic Research Institution.
iv)
For training courses for the officials to be appointed for
this purpose, must be planned and conducted preferably
by the Sharia Academy International Islamic University.
v)
Courses on the subject of Hasab must be included in
Islamic Studies, Law Colleges, Political Science and
Civics syllabi and curricula.
43.
It is important to note that in 2001, the Ministry of Religious Affairs
referred to CII a proposed “Draft Law for the Performance of ‘Sallat’,
Amar-bil-Maroof-wa-Nahi-unal-Munkir,
(Establishment
of
Hisba),
Ordinance 2000. This draft was examined by CII in its Annual Report
2000-2001 and submitted its opinion as follows:--
i)
The Council recommended that the difference of
doctrine among the various Muslim Schools of thoughts
must be recognized and the views of one school must not
be imposed on others.
ii)
Hisba Officials must work on voluntary basis.
iii)
Before appointment the Hisba Officials must be properly
trained. Necessary training courses must be initiated for
this purpose.
iv)
The number of Ulemas’ in the Hisba Board must be
increased in order to ensure representations of the
various schools of thoughts.
v)
Balance of power and authority among the various
officials must be clearly maintained.
vi)
The law should be clear about the offences and
punishments.
vii)
The Ordinance is not clear about Hisba Officials; in
some clauses they are defined as volunteers, not
receiving any salaries and in others they are designated
as public officers.
The above opinion clearly suggests that emphases of the CII was to make
the law non-sectarian, free from ambiguities and conflict with other laws.
Similarly, in the report dated 6th September 2004, the CII again stressed,
Reference No.2/2005
44
impliedly and expressly on the clarity, non-sectarian and non-conflictual
nature of law on Hisba. The NWFP Government instead of showing haste
might have studied in depth, all the reports of CII before moving the Bill in
Assembly. However, the arguments raised by learned counsel for
Government of NWFP that CII in its report dated 6th September 2004 had
not made recommendations in terms of Article 230 of the Constitution,
seems to be unfounded in view of the above discussion.
44.
A perusal of clauses of Section 23, reproduced herein above, of the
Hisba Bill, clearly suggest that the Bill is a penal statute. Language
employed therein indicates that if citizens disobey the order of the
Mohtasib, particularly passed with reference to the clauses of Section 23,
noted herein-above, he/they will make him/themselves liable for
prosecution.
45.
It is important to note that in English translation, word ‘defiance’
has been used in Section 28 of Hisba Bill, whereas in its Urdu text, the
word ‘Khilaf-warzi” i.e. disobedience has been used. As per “Feroze Sons
Urdu-English Dictionary” (page 333) “Khilaf-warzi karna” means ‘to
oppose,’ ‘to disobey’ and ‘to misbehave.’ Thus, reading the provisions of
Section 10 clauses (b),(c) and (d) and Section 23 clauses (1), (2), (3), (5),
(6), (7), (12), (14), particularly (27), disobedience (Khilaf-warzi) of the
order of “Mohtasib” by a citizen entails penal consequences. Admittedly, in
Section 10 (b), (c) and (d), expressions ‘Islamic values and etiquettes’, and
‘Sharia’ have been used, but without any definition. Similarly, ‘Khilaf-
warzi’ of the order of Mohtasib, regarding clauses incorporated in Section
23, no definition has been provided. Likewise, any other issue, which would
fall within the realm of ‘Amar-bil-Maroof-wa-Nahi-unal-Munkir’ would be
Reference No.2/2005
45
dealt with under their open ended definitions as per Section 2(b) and 2(k)
of Hisba Bill.
46.
Essentially, discretionary powers have been conferred upon
“Mohtasib” to create a new offence with the consultation of Provincial
Advisory Council or whatever the case may be, in exercise of powers under
Section 23(27) of the Hisba Bill. The “Mohtasib” being an Executive
Officer under Hisba Bill has been authorized to lodge a report before the
Court, either himself or through his authorized representative against the
citizen, who is guilty of “Khilaf-warzi” (disobedience) of his orders, passed
under any of the clauses of Section 23 of the Hisba Bill, referred to herein
before. In respect of some of the items noted in Section 23 of the Hisba Bill,
substantive laws already exist which have been framed either by the
Federation of Pakistan or by Provincial Governments, detail of which is
mentioned herein below:--
Laws already in field:
Grounds of challenge
Section
23.
Special
Powers of Mohtasib.—
Without prejudice to the
powers
conferred
by
section 10, and along
with the duties of amar
bil maroof and nahi unal
munkir
the
Mohtasib
shall have the following
powers:
-
-
(i) To monitor adherence
of moral values of Islam
at public places;
Pakistan Penal Code,
1860 (Sections 295-B,
295-C, 296, 298, 298-A
& 298-B).
Prevention of Gambling
Act, 1977.
NWFP Prevention of
Gambling Ordinance,
1978.
West Pakistan
Prohibition of Opium
Smoking Ordinance,
1960.
•
Freedom of Assembly
•
Vague
•
Overbroad
•
No definite legislative
guidelines
Reference No.2/2005
46
Ehteram-e-Ramazan
Ordinance, 1981.
(ii)
To
discourage
exhibition
of
extravagance,
particularly at the time of
marriages
and
other
family functions;
NWFP (Prohibition of
Firing and use of
Explosive Substance at
Marriages and other
Ceremonies) Act, 1988.
Marriage Functions
(Prohibition of
Ostentatious Display
and Wasteful Expenses)
Ordinance 2000.
•
Privacy
•
Freedom of Assembly
•
Vague
(iii) To follow code of
Islam in giving dowry;
Dowry and Bridal Gifts
(Restriction) Act, 1976.
•
Privacy
•
Vague
•
Over broad
•
Suffers from excessive
delegation
(v) To monitor adherence
of Islamic values and its
respect and regard at the
times of iftar and taravih;
Ehteram-e-Ramazan
Ordinance, 1981.
•
Freedom of religion
•
Excessive
(vi)To
discourage
entertainment shows and
business transactions at
the time of Eidain and
Jummah prayers around
mosques
where
such
prayers are being held;
-
•
Freedom of trade and
business
•
Vague
•
Suffers from excessive
delegation
(vii) To remove causes of
dereliction
in
performance and proper
arrangement of Eidain
and Jummah prayers;
-
•
Freedom of religion
•
Lacks specificity
•
Lacks proportion
(xii) To observe decorum
of Islam at the time of
Azan and Fard prayers;
-
•
Freedom of Assembly
•
Freedom of religion
•
Vague
•
Excessive
•
Suffers from excessive
delegation
(xiv) To discourage un-
Islamic
and
inhuman
customs;
Code of Criminal
Procedure, 1898
(Sections 156A, 156B,
401)
Pakistan Penal Code
1860 (Sections 310,
310A)
•
Denial of due process
•
Violative of right to life,
privacy, trade, business
and profession, free
speech, religion and
equality.
•
Vague
•
Overbroad
•
Suffers from excessive
delegation
•
Disproportionate
(xxvii) To perform any
other functions which the
Provincial
Mohtasib
determines from time to
-
•
Vague
•
Overbroad
•
Suffers from excessive
delegation
Reference No.2/2005
47
time in consultation with
the Advisory Council;
47.
The perusal of above comparative table suggests that a citizen shall
not be prosecuted because of non-violation of the codified penal offences
but on account of ‘Khilaf-warzi’ of the order of “Mohtasib,” although with
reference to their respective schools of thoughts, they are rightly following
the Islamic values and Sharia. Besides, in respect of some of the provisions
of the Constitution, they have their own personal laws, according to
Muslim Sharia but the “Mohtasib” by curtailing their such rights, shall
interfere in their personal liberties as well like under Section 23 clause (1),
every Muslim according to his own school of thoughts, has his own moral
values.
48.
Likewise, the “Mohtasib” would have direct interference/access in
the family functions in the garb of discouraging ‘Tabdhir’ or extravagance
at the time of marriages and other family functions. Such exercise of the
powers would not only interfere in their personal life, freedom of assembly,
liberty, dignity and privacy, which is strictly prohibited in Islam. In this
behalf reference may be made to the following passage from
“Commanding Right and Forbidding Wrong in the Islamic Thought” by
Michael Cook :---
“Less directly related to the spectrum of views set out
above is concern, with what we would call respect for
privacy. There is no single category that corresponds to
this in Islamic terms; rather, there are three basic,
mutually supporting principles at work here. The first is
the prohibition of spying and prying; this is enshrined in
Q49:12 The second is the duty not to divulge what would
dishonour a Muslim; this is laid down in a Prophetic
tradition. The third is the sanctity of a home, which rests
on Koranic stipulations regarding the way one should
enter the homes of others (Q2:189, Q24:27). All these
Reference No.2/2005
48
values are strongly reflected in the materials, we are
concerned in this chapter.
The prohibition of spying comes into play when
Ibn Masud is asked about a man whose beard drips with
wine, and responds that God has forbidden spying
(Tajassus); we can take action, he says, only if the offence
is out in the open (in yazhar lana shay), which is perhaps
to say that we must actually see the man drinking.
The duty not to divulge finds expression in an
anecdote about the companion, Uqba ibn Amir al-Juhani
(d 58/677f), who settled in Egypt and was Muawiya ‘s
Governor there in 44-7/665-7. His Secretary, Dukhayn
al-Hajri, explained to him that he had neighbours who
drank wine and proposed to summon the police (shurat)
to arrest them. Uqba told him not to do this, but rather to
counsel and threaten them (verbally). He did so, but to no
effect; so he again proposed to call in the Police. Uqba
once more told him not to, and quoted a tradition he had
heard from the Prophet (PBUH): who ever keeps hidden
what would disgrace a believer (man stara mu’minan), it
is as though he had restored a buried baby girl (Mawuda)
to life from her tomb. The sanctity of the home is at the
center of an exchange which takes place in Basra
between a certain Abu l-Rabi al Sufi and Sufyan al-
Thawri regarding the activities of what I take to be the
officially appointed censors (Mohtasiba): ABU L-RABI:
Abu Abdallah! when I’ m with these censors, we go into
the homes of these vile people, (Khabithin) clambering
over the walls. SUFYAN: Don’t they have door? ABU L-
RABI: Well yes, but we rush in so they don’t escape.
SUFYAN condemns this misconduct in no uncertain
terms, and one of those present unkindly asks: Who let
him in here. …………”
49.
For discouraging exhibition of extravagance at the time of marriage
and other family functions, there are already two laws, as it has been
pointed out in the above comparative chart. Out of them, one is Federal
and the other is Provincial. This Court, in the case of Muhammad
Siddique v. Government of Pakistan (PLD 2005 SC 1), had maintained
Marriage Functions (Prohibition of Ostentatious Displays and Wasteful
Reference No.2/2005
49
Expenses) Ordinance 2000 (II of 2000). As per this Ordinance, lawgivers
had defined criminality for violation of the relevant provisions of the
Ordinance and no one can be prosecuted unless the case of such individual
falls within the defined boundaries of the law. It being explicit, elaborate
and well defined, is in force throughout the country including the NWFP.
Thus, it is held that any action taken in this behalf by the Mohtasib, would
violate the provisions of Articles 9, 14 and 16 of the Constitution.
50.
For ‘Khilaf-warzi’ (disobedience) of the order of Mohtasib in not
following the code of Islam in giving dowry under Section 23 (3) of the
Hisba Bill, a citizen can be prosecuted, though, already there are defined
provisions of law on this subject, details of which have been given in the
above chart. The access of “Mohtasib” in such private affairs of an
individual, without giving him notice or defining the boundaries of the
violation of such penal provisions, would tantamount to denying liberty,
dignity and privacy of fundamental rights enshrined under Articles 9 and
14 of the Constitution by means of a vague, overbroad and excessive
legislation because a citizen will not be liable for violating the laws
already on the subject but for doing “Khilaf-warzi” (defiance) of
Mohtasib’s order.
51.
A citizen can be held liable for “Khilaf-warzi” (defiance) of the
orders of “Mohtasib” purportedly passed by him during watching Islamic
values in his own perspective at the time of ‘Iftar’ and ‘Traveeh’ within
mischief of Section 23(5) of Hisba Bill. A perusal of above table would
show that two laws are already available on the subject which lay down
parameters for taking action against a citizen, who violates the law out of
any of them but the Mohtasib by passing any “Hukam-nana” [order] can
hold any citizen for ‘Khilaf-warzi” i.e. disobedience of the same. Said
Reference No.2/2005
50
provision of law is not only vague but also violates right of freedom of
religion of citizen under Article 20. It is a fact that different sects of
Muslims have got separate values and etiquettes for the “Ehteram-e-
Ramzan,” inasmuch as, timing of ‘Iftar’ among ‘Sunnis’ and ‘Ahl-e-
Tashee’ are different from each other. Similarly, there is no unanimity that
what would be the number of ‘Rakats’ of ‘Traveehs’ and the interference by
the “Mohtasib” would deny right guaranteed to the citizen under Article 20
of the Constitution on the basis of excessive delegation of powers
52.
Under Section 23 (6) of the Hisba Bill, “Mohtasib” has been
allowed to discourage entertainment shows and business transactions at
the time of Eid prayer and Jumma prayer around Eidgah and Jamaa
Mosques. In NWFP there are provisions of law on this subject incorporated
in NWFP Local Government Ordinance 2001. The business of a person
cannot be controlled/curtailed except by imposing reasonable restrictions
in accordance with law, because it is a matter of common observance that
on the occasion of prayers of Eidain and Jumma, people do small
businesses like selling balloons, sweets etc, to earn their livelihood,
particularly they carry on their business when such congregations are over
and people start returning home and this practice is going on since
centuries. Curtailment of rights of citizens in such manner would negate
right of freedom of trade and business according to Article 18 of the
Constitution, by means of a vague legislation which suffers from excessive
delegation.
53.
Under Section 23 (7) “Mohtasib” is authorized to remove causes of
dereliction in performance and proper arrangements of Eidain and Jumma
prayers. Offering of prayer or “Sallat,” again is a personal obligation on
an individual being the Haqook Allah. Religiously the “Mohtasib” is not
Reference No.2/2005
51
authorized to check negligence/disregard of a person who has abandoned
“Sallat” for one or the other reason. Allowing such interference by
Mohtasib would deny the right of freedom to profess religion to an
individual. The CII in 1978-79 had extensively considered this issue and
opinioned that as far as “Fard Namaz” is concerned, if it is not offered,
there should not be any penal consequences. The following eminent Islamic
jurists have expressed their thoughts in the above report of CII:-
Mr. Justice Muhammad Gul:- There can be no gain
saying the fact that ( ) [Sallat] is the foremost among
the injunctions of Islam and yet the fact remains that the
Holy Quran has not prescribed any punishment for its non-
observance although it is replete with the stern warnings
about the chastisement both here and herein after,
resulting from its non-observance. This is in sharp contrast
with the punishment prescribed for crimes, directly
affecting the orderly existence of society e.g. murder,
causing
hurt,
adultery,
fornication,
perjury,
etc.
Historically too, it is not controverted that the Holy
Prophet (PBUH) the first Four Caliphs of Islam, while they
exhorted the faithfuls to be steadfast in the observance of
( ) [Sallat] its non-observance was not made a penal
offence. Even after the Islamic State was firmly established
and its boundaries had spread far and wide: any laxity or
failure in observance of ( ) [Sallat] was not made a
penal offence; although it was never doubted that it was
quintessence of Islam.
Mr.Justice (Rtd.) Kadir Nawaz Awan:- It is true that
Namaz is one of the five pillars: It is also true that many
Ayats in Qur’an Pak refer to its strict observance and
finally that we Muslims do not offer Namaz regularly.
Quran Sharif does not lay down any punishment for its
non-performance. Accordingly, no authority can lay down
any kind of punishment for its non-performance as it
amounts to sin and not an offence.
Reference No.2/2005
52
Mr. Justice Muhammad Afzal Cheema:- I have not
been able to endorse the proposed legislation of the NWFP
Government for converting into an offence an act of
omission to offer five time prayers. The object, namely to
ensure regular offering of prayers is no doubt very salutary
but the proposed means of achievement are wholly
unwarranted and impracticable. There can be hardly any
doubt as to the physical and spiritual benefit of Namaz on
which great emphasise has been laid in the Holy Qur’an,
the offering of prayers is a personal affair between man
and his creator. If offered conscientiously it changes the
whole outlook of a man and is perhaps the best kind of
worship aimed at self reform and purification which is a
life long process.
The best mode of inculcation of Namaz is by
training, persuasion and practical demonstration which
should start from childhood and should be followed up into
schools and colleges.
Dr. Moinuddin Baqai:- As other members of the Council
of Islamic Ideology have opined, Quran and Sunnah and
Islamic jurisprudence do not specify non-observance of
prayer as an offence, for which an Islamic State should
specify worldly punishment. Punishment is provided for
offence which violates Haquk-ul-Ibad ( ) or which
results in the disruption of social order.
Dr. Miss. Kaniz Yousuf:-- I am in agreement with the
opinion expressed by Mr. Justice Muhammad Gul on the
subject. Islam enjoins two types of obligations upon
Muslims. Haquk Allah and Haquq al-Ibad. Offering of
prayers is Haquk Allah and only Allah can punish in this
case. No punishment is imposed on Muslim for laxity or
failure in the observance of ‘Salat’ in terms of
Fiqhah………………………………...
Dr. Prof. Shamim Akhtar:--- Neither in the Qur’an nor
in the hadith has any punishment been sanctioned against
non-observance of prayers as in case of penal offences
such as theft, murder, adultery, fornication, etc. To my
Reference No.2/2005
53
knowledge there is no evidence in the early history of Islam
to the effect that the same has been penalized by law or fait
either by the Prophet (PBUH) or by the pious Caliphs or
their successors. This is not to say however, that no odium
was attached to the one who failed to observe prayers……
……………………………………………………………………
………There developed in Islamic State the institution of
Mohtasib, who was entrusted with the enforcement of
“Maruf” (law) and prevention of “Munkir” (illegality). He
took administrative action to facilitate public welfare and
to curb the vices and social evils. The official duties of
Mohtasib were varied, ranging from the checking of
weights and measures, regulation of traffic on the ferries,
demolition of dilapidated buildings, to prevention of
cruelty to animals and of undue chastisement of students by
teachers etc. He could also order the holding of
congregational prayer and admonish those who habitually
abstained from prayers but was not permitted to interfere
with the beliefs and rituals of Muslims belonging to
denomination other than his own.
It may be pointed out that these matters fell outside
the jurisdiction of judicial officers, Qazis and was the
responsibility
of
Muhtasib,
who
treated
them
as
administrative problems. As for the purposed legislation,
while it is laudable to make sustained and practical efforts
to induce the Muslims to observe prayers one fails to
understand why would non-observance be declared a penal
offence when the Quran and Sunnah and precedents of
pious Caliphate have not done so.
………….In my opinion, as by force making people to pray
would not serve such of its purpose, it is not advisable to
make this a cognizable offence and to prescribe any
punishment by legislation for this purpose. All that we can
do is to adopt measures of persuasion and exhortation for
those who were not regular in their prayers. We may
exercise moral pressure, arrange public lectures and
publish light literature to preach and propagate the
significance and role of prayer and its importance in the
Reference No.2/2005
54
life of an individual and in Muslim Society. We may utilize
the mass media for this purpose.
Maulana Ehtesham-ul-Haq Thanvi:---
54.
In view of above consensus, the arguments of learned counsel for
Government of NWFP, become redundant that Hisba Bill is in accordance
with Islam. If the proposed legislation is accepted and is made into law,
then a citizen who is held responsible for causing dereliction shall be liable
to punishment for six months on the “Hukam-nama” [order] of
“Mohtasib” by a Magistrate under Section 28 of the Hisba Bill. Besides,
there is no provision of the Sharia, which mandates for the imposition of
penalties for vague offences. However, if any provision of Sharia has
defined relevant offence, like Hadood laws, penalties can be imposed.
Reference No.2/2005
55
55.
The scheme of various sub-Sections of Section 23 indicates that the
“Mohtasib” is empowered to straightaway lodge complaints either himself
or through his representative to the Magistrate for ‘Khilaf-warzi’ of his
order, without providing opportunity of hearing, against a citizen, despite
that this Court has held in a number of cases that “the principles of the
natural justice are in accordance with Islam and cannot be avoided.” [see
Pakistan Vs. Public at Large (PLD 1987 SC 304) The Province of Punjab v. National
Industrial Cooperative Credit Corporation (2000 SCMR 567)].
56.
Learned counsel for NWFP contended that legislature can make
laws which intrude upon personal matters of citizens as under Muslim
Family Laws Ordinance, 1961, right to a second marriage has been
controlled.
57.
Argument raised by him seems to be unfounded. First of all it may be
seen that learned Attorney General had not stated that no law can be made
which impinges upon a private domain but his argument was that no
unreasonable and vague law can be made. Besides, if in any specific law,
private rights of the individual have been curtailed, such law has not been
upheld by the Court if it violates any Constitutional provision. It means that
any law dealing in any manner with fundamental rights must be upheld,
irrespective of the fact that it is vague and overbroad and suffers from
excessive delegation.
58.
“Mohtasib” under Section 23(12) of the Hisba Bill, in exercise of
additional powers conferred upon him has been empowered to observe
decorum of Islam at the time of “Azan” and “Fard” prayer. A Muslim,
having different school of thought from that of “Mohtasib” cannot be
compelled to observe such decorum of Islam at the time of “Azan” and
“Fard” prayer, which are not recognized by his faith, therefore,
interference by the Mohtasib in such personal religious affairs of an
Reference No.2/2005
56
individual would tantamount to denying a fundamental right of freedom of
Assembly and freedom to profess religion and to manage religious
institution. The Hisba Bill has no detail of the manner, in which
“Mohtasib” would observe decorum of Islam of the Muslim, belonging to
different school of thought, therefore, this provision is not only vague but
had conferred excess jurisdiction upon the “Mohtasib” and “Khilaf-warzi”
(defiance) of any of his such instructions would call for prosecution of the
individual. As majority of the provisions of Hisba Bill, particularly under
discussion, suffer from vagueness, therefore, such like provision have
always been termed unconstitutional being violative of the due process.
Learned counsel for Government of NWFP stated that “Mohtasib” will
only decide the issue according to the belief of that particular sect. It means
that for deciding any issue, “Mohtasib” must possess accurate,
comprehensive knowledge in respect of all the sects. A perusal of Section 3
of Hisba Bill indicates that for his appointment no condition of having
knowledge of all sects of Islam has been made as his qualification. It may
be noted that as it has been discussed above, saying of “prayers and
observing decorum of Islam at the time of “Azan” and “Fard Namaz”
cannot be regulated by means of a legislation because if non-offering of the
prayers [Sallat] by a Muslim cannot be made a penal offence, then how it is
possible that due to non-observing decorum of Islam at the time of Azan
and Fard prayer, recommendation can be made for the prosecution of such
citizen, who had made “Khilaf-warzi” (disobedience) of the order of
“Mohtasib” in not observing decorum of Islam at the time of Azan and
Fard prayer. Therefore, for such reason, clause 23 (12) of Hisba Bill
cannot impose unreasonable restriction on the right of freedom of assembly
and religion. It may not be out of context to note at this stage that the State
Reference No.2/2005
57
does not regulate the private belief of individuals, but if the exercise of such
private beliefs, in terms of the rights guaranteed under the constitution,
causes the breach of the public order, only then the State comes forward to
regulate such personal beliefs. In Jibendra Kishore Achharyya
Chowdhury v. The Province of East Pakistan (PLD 1957 SC 9), it is
observed as follows:---
“………… In the light of these rules of
construction of constitutional instruments it
seems to me that what Article 18 means is that
every citizen has the right to profess, practice
and propagate his religion and every sect of a
religious denomination has the right to
establish, maintain and manage its religious
institutions, though the law may regulate the
manner in which religion is to be professed,
practiced
and
propagated
and
religious
institutions are to be established, maintained
and managed. The words “the right to establish,
subject to law, religious institutions” cannot and
do not mean that such institutions may be
abolished altogether by the law. Speaking of the
right of political franchise, Chief Justice Shaw
of the Supreme Judicial Court of Massachusetts
remarked in Copen v. Foster (12 Pick 485-
488).
“That in all cases where the
Constitution has conferred a
political right or privilege, and
where the Constitution has not
particularly
designated
the
manner in which that right is to
be exercised, it is clearly within
the just and constitutional limits
of the legislative power, to
adopt
any
reasonable
and
uniform regulations, in regard
to the time and mode of
exercising that rights which are
designed to secure and facilitate
the exercise of such right, in a
prompt, orderly and convenient
manner ….. Nevertheless such a
construction would afford no
warrant for such an exercise of
legislative power, as under the
pretence
and
colour
of
regulating, should subvert or
Reference No.2/2005
58
injuriously restrain the right
itself.”
This principle is, in my opinion, fully applicable
to the interpretation of the extent of religious
freedom recognized by Article 18 of our
Constitution. That Article inter alia guarantees
the right to establish, maintain and manage
religious institutions, but concedes to the
legislature the power to regulate the manner in
which such institutions may be established,
maintained and managed. It does not, however,
empower the legislature to make a law that
hereafter no institutions of a religious character
shall be established, maintained or managed or
that an existing religious institution shall be
abolished. The Article appears to me to proceed
on
the
well-known
principle
that
while
legislature
may not interfere with mere
profession or belief, law may step in when
professions break out in open practices inviting
breaches of peace or when belief, whether in
publicly practicing a religion or running a
religious institution, leads to overt acts against
public order. In the present case no question of
law and order being involved, I am constrained
to differ from the view taken of this fundamental
right by the High Court.”
In Miss Benazir Bhutto v. Federation of Pakistan and others (PLD
1988 SC 416) it has been observed that :---
“………………..In regard to the violation of
Article 18 of the Constitution, the view
expressed in Copen v. Foster, 12 Pick 485-488,
in relation to right of political franchise was
held to be applicable to its interpretation to the
extent of religious freedom recognized by Article
18 of the Constitution. And it was observed:
“ The Article appears to me to
proceed on the well-known
principle that while legislature
may not interfere with mere
profession or belief, law may
step in when professions break
out in open practices inviting
Reference No.2/2005
59
breaches of peace or when
belief
whether
in
publicly
practicing a religion or running
a religious institution, leads to
overt
acts
against
public
order.”
and as no question of law and order was
involved, the Court differed from the view taken
of this Fundamental Right by the High Court.
Messrs East and West Steamship Company v.
Pakistan, PLD 1958 SC 41 follows the same
principle as laid down in Jibendra Kishore
Achharyya Chowdhury and others v. The
Province of East Pakistan PLD 1957 SC 9.”
In Zaheeruddin vs. The State (1993 SCMR 1718), in this context, it was
held: -
“The above views as they are prevalent, in the
above jurisdiction, do go to show that freedom of
religion would not be allowed to interfere with the
law and order or public peace and tranquility. It is
based on the principle that the State will not
permit anyone to violate or takeaway the
fundamental rights of others, in the enjoyment of
his own rights and that no one can be allowed to
insult, damage or defile the religion of any other
class or outrage their religious feelings, so as to
give rise to law and order situation. So whenever
or wherever the state has reasons to believe, that
the peace and order will be disturbed or the
religious feelings of others may be injured, so as
to create law and order situation, it may take such
minimum preventive measures as will ensure law
and order.”
From perusal of above judgments, following principles are highlighted.
1.
While legislature may not interfere with
mere profession or belief, law may step
in when professions breakout in open
practices inviting breaches of peace or
when
belief,
whether
in
publicly
practising a religion or running a
religious institution, lead to overt act
against public order.
Reference No.2/2005
60
2.
Whenever or wherever the State has
reasons to believe that the peace and
order will be disturbed or the religious
feeling of others may be injured, so as to
create law and order situation, it may
take
such
minimum
preventive
measures, as will ensure law and order.
59.
Admittedly in view of the above judgments, this Court while
following the above principles in celebrated judgment of Zaheeruddin
(ibid), and examining constitutionality of the action taken under Section
144 Cr.P.C. and Anti-Islamic Activities of the Quadiani Group, Lahori
Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984 (XX of
1984), declared the above Ordinance a valid law, holding that freedom of
religion is based on the principle that the State will not permit any one to
violate or takeaway the fundamental rights of others in the enjoyment of his
own rights and that no one can be allowed to insult, damage or defy the
religion of any other class or outrage their religious feeling, so as to give
rise to law and order situation. Thus, we are of the considered opinion that
under Section 23 (12) of the Hisba Bill no restriction on freedom of
assembly or freedom of religion, the fundamental rights guaranteed under
the Constitution be imposed.
60.
Section 23 (14) confers power upon the “Mohtasib” to discourage
un-Islamic and in-human customs. The Provincial Assembly had failed to
define expression “un-Islamic.” If the possibility of unanimity amongst
different sects, on a preliminary or basic concept, is not possible, as
observed herein-above, with reference to enquiry report of former Chief
Justice of Pakistan Mr. Justice Muhammad Munir, that religious jurists,
who appeared before the Enquiry Court could not develop consensus on
definition of “Muslim,” then how is it possible that there would be
consistency between them on the definition of “un-Islamic” and “in-
human” Customs. In this country, as far as another segment of society i.e.
Reference No.2/2005
61
non-Muslims (minorities) is concerned, it is not clear whether they are also
bound to follow Islamic and human customs? In this judgment at a number
of places, we have observed that indefinite, un-certain and not susceptible
of being understood provision of law on account of its vagueness cannot be
enforced for the purpose of prosecution of a person, if he is found guilty of
disobeying any such provision, in respect whereof, he has no information/
notice to know that what is prohibited i.e. Islamic or un-Islamic, such law is
treated as un-constitutional. Essentially, such a wide ranged powers
conferred upon “Mohtasib” by Section 23(14), allowing him to create in
his own discretion an offence for the purpose of prosecution, under Section
28 would deny due process of law, security of a person, dignity of a man,
freedom of speech and freedom to profess religion. This provision of law
would also violate the freedom of trade, business or profession because if a
citizen is indulging in such a business which according to “Mohtasib” is
un-Islamic, he would be lodging a complaint for its prosecution, without
determining that no restriction can be imposed, except subject to the
provision of law. The affected persons would also be discriminated by the
“Mohtasib” in exercising wide ranged undefined powers. Thus, the
provisions failing to satisfy constitutional scrutiny, with reference to the
fundamental rights discussed herein-above, are unconstitutional.
61.
It was vehemently contended by the learned counsel for Government
of NWFP that Islamic State is a welfare State. The lawmakers had an
obligation to frame laws in conformity with the Injunctions of Islam, as laid
down in the Holy Quran and Sunnah, and to achieve the object that general
public may live with peace and calm without transgressing on the rights of
each other, the Government of NWFP had promulgated the Hisba Bill. To
emphasize his arguments, he contended that the European community
Reference No.2/2005
62
borrowed concept of a welfare State from the Religion of Islam and in the
modern countries like the United Kingdom general laws are being framed
for curbing Anti Social Behaviour. He read out the whitepaper on Anti
Social Behaviour (ABSO).
62.
Learned Attorney General contended that there is no cavil with
framing laws in accordance with the Injunctions of Holy Quran and
Sunnah and according to beliefs of different sects as per mandate of
Constitution but provisions of Hisba Bill cannot be tested on the ground
that in European countries, identical anti-social laws are being framed. He
explained that ASBO law 2004 is not a vague law as it contains all
characteristics of a valid law.
63.
There is no doubt that Article 227 of the Constitution mandates for
promulgating laws in conformity with the Injunctions of Islam as laid down
in Holy Quran and Sunnah. Explanation to Article 227 provides that the
expression Quran and Sunnah shall mean the Quran and Sunnah as
interpreted by any Muslim sect as far as it relates to the personal laws.
Applying this very test on some of the provisions of Section 23 of Hisba
Bill, we have already observed that as Hisba Bill does not provide
definition of Islamic value and Sharia with reference to the belief of various
Muslim sects, therefore, due to such vagueness, it is not sustainable. We are
in quite agreement with the learned Attorney General that ASBO Law 2004
is not a vague law as it contains intelligible, comprehensible,
understandable and tangible provisions, therefore, Hisba Bill 2004 cannot
be equated with the ASBO Law 2004.
64.
Section 23(27) of Hisba Bill confers powers upon “Mohtasib” to
perform any other function/functions which the Provincial Mohtasib
determines from time to time in consultation with the Advisory Council. In
Reference No.2/2005
63
Urdu text of the Hisba Bill ‘word’ (Amar) or (Amoor) i.e. order or orders
has been mentioned, essentially ‘order’ mean ‘command’ as per its
ordinary meaning. Viewing this provision with some of the other provisions
of Section 23, which have been discussed herein-above and have been
found vague, suffering from excessive delegation and without definite
legislative guidelines , it is also suffering from excessive delegation. One
feels no hesitation in holding that by conferring sweeping powers on
“Mohtasib” lawgivers had conferred the authority of making laws to him
and then to lodge prosecution against the citizens, who have made “Khilaf-
warzi” (disobedience) of his “Hukam-nama” [order], clearly places
embargo upon exercising the fundamental rights conferred upon them
under Article 9, 14, 20 and 25 of the Constitution. In other words, any
thing, uttered by the “Mohtasib” in respect of ‘Amar’ or ‘Amoors’
(function) would become the law. Would it not be highly discriminatory.
Legislation can delegate its powers in a number of statutes but after having
its own control and safeguard in place which is only possible when definite
guidelines are given, otherwise blatant conferment of powers would make
such a statute unconstitutional. In Haji Ghulam Zameer v. A.B. Khundkar
(PLD 1965 Dacca 156), it is observed as under:---
“It was next argued that the penal provision of
the Ordinance, as embodied in sections 4, 5 and
6 thereof, is also invalid on the ground that it is
too vague, too wide, too undetermined and too
volatile
for
anybody
to
understand
and
anticipate what acts are being prohibited by the
Legislature. The argument is founded on the
proposition that the expression ‘law,’ as
embodied in Article 2 and all other Articles of
the
Constitution,
connotes
intelligible
comprehensive, understandable and tangible
laws. To make penal provisions in advance and
to leave them to be applied to a maze of an
Reference No.2/2005
64
undefined mass of individual orders which may
be made without even a “public notification” is
to leave the liberty of citizens to the mercy of the
gambling freaks of unforeseeable dooms. Each
order served on an individual would be a code
by itself. There can be thousands of such orders.
This principle is specially important because
under the Ordinance there is no requirement
that orders made there under should be under a
“notified order” as is the case in respect of the
Essential Supplies (Temporary Powers) Act or
similar enactments. An unanticipated order can,
under the Ordinance, be made in any individual
case and a breach thereof would attract the
penal provisions of the Ordinance. In the
following cases it has been held that the Act is
too indefinite and uncertain as a penal statute,
as it does not classify or define, with any degree
of certainty those who are subject to the
operation of the Act.”
In the case of Asfand Yar Wali (ibid) it has been observed that:---
“269. The above provisions of section 25A (e) and (g)
in their present form suffer from excessive delegation of
power, in that, these provisions confer unfettered
discretion on the Chairman NAB to reject the
recommendations of a duly appointed committee and to
refuse to recognize a settlement arrived at between a
creditor and a debtor. We, therefore, direct that the
recommendations made by the Governor State Bank of
Pakistan shall be binding on the Chairman NAB except
for valid reasons to be assigned in writing subject to
approval of the Accountability Court to be accorded
within a period not exceeding seven days. Suitable
amendment be made in Section 25A (e) and (g).”
In Director Food NWFP v. Madina Flour and General Mills (PLD
2001 SC 1), this Court observed as followed:---
“8.
It is true that Provincial Legislature is
competent to promulgate appropriate legislation
Reference No.2/2005
65
for abolishing wheat quota or to regulate the
supply of the same provided the above
threshold-requirements
are
met
and
the
Fundamental
Rights
contained
in
the
Constitution are not violated. Here, the
N.W.F.P. Government has the power to
determine the supply of wheat in its absolute
discretion. The law does not lay down the
methodology or guidelines for allocation of
wheat quota. The High Court was, therefore,
right in holding that Article 18 and Article 25 of
the Constitution were violated by the impugned
legislation. We may also add that clause (a) of
section 2 of the Act was saved by holding that
the same is not violative of the Constitution.”
In Pakistan Tobacco Co. Ltd. vs. Government of NWFP
(PLD 2002 SC 460) it was held “there is consensus of the judicial opinion
that delegation of powers should not be uncontrolled, unbridled and to
check the arbitrary attitude of the Executive in exercise of powers the
legislature must provide some guidelines basing on the policy of the
government to exercise such powers.”
In Dick Gregory v. City of Chicago (22 L. Ed. 2d 134), United
State Supreme Court observed that :--
“It is because of this truth, and a desire both to
promote
order
and
to
safeguard
First
Amendment freedoms, that this Court has
repeatedly warned States and governmental
units
that
they
cannot
regulate
conduct
connected with these freedoms through use of
sweeping dragnet statutes that may, because of
vagueness, jeopardize these freedoms. In those
cases, however, we have been careful to point
out that the Constitution does not bar enactment
of laws regulating conduct, even though
connected with speech, press, assembly, and
petition, if such laws specifically bar only the
conduct deemed obnoxious and are carefully
Reference No.2/2005
66
and
narrowly
aimed
at
that
forbidden
conduct.……… ………… ………
The disorderly conduct ordinance under
which these petitioners were charged and
convicted is not, however, a narrowly drawn
law, particularly designed to regulate certain
kinds of conduct such as marching or picketing
or demonstrating along the streets or highways.
Nor does it regulate the times or places or
manner of carrying on such activities. To the
contrary, it might better be described as a
meat-ax
ordinance,
gathering
in
one
comprehensive definition of an offense a number
of words which have a multiplicity of meanings,
some of which would cover activity specifically
protected by the First Amendment. The average
person charged with its violation is necessarily
left uncertain as to what conduct and attitudes of
mind would be enough to convict under it. Who,
for example could possibly foresee what kind of
noise or protected speech would be held to be
“improper”? That, of course, would depend on
sensibilities, nerves, tensions and on countless
other things…………..…………………………….
Their guilt of “disorderly conduct”
therefore turns out to be their refusal to obey
instanter an individual policeman’s command to
leave the area of the Mayor’s home. Since
neither the city council nor the state legislature
had
enacted
a
narrowly
drawn
statute
forbidding disruptive picketing or demonstrating
in a residential neighborhood, the conduct
involved here could become “disorderly” only if
the policeman’s command was a law which the
petitioners were bound to obey at their peril. But
under our democratic system of government,
lawmaking is not entrusted to the moment-to-
moment judgment of the policeman on his beat.
Laws, that is valid laws, are to be made by
representatives chosen to make laws for the
future, not by police officers whose duty is to
enforce law already enacted and to make arrests
Reference No.2/2005
67
only
for
conduct
already
made
criminal……………………………”
65.
Admittedly, different parts of Section 23 discussed herein-above
including sub-Section (27) confer unfettered/unbridled/unchanalized
powers on “Mohtasib” under Hisba Bill being an Executive functionary for
the purpose of this provision, therefore, these powers are liable to be
declared ultra vires the Constitution in view of the following principles:---
I. Waris Meah v. State
(PLD 1975 SC (Pak)157)
“Here, not only is there discretion in the specified
authorities whether they will proceed at all against
any member of the class concerned, viz. offenders
against the Act, but there is also an unfettered choice
to pursue the offence in any one of three different
modes which vary greatly in relation to the
opportunity allowed to the alleged offender to clear
himself, as well as to the quantum and nature of the
penalty which he may incur. The scope of the unguided
discretion so allowed is too great to permit of
application of the principle that equality is not
infringed by the mere conferment of unguided power,
but only by its arbitrary exercise. For in the absence of
any discernible principle guiding the choice of forum,
among the three provided by the law, the choice must
always be, in the judicial view point, arbitrary to a
greater or less degree. The Act, as it is framed, makes
provision for discrimination between persons falling,
qua its terms, in the same class, and it does so in such
manner as to render it impossible for the Courts to
determine, in a particular case, whether it is being
applied with strict regard to the requirements of
Article 5 (1) of the Constitution.”
II. F.B. Ali v. State
(PLD 1975 SC 506)
“It is first sought to be contended that the Ordinances
were not law at all because they purported to
unreasonably deprive a citizen of even the norms of a
Reference No.2/2005
68
judicial trial. But this generalization cannot be
accepted. Law has not been defined in the Constitution
of 1962 and, therefore, in its generally accepted
connotation, it means positive law, that is to say, a
formal pronouncement of the will of a competent law-
giver. There is no such condition that a law must in
order to qualify as a law also be based on reason or
morality. The Courts cannot strike down a law on any
such higher ethical notions nor can Courts act on the
basis of philosophical concepts of law as pointed by
me in the case of Asma Jilani (PLD 1972 SC 139).
This claim was abandoned even in England as long
ago as 1871 when Willes, J., in the case of Lee Vs.
Bude & Torrington Junction Railway Co. (2) said:-
“ We sit here as servants of the
Queen and the Legislature. Are
we to act as regents over what is
done by parliament with the
consent of the Queen, Lords, and
Commons? I deny that any such
authority
exists
………
the
proceedings here are judicial, not
autocratic, which they would be if
we could make laws instead of
administering them.”
………………………………………
………………………………………
Where, however, the law
itself makes no classification but
leaves the selection to an outside
agency or an administrative body
without
laying
down
any
guidelines, thus enabling the
body or authority to pick and
choose, a legitimate complaint
may be made on the ground that
the
law
itself
permits
discriminatory application. Such
was the position which came
under consideration by this Court
in the case of Waris Meah Vs.
The State [PLD 1957 SC (Pak)
157] where this Court struck
down the law on the ground that
it was violative of this particular
right………………………………”
3. Province of Punjab v. Manzoor Ahmed
Wattoo
(1998 CLC 1585)
“……………………..It is clear that no guidelines or
parameters have been provided for Government in
making the nomination of the Sarpanch of the
Reference No.2/2005
69
Panchayat. The Government is free to pick and choose
any person of its choice without any qualifications.
The discretion of the Government has not been
structured which is absolute and arbitrary. The
impugned Ordinance is ex facie discriminatory. It is
also capable of being administered in a discriminatory
and arbitrary manner in violation of Article 25 of the
constitution of Pakistan which guarantees the equality
before law and equal protection of law.”
4. Pak. Tobacco Co. Ltd. v. Government
of NWFP
(PLD 2002 SC 460)
In Vasanthlal Manganbhai Sajanwal v. The State of
Bombay, 1961 SCR 341: (AIR 1961 SC 4) the above
proposition was summarized in following words :-
“A statute challenged on the
ground of excessive delegation
must therefore, be subject to two
tests, (1) whether it delegates
essential legislative function or
power, and (2) whether the
Legislature has enunciated its
policy and principle for the
guidance of the delegate.”
Likewise a learned Division Bench of Lahore High
Court, Lahore in case of Muhammad Aslam and others
v., Punjab Government and others (1996 MLD 685)
following the judgments from our own jurisdiction in
the cases reported in PLD 1958 SC 41, PLD 1965.
Dacca 156, PLD 1966 SC 854 PLD 1988 SC 416 has
held that naked, unbridled and unguided powers
cannot be conferred upon the outside agency like
executive.
66.
The observations noted herein-above are based on the following two
tests, (1) whether it delegates essential legislative functions or powers (2)
whether the legislature has enunciated its policy or principle for the
guidance of the delegatee Vasanlal Maganbhai vs. State of Bombay [AIR
1961 SC 4]. Applying above test to the provisions of Section 23, discussed
herein-above in detail, suggest to hold that none of these tests have been
Reference No.2/2005
70
fulfilled, therefore, for violation of the provisions of Articles 4, 9, 14, 16,
18, 20, 25 of the Constitution, these provisions are not sustainable being
ultra vires the constitution.
67.
The legislature is under the bounden duty to define the crime
explicitly, putting the citizens on notice and when the statute is vague and
the notice is denied to the citizens, it creates arbitrariness. In this behalf
reference be made to the case of Mehram Ali (ibid). In this case Section
5(2)(i) of the Anti-Terrorism Act was struck down because no checks or
guidelines were provided for exercise of powers. Relevant para therefrom
is reproduced herein below:-
“The conferment of power on the officers referred to in
clause (i) of subsection (2) of section 5 without being
fired upon by the accused is not justifiable. An officer of
any of the above forces under the present provision can
kill any person, if he considers that in all probability the
former is likely to commit a terrorist act or scheduled
offence. The formation of opinion as to the probability
or likelihood of commission of offence will vary from
person to person as it depends on subjective satisfaction.
There is no check or guideline provided for the exercise
of the above power conferred by the above provision.
We are, therefore, of the view that the aforesaid
provision in its present form is not sustainable. The
same may be amended and it may be provided that the
officer can fire upon an accused person if he has been
himself fired upon by him.
68.
It may be noted that some vague expressions i.e. “internal
disturbances,” “illegal strikes,” “go slows and lock outs” in terms of
Section 7-A of the Anti-Terrorism Act, 1997 came up for consideration
before this Court in the case of Jamat-i-Islami Pakistan (ibid), and while
taking into consideration meaning of the word ‘vague,’ it was held as
follows:-
Reference No.2/2005
71
“12.
It is well-settled that Statutes must be intelligibly
expressed and reasonably definite and certain. An act of
the Legislature to have the force and effect of law must be
intelligibly express and statutes which are too vague to be
intelligible are a nullity. Certainty being one of the prime
requirements of a statute, a statute in order to be valid
must be definite and certain. Anticipated difficulty in
application of its provisions affords no reason for
declaring a statute invalid where it is not uncertain.
Reasonable definiteness and certainty is required in
statues and reasonable certainty is sufficient. Reasonable
precision, and not absolute precision or meticulous or
mathematical exactitude, is required in the drafting of
statutes, particularly as regards those dealing with social
and economic problems.
Clearly, the language of the statute and, in
particular, statute creating an offence must be precise,
definite and sufficiently objective so as to guard against
an arbitrary and capricious action on the part of the State
functionaries who are called upon to enforce the statute.
It is well settled that penal statutes contemplate notice to
ordinary person of what is prohibited and what is not.
Mr. M. Akram Sheikh, learned A.S.C. for the petitioners,
was right in contending that Article 4 of the Constitution
relating to the rights of individual to be dealt with in
accordance with law, is in the nature of “due process”
clause. To enjoy protection of law and to be treated in
accordance with law is the inalienable right of every
citizen and no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken
except in accordance with law. No person shall be
prevented from or be hindered in doing that which is not
prohibited by law and no person shall be compelled to do
that which the law does not require him to do. Every
citizen has the inalienable right under the Constitution to
know what is prohibited by law and what the law does not
require him to do. It is, therefore, incumbent upon the
State to express in clear terms susceptible of being
understood by an ordinary citizen of what is prohibited
and to provide definite standards to guide discretionary
actions of Police Officers so as to prevent arbitrary and
discriminatory operation of section 7-A of the Act. In
other words, it must be spelt out from a bare reading of
Reference No.2/2005
72
section 7-A as to what constitutes “internal disturbance,”
“illegal strikes,” “ go-slows” and “lock-outs” in terms
of section 7-A of the Act.
Likewise, in the case of Kartar Sindh v. State of Punjab [1994] 3 SCC
569], Indian Supreme Court held as follows:-
“130. It is the basic principle of legal jurisprudence that
an enactment is void for vagueness if its prohibitions are
not clearly defined. Vague laws offend several important
values. It is insisted or emphasized that laws should give
the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may
act accordingly. Vague laws may trap the innocent by
not providing fair warning. Such a law impermissibly
delegates basic policy matters to policemen and also
judges for resolution on an ad hoc and subjective basis,
with
the
attendant
dangers
of
arbitrary
and
discriminatory application. More so uncertain and
undefined words deployed inevitably lead citizen to
“steer far wider of the unlawful zone, than if the
boundaries of the forbidden areas were clearly
marked.”
The above principle has been reiterated by United States Supreme Court in
the case of Margarete Papachristou v. City of Jacksonville (31 L. Ed.
2d 110). Relevant para therefrom reads as under :--
“This ordinance is void for vagueness, both in the sense
that it “ fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by
the statute,” United States v Harriss. And because it
encourages
arbitrary
and
erratic
arrests
and
convictions. Thornbill v Alabma. Living under a rule of
law entails various suppositions, one of which is that
“[all persons] are entitled to be informed as to what the
State commands or forbids.” Lanzetta v New Jersey……
…………………………………………………………………
…………………………………………………………………..
This aspect of the vagrancy ordinance before us is
suggested by what this Court said in 1876 about a broad
criminal statute enacted by Congress: “It would
certainly be dangerous if the legislature could set a net
Reference No.2/2005
73
large enough to catch all possible offenders, and leave it
to the courts to step inside and say who could be
rightfully detained, and who should be set.”
69.
Section 25 of Hisba Bill has placed complete restriction on the right
of hearing by the Courts against the proceedings before a Mohtasib. The
right of hearing being essentially a principle of natural justice has got well-
entrenched rules in our system of administration of justice. The mere denial
of the right of hearing to a citizen against whom Mohtasib has passed an
order, is by itself sufficient to declare the provisions of section 25 of Hisba
Bill to be ultra vires the constitution. Besides, no absolute ouster of
jurisdiction of Courts is possible as the Constitution itself confers powers of
judicial scrutiny upon the superior Courts, therefore, a subordinate
legislature cannot take away such rights. In the Hisba Bill the word
“Court” has not been defined but in its ordinary meaning it would include
the subordinate Courts as well as Superior Courts exercising constitutional
jurisdiction. In Abbasia Cooperative Bank (now Punjab Provincial
Cooperative Bank Ltd) Vs. Hakeem Hafiz Muhammad Ghaus (PLD 1997
SC 3) it was observed, as under :--
“5.
The
next
question
which
arises
for
consideration in the case is, whether the Civil
Court was competent to examine the validity of the
auction conducted by the authorities? The Civil
Court under section 9 of the Code of Civil
Procedure are competent to try all suits of civil
nature except those of which their jurisdiction is
barred
either
expressly
or
by
necessary
implication. It is a well-settled principle of
interpretation that the provision contained in a
statute ousting the jurisdiction of Courts of general
jurisdiction is to be construed very strictly and
unless the case falls within the letter and spirit of
the barring provision, it should not be given effect
to. It is also well-settled law that where the
jurisdiction of the Civil Court to examine the
Reference No.2/2005
74
validity of an action or an order of executive
authority or a special tribunal is challenged on the
ground of ouster of jurisdiction of the Civil Court,
it must be shown (a) that the authority or the
tribunal was validly constituted under the Act; (b)
that the order passed or the action taken by the
authority or tribunal was not mala fide; (c) that the
order passed or action taken was such which could
be passed or taken under the law which conferred
exclusive jurisdiction on the authority or tribunal;
and (d) that in passing the order or taking the
action, the principles of natural justice were not
violated. Unless all the conditions mentioned
above are satisfied, the order or action of the
authority or the tribunal would not be immune
from being challenged before a Civil Court. As a
necessary corollary, it follows that where the
authority or the tribunal acts in violation of the
provisions of the statutes which conferred
jurisdiction on it or the action or order is in excess
or lack of jurisdiction or mala fide or passed in
violation of the principles of natural justice, such
an order could be challenged before the Civil
Court in spite of a provision in the statute barring
the jurisdiction of Civil Court. In the case before
us, the action of the Cooperative Authorities in
auctioning the suit property for recovery of the
loan against respondent No.1 was challenged in
the suit as contrary to the provision of the
Ordinance and M.L.O. 241.
In Khan Asfandyar Wali Vs. Federation of Pakistan (PLD 2001 SC
607), and it was held, as follows :
“It was held in the case of Zafar Ali Shah (supra)
that the powers of the superior Courts under
Article 199 of the Constitution “remain available
to their full extent…notwithstanding anything
contained in any legislative instrument enacted by
the Chief Executive” Whereas, section 9(b) of the
NAB Ordinance purports to deny to all Courts,
including the High Courts, the jurisdiction under
sections 426, 491, 497, 498 and 561A or any other
Reference No.2/2005
75
provision of the Code of Criminal Procedure or
any other Law for the time being in force, to grant
bail to any person accused of an offence under the
Nab Ordinance. It is well settled that the superior
Courts have the power to grant bail under Article
199 of the Constitution, independent of any
statutory source of jurisdiction such as section 497
of the Criminal Procedure Code, section 9(b) of the
NAB Ordinance to that extent is ultra vires the
Constitution. Accordingly, the same be amended
suitably.”
The above principle was also highlighted in the case of Zafar Ali
Shah Vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC
869), the relevant para therefrom is reproduced below: -
“Stability
in
the
system,
success
of
the
Government,
democracy,
good
governance,
economic stability, prosperity of the people,
tranquility, peace and maintenance of law and
order depend to a considerable degree on the
interpretation of constitution and legislative
instruments by the superior Court. It is, therefore,
of utmost importance that the Judiciary is
independent and no restraints are placed on its
performance and operation. It claims and has
always claimed that it has the right to interpret the
Constitution or any legislative instrument and to
say as to what a particular provision of the
Constitution or a legislative instrument means or
does not mean, even if that particular provision is
a provision seeking to oust the jurisdiction of this
Court. Under the mandate of the constitution, the
Court exercise their jurisdiction as conferred upon
them by the constitution or the law. Therefore, so
long as the Superior Courts exist, they shall
continue to exercise powers and functions within
the domain of their jurisdiction and shall also
continue to exercise power of judicial review in
respect of any law or provision of law, which
comes for examination before the superior Courts
to ensure that all persons are able to live securely
Reference No.2/2005
76
under the rule of law; to promote, within the
proper limits of judicial functions, the observance
and the attainment of human and fundamental
Rights; and to administer justice impartially
among persons and between the persons and the
State, which is a sine qua non for the maintenance
of independence of Judiciary and encouragement
of public confidence in the Judicial system.”
70.
Section 25 of the Hisba Bill can also not survive the constitutional
scrutiny for violation of Article 2A of the Constitution which guarantees
fundamental rights of equality before law, freedom of thought, expression,
belief, faith, worship and association subject to law and morality as well as
the independence of judiciary. The language of Section 25(1) (2) of Hisba
Bill makes it abundantly clear that by ousting the jurisdiction of the Courts
the rights of the citizens have been curtailed and the right of access to
justice has also been denied as discussed herein-above.
71.
In the present set up of administration of justice the Judicial forums
are empowered to take cognizance of the offences which are capable to
stand the test of constitutional scrutiny. Under Section 23 of the Hisba Bill
the ‘Mohtasib’ has been empowered to lodge a complaint before a
Magistrate under Section 28 for the purpose of trial of a citizen who has
allegedly done Khilaf –warzi (defiance) of his Hukam-nama [Order]. Most
of the provisions of Section 23 as discussed herein-above have been found
ultra vires the Constitution. Therefore, investing powers in a Court to take
cognizance under Section 28 on the complaint of the Mohtasib in respect of
such offences is not warranted. Consequently, such forums created for trial
of the citizens shall also be acting contrary to the provisions of Article 4 of
the Constitution which guarantees that every individual should be dealt
with in accordance with law. Therefore, being contrary to this provision of
the Constitution, Section 28 is declared to be ultra vires the Constitution.
Reference No.2/2005
77
72. Learned counsel for NWFP Government contended:--
a)
That opinion rendered by Supreme Court has no
binding effect because it is not a decision between
parties.
b)
That “Mohtasib” and the person who allegedly is
going to be affected by this opinion is not before the
Court as such it has no legal value
c)
That the decision of the Court in terms of Article
189 is binding on the Executive and Judicial
Authorities if rendered on a lis and Legislature is
not bound with such decision as Court could not
regulate the process of legislation. Thus, opinion of
the Court would have no effect upon legislation.
d)
The Constitutionality of Hisba Bill could adequately
be dealt with after its becoming an Act of Assembly,
in appropriate proceedings. In the following
judgments parameters have been laid down for
assuming jurisdiction by the Courts despite absolute
ouster clause.
See : In re: Kerala Education Bill 1957
(AIR 1958 SC 956),
In re: U/s 213 Government of India Act, 1935
(AIR 1944 FC 73),
Umayal Achi v. Lakshmi Achi
(AIR 1945 FC 25),
Attorney General for Ontario v. Attorney General of
Canada [1912] AC 571 and
Attorney General for the Province of British Columbia
v. Attorney General for Dominion of Canada
[1914] AC 153.]
73.
We have considered the judgments relied upon by the learned
counsel. The opinions expressed therein had been overruled by subsequent
judgments by the Indian Supreme Court itself. In re: Special Courts Bill,
1978 (AIR 1979 SC 478), it was held as under:--
101.
There was some discussion before us on the
question as to whether the opinion rendered by this
Court in the exercise of its advisory jurisdiction under
Reference No.2/2005
78
Art. 143 (1) of the Constitution is binding as law
declared by this court within the meaning of Art. 141 of
the Constitution. The question may have to be
considered more fully on a future occasion but we do
hope that the time which has been spent in determining
the questions arising in this reference shall not have
been spent in vain. In the cases of Estate Duty Bill, 1944
FCR 317 at pp. 320, 332, 341: (AIR 1944 FC 73 at pp.
74, 75, 79, 82); U. P. Legislative Assembly, (1965) 1
SCR 413 at pp. 446, 447: (AIR 1965 SC 745 at pp. 762,
763) and St. Xavier’s College, (1975) 1 SCR 173 at pp.
201, 202 (AIR 1974 SC 1389 at pp, 1401, 1402) the view
was expressed that advisory opinions do not have the
binding force of law, In Attorney General for Ontario v,
Attorney General for Canada (1912) AC 571 at p. 589 it
was even said by the Privy Council that the opinions
expressed by the Court in its advisory jurisdiction “will
have no more effect than the opinions of the law
officers.” On the other hand, the High Court of Calcutta
in Ram Kishore Sen v. Union of India, AIR 1965 Cal 282
and the High Court of Gujarat in Chhabildas Mehta v.
Legislative Assembly, Gujarat State, (1970) 2 Guj LR,
729 have taken the view that the opinion rendered by the
Supreme Court under Art. 143 is law declared by it
within the meaning of Art. 141. In The province of
Madras v. Boddu Paidanna & Sons, 1942 FCR 90: (AIR
1942 FC 33) the Federal Court discussed the opinion
rendered by it in the Central Provinces case, 1939 FCR
18: (AIR 1949 FC 1) in the same manner as one
discussed a binding judgment. We are inclined to the
view that though it is always open to this Court to re-
examine the question already decided by it and to
overrule, if necessary, the view earlier taken by it, in so
far as all other courts in the territory of India are
concerned they ought to be bound by the view expressed
by this Court even in exercise of its advisory jurisdiction
under Art. 143 (1) of the Constitution. We would also
like to draw attention to the observations made by Ray
C.J., in St. Xaviers College (AIR 1974 SC 1389) that
even if the opinion given in the exercise of advisory
jurisdiction may not be binding, it is entitled to great
weight. It would be strange that a decision given by this
Court on a question of law in a dispute between two
Reference No.2/2005
79
private parties should be binding on all courts in this
country but the advisory opinion should bind no one at
all, even if, as in the instant case, it is given after issuing
notice to all interested parties, after hearing everyone
concerned who desired to be heard, and after a full
consideration of the questions raised in the reference.
Almost everything that could possibly be urged in favour
of and against the Bill was urged before us and to think
that our opinion is an exercise in futility is deeply
frustrating. While saying this, we are not unmindful of
the view expressed by an eminent writer that although
the advisory opinion given by the Supreme Court has
high persuasive authority, it is not law declared by it
within the meaning of Art. 141. (See Constitutional Law
of India by H. M. Seerval, 2nd Edition, Vol II, Page 1415,
para 25.68)
In re: Presidential Reference No.1 of 1998 (AIR 1999 SC 1) the Court
recorded following statement of Attorney General:---
“9.
We record at the outset the statements of the
Attorney General that .-----(1) the Union of India is not
seeking a review or re-consideration of the judgment in
the second Judges case, and (2) that the Union o India
shall accept and treat as binding the answers of this
Court to the questions set out in the Reference.”
As per the material available on the official web-site of the Department of
Justice Canada, there have been 76 references by the Federal Government
alone to the Supreme Court since 1867 to 1981 and it states:---
“the Court issues an advisory opinion in the form of
judgment as a legal pronouncement from the highest
Court in the land. It has always been treated as
binding.”
Similarly Peter W. Hogg in Constitutional Law of Canada (4th Ed. Page
227) states as under :---
“But there do not seem to be any recorded instances
where a reference opinion was disregarded by the
parties, or where it was not followed by a subsequent
Reference No.2/2005
80
court on the ground of its advisory character. In
practice, reference opinions are treated in the same way
as other judicial opinions. (emphases provided)
Likewise, Mohamed Sameh M. Amer in The Role of the International
Court of Justice as the Principal Judicial Organ of the United Nations
(page 116) states as under:-
“Thus far the ICJ has delivered advisory opinions in
twenty-four cases, and in no case has the requesting
organ rejected the Court’s opinion or acted contrary to
its substance; on the contrary, the Court’s opinions have
been received and respected by the organs.”
74.
National Assembly of Pakistan, after obtaining opinion from the
Supreme Court in re: Special Reference under Article 187 of the Interim
Constitution, on 8th July 1973 passed a resolution, expressing its opinion
that the Government of Pakistan may accord a formal recognition to
Bangladesh and initiate such constitutional measures as may be necessary,
therefore, at a time when, in the judgment of the Government, such
recognition is in the best national interest of Pakistan and will promote a
fraternal relationship between the two communities. A writ petition was
filed seeking declaration that the resolution passed by the National
Assembly in its Session held on 8th July 1973 be declared to be without
lawful authority and the respondent be restrained from announcing any
‘recognition of Bangladesh.’ A learned Division Bench of the Lahore High
Court while disposing of the petition in the case of Hakim Muhammad
Anwar Babri v. Federation of Pakistan (PLD 1974 Lahore 33), held as
under :---
5.
From what has been written above, it will be
evident that the resolution in question was passed after
obtaining the advice and opinion of the Supreme Court.
The Supreme Court held that such a resolution could be
passed, and after that to ask this Court to declare that
Reference No.2/2005
81
such a resolution could not have been passed or that it
was without lawful authority is an attempt to ask us to sit
in judgment over the views of the Supreme Court.
Obviously, such an attempt cannot succeed because in
Article 189 of the Constitution of the Islamic Republic of
Pakistan, it is written that: -
“Decisions of Supreme Court binding
on other Courts-Any decision of the
Supreme Court shall, to the extent that
if decides a question of law or is based
upon or enunciates a principle of law,
be binding on all other Courts in
Pakistan.”
75.
It is true that opinion by the Court on the reference by the President
is not a decision between the parties but the Court undertakes an extensive
judicial exercise during which the arguments advanced by the Advocates
appearing on behalf of the parties summoned by the Court are evaluated
and appreciated and then an opinion is formed, therefore, it has binding
effect as held in above quoted judgments as well as by eminent jurists on
the Constitution.
76.
From the language of Articles 189 and 190 of the Constitution, it is
concluded that opinion expressed by the Supreme Court in a reference
under Article 186 is required to be esteemed utmost by all the organs of the
State, therefore, it would not be fair to say that the opinion expressed by the
Supreme Court on Presidential Reference under Article 186 of the
Constitution has no binding effect.
77.
Under Article 116 of the Constitution, the Governor of the Province
is required to assent to a bill which has been passed by the Assembly in
accordance with the Constitution. Arguments raised by learned counsel,
firstly, are premature as at this stage it is not possible to ascertain whether
the Governor will assent to the Bill or not. Secondly, two positions could
be visualized in respect of a Bill, namely, if in judicial scrutiny by this
Court for the purpose of forming its opinion, it is held that it is intra vires
Reference No.2/2005
82
the Constitution then Article 116 of the Constitution would lay an
obligation on the Governor to assent to it. If the opinion is formed that
either the Bill as a whole or some of its parts are ultra vires the
Constitution then the Governor being Constitutional Head of a Province
would not assent to the Bill particularly on noticing violation. In present
case, the provisions of the Hisba Bill namely Sections 10(b), (c), (d),
12(1)(a), (b) and (c), Section 23(1), (2), (3), (5), (6), (7), (12), (14) and
(27), Section 25(1) & (2) and Section 28 , have been declared ultra vires
the Constitution of Islamic Republic of Pakistan, therefore, in its present
form, the Governor is not bound to assent to the same. To strengthen this
argument, reference may be made to Attorney General for New South
Wales v. Trethowan (47 CLR 97). In this case, two bills were passed but
without the majority of the electors, therefore, the Governor was restrained
from assenting to the same unless and until the majority of the voters had
approved them.
78.
In addition to above judgment,, this Court in a number of cases has
held that a Government functionary is bound to obey and carry out only
lawful orders and acts and is not bound to become a party to the acts,
which are not in accordance with law. Reference in this behalf may be
made to Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530),
Yaqoob Shah v XEN PESCO (PLD 2002 SC 667), Secretary
Education NWFP v. Mustamir Khan (2005 SCMR 17) and The State
v. Udeshi M. Ramesh (2005 SCMR 648).
79.
It is equally important to note that once some of the Sections of a
Bill have been declared unconstitutional, it would not mean that leftover
Sections of the Bill have been declared in accordance with the Constitution.
Their Constitutionality remains open to be questioned, which can be upheld
Reference No.2/2005
83
or struck down as or when challenged before a competent forum, as held by
Irish Supreme Court in re: In the matter of Article 26 of the Constitution
and in the matter of The Housing (Private Rented Dwellings) Bill, 1981
([1983] I.R. 181). Relevant para therefrom reads as under:---
“It is to be noted that the Court’s function under Article
26 is to ascertain and declare repugnancy (if such there
be) to the Constitution in a referred bill or in the
specified provision or provisions thereof. It is not the
function of the Court to impress any part of a referred
bill with a stamp of constitutionality. If the Court finds
that any provision of a referred bill or of the referred
provisions is repugnant, then the whole bill fails for the
President is then debarred from signing it- thus
preventing it from becoming an Act. There thus may be
areas of a referred bill or of referred provisions of a bill
which may be left untouched by the Court’s decision.
The authors of a bill may therefore find the Court
decision less illuminating than they would wish it to be.”
In the matter of Article 26 of the Constitution and in the matter of the
Matrimonial Home Bill, 1993 [1994] 1 IR 305, the above principle of
declaring some parts of a Bill unconstitutional was upheld.
80.
Learned counsel for Government of NWFP contended that the
Courts on the basis of legislative controversial matters between the Federal
and Provincial Government may not invalidate the Provincial legislation.
In support of his contention he relied upon Duport Steels Ltd. v. Sirs
and others ([1980] 1 All ER 529) and Union of India v. Elphinstone
Spinning and Weaving Co. Ltd. [2001] 4 SCC 139.
81.
We have examined both these judgments in light of the arguments of
the learned counsel. The judgment in Duport Steels Ltd. (ibid) is from
English jurisdiction, where the Courts at the relevant time, were not
empowered to invalidate legislation for want of such Constitutional
Reference No.2/2005
84
mandate. Second judgment, in the case of Union of India (ibid), pertains to
a fiscal matter. Admittedly, sufficient privilege is always given to the fiscal
matters then to the law laid down by the Legislature, as it has been
pronounced in Elahi Cotton Mills Ltd. v. Federation of Pakistan
(PLD 1997 SC 582), wherein it has been held that “ Courts, while
interpreting laws relating to economic activities, view the same with
greater latitude then the laws relating to civil rights such as freedom of
speech, religion etc., keeping in view the complexity of economic problems,
which do not admit of solution through any doctrinaire of strait jacket
formula. Whereas penal statutes are to be interpreted strictly against the
State and liberally in favour of accused [Understanding Statutes 2d Ed. by
S.M.Zafar page 243]. Therefore, following this principle, the penal statute
calls for strict constitutional scrutiny, as such the second judgment cited by
the learned counsel in support of his arguments is of no help to him. Thus,
it is held that the Court seized with a Reference wherein constitutionality of
a law/bill is required to be examined to form an opinion , it would not be
transgressing its jurisdiction and is bound to inform the President about the
constitutional status of the bill which is likely to become an Act of
Parliament or Assembly.
82.
The learned counsel for NWFP Government questioned the
maintainability of the Reference on following grounds:-
i)
The bill has not been enacted into law as yet,
therefore, Reference being premature, deserves
to be dismissed.
ii)
The request made by the Governor to the Prime
Minister requesting him for filing of Reference
without advice of the Chief Minster is illegal.
iii)
On the advice of the Prime Minister, the
President is only competent to refer the question
of law which relates to federal law and not with
respect to a provincial law.
Reference No.2/2005
85
iv)
Under Article 186 of the Constitution, this Court
can only express its opinion on question of law
whereas in instant Reference, a mixed question
of law and fact has been raised, therefore, this
Court is not bound to answer the same.
83.
Before addressing the arguments of learned counsel, it would
be appropriate to reproduce herein-below different Articles from
Government of India Act, 1935, Constitution of Pakistan, 1956,
Constitution of Pakistan, 1962, Interim Constitution of Islamic Republic of
Pakistan, 1972 and Constitution of Pakistan, 1973, conferring the advisory
jurisdiction on the Supreme Court:-
Government
of
India
Act
1935
Article 213:
(1) If at any time it appears to the Governor
General that a question of law has arisen, or
is likely to arise, which is of such a nature and
of such public importance that it is expedient
to obtain the opinion of the Federal court
upon it, he may in his discretion refer the
question to that court for consideration, and
the court may, after such a hearing as they
think fit, report to the Governor General
thereon.
(2) No report shall be made under this
section save in accordance with an opinion
delivered in open court with concurrence of a
majority of the judges present at the hearing
of the case, but noting in this subsection shall
be deemed to prevent a judge who does not
concur from delivering a dissenting opinion.
Constitution of
Pakistan 1956
Article 162:
If at any time it appears to the President that
a question of law has arisen, or is likely to
arise, which is of such a nature and of such
public important that it is expedient to obtain
the opinion of the Supreme Court upon it, he
may refer the question to that court for
consideration, and the court may, after such
hearing as it thinks fit, report its opinion
thereon to the President.
Constitution of
Pakistan 1962
Article 59:
(1) If, at any time, the President considers that
it is desirable to obtain an opinion of the
Supreme Court on any question of law which
he considers of public importance, he may
refer the question to the Supreme Court for
consideration.
(2) The Supreme Court shall consider a
question so referred and report its opinion on
the question to the President.
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86
Interim
Constitution of
the
Islamic
Republic
of
Pakistan 1972
Article 187:
(1) If any time, the President considers that it
is desirable to obtain the opinion of the
Supreme Court on any question of law which
he considers of public importance, he may
refer the question to the Supreme Court for
consideration.
(2) The Supreme Court shall consider a
question so referred and report its opinion on
the question to the President.
Constitution of
Pakistan 1973
Article 186:
(1) If, at any time, the President considers that
it is desirable to obtain the opinion of the
Supreme Court on any question of law which
he considers of public importance, he may
refer the question to the Supreme Court for
consideration.
(2) The Supreme Court shall consider a
question so referred and report its opinion on
the question to the President.
84.
Under Article 106 of the Constitution of Peoples Republic of
Bangladesh; Article 177 of Constitution of Republic of Sri Lanka; Article
130 of Constitution of Malaysia; Section 19 of Constitution of Independent
State of Papua New Guinea; Article 123 of the Constitution of Republic of
Fiji Islands; Section 53 of the Canadian Supreme Court Act, 1985, Section
4 of the Judicial Committee Act, 1833, “United Kingdom;” Article 26 of
Constitution of Ireland; Article 14 of the Covenant of League of Nations
(including amendments adopted on December, 1924), Article 65 of the
Statute of Permanent Court of International Justice (Amendments by the
Protocol of September 14, 1929), Article 96 of Charter of United Nations;
Article 165 of the Statute of International Court of Justice and Article 143
of the Indian Constitution; confer same jurisdiction upon their Supreme
Courts as is being enjoyed by this Court.
85.
Article 143 from the Indian Constitution; Section 53 of the
Canadian Supreme Court Act, 1985 and Article 26 of the Constitution of
Ireland,
are
reproduced
herein-below
having
identical
features/
characteristics to Article 186 of the Constitution.
Reference No.2/2005
87
Constitution
of India
Article 143:
(1) If at any time it appears to the
President that a question of law or fact
has arisen, or is likely to arise, which is
of such a nature and of such public
importance that it is expedient to obtain
the opinion of the Supreme Court upon
it, he may refer the question to that
Court for consideration and the Court
may, after such hearing as it thinks fit,
report to the President its opinion
thereon.
(2) The President may, notwithstanding
anything in… the proviso in article 131
refer a dispute of the kind mentioned in
the said proviso to the Supreme Court
for opinion and Supreme Court shall,
after such hearing as it thinks fit, report
to the President its opinion thereon.
Canadian
Supreme
Court
Act 1985
Section 53:
(1) The Governor in Council may refer
to
the
Court
for
hearing
and
consideration important questions of
law or fact concerning.
(a)
The
interpretation
of
the
Constitution Acts;
(b)
The
constitutionality
or
interpretation
of
any
federal
or
provincial legislation;
(c)
The
appellate
jurisdiction
respecting educational matters, by the
Constitution Act, 1867, or by any other
Act or law vested in the Governor in
Council; or
(d) The powers of the Parliament of
Canada, or of the legislatures of the
provinces,
or
of
the
respective
governments thereof, whether or not
the particular power in question has
been or is proposed to be exercised.
(2) The Governor in Council may refer
to
the
Court
for
hearing
and
consideration important questions of
law or fact concerning any matter,
whether or not in the opinion of the
Court
ejusdem
generis
with
enumerations contained in subsection.
(1), With reference to which the
Governor in Council sees fit to submit
any such question.
(3) Any question concerning any of the
matters mentioned in subsections (1)
And (2), and referred to Court by the
Governor
in
Council,
shall
be
conclusively deemed to be an important
question.
(4) Where a reference is made to the
Court under subsection (1) or (2), it is
the duty of the Court to hear and
consider it and to answer each question
Reference No.2/2005
88
so referred, and the Court shall certify
to the Governor in Council, for his
information, its opinion on each
question, with the reasons for each
answer, and the opinion shall be
pronounced in like manner as in the
case of a judgment on an appeal to the
Court, and any judges who differ from
the opinion of the majority shall in like
manner certify their opinions and their
reasons.
(5) Where the question relates to the
constitutional validity of any Act
passed by the legislature of any
province, or of any provision in any
such Act, or in case, for any question,
the attorney general of the province
shall be notified of the hearing in order
that the attorney general may be heard
if he thinks fit.
(6) The Court has power to direct that
any person interested or, where there is
a class of persons interested, any one
or more persons as representatives of
that class shall be notified of the
hearing on any reference under this
section, and those persons are entitled
to be hard thereon.
(7) The Court may, in its discretion,
request any counsel to argue the case
with respect to any interest that is
affected and with respect to which
counsel does not appear, and the
reasonable
expenses
thereby
occasioned may be paid by the Minister
of
Finance
out
of
any
moneys
appropriated
by
Parliament
for
expenses of litigation.
Judicial
Committee
Act 1833
(United
Kingdom)
Section 4 His Majesty may refer any
other matter to the committee
….. It shall be lawful for his Majesty to
refer to the said judicial committee for
hearing or consideration any such
other matter whatsoever as his Majesty
shall think fit: and such committee shall
thereupon hear to consider the same,
and shall advise his Majesty thereon
manner aforesaid.
Constitution
of Ireland
Article 26
(1) This article applies to any Bill
passed or deemed to have been passed
by both Houses of Parliament other
than a Money Bill, or a Bill expressed
to be a Bill containing a proposal to
amend the Constitution, or a Bill the
time for the consideration of which by
the Senate shall have been abridged
under Article 24.
Reference No.2/2005
89
(1.1)
The
President
may,
after
consultation with Council of State,
refer any Bill to which this article
applies to the Supreme Court for a
decision on the question as to whether
such Bill or any specified provision or
provisions of such Bill is or are
repugnant to this Constitution or to any
provision thereof.
(1.2) Every such reference shall be
made not later than the seventh day
after the date on which such Bill have
been presented by the Prime Minister
to the President for his signature.
(1.3) The President shall not sign any
Bill the subject of a reference to the
Supreme Court under this article
pending the pronouncement of the
decision of the Court.
(2.1) The Supreme Court consisting of
not less than five judges shall consider
every question referred to it by the
President under this article for a
decision, and, having heard arguments
by or on behalf of the Attorney General
and by counsel assigned by the Court,
shall pronounce its decision on such
question in open court as soon as may
be, and in any case not later than sixty
days after the date of such reference.
(2.2) The decision of the majority of the
judges of the Supreme Court shall, for
the purpose of this article, be the
decision of the Court and shall
pronounced by such one of those judges
as the Court shall direct, and no other
opinion,
whether
assenting
or
dissenting, shall be pronounced nor
shall the existence of any such other
opinion be disclosed.
(3.1) In every case in which the
Supreme Court decides that any
provision of a Bill the subjection of a
reference to the Supreme Court under
this article is repugnant to the
Constitution or to any provision
thereof, the President shall decline to
sign such Bill.
(3.2) If, in the case of a Bill to which
Article 27 applies, a petition has been
addressed to the President under that
article, that article shall be complied
with.
(3.3) In every other case the President
shall sign the Bill as soon as may be
after the date on which the decision of
the Supreme Court shall have been
pronounced.
86.
A comparison of above Articles with Article 186 of the Constitution,
conferring advisory jurisdiction upon this Court, reveals that in Article
Reference No.2/2005
90
213 of the Government of India Act 1935 and Article 162 of the
Constitution of Pakistan, 1956, the phrase a question of law has risen or is
likely to arise, identical to Article 143 of the Constitution of India, has been
used. In Article 59 and Article 187 of the Constitution, 1962 and 1972, as
well as in Article 186 of the Constitution, 1873, words “any question of
law” have been used. By pre-fixing word “any” scope of Article 186 of the
Constitution has been widened. Mr. Justice (R) Muhammad Munir, former
Chief Justice of Pakistan in his book “The Commentary on the
Constitution of Pakistan, 1973, has observed that “present Article has
replaced these words “any question of law” which are more comprehensive
in their scope and cover both question of law that has arisen and question
of law that is likely to arise.” Words “any” has always been interpreted by
the Courts broadly. Reference may be made to the case of Bank of
Bahawalpur versus Chief Settlement and Rehabilitation Commissioner
(PLD 1977 SC 164). In this case, a full bench of this Court, on the basis of
Queen vs. Rowlands and others (1880) Q.B.D 5308 and Duek versus
Bates (1884) 12 Q.B.D 79, has held that “the word “any” is an expression
of utmost generality removing all limitations or qualifications. In
Ch.Zahoor Elahi vs. The State (PLD 1977 SC 273), it was held that
the word “any” is used at no less than 7 places in Section 13(1) (b). It is a
word of very wide amplitude and defined in Stroud’s Judicial Dictionary
as “a word which excludes limitations or qualifications.” Acceptably,
Constitutional document is interpreted broadly so as to cover all
exigencies. A narrow construction has no room in the context of
constitutional dispensation (Understanding of Statutes – Canons –
Construction –Second Edition 850) by S.M. Zafar. In Benazir Bhutto v.
President of Pakistan (PLD 1998 SC 388), it was held that “Constitution is
Reference No.2/2005
91
the supreme law of the land to which all laws are subordinate. Constitution
is an instrument by which government can be controlled. The provisions in
the Constitution are to be considered in such a way which promotes
harmony between the different provisions and should not render any
particular provision to be redundant as the intention is that the
Constitution should be workable to ensure survival of the system which is
enunciated therein for the governance of the country.” In Special Re. No.1
of 1957 (PLD 1957 SC 219) it was held that “effect should be given to
every part and every word of the Constitution. Hence as a general rule, the
Courts should avoid a construction which renders any provision
meaningless or inoperative and must lean in favour of a construction which
will render every word operative rather than one which may make some
words idle and nugatory.” In this context, reference can also be made to
the cases of The State v. Zia-ur-Rehman (PLD 1973 SC 49) and
Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151). In
Mian Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993
SC 473) it was also held that “while interpreting fundamental rights, the
approach of the Court should be dynamic, progressive and liberal keeping
in view ideals of the people, socio-economic and politico cultural values
which in Pakistan are enshrined in the Objectives Resolution so as to
extend the benefit of the same to the maximum people.” In the case of Al-
Jehad Trust versus Federation of Pakistan (PLD 1996 SC 324), it was
held that “approach of the Court while interpreting a constitutional
provisions has to be dynamic, progressive and oriented with the desire to
meet the situation which has arisen effectively because efforts should be
made to construe the provision broadly so that it may be able to meet the
requirement of ever changing society. General words cannot be considered
Reference No.2/2005
92
in isolation but the same are to be considered in the context in which they
are employed.” These observations have been reiterated in Bahadar Khan
v. Atta Ullah Mengal (1999 SCMR 1921) and Pakistan Tobacco
Company (ibid), we feel no hesitation in holding that Constitution makers
by using the expression ‘any question of law’ in Article 186 of the
Constitution had widened its scope and had also covered disputes which
are likely to arise. We may observe that if such construction is not placed
on the expression ‘any question of law’ there is apprehension that the
provision of advisory jurisdiction will become redundant.
87.
The President, when desires to obtain opinion of the Supreme Court
on any question of law which he considers of public importance, he bears
in his mind the significance of public importance, persuading him to seek
opinion of Supreme Court, therefore, he being the custodian of
Constitution, in capacity as a symbol of head of Federating units under the
Constitution seeks guidance of the Court with no object except to avoid
controversies and to ensure that Constitutional provisions are fully
enforced in the good governance of Federal as well as Provincial
Government as it may be, as such no embargo can be placed on the
authority of the President of Pakistan to seek the advice on the question of
law, which is likely to arise. Likewise, the Court is bound to express
opinion in respect of those events which are likely to occur in future. At this
juncture reference to the events that took place in Pakistan in December
1971, would not be out of context, on account of which Bangladesh
emerged. When confronted with such situation, a chaos was prevailing and
the Government was not decisive either to recognize Bangladesh or not and
to resolve the situation, it felt it necessary to move a resolution in the
National Assembly which would express that holding of trials in Dacca or
Reference No.2/2005
93
outside Pakistan or among the prisoners of war or civilian internees on
alleged criminal charges would seriously jeopardize efforts towards
reconciliation of peace in the sub-continent and would also be contrary to
the International Law of Justice, therefore, considering the issue to be of
public importance a Reference on the question “can a resolution of the
purport described in paragraph 6 above and envisaging such constitutional
measures as may be necessary before according of formal recognition, be
validly adopted by the National Assembly, was made by the President of
Pakistan. Admittedly, it was purely a question which was likely to arise
because till then National Assembly had not passed a resolution, therefore,
in view of such a concrete example, the arguments raised by learned
counsel for the Government of NWFP loses its value.
88.
In Re. Reference under section 213 of the Government of India
Act, 1935 (AIR 1944 FC 73) it was held “the fact that the question referred
related to future legislation cannot by itself be regarded as valid
objection.” Section 213 of the Government of India Act, 1935, empowers
the Governor General of India to make a Reference when questions of law
“are likely to arise.” It is most important that in similar situation with
which we are presently confronted i.e. whether the Hisba Bill has been
passed by the NWFP Assembly, in accordance with the Constitution. The
Indian Supreme Court examined the same proposition in re. Kerala
Education Bill 1957 (AIR 1958 SC 956) and observed “The principles
established by judicial decisions clearly indicate that the complaint that the
questions referred to us relate to the validity, not of a Statute brought into
force but of a bill which has yet to be passed into law by being accorded the
assent of the President is not a good ground for not entertaining the
reference.” Inasmuch as there are cases in which references have been
Reference No.2/2005
94
made even to consider proposed amendments by way of putting a bill
before the law makers. [In re. Sea Customs Act, 1878 Section 20(2) (AIR
1963 SC 1760)]. In this Reference it was proposed to amend sub-section (2)
of Section 20 of the said Act (Sea Customs Act) so as to amend the
provisions of sub-section (1) of that section in respect of goods belonging to
the Government of a State irrespective whether goods are used or not for
the purposes set out in the said sub-section (2) as at present in force. One
of the terms of Reference was “whereas governments of certain States have
expressed the view that the amendments as proposed in the said draft of the
Bill (emphasis provided) may not be constitutionally valid as the
provisions of Article 289 read with the definitions of ‘taxation’ and tax in
clause 28 of Article 366 of the Constitution of India precluded the Union
from imposing or authorizing the imposition of any tax, including customs
duties and excise duties, on or in relation to any property of a State except
to the extent permitted by clause-2 read with clause-3 of the said Article
289.” There is yet another category of References in which the president
filed a Reference even before Bill was tabled in the Parliament and it was
held that it makes no difference that bill is pending, since President was
competent to make a Reference at any stage .[In re: Special Courts Bill
1978 (AIR 1979 SC 478)].
89.
It may not be out of context to note that in a country like
Canada, the advisory jurisdiction of Supreme Court is invariably invoked
and the Court had been examining legislative proposal before making the
same as law. The jurisdiction invariably has been invoked not only in
respect of Constitutionality of a Federal law but the constitutionality of a
provincial law as well. Reference may be made to the Constitutional Law
of Canada by Peter W. Hogg (244, 228 and 229), wherein the commentator
Reference No.2/2005
95
has observed “the reference procedure has been used mainly for
constitutional questions. It has rarely been used to seek answers to non-
constitutional questions, although it is available for that purpose as well.
The questions referred are usually about the constitutionality of a federal
law (or a proposed federal law), but the constitutionality of a provincial
law can also be referred, and this has been done from time to time.”
90.
The importance of seeking opinion of the Supreme Court has been
well explained by the same author in following words:-
“A balanced assessment of the reference procedure must
acknowledge its utility as a means of securing an answer
to a constitutional question. As noted earlier, the
reference
procedure
has
been
used
mainly
in
constitutional cases. This is because it enables a
government to obtain an early and (for practical purpose)
authoritative ruling on the constitutionality of a
legislative programme. Sometimes questions of law are
referred in advance of the drafting of legislation;
sometimes draft legislation is referred before it is
enacted; sometimes a statute is referred shortly after its
enactment; often a statue is referred after several private
proceedings challenging its constitutionality promise a
prolonged period of uncertainty as the litigation slowly
works its way up the provincial or federal court system.
The reference procedure enables and early resolution of
the constitutional doubt.”
91.
One another commentator P. Macklem, in Canadian Constitutional
Law, Volume-I 1994, has opined that “one of the most distinctive features
of the Canadian Judicial Review is its frequent resort to the constitutional
reference. This frequency can be demonstrated by a survey of the leading
cases: those reaching the Privy Council up to 1949, the Supreme Court of
Canada thereafter, decided from 1867 to 1981. Of 282 cases involving
constitutional issues, 77 had their origins in a constitutional reference
while 205 involved concrete cases. Nor does the fact that over a quarter, of
Reference No.2/2005
96
the leading decisions were given in such proceedings reveal the full
significance of constitutional references. In terms of impact on the political,
social and economic affairs of the country the decisions in these cases have
had an effect far beyond their numerical proportion.”
92.
The Supreme Court of Ireland has on various occasions examined
the vires of pending bills under its advisory jurisdiction details whereof are
available in Constitutional Law in Ireland by James Casey which reads as
under:-
“Article 26 has so far been used seven times, viz:
(a) The Offences against the State (Amendment) Bill
1940[1940] I.R.470.
(b) The School Attendance Bill 1942[1943] I.R.334.
(c) The Electoral Amendment Bill 1961[1961] I.R. 169
(d) The Criminal Law (Jurisdiction) Bill 1975 [1977]
I.R. 129.
(e) The Emergency Powers Bill 1976 [1977] I.R. 159.
(f) The Housing (Private Rented Dwellings) Bill 1981
[1983] I.R. 181.
(g) The Electoral (Amendment) Bill 1983 [1984]
I.L.R.M. 539.”
93.
Thus, above discussion leads us to conclude that President in
exercise of powers under Article 186 of the Constitution is empowered to
seek opinion of this Court in its advisory jurisdiction in respect of any
question of law which has arisen or is likely to arise including the Bills
passed by Provincial Assemblies.
94.
Learned counsel for NWFP relying upon the decision in Attorney
General for Ontario versus Hamilton Street Railways Privy Council
(1903) A.C 524, has emphasized that the courts will not decide the
speculative question, the Supreme Court can only give decision on a
concrete case. The argument has no substance in view of the discussion
made herein-above. So far as, the law relied upon by him is concerned, it
pertains to the year 1903 whereas, in the meanwhile, number of
constitutional changes in different countries have taken place wherein the
Reference No.2/2005
97
advisory jurisdiction of the Courts have been extended and invoked to
determine the constitutional questions of public importance.
95.
The learned counsel also relied upon ref: under Section 213 Govt.
of India Act 1935 (AIR 1944 FC 73) and read minority opinion of Sir
Zafarullah Khan, J. who declined to answer the question whereas the
majority of the Hon’ble Judges had answered the reference, while holding
“the fact that the question referred relates to future legislation cannot by
itself be regarded as an objection.” In this very context, it was further
observed that some instances were brought to our notice in which
Reference had been made under the corresponding provision in the
Canadian Supreme Court Act when the matter was at the stage of Bill. It
may be pointed out that the comments made by Sir Zafarullah Khan in his
judgment, were the views made by Justice Frank Furter in an article
published by Harvard Law Review but not in a judicial decision. Reference
may be made to footnote 13 at page 80 of the judgment. In re: Special
Courts Bill 1978 (AIR 1979 SC 478), the Supreme Court of India ruled
that it was not for the Court to refuse to answer the Reference. This Court
in ref: No.1 of 1988 (PLD 1989 SC 75), reference of which has already
been made herein-above, has expressed the same view.
96.
The objection of the learned counsel for NWFP that President is
only competent to refer a question of law which relates to a federal law and
not with respect to a provincial law is also not sustainable in view of the
comprehensive and broad language employed in Article 186 of the
Constitution. As per history special reference No. 1 of 1957 (PLD 1957 SC
219), reference was made by the President asking the Supreme Court
whether under the circumstances Governor can dissolve the Government of
a province. Similarly, in Reference No.1 of 1988, the President of
Reference No.2/2005
98
Pakistan through Secretary Ministry of Law, Justice and Parliamentary
Affairs, asked the Supreme Court whether a Chief Minister could
authenticate expenditure from the Provincial Consolidated Fund when the
Provincial Assembly stood dissolved. As it has been pointed out herein-
above that Indian Supreme Court also entertained a Reference dealing with
the Provincial subject i.e Kerala Education Bill 1957 (AIR 1958 SC 956).
Likewise, in ref: under Article 143 of the Constitution of India (AIR 1965
SC 745), the Indian Supreme Court held as under:----
“At the hearing of this reference, Mr. Varina has raised
a preliminary objection on behalf of the Advocate
General of Bihar. He contends that the present reference
is invalid under Art. 143(1) because the questions
referred to this Court are not related to any of the
entries in Lists I and III and as such, they cannot be said
to be concerned with any of the powers, duties or
functions conferred on the President by the relevant
articles of the Constitution. The argument appears to be
that it is only in respect of matters falling within the
powers, functions and duties of the President that it
would be competent to him to frame questions for the
advisory opinion of this Court under Art. 143(1). In our
opinion, this contention is wholly misconceived. The
words of Art. 143 (1) are wide enough to empower the
President to forward to this Court for its advisory
opinion any question of law or fact which has arisen or
which is likely to arise, provided it appears to the
President that such a question is of such a nature or of
such public importance that it is expedient to obtain the
opinion of this Court upon it ………”
97.
Identical observations have been made by this Court in ref: No.1 of
1988 (PLD 1989 SC 75) reference of which has already been made herein-
above. In this very context under the Constitutional Law of Canada by
Peter Hogg, reference of which has already been made, it has been
Reference No.2/2005
99
observed that the constitutionality of a provincial law can also be referred
and this has been done from time to time.
98.
Learned counsel vehemently stressed about the competency of the
Governor to approach the Prime Minister for filing a Reference by the
President without seeking advice of the Chief Minister. Under Article 105
of the Constitution, the Governor is supposed to act on the advice of the
Chief Minister but there are certain areas where he can act in his
discretion under the Constitution. The Constitution is silent as to how the
Governor will communicate with the Prime Minister and if the argument of
the learned counsel prevails, it would lead to an anomalous position that
the Governor cannot communicate with the Prime Minster except on the
specific advice of the Chief Minister. In the instant case, the Governor was
involved at pre-legislative stage by the Chief Minister as he was asked to
express his opinion about the Hisba Bill and in view of his observation the
bill was referred to the CII but the objection raised by the Governor as well
as by the CII in its report dated 6th September 2004, were not removed,
therefore, the Governor who had already come into picture had no
Constitutional restraints to communicate with the Prime Minister. The
argument of the learned counsel in this behalf loses its value for the reason
that it is not the Governor who had made the Reference but the President of
Pakistan on the basis of the advice from the Prime Minister
notwithstanding the fact as to why the Governor had communicated with
the Prime Minster, but in any case, it cannot be considered un-
constitutional. It has been rightly held in ref: No.1 of 1988 (PLD 1989 SC
75) that the President is the sole judge of the public importance to question
the desirability of referring it to the Supreme Court. Therefore, the
objection being without substance is kept out of consideration.
Reference No.2/2005
100
99.
It is also objected to by the learned counsel that reference is not
competent because it is not inter se the parties. This Court in exercise of
advisory jurisdiction under Article 186 of the Constitution, has to express
its opinion on constitutionality of the Hisba Bill, therefore, presence of the
parties is not called for. Advisory jurisdiction of this Court is definitely
different and distinct from the jurisdiction under Article 184 and 185 of the
Constitution. Reference may be made to In re: Special Reference under
Article 187 of the Interim Constitution of the Islamic Republic of
Pakistan (PLD 1973 SC 563) wherein question with regard to adopting a
resolution by the National Assembly for formal recognition of Bangladesh
was examined by this Court in absence of the parties. Thus, this objection
being without substance is turned down.
OPINION OF THE COURT
On having dilated upon the questions referred to by the
President of Pakistan, the Court is of the unanimous opinion that
Section 10 (Bey), (Jeem), (Dal); Section 12(1) (Alif), (Bey), (Jeem);
Section 23(1), (2), (3), (5), (6), (7), (12), (14), (27); Section 25(1), (2)
and Section 28 of the ‘Hisba Bill’ 2005, passed by the Provincial
Assembly of NWFP, are ultra vires the Constitution of the Islamic
Republic of Pakistan, 1973. The above referred Sections of the Hisba
Bill are violative of Articles 2A, 4, 9, 14, 16, 17, 18, 19, 20 and 25 as
well as 175 of the Constitution being vague, overbroad, unreasonable,
based on excessive delegation of jurisdiction, denying the right of
access to justice to the citizens and attempting to set up a parallel
judicial system.
Reference No.2/2005
101
The Governor of the North-West Frontier Province may not
assent to Hisba Bill in its present form as its various Sections noted
herein-above have been declared ultra vires the Constitution of the
Islamic Republic of Pakistan, 1973.
Herein-above are the reasons for our opinion (short order) dated
4th August, 2005.
REFERENCE ANSWERED ACCORDINGLY
C.J .
J.
J.
J.
J.
J.
J.
J.
J.
Islamabad,
August, 2005.
Irshad /*
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(Advisory Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Munib Akhtar
Mr. Justice Yahya Afridi
Mr. Justice Jamal Khan Mandokhail
Presidential Reference No.2 of 2022
(Reference by the President of the Islamic Republic of Pakistan
under Article 186 of the Constitution of the Islamic Republic of
Pakistan, 1973.)
IN ATTENDANCE
For the Federation
:
Ch. Aamir Rehman,
Addl. Attorney General
Assisted by:
Barrister M. Usama Rauf
Mr. Zohair Waheed
Miss Maryam Rashid &
Miss Faryal Shah Afridi, Adv.
For PPL/OGDCL/ Govt.
Holdings (Pvt.) Ltd.
:
Barrister Jahanzeb Awan, ASC
Assisted by:
Mr. Umar Shahzad Abbasi
Mr. Abdullah Raza
Mr. Shabbir Harianwala
For Govt. of Balochistan :
Mr. Salahuddin Ahmed, ASC
Mr. M. Asif Reki, AG, Balochistan
Mr. M. Ayaz Khan Swati, Addl. AG,
Balochistan
For PBC
:
Mr. Mansoor Usman Awan, ASC
For Balochistan Bar
:
Mr. Amanullah Kanrani, ASC
Amici Curiae
:
Mr. Salman Akram Raja, ASC
Dr. M. Farogh Naseem, ASC
Mr. Zahid F. Ibrahim, ASC
For Barrick Gold
Corporation
:
Mr. M. Makhdoom Ali Khan, Sr. ASC
Assisted by:
S.M. Faisal Hussain Naqvi, ASC
Mr. Iftikhar-ud-Din Riaz, ASC
Mr. Saad M. Hashmi, Advocate
Kh. Aziz Ahsan, Advocate
Mr. Yawar Mukhtar, Advocate
Kh. Azeem, Advocate
White & Case
:
Rabecca Campbell
Mr. Kamran Ahmed
(Via Video-Link)
Reference No.2/2022
2
Lazard
:
Spiro Youakim
Pierre Cailletea
Xovier de Regloix
(Via Video-Link)
Dates of Hearing
:
25 Oct 2022, 01-02 Nov 2022, 7-10 Nov
2022, 14-17 Nov 2022, 21-24 Nov 2022,
28-29 Nov 2022
OPINION
For detailed reasons to be recorded later and subject
to such amplification and elaboration as may be considered
necessary, Presidential Reference No.2 of 2022 is answered as
follows:
2.
On 29.07.1993 the Balochistan Development Authority
(BDA) entered into the Chaghi Hills Exploration Joint Venture
Agreement (CHEJVA) with a foreign investor having 75%
shareholding and BDA having 25% shareholding plus 2% royalty.
Subsequently, in the year 2006, the foreign investor was succeeded
by Tethyan Copper Company Pty. Ltd., Australia (TCCA). TCCA in
turn was acquired by Barrick Gold Corporation (Barrick) and
Antofagasta in equal shares. Under CHEJVA Barrick and its
partner had the exclusive right to prospect and explore for copper
and gold in the Reko Diq area.
3.
Between 2006 and 2011, TCCA invested in mineral
exploration and developed detailed plans for mining at Reko Diq.
However, on 15.11.2011, the licensing authority of the Government
of Balochistan (GoB) declined the mining lease application
submitted by the project company of TCCA. Shortly thereafter, on
28.11.2011 TCCA initiated arbitration proceedings under the Pak-
Australia Bilateral Investment Treaty (BIT) against the Government
of Pakistan (GoP), which claim was registered as an arbitration
case with the International Centre for Settlement of Investment
Disputes (ICSID). TCCA also commenced arbitration proceedings
Reference No.2/2022
3
against GoB at the International Chamber of Commerce (ICC) for
claims arising out of the CHEJVA. Meanwhile a Writ Petition filed
by a Pakistani citizen challenging CHEJVA was dismissed by the
High Court of Balochistan on 26.06.2007. Leave to appeal to the
Supreme Court against the said judgment was clubbed with other
Constitution Petitions. All the matters were disposed of by the
Supreme Court vide short order dated 07.01.2013 setting aside the
judgment of the High Court of Balochistan. The detailed reasons
are reported as Abdul Haque Baloch Vs. Government of
Balochistan (PLD 2013 SC 641). As a result, CHEJVA was
declared void, inter alia, on the ground that it had been entered
into without lawful authorization and was a non-transparent
agreement that failed to comply with the regulatory provisions of
law regarding mining operations in the Province.
4.
The ICSID arbitration continued in the meanwhile and
on 10.11.2017 the ICSID Tribunal rendered its decision on
jurisdiction and liability. On 12.07.2019 the ICSID Tribunal
announced its final award with TCCA receiving approximately US$
5.9 billion in damages, pre-award interest and costs incurred by it.
Further litigation ensued as TCCA made efforts for enforcing the
award in different jurisdictions.
5.
In the above background, the GoP and the GoB
commenced talks with the TCCA. After lengthy negotiations
spanning over three years between the representatives of the two
Governments and the TCCA Board, a settlement was proposed.
According to the settlement the financial liability of the GoP under
the ICSID award was agreed to be settled under the terms and
conditions incorporated in a set of agreements executed between
the parties. We do not propose nor are we required to comment on
Reference No.2/2022
4
the commercial terms settled between the parties which have been
agreed after extensive negotiations between GoP/GoB and
Barrick/Antofagasta. In such negotiations GoP/GoB had the
assistance of independent international financial, technical and
legal experts in addition to Pakistani experts. The negotiations
were conducted by the duly authorized representatives of the
parties who had been instructed by the competent authorities.
Simultaneously, the ICC proceedings have also matured to a point
of decision on liability and quantum with a likely award (as per the
advice of international legal and financial consultants of GoP) of
approximately US$ 2 to 3 billion expected in favour of TCCA. As a
result, in addition to the actual determined liability of US$ 5.9
billion plus interest (on the basis of the ICSID Award), another US$
2 to 3 billion award is in the pipeline to be paid to Barrick and
Antofagasta by the GoP and GoB. We have been informed that as
part of the settlement, the parties have agreed that Antofagasta
shall be paid an amount of US$ 900 million which has since been
deposited in an Escrow Account by the GoP. Upon fulfillment of
the conditions precedent on or before December 15, 2022
Antofagasta shall be entitled to the amount in the Escrow Account.
On receipt of the said amount any and all rights of Antofagasta
under the ICSID award, the ICC proceedings and any and all
claims of Antofagasta against GoP/GoB directly or indirectly
arising out of or having any nexus or connection with the Reko Diq
project shall stand finally and conclusively extinguished with no
further claims either against Barrick or GoP/GoB. It was also
agreed between the parties that under the settlement the Reko Diq
project will be reconstituted with Barrick being the operator and
TCCA holding 50% of the equity with the remaining 50% of the
Reference No.2/2022
5
equity being held by local Pakistani entities. We have been
informed that the 50% local interest will be held as follows:
(i)
GoB holding a 10% free carried interest;
(ii)
GoB holding a 15% fully participating interest
indirectly;
(iii)
GoB receiving royalty at the rate of 5%; and
(iv)
GoP or designated Pakistani entities holding the
remaining 25% fully participating interest.
The parties also agreed to a package of negotiated fiscal measures
such as royalties and taxes applicable to the project that will be
stabilized/granted for a specific period. Following the restructuring
of the Reko Diq project, Antofagasta will be paid US$ 900 million
plus accrued interest by the GoP and will exit the project by
transferring its entire interest in TCCA to Barrick. The GoP, GoB
and both Barrick and Antofagasta have agreed that all the disputes
that have arisen from the Reko Diq project which are the subject
matter of litigation/Arbitration Award(s) anywhere in the world
shall finally and conclusively stand resolved as soon as the
agreements which have been placed on record and the conditions
precedent mentioned therein are met on or before December 15,
2022, and any or all claims including the outstanding ICSID award
and the anticipated ICC award shall stand settled without any
further claim of any nature from either side. One of the conditions
precedent for finalization of the proposed settlement is the
President of Pakistan seeking an opinion from this Court on the
points noted in the Implementation Agreement.
6.
In light of the above background the President of
Pakistan has referred the following questions for consideration and
opinion of this Court:
“i)
Whether the earlier judgment of this Honourable
Reference No.2/2022
6
Court reported as [Maulana] Abdul Haque Baloch v.
[Government of Balochistan], PLD 2013 SC 641 or the
laws, public policy or Constitution of Pakistan prevent
the GoB and the GoP from entering into the
Implementation
Agreement
and
the
Definitive
Agreements [Agreements] or affect their validity?
ii)
If enacted, would the proposed Foreign Investment
(Protection and Promotion) Bill, 2022 [FI Bill 2022] be
valid and constitutional?”
7.
We have heard the learned Additional Attorney General
for Pakistan, the learned counsel appearing on behalf of Barrick
and the Advocate General Balochistan assisted by Mr.Salahuddin
Ahmed, ASC. We also appointed Mr.Farogh Naseem, ASC, Mr.
Zahid Ibrahim, ASC and Mr.Salman Akram Raja, ASC as amici
curiae who have also ably assisted the Court on the legal and
constitutional issues involved in the matter. Mr.Amanullah
Kanrani, ASC also submitted written submissions on behalf of the
Balochistan Bar Council. We have also heard Messer Spiro
Youakim, Pierre Cailletea and Xovier de Regloix, representatives of
Lazard as well as Ms.Rabecca Campbell and Mr.Kamran Ahmed of
White and Case (via video link) who were the Financial
Consultants/Legal Advisors of the GoP/GoB respectively during
negotiations with Barrick/ Antofagasta .
8.
On hearing the parties, we find that the following
issues arise from the Reference:
i)
Whether the Constitution places any bar on the
disposal of public assets through a negotiated
agreement?
ii)
Whether the Regulation of Mines and Oilfields and
Mineral
Development
(Government
Control)
(Amendment) Act, 2022 (2022 Act) is within the
Reference No.2/2022
7
legislative competence of the Balochistan Assembly?
iii)
Whether the process through which the GoB is
entering into the Agreements is fair, transparent,
reasonable and in accordance with law?
iv)
Whether the terms of the Agreements violate or are in
conflict with the judgment of this Court in Abdul
Haque Baloch’s case (PLD 2013 SC 641)?
9.
In light of our answers to the foregoing issues which
raise legal and constitutional questions, the first question referred
to this Court by the President of Pakistan, reproduced in
paragraph 6(i) above is answered in the negative for the following
reasons:
i)
It is settled law that while disposal of public assets
through a competitive process is the ordinary rule, it
is not an invariable rule. The Constitution does not
forbid disposal of public assets other than through a
competitive process so long as such disposal has the
support of the law and is justified on rational
grounds, as is the case here.
ii)
Ever since the enactment of the Constitution,
legislative competence to deal with mines and mineral
development (other than minerals used for nuclear
energy) has rested exclusively with the Provincial
Assemblies. Therefore, the Provincial Assemblies of
Sindh and Khyber Pakhtunkhwa have already
enacted comprehensive statutes dealing with mines
and mineral development (other than minerals used
for generation of nuclear energy). It follows from the
legislative ambit of the Provincial Assemblies under
the Constitution that they are competent to “alter,
amend or repeal” any existing law to the extent that it
deals with mines and mineral development. As far as
the amendment incorporated in the Regulation of
Mines and Oil fields and Mineral Development
Reference No.2/2022
8
(Government Control) Act, 1948 (1948 Act) is
concerned, which has been introduced by way of the
2022 Act, to the extent that the said statute applies
to the Province of Balochistan it is intra vires the
Constitution and the rules framed by the GoB under
Section 2 of the 1948 Act. The 2022 Act can therefore
be treated as a standalone provision that operates
alongside the 1948 Act and the aforesaid rules
insofar as the subject of mines and minerals
development (other than oil fields and mineral
resources necessary for generation of nuclear energy)
falls within the exclusive legislative competence of the
provincial legislature.
iii)
The Balochistan Cabinet has approved the decision to
enter into the Agreements on the basis of a detailed
summary, a copy of which has been filed with this
Court. The summary considers ‘public interest’
inherent in the negotiated agreement and since the
Agreements pertain to an ‘international obligation’ in
terms of the 2022 Act (i.e., Pakistan’s obligation to
make payment of approximately US$ 6 billion under
an ICSID award dated 12.07.2019), the formal
obligations required under the 2022 Act for entering
into a negotiated agreement stand fulfilled.
iv)
The Federal Government has placed on record
documents to show that an Apex Committee headed
by the Prime Minister of Pakistan and attended by all
the
relevant
stakeholders
(including
the
Chief
Minister and Chief Secretary of Balochistan) had
carefully negotiated the terms of the Agreements with
the
help
of
international
financial
advisors,
international legal advisors, international mining
experts and international tax advisors in addition to
independent Pakistani advisors. As noted above, the
international advisors also addressed the Court
directly during proceedings in-person and through
video link, and answered all the queries raised by the
Reference No.2/2022
9
Court. Prima facie, the Agreements cannot be faulted
for lack of due diligence on the part of State
authorities.
v)
The Agreements do not, prima facie, violate any of the
findings recorded in the Abdul Haque Baloch case
(PLD 2013 SC 641). Unlike CHEJVA, the decision to
enter into the Agreements is backed by law and has
been taken on the basis of careful negotiations during
which authorized representatives of GoP/GoB were
duly
assisted
by
independent
international
consultants.
Further, the obligation to act in accordance with
“Applicable Law” contained in the Agreements as well
as the obligations of the Licensee to apply for
consents in accordance with law and satisfy all
conditions prescribed by the Applicable Law means
that the statutory discretion of public functionaries is
not being fettered by the Agreements.
vi)
We have also been informed that the Provincial
Assembly of Balochistan was given a detailed in-
camera briefing and was taken into confidence
regarding the entire project and the terms and
conditions of the proposed settlement between the
parties were accepted without any objections being
raised by the chosen representatives of the people of
Balochistan.
vii)
On our specific query relating to environmental
considerations, particularly in relation to the use of
water, we have been informed that the Agreements
contain no exemption from Pakistan’s environmental
laws. Rather, the Agreements require Barrick to act
in accordance with both international environmental
standards and domestic laws.
Reference No.2/2022
10
10.
The second question is answered in the affirmative for
the following reasons:
i)
Article 144 of the Constitution allows Provincial
Assemblies to empower Parliament to pass a law
dealing with issues within the legislative competence
of the Provinces. Similarly, Article 147 of the
Constitution allows the Provinces to entrust, either
conditionally or unconditionally, to the Federal
Government or to its officers, functions in relation to
any matter to which the executive authority of the
Province extends.
ii)
We have been provided the draft resolutions proposed
to be passed by the Provincial Assemblies of Sindh
and Balochistan to empower Parliament to enact the
proposed FI Bill 2022. Provided that the draft
resolutions are passed, Parliament will be competent
to enact the FI Bill 2022, including the notified
exemptions specified in the Bill and the protected
benefits listed in the Third Schedule.
iii)
The provisions of Section 3 of the FI Bill 2022 do not
in our opinion fetter the sovereignty of Parliament. It
appears that the FI Bill 2022 represents a version of
the Protection of Economic Reforms Act, 1992. It
allows the Federal Government to notify certain
benefits which may not be withdrawn to the prejudice
of an investor. We have also been informed and there
is consensus of all the learned counsel in this matter
that Parliament remains at liberty to repeal the entire
FI Bill 2022, if it so desires, of course subject to the
corresponding legal consequences that may arise
from such repeal.
On our query, we have also been informed that most
of the exemptions proposed to be granted are already
available under the regulatory regimes pertaining to
Export Processing Zones and Special Technology
Zones. Further, the exemptions being granted from
Reference No.2/2022
11
the operation of Labour Laws do not denude the
labour force of their rightful entitlement to fair wages,
allowances and guarantees/benefits provided by law.
The learned counsel for Barrick has categorically
assured us that the applicable minimum wage laws
will be fully observed and the Agreements expressly
provide that all operations will be carried out in
accordance with International Mining Standards
which are defined to include compliance with IFC
Performance Standards, to the extent applicable. It
has been pointed out to us that the IFC Performance
Standards contain detailed provisions pertaining to
labour rights. Barrick has also committed to act in
accordance
with
the
United
Nations
Guiding
Principles on Business and Human Rights. We have
also been assured that Barrick will contribute
substantially towards Corporate Social Responsibility
by dedicating a percentage of its returns towards
provision of fresh drinking water, health facilities,
schools and local infrastructure to the people of
Balochistan. In addition, most of the labour force will
be employed from amongst the local population of the
Province. In addition, programs for development of
skills will also be put in place.
11.
A point that emerges from the Reference filed before us
is whether the FI Bill 2022 can be challenged on the ground that it
is a person specific law. We note that the FI Bill 2022 is not limited
exclusively to the Reko Diq project. Instead, it provides a
framework for grant of investment incentives which will, subject to
the provisions of the Bill, be available to all investments of US$
500 million or more. The fact that the Reko Diq project is the first
to be identified as a “Qualified Investment” under the FI Bill 2022
does not render the statute as “person-specific.” Furthermore, to
the extent that legislative amendments in the Second Schedule to
Reference No.2/2022
12
the FI Bill 2022 pertain specifically to the Reko Diq project, such
statutory provisions and mechanisms are the norm in a number of
other fiscal statutes, including, but not limited to the Income Tax
Ordinance, 2001. Under the terms of the FI Bill 2022 such specific
exemptions are required either to be legislatively promulgated or
legislatively ratified.
12.
We also note that the proposed FI Bill 2022 will not
only pave the way for implementation of the Reko Diq project in its
present form but will also facilitate and encourage direct foreign
investment in similar mining projects and other high capital
intensive industries in which direct foreign investment is required
to be encouraged through guarantees assured by laws and
regulatory measures.
13.
To sum up we are of the view that the parameters set
out in Abdul Haque Baloch’s case (PLD 2013 SC 641) and the
reasons for the same, have been duly addressed by the Federal and
Provincial Governments. The process for the reconstitution of the
Reko Diq project has been undertaken transparently and with due
diligence. The Agreements are being signed by authorities duly
authorized and competent to do so under the law. To ensure
transparency and fairness, expert advice on the financial, technical
and legal issues involved has been sought from both local as well
as independent international experts/consultants on the terms
settled in the Agreements. The Agreements have been put in place
after due deliberation and have not been found by us to be
unconstitutional or illegal on the parameters and grounds spelt out
in Abdul Haque Baloch’s case ibid. Likewise, the rationale, basis,
legality and vires of the FI Bill 2022 as well as the amendments to
its schedules and annexures and the amendments incorporated
Reference No.2/2022
13
through SROs, provided the resolutions are passed by the Sindh
and Balochistan Provincial Assemblies and the Bill is passed by
the Parliament after following due process, shall be duly enacted
as required under the Constitution. And such laws and regulatory
measures do not in any manner violate the Constitution or the
Law.
The
Reference
is
accordingly
answered
in
the
aforenoted terms.
Sd/-
Chief Justice
Sd/-
Judge
Sd/-
Judge
I agree subject to my clarification that I may not
respond to question No.1 to the extent of “public
policy.” My detailed reasons shall follow.
Sd/-
Judge
Sd/-
Judge
Announced in Court
on 09.12.2022
Sd/-
CJ.
APPROVED FOR REPORTING.
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SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Ijaz ul Ahsan
REPORT NO.128-K OF 2021
[Report on behalf of Shehri-Citizens Vs. Federation of Pakistan
and others]
AND
REPORT NO.135-K OF 2021
[Regarding KMC Officer Co-operative Housing Society land of
abounded KMC Sewage Vs. Federation of Pakistan and others]
AND
REPORT NO.146-K OF 2021
[Chairman KMC Officer Co-operative Housing Society Owais
Qarni Town at Abandoned KMC Sewage Farm Vs. Federation
of Pakistan and others]
In attendance
: Mr. Ayyaz Shaukat, DAG
Mr. Fauzi Zafar,
Addl. A.G., Sindh
Mr. S.M. Saulat Rizvi,
Addl. A.G., Sindh
(via video link from Karachi)
: Mr. Abrar Hasan, ASC
Mazhar Khan, Chairman
Qazi Mumtaz Iqbal,
General Secretary
(For
KMC
Officers
Co-operative
Housing Society)
Mrs. Amber Alibhai, In person
Muhammad Iqbal Memon,
Commissioner, Karachi
Muhammad Shahab Aslam,
A.C. Revenue, Karachi
Mrs. Azra Muqeem,
Legal Advisor, KMC
Dr. Saeed Ahmed Qureshi,
Focal Person to Chief Secretary,
Sindh
(all via video link from Karachi)
Reports No.128-K, 135-K and 146-K of 2021
- 2 -
Date of Hearing
: 11.01.2022
O R D E R
GULZAR AHMED, CJ.- Since partition time, there
exists in Karachi a plot of land measuring 1016 acres for
Sewage Farm on Manghopir Road, Karachi, popularly known as
Gutter Baghicha and the whole of the land is an amenity land
and is meant for use of a park in the City of Karachi. This whole
plot of land is now almost in the heart of the City of Karachi.
The land of Gutter Baghicha belongs to Karachi Metropolitan
Corporation (KMC) for developing it as a park and creating
other amenities in it. With the passage of time, a certain portion
of the land of Gutter Baghicha came to be occupied
unauthorizely and it is alleged that some portion of it is
occupied by Kachi Abadis while some part of it is occupied by
factory or industry. Graveyards also exist on some portion of
this land. On some portion of this land there is KDA Treatment
Plant TP-I, Incinerator Plant and also Pumping Station.
2.
KMC by law is mandated to establish and maintain
parks in the City of Karachi and also to ensure that none of the
lands meant for such purposes is occupied and encroached
upon. KMC seems to have failed in securing the land of Gutter
Baghicha measuring 1016 acres and allowed it to be
encroached and there also seems to be some illegal allotments
on portions of this Gutter Baghicha land. We, however, in the
present case, are dealing with grant of 200 acres of land of
Gutter Baghicha to KMC Officers’ Co-operative Housing Society
Limited (hereinafter called the Society). On 27.12.2021, while
Reports No.128-K, 135-K and 146-K of 2021
- 3 -
hearing matters relating to Civil Petition No.9 of 2010, which is
a petition under Article 184(3) of the Constitution of the Islamic
Republic of Pakistan, 1973, it was brought to the notice of the
Court that 200 acres of land of Gutter Baghicha, which land is
meant for the park for the people of the City of Karachi has been
allotted to the Society. On the said date, the Chairman of the
Society, appeared before the Court and requested for time to
engage a counsel. The Society has filed its Report bearing
No.146-K of 2021.
3.
We have heard the submissions of Mr. Abrar Hasan,
learned ASC on behalf of the Society. We have also heard the
submission of Mrs. Azra Muqeem, Legal Advisor, KMC, and also
Mrs. Amber Alibhai, who has appeared in person on behalf of
Shehri-Citizens for a Batter Environment.
4.
In the report filed by the Society, referred to above, it
has attached a photocopy of Society letter dated 03.01.1993,
addressed to the Minister for Local Government, Sindh,
Karachi, wherein the Society has requested for grant of 200
acres of KMC land in KMC Sewage Farm, Manghopir Road,
Karachi i.e. Gutter Baghicha labelled as waste land. The letter is
signed by one Abdul Hafeez, Chief Promotor of the Society. The
Society has filed a copy of Minutes of Meeting held on
06.03.1993 in KMC building under the Chairmanship of the
Minister, Local Government, Sindh. In these Minutes on the
subject of grant of 200 acres of land to the Society, the Minister,
Local Government, appears to have passed an order that 200
acres of waste KMC land at Sewage Form, Manghopir Road,
Reports No.128-K, 135-K and 146-K of 2021
- 4 -
Karachi (Gutter Baghicha) may be granted to the Society for
housing purposes at the rate of Rs.10/- per square yard as
Occupancy Value and at the rate of Rs.15/- per square yard as
Development Charges. These Minutes are contained in a
document dated 09.03.1993 signed by Mohammad Irshad
Ahmad, Minister for Local Government, Sindh. The Society
again seems to have made an application to KMC Council
Secretariat for grant of lease of 99 years, pursuant to the
Minutes recorded in document dated 09.03.1993. Giving details
for which the land is required i.e. for residential purposes of
KMC employees requested that 200 acres of land may be
allotted to the Society under Section 45(5)(i) of the Sindh Local
Government Ordinance, 1979 (the Ordinance of 1979). The
administrator,
KMC
passed
a
Resolution
No.82
dated
11.03.1993, which is as follows:
� دادرا�٨٢
�ر�١١ چر�١٩٩٣ء
�ارا � ��ر � ��� �ؤ� ��آ� �آ � �ا � �ا� � ��٩٩ ���د � � ��
/ل�/ىا �ا ىڈ �ا � �ادد� � � �� � � ��٩٣ �ر�٩ چر�١٩٩٣ � ء
�� � ت�ر� جرد۔�� �� � ىر� � ھ� �� � ۔� �� � ىر�
There is a letter dated 25.07.1993, signed by Muhammad
Siddique Dar, Section Officer-VI, Government of Sindh, Local
Government, Public Health Engineering and Rural Development
Department,
addressed
to
the
Municipal
Commissioner,
Metropolitan Corporation, Karachi on the subject of Grant of
200 Acres of Waste KMC Land in Sewage Farm, Manghopir
Road, Karachi (Gutter Baghicha) to the Society. The contents of
the said letter are as follows:
Reports No.128-K, 135-K and 146-K of 2021
- 5 -
“The Municipal Commissioner,
Metropolitan Corporation,
Karachi.
Subject: GRANT OF 200 ACRES OF WASTE KMC LAND IN
SEWAGE FARM MANGHOPIR ROAD, KARACHI TO
KMC
OFFICER’S
CO-OPERATIVE
HOUSING
SOCIETY.
Reference your letter No.SDLE/6335/93, dated 29-
5-1993, on the subject noted above.
2.
In exercise of powers conferred by section 45(5)(1) of
the Sindh Local Government Ordinance, 1979, Government
of Sindh are please to accord approval to the KMC Council
Resolution No. 82, dated 11-3-1993, regarding allotment of
200 Acres of Waste KMC land in Sewage Farm Manghopir
Road Karachi in favour of KMC Officer’s Co-op. Housing
Society for allotment to its registered members, at the rate of
Rs.10/- per sq. yard occupancy value plus development
charges at the rate of Rs.15/- per sq. yard, for residential
purpose, on 99 years lease basis, on the terms and
conditions specified in the above resolution.
SD/-
(MUHAMMAD SIDDIQUI DAR)
SECTION OFFICER-VI
For Secretary to Government of
Sindh”
5.
The letter is signed by Section Officer for Secretary
to Government of Sindh. The letter also does not mention that it
is issued under the direction of the competent authority rather
the
Section
Officer
himself
has
accorded
approval
of
Government of Sindh which is not legal as Section Officer is not
shown to have power to accord approval of the Government of
Sindh.
6.
The said letter mentions that in exercise of powers
conferred by Section 45(5)(i) of the Ordinance of 1979, the
Government of Sindh is pleased to accord approval to KMC
Council Resolution No.82 dated 11.03.1993 regarding allotment
of 200 acres of waste KMC land in Sewage Form, Manghopir
Road, Karachi (Gutter Baghicha) to the Society for allotment to
its registered members at the rate of Rs.10/- per square yard
occupancy value plus development charges at the rate of
Reports No.128-K, 135-K and 146-K of 2021
- 6 -
Rs.15/- per square yard for residential purposes on 99 years
lease basis. It seems that some payments in respect of the land
were deposited. On 03.08.1993, an allotment letter seems to
have been issued by KMC of the said 200 acres of land to the
Society. On the same day i.e. 03.08.1993, handing and taking
over of possession was also made. On 11.08.1993, lease of the
land was also signed and executed by KMC in favour of the
Society and it was also registered. The Society appears to have
prepared a layout plan in which it has provided plots of land for
residential and commercial purposes. The Society, apparently,
has made allotment of the plots to its members i.e. the
employees of KMC.
7.
The learned counsel for the Society, in the first
place, has contended that the plots have been allotted by the
Society to KMC retired employees. We have asked the learned
counsel to show whether the Society is for the retired employees
of KMC, he admitted that the Society is not meant for the
retired employees but of serving employees of KMC. The learned
counsel further contended that in some cases the plots are in
the name of widows of KMC employees. We have asked the
learned counsel for the Society to show under what mandate of
law KMC or the Sindh Government or the Minister of Local
Government, Sindh, has granted the land to the Society. The
learned counsel referred to provision of Section 45(5) clause (i)
of the Ordinance of 1979. The learned counsel also contended
that the Society has filed a Civil Suit in the High Court of Sindh
Reports No.128-K, 135-K and 146-K of 2021
- 7 -
in which it has obtained a stay order in respect of the land in
question.
8.
The legal Advisor, KMC has referred to Rule 10 of the
Sind People’s Local Council (Land) Rules, 1975 (the Rules of
1975) to contend that the land in question was rightfully leased
out to the Society. On the other hand, Mrs. Amber Alibhai
relying upon Report No.128-K of 2021 contended that the whole
of the land of KMC Sewage Form, Manghopir Road, Karachi
known Gutter Baghicha measuring 1016 acres is meant for a
park for the City of Karachi and could not be allotted by KMC to
its own employees for housing and commercial purposes and
such grant/allotment/ lease is wholly illegal and prayed that
the land allotted, granted and leased to the Society may be
retrieved.
9.
As noted above, the learned counsel for the Society
has placed complete reliance on Section 45(5)(i) of the
Ordinance of 1979 to support the grant/allotment/lease of 200
acres of land to the Society. Section 45 of the Ordinance of 1979
is as follows:
“45. Contracts.- (1)
Every
council
shall,
within the budget grant, be competent to enter
and perform all such contracts as it may
consider necessary or expedient in order to
carry into effect the provisions and purposes of
this Ordinance.
(2)
All contracts made by or on behalf of a
council shall be :-
(a)
in writing expressed to be made in the
name of the council; and
(b)
reported to the council by the Mayor or,
as the case may be, Chairman, at the
meeting next following the execution of
the contract.
Reports No.128-K, 135-K and 146-K of 2021
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(3)
All contracts shall, subject to the rules,
be entered into after inviting competitive
tenders or quotations:
Provided that tenders or quotations
involving expenditure exceeding such amount
as may be prescribed shall be invited by a
notice in a newspaper;
Provided further that in case the lowest
tender or quotation is not accepted, the
authority competent to grant the contract, if
other than the council, shall lay down in
writing, and if the council itself, shall express in
the
resolution
approving
the
tender
or
quotation, the reasons for not accepting the
lowest tender or quotation.
(4) All contracts for transfer by grant, sale,
mortgage, lease or otherwise of immovable
property or any interest and right thereto or
disposal or sale of movable property or for
leasing out rights to collect taxes shall, subject
to the rules be entered into after inviting offers
in an open auction :
Provided that if the highest bid is not
accepted by the council, approval in writing of
Government shall be obtained, and Government
shall, in its order give reasons for not accepting
the highest bid :
Provided further that a council may with
the approval of Government enter into a
contract without inviting offers in auction.
(5)
Notwithstanding anything contained in
sub-section (4) its council may grant, sell, or
lease out land at rates to be fixed in
consultation with Government, to :-
(i)
Associations, organisations, individuals
or any department or institution of the
Federal or a Provincial Government for
establishing, maintaining or extending
education,
religious
and
charitable
institutions or for such other purposes
for the benefit of the public, subject to
the condition that if the land is not used
for the purpose it was granted, the
council
may,
after
affording
such
association, organization, individual or
department or institution, as the case
may be, an opportunity to show-cause
against the proposed action, resume
such land alongwith structures, if any
without any compensation;
Reports No.128-K, 135-K and 146-K of 2021
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(ii) land
holders
for
adding
to
their
holdings, alignments or small plots of
not more than forty square yards at the
market price likely to be obtained in
auction;
(iii) holders of lease for twenty years or
more after the expiry of the lease, on the
same terms and conditions.
(6) Government may subject to the other
provisions of this ordinance, make rules laying
down the procedure to regulate the making of
contracts and the execution thereof.
(7) No contract executed otherwise than in
conformity
with
the
provisions
of
this
Ordinance shall be binding on the council.”
The reading of this provision shows that it deals with the
matters relating to the Contracts. Sub-section (5)(i) of the above
Section provides that notwithstanding anything contained in
sub-section (4) its council may grant, sell, or lease out land at
rates to be fixed in consultation with the Government, to
associations, organisations, individuals or any department or
institution of the Federal or a Provincial Government for
establishing, maintaining or extending education, religious and
charitable institutions or for such other purposes for the benefit
of the public, subject to the condition that if the land is not
used for the purpose it was granted, the council may, after
affording
such
association,
organization,
individual
or
department or institution, as the case may be, an opportunity to
show-cause against the proposed action, resume such land
alongwith structures, if any without any compensation. It is
apparent from the reading of this provision that it speaks of
grant/sell/lease of the land to associations, organizations,
individuals or any department or institution of the Federal or a
Provincial Government and the purpose is also given that is for
Reports No.128-K, 135-K and 146-K of 2021
- 10 -
establishing, maintaining or extending educational, religious
and charitable institutions.
10.
The learned counsel for the Society has contended
that this provision also contains that the land could be used for
such other purpose also. We note that though “for such other
purpose” is mentioned in the provision but it is also written that
such other purposes for the benefit of the public. It was also
noted that the words for such other purposes can only be read
in ejusdem generis, in that, it has meaning confined to its
earlier words that are educational, religious and charitable
purposes.
The
land
of
200
acres
have
been
granted/allotted/leased by KMC to the Society for use of
housing purposes of its own employees and also as the layout
plan shows for commercial purposes. This provision of law does
not at all provide that the Council could grant, sell or lease the
land of KMC to its own employees for housing and commercial
purposes. The land which is allowed to be granted, sold or
leased, in the first place is to associations, organizations,
individuals or any department or institution of the Federal or a
Provincial
Government
and
that
too
for
establishing,
maintaining or extending educational, religious and charitable
institutions and for such other purposes for the benefit of the
public. Obviously, the allotment of land for housing and
commercial purposes to the employees of KMC will not be that
for the benefit of the public. Thus, reading of the provision of
Section
45(5)(i)
ibid
did
not
at
all
provide
for
Reports No.128-K, 135-K and 146-K of 2021
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grant/allotment/lease of a land to the Society for allotment to
the employees of KMC.
11.
The Legal Advisor of KMC has referred to Rule 10 of
the Rules of 1975, which reads as follows:
10.
Leasehold right to Co-operative Housing
Societies.—(1) A Council shall prepare a general
lay out of the areas to be granted to Co-
operative Housing Societies dividing the area in
blocks and the blocks in plots.
(2)
Such lay out shall specify the purpose for
which the plots shall be used, the class of
buildings to be constructed on such plots and
the order in which the construction of such
buildings on different plots in each block shall
commence.
(3) The Council shall, with the approval of
Government, prepare a schedule showing the
occupancy value per square yard for each block
and for each plot in such block except the plots,
if any, reserved for providing amenities for the
residents of the block.
(4)
Subject to these rules such blocks shall
be leased to the Co-operative Housing Societies
on payment of a deposit equal to twenty per
cent. of the occupancy value and ground rent
for one year in advance for such blocks.
(5)
The balance of the occupancy value and
rent shall be paid by the Society in the manner
as may be specified by the Council.
(6)
The lease shall be for a period of ninty-
nine years, commencing from the date of the
payment of full occupancy value of the plot.
(7)
Where the Co-operative Housing Society
has completed the buildings on all the
residential plots in a block in accordance with
the rules, terms and conditions of the lease and
bye-laws, it shall, be entitled to a lease for the
same period of the plots reserved, if any, for
providing amenities for the residents of the
block free of ground rent but where the Society
has failed to commence or complete buildings
as aforesaid the plots reserved for providing
amenities shall not be lease out to the Society
and the same shall be disposed of in any
manner as the Council may deem fit.
Reports No.128-K, 135-K and 146-K of 2021
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(8)
Where more than one and Society applies
for any particular block or blocks, such block
or blocks shall be leased by drawing lots.
(9)
Where the Society fails to fulfill the terms
and conditions of the lease or fails to carry out
development of the land, the Council shall be
competent to carry out the development and
grant direct leases to the allottees/members of
the
Society;
provided
that
such
allottees/members have paid full occupancy
value and development charges incurred by the
Council.”
So far Rule 10 of the Rules of 1975 is concerned, we note
that Rule 3 thereof provides that the lands shall vest in a
Council. Clause (b) thereof provides that all lands shall include
open spaces, playgrounds, gardens, parks and other places of
public resort belonging to the Council or transferred to it by
Government or reserved or acquired by it, by gift, purchase or
otherwise. Under Rule 7 of the Rules of 1975, the Council has
been given power to lease out land for constructing buildings for
residential and commercial purposes. Rule 8 of the Rules of
1975, provides that sale of the Council land shall be made by
public auction on payment of full occupancy value. Rule 10 of
the Rules of 1975 provides a Council to prepare a general lay
out of the areas to be granted to Co-operative Housing Societies
dividing the area in blocks and the blocks in plots and also to
lease the blocks to the Co-operative Housing Society.
12.
In the first place, we note that the land of Gutter
Baghicha is not a building site on which construction of
building of residential and commercial purposes can be made,
for that, the whole land of Gutter Baghicha is an amenity land
and can only be used for amenity purpose that of park. The
Reports No.128-K, 135-K and 146-K of 2021
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leasehold right of amenity plot cannot be granted to a Society
nor any such thing is provided in Rule 10 of the Rules of 1975,
cited before us.
13.
Thus, Rule 10 of the Rules of 1975, as relied upon
by the Legal Advisor of KMC, has no application to the case in
hand and cannot protect the grant/allotment/lease of land
under the provision of Section 45(5)(i) of the Ordinance of 1979
and once the Ordinance of 1979 itself cannot support such
grant/allotment/lease, the same could not be saved by the
Rules, as the Rules have to be consistent with the law under
which the Rules are made.
14.
An overall examination of the case and the law
referred to by the learned counsel for the parties, we note that
KMC or the Council or the Government of Sindh or the Minister
of Local Government, Sindh were not empowered to grant 200
acres of land of Sewage Form, Manghopir Road, Karachi (Gutter
Baghicha) to the Society, as neither the law allowed such grant
or allotment or sale of the land to the Society for the purpose of
KMC employees housing and commercial use; as such, land as
noted in the very provision is to be used for establishing,
maintaining or extending educational, religious and charitable
organizations and for the benefit of public. Thus, from inception
the Society has wrongly claimed the land granted to it under the
provision of Section 45(5)(i) of the Ordinance of 1979 and the
very
grant
made
under
this
very
provision
by
the
Administrator/Council or the Government of Sindh is totally
Reports No.128-K, 135-K and 146-K of 2021
- 14 -
against the law and could only be considered as illegal but void
exercise.
15.
During the course of hearing of this matter, the
Secretary of the Society has admitted that though allotment has
been made to the employees of KMC but no housing or any
commercial building has been constructed on the land up till
now. During the course of hearing, learned counsel for the
Society has admitted that the terms and conditions of KMC
employees does not mention that they would be entitled to grant
of land by KMC for their houses.
16.
We are of the considered view that the grant/
allotment/lease of 200 acres of land at Sewage Farm,
Manghopir Road, Karachi (Gutter Baghicha) to the Society was
altogether illegal and not supportable by law and void ab initio.
17.
We, therefore, hold and declare that the grant of 200
acres of land by the Minister, Local Government, Sindh
contained in the Minutes of Meeting dated 06.03.1993
mentioned in document dated 09.03.1993, the approval of the
Government of Sindh vide letter dated 25.07.1993, the letter of
allotment dated 03.08.1993, the letter of possession dated
03.08.1993 and the lease deed dated 11.08.1993, are all
contrary to law, illegal and thus, set aside, resultantly, all
consequential allotments made by the Society to its members
are also declared to be contrary to law and illegal and the same
are also set aside and cancelled.
18.
The Administrator, KMC is directed to resume the
land immediately and to utilize it for the amenity purposes that
Reports No.128-K, 135-K and 146-K of 2021
- 15 -
of park for which it is meant. The Administrator shall submit its
report to the Court of showing compliance of the Court order
within two weeks.
19.
All the reports are disposed of.
CHIEF JUSTICE
Special Bench-I
Islamabad
11.01.2022
‘APPROVED FOR REPORTING’
Mahtab/*
JUDGE
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Nasir-ul-Mulk, HCJ
Mr. Justice Gulzar Ahmed
Mr. Justice Mushir Alam
Civil Appeal No.1000 of 2006
Against judgments dated 26.04.2006 of High
Court of Sindh at Karachi, passed in HCA
No.329, of 2005.
National Logistic Cell
Appellant(s)
VERSUS
Irfan Khan & others
Respondent(s)
For the Appellant(s):
Mr. Anis-ud-Din, ASC
Mr. Rifaqat Hussain Shah, AOR
For Respondents#1-3:
Mr. Nasir Maqsood, ASC
For Respondents#4-6:
Ex-parte
Date of Hearing:
30.01.2015
JUDGMENT
Mushir Alam, J-. This appeal is directed against
judgment dated 26.04.2006, whereby a learned Division Bench of
High Court of Sindh at Karachi dismissed the appeal (HCA No.329
of 2005), filed by the appellant-NLC, with slight modification in the
judgment & decree of 16.05.2005 passed in Suit No.612 of 1994.
2.
Facts of the case appear to be that the deceased Sher
Azam Khan, a driver on PIA Van on the fateful day i.e. 11.04.1993
was on his way from Karachi Airport towards City to drop the crew
members to their homes, when he reached near Muhammad Ali
Housing Society, at about 5.30 A.M early in the morning, all of a
sudden one NLC Trailer, appeared in a rash and negligent manner
from the opposite side, in a bid to overtake other vehicles, dashed
into the PIA van causing severe accident that took the life not only of
the driver Sher Azam Khan but, of the three air hostesses as well.
Civil Appeal No.1000 of 2006
2
3.
Respondents No. 1 to 3, all minors of 2 to 6 years at that
time, through their mother being legal heirs of the deceased driver
on 09.08.1994 filed a suit bearing No.612/1994 under the Fatal
Accident Act, 1855 for the recovery of compensation in the sum of
Rs.35,00,000/-
against
the
appellant-NLC,
its
driver
Naik
Muhammad Arif, (driver of offending NLC-trailer), Respondent No.5
herein, and Karachi Development Authority (succeeded by City
District Government (CDGK/KDA)), Respondent No.6 herein, and
another. It was the case of Respondents No.1 to 3 that the road
repairing work of one track of Shahrah-i-Faisal was being carried out
by the KDA; on the track meant for vehicular traffic flowing from
Karachi Airport towards the City, which was closed for vehicular
traffic. Other track was being used by the traffic of both ways. Case
against the CDGK/KDA as pleaded in the plaint was that as an
executing agency for the road repair, the KDA neglected to take due
care to install any caution signs, nor they installed any bifurcating
device, as is required of an ordinary prudent person, thus defaulted
in performance of their duty that also contributed in the unfortunate
accident that took lives of four persons.
4.
Suit
was
contested
by
the
defendants,
written
statements were filed. Out of the pleadings of the parties, following
issues were framed:-
“1. Whether the death of the deceased Sher Azam Khan
was caused by the composite negligence and
wrongful act of the defendants, if so, its effect?
2. Whether the defendants are liable to pay the
compensation to the plaintiffs and other legal heirs,
if so, to what extent?”
5.
To substantiate the claim in the suit, Mst. Naseem
Akhtar, widow of the deceased driver and, mother of the minor
plaintiffs, examined herself as EX.P/1, and produced various
documents to prove the accident. She also examined an eyewitness
of the accident namely Muhammad Ihsanul Haq EX.2/1,
Muhammad Iqbal, ASI of Police Station Bahadurabad, as EX.P/3,
who produced inspection report, site sketch of the place of incident,
etc and Abdul Razzak Shaikh, Accountant of PIA to prove
employment of the deceased with PIA and his emoluments. All the
witnesses corroborated the plea of the Plaintiff, as to the factum of
accident, negligence of the NLC driver and non provision of warning
Civil Appeal No.1000 of 2006
3
and cautionary measures by the CDGK/KDA and quantum of
damages and liability of the defendants.
6.
The appellant-NLC and Respondent No.5 cross-
examined the plaintiff’s witnesses but were unable to shatter the case
of Respondents No.1 to 3 on any count. They chose not to lead any
evidence in rebuttal and or in support of their defense plea of
contributory negligence on the part of deceased driver or sole
responsibility of the KDA/Respondent No.6 for failing to perform
public duty. Likewise, KDA/Respondent No.6 neither cross-
examined the Plaintiff, her witnesses nor led any evidence in rebuttal
that they had not taken any precautionary measures to warn public
of any road diversion and or repair, etc nor did they advance any
argument either before the Courts below or before this Court.
7.
On preponderance of the evidence, issue No.1 was
decided in favour of the Respondents No.1 to 3 and against the
Appellant-NLC, as well as rest of the respondents. Finding against
the CDGK/KDA, is contained in paragraph 13 of the judgment dated
16.05.2005 of the learned Single Judge, who in Chambers after in-
depth examination of evidence on issue No.1 concluded as follows:-
““13.
from the above evidence it is clear that one side
of Shahra-i-Faisal road was being repaired by the
defendants No.4 through contractor therefore it was
closed for traffic. The traffic was diverted to the other
side of the road. Under the circumstances the
defendants No.4 were required to make proper
arrangements for the smooth flow of the traffic and to
make adequate arrangements to caution the traffic
flow by affixing barricades, flicker lights with standby
generators, diversion signboards fixed on either end of
the intersections of the road, also barricades and flicker
lights in the middle of the road for smooth flow of the
traffic on the road and for the guidance of the dual
traffic on one side of the road and should have also
deployed traffic constables on the road. The eyewitness
Muhammad Ihsanul Haq clearly admitted that no such
signs or lights were available on the road for the
guidance of the traffic. The evidence of the witness went
unchallenged as the defendants No.4 did not cross-
examine him on the above points of his evidence nor the
defendants No.4 that defendants Nos.4 and 2 are also
liable to pay compensation.”
8.
As regards the factum of accident, negligence, liability of
the Driver/Respondent No.5 and vicarious liability of the Appellant-
NLC., there was no serious contest nor, any evidence was led in
rebuttal to the case of Respondents No.1 to 3. Evidence of the star
eyewitness of the accident Muhammad Ihsanul Haq EX.2/1, who
Civil Appeal No.1000 of 2006
4
was driving another PIA van just behind the ill-fated van and had
witnessed the accident within his sight had not only gone
unchallenged but, the Appellant-NLC, as noted above, also failed to
adduce or lead any evidence in rebuttal even the driver of the of
offending NLC Trailer was also not produced.
9.
On the strength of evidence on record, the Appellant-
NLC, the Respondent No.4, Respondent No.5 (Driver of offending
vehicle) and the Respondent No. 6 CDGK/KDA, were held jointly
liable for the accident. The learned Single Judge in paragraph 15 of
his judgment dated 16.05.2005, found them liable in the following
terms:-
“15.
From the above position it is clear that the
defendants No.4 and defendants Nos. 2 and 3 were
negligent and the accident took place due to their
negligence therefore it is a case of normally styled in
the legal parlance as composite negligence. The
principles of composite negligence are that the victim
has a choice of proceeding against all or any one or
more than one of the wrong doers and every wrong
doer are liable for the whole damages if it is otherwise
made out. Reliance is placed on Andhora Marine
Exports {P} Ltd. V. P. Radhakirshina. AIR 1984 Madras
358 and Vanguard F. & G.I. Co. V. Sarla Devi, AIR 1959
Punjab 297.”
10.
Consequently, issue No.2 as to quantum of liability was
also decided in favour of the Plaintiffs/Respondents No.1 to 3 and
against the Appellant, and rest of the Respondents. They were jointly
and severally held liable to the Respondents No.1 to 3 in the sum of
Rs.27,o97,43.62/- with profit/mark up at rate of 15% per annum
from the date of judgment till recovery of the amount with costs. The
amount of compensation so decreed also included compensation of
Rs.300,000/- for each of the minor plaintiff.
11.
This judgment was challenged by the Appellant-NLC
only, through High Court Appeal No.329 of 2005 and a learned
Division Bench of the High Court maintained the judgment and
decree with modification and the additional compensation awarded
to the minor children of the deceased at Rs.300,000/- per child,
which was considered to be on higher side, was revised to
Rs.100,000/- per child. Hence, this appeal.
12.
Learned ASC for the appellant took serious exceptions
to the impugned judgment passed in the High Court Appeal. It was
Civil Appeal No.1000 of 2006
5
contended that the accident occurred due to sheer negligence of
Respondent No.6 KDA/CDGK, who failed to perform its public duty,
in as much as, it failed to install dividers as ought to have been done,
they failed to take due care as an ordinary prudent person would
have taken. It was urged that death of the deceased was caused by
actionable negligence, default and wrongful act of the KDA/CDGK. It
was urged that if at all, the suit should have been decreed against the
respondent No.6 KDA/CDGK which was mainly responsible for the
accident and not against the Appellant-NLC. According to the
learned ASC, the Appellant cannot be saddled with the liability for
the neglect in performance of duties by the CDGK/KDA, which was
responsible to carry out repair and maintenance of the road, and
while repairing work was underway, it was their duty to take all
precautionary measures for the diversion of the traffic, putting
dividers and installing warning lights, signs and other safety
measures as a person of an ordinary prudence would have taken, had
such measure been taken accident could be averted.
13.
Mr. Nasir Maqsood, learned counsel for the respondents
No.1 to 3 contended that there is no denial of the unfortunate
accident that took the life of sole bread earner of Respondents No.1
to 3. He has drawn our attention to the evidence of Mst. Naseem
Akhtar, EX.P/1 widow of the deceased driver, who in response to a
suggestion in cross examination stated that “As matter of fact the
accident took place on account of negligence on the part of
defendant No.4 (CDGK/KDA), as well as defendant No.2 i.e. the
appellant herein (NLC). He also drew attention of the Court to the
deposition of eyewitness of the incident, Muhammad Ihsanul Haq
(Ex 2/1), who was driving another PIA Van and was just behind the
ill-fated Van of the Sher Azam Khan since deceased, had
categorically stated “that the vehicle driven by the defendant of the
NLC emerged from the wrong side in a high speed and collided with
Van of deceased and hit him resulting into the death of driver and
three Airhostesses as well”. His testimony on such a vital aspect
proving negligence of the Driver of the Appellant had gone rebutted.
14.
Mr. Nasir Maqsood, learned ASC contended that the
Appellant cannot shift its burden on the shoulder of other
wrongdoer/tortfeasor. It was urged that it is a case of joint or
Civil Appeal No.1000 of 2006
6
composite negligence, Appellant is vicariously liable for the wrongful
act of its driver; they cannot be totally absolved of their liability,
which is joint and several with driver/Respondent No.5 and the Civic
Agency namely CDGK (KDA)/Respondent No. 6 herein who were
also negligent and failed to take due care and caution as is expected
from a person of an ordinary prudence. He further urged that the
driver of the offending vehicle was not produced by the Appellant,
withholding such an important witness and wrongdoer by the
Appellant, negative inference is to be drawn. It was, therefore,
contended that the Appellant and Respondents No.4 to 6 are jointly
and severally liable for the composite negligence, which resulted in
loss of valuable life of the deceased driver. He relied on a large
number of cases from Pakistan and Foreign jurisdiction, including
the one reported as Karachi Transport Corporation v. Latif-Ur-
Rehman and others (1993 SCMR 1149) to urge that Courts have
invariably deprecated the trend prevailing with the public
functionaries, of contesting and prolonging the fatal accident cases,
denying the bereaved families of their due rights and compensation,
by raising frivolous pleas and dragging the citizens to highest Courts
in appeals on frivolous and untenable grounds, thus adding salt to
the injury of such persons.
15.
We have heard the arguments and perused the record.
We have noted that the accident that took life of the driver of PIA
Van was caused due to the negligence of the Respondent No.5/driver
of the appellant-NLC coupled with negligence of CDGK/KDA for
failure to take precautionary and preventive measures to avert any
untoward happening. In fact, the appellant on one hand not only
failed to cross examine any of the Plaintiff’s witness on material
aspect of the case and secondly failed to lead any evidence to rebut
the claim in suit and lastly, in the instant Appeal the Appellant-NLC
have tried to shift the entire blame of the accident and of the liability
to compensate on Respondent No.6 CDGK (KDA) alone. Both the
learned Single Judge in Chambers and the learned Division Bench
have appreciated the evidence. Suit was decreed in the sum of
Rs.27,09,743.62/- jointly and severally with profit/markup at the
rate of 15% per annum from the date of judgment till the recovery.
The compensation included Rs.300,000/- for each of the three
minors. In Appeal, however, the learned Division Bench on proper
Civil Appeal No.1000 of 2006
7
consideration modified the judgment and decree to the extent of
revising the compensation from Rs. 300,000/- to Rs. 100,000/- for
each of the three then minor plaintiffs and such finding of fact is
based on proper appraisal of the evidence on record. No error of
misreading or non reading of the evidence has been pointed out by
the learned counsel for the appellant.
16.
Now adverting to the contentious assertion of the
learned ASC for the Appellant that the Respondent No.6 CDGK
(KDA) is solely responsible for the unfortunate incident, therefore,
suit should have been decreed against such Respondent alone.
Arguments were considered. As regards joint and several liabilities
of two wrongdoers namely the NLC/Appellant and the driver of NLC
offending trailer and KDA/CDGK, the Civic Agency responsible for
the repair work, they were held liable by the learned Single Judge,
who aptly dealt with the contention as raised before us thoroughly in
paragraph 15 of the impugned judgment, reproduced hereinabove.
17.
Finding against the CDGK (KDA), Respondent No.6, the
agency for executing road repairs is as follows;
““13.
from the above evidence it is clear that one side
of Shahra-i-Faisal road was being repaired by the
defendants No.4 through contractor therefore it was
closed for traffic. The traffic was diverted to the other
side of the road. Under the circumstances the
defendants No.4 were required to make proper
arrangements for the smooth flow of the traffic and to
make adequate arrangements to caution the traffic
flow by affixing barricades, flicker lights with standby
generators, diversion signboards fixed on either end of
the intersections of the road, also barricades and flicker
lights in the middle of the road for smooth flow of the
traffic on the road and for the guidance of the dual
traffic on one side of the road and should have also
deployed traffic constables on the road. The eyewitness
Muhammad Ihsanul Haq clearly admitted that no such
signs or lights were available on the road for the
guidance of the traffic. The evidence of the witness went
unchallenged as the defendants No.4 did not cross-
examine him on the above points of his evidence nor the
defendants No.4 that defendants Nos.4 and 2 are also
liable to pay compensation.”
18.
There
is
no
statutory
definition
of
the
word
“negligence”. However, in Oxford Dictionary (Volume-VII of
1933), it is defined to mean “(1) want of attention to what ought to be
done or looked after; carelessness with regard to one’s duty or
business; lack of necessary or ordinary care in doing something; (2)
an instance of inattention or carelessness; a negligent act, omission,
Civil Appeal No.1000 of 2006
8
or feature; and (3) a carless indifference, as in appearance or
costume, or in literary or artistic style; in later use esp. with
suggestion of an agreeable absence of artificiality or restraint” and in
Black’s Law Dictionary (Ninth Edition), it is defined as “failure to
exercise the standard of care that a reasonably prudent person would
have exercised in a similar situation; any conduct that falls below the
legal standard established to protect others against unreasonable
risk of harm, except for conduct that is intentionally, wantonly or
willfully disregardful of others’ rights”. In claims arising out of
wrongful or tortuous act, most common defence taken by the
tortfeasor or wrongdoer is against the injured or the victim of
tortuous act, is contributory negligence on the part of such person
who has suffered loss, injury or fatality has himself failed to take due
care that has resulted and or contributed to the loss, injury or fatality
to such person or his property (for further discussion on
contributory negligence one may see Ena Pearl Nance v. British
Columbia Railway PLD 1951 PC 47) . In appeal in hand, the
appellant has not blamed the deceased driver of the contributory
negligence rather they have tried to shift the liability of negligence on
the CDGK/KDA, which according to the learned ASC for the
appellant, failed to perform its duty of care as is required to be taken
by person of an ordinary prudence, in as much as, while undertaking
road repair or maintenance work no precautionary measures were
taken, no warning signs were affixed, at the site of work, to caution
commuters that could have averted the unfortunate incident.
19.
Plaintiffs/Respondents No.1 to 3 have claimed damages
from the Appellant being vicariously liable for the act of its driver
and against the CDGK/KDA, jointly and severally and had built up a
case of joint or composite negligence. By composite negligence, it
means where the wrong, damage or injury is caused by two or more
persons, in such cases each of the wrongdoer is jointly and severally
liable to make good the loss to the claimant who suffered at the
hands of such tortfeasors. It is the prerogative of the plaintiff to
proceed against any or all such wrongdoers. It is not the plaintiff
who is saddled with responsibility to establish separate liability
against each of the tortfeasor nor is it considered the responsibility
of the Court to ordinarily determine liability of each tortfeasor
Civil Appeal No.1000 of 2006
9
separately, proportionately and or independently in absence of any
such issue at the trial. The distinction between ‘composite
negligence’ and contributory negligence’ was aptly noted in the case
referred to as T.O. Anthony vs. Karvarnan & Ors (2008) 3 SCC 748
as affirmed in the case of Pawan Kumar & Anr. v. Harkishan Dass
Mohan Lal & Ors. [2014 (3) SCC 590]. It was laid down by the
Indian Supreme Court that ‘composite negligence’ refers to the
negligence on the part of two or more persons. Where a person is
injured as a result of negligence on the part of two or more
wrongdoers, it is said that the person was injured on account of the
composite negligence of those wrongdoers. In such a case, each
wrongdoer is jointly or severally liable to the injured for payment of
the entire damages and the injured person has the choice of
proceeding against all or any of them. On the other hand, where a
person suffers injury, partly due to his own negligence, then the
negligence on the part of the injured which contributed to the
accident is referred to as his contributory negligence.
20.
Instant case is not a case of contributory negligence on
the part of deceased driver but, of joint/composite negligence of two
wrongdoers. In a case where plaintiff sues a civic agency or a person
for its failure or neglect to perform its duty of care resulting any
damage to his person and or property, initial burden is on the
Plaintiff to plead and show such negligence and failure to perform
duty of care by such person or agency. In the instant case, it is noted
that Plaintiff herself and through her witnesses established that
CDGK/KDA failed to perform its duty of care as there was no light
and or cautionary signs forewarning or putting commuters on
lookout of any potential hazard nor, any divider or fence was placed
to make road travel safe for the commuters.
21.
In a case reported as Municipal Corporation of Delhi v.
Sushila Devi (AIR 1999 SC 1929) a person passing by the road
died because of a fall of branch of a tree standing on the road, on his
head. The Municipal Corporation Delhi was held liable as its
Horticultural Department failed to carry out periodical inspections
of trees and to trim and or remove the out grown/dried branches of
tree protruding or hanging out that could be dangerous for the
passers-by, failure and or neglect to perform such duty was
Civil Appeal No.1000 of 2006
10
considered sufficient to make them liable to compensate the family
of bereaved passerby. In another case reported as Municipal
Corporation of Delhi v. Subhagwanti (AIR 1966 SC 1750); a clock-
tower in the heart of Chandni Chowk, collapsed causing the death of
a number of persons. The structure was 80 years old whereas its
normal life was 40-50 years. The Municipal Corporation of Delhi
having the control of the structure failed to take care and was
therefore, held liable. In a case reported as Madhu Kaur Vs
Government of N.C.T. of Delhi and another (AIR 2010 (NOC) 395
Del (full text of judgment may be retrieved from link
http://indiankanoon.org/doc/181916184/). In last cited case, it had
come on record that tarcol and concerts on the road surface were
badly eroded, which had created a pit (khadda) of about 3 to 4 inch
deep and about one square foot in area on the road. The
investigation revealed that the motorcyclist when struck the pit fell
and succumbed to multiple skull injuries. It was held by the Court
that failure on the part of the State authorities to maintain road &
display caution notice in respect of a pit created on surface of road
amounts to negligence. It is the duty of the State to see that
contractor performs assigned work properly, and accordingly the
State was held liable to pay compensation. In Paragraph 16 of the
cited case, it was held as under:-
“The respondent authorities should be conscious and
aware of their duty to maintain roads and ensure that the
road surface does not have any pits or khada so as to
cause accidents, thus resulting in injuries and even loss of
life. It is the obligation and responsibility of the road
owning agencies to ensure that the roads are maintained
properly and repairs undertaken. Even if they have
entered into third party contracts for road maintenance,
road users should not suffer injuries fatal or otherwise
because of lack of maintenance, proper care and repairs.
In case road is found to be damaged, necessary caution
board/sign boards or barricades should be fixed. In case
accidents take place as a result of negligence and failure
to maintain roads, damages can always be awarded to
persons who have suffered or lost a near and dear one.
Loss of life because of negligence of state instrumentalities
results in violation of right to life and liberty under Article
21 of the Constitution”.
22.
In the instant case as well, the Plaintiff led evidence to
establish that the accident was caused by the wrongful act of the
Driver of Appellant-NLC, thus it was vicariously liable. Evidence was
further led to show that the CDGK/KDA contributed in the
unfortunate accident as they neglected in performance of their duty
Civil Appeal No.1000 of 2006
11
of care to display any cautionary signs, warring lights cautioning
commuter of the closure of one track and or divergence of traffic
and, further failed to put fences, barricade or dividers making it safe
for the two way traffic on the same track of the road, such evidence
had gone unchallenged. As noted above, it is not the Plaintiff’s
concern as to assess and seek inter-se proportionality of wrong and
or liability of each of the tortfeasor, nor does the Court ordinarily
enter into such controversy, in absence of any issue, necessitating
such determination between the joint tortfeasors inter-se. In case of
composite negligence by two or more persons each of the tortfeasor
is jointly and severally liable to make good the loss to the persons
who have suffered loss of beloved one or suffered injury or damage
to his person or property. It does not lie in the mouth of one of the
joint tortfeasor to turn around and shun his liability and pass on the
entire liability on the other joint tortfeasor/wrong doer (See Irfan
Khan v Islamic Republic of Pakistan 2005 MLD 1409, Marine
Exports (P) Ltd. V.P.Radhakrishan and others AIR 1984 Mad. 358).
It is the prerogative of the Plaintiff, who has suffered loss or injury to
recover the entire amount from either or any of the solvent
tortfeasor, who may in turn seek recovery of proportionate or whole
amount from the other tortfeasor in appropriate proceedings, after
making good the compensation to the decree holder.
23.
For what has been discussed above, we do not find any
substance in the contentions of the learned counsel for the appellant-
NLC to interfere in the well reasoned finding recorded by the learned
Court of plenary jurisdiction and as maintained in the High Court
Appeal through impugned judgment dated 26.4.2006.
24.
The appeal is accordingly dismissed with costs
throughout.
Chief Justice
Judge
Judge
ISLAMABAD, THE
30.01.2015
Not Approved For Reporting
| {
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"url": ""
} |
SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
CIVIL APPEAL NO.1000 of 2020
[Against the judgment dated 22.06.2020, passed by the High
Court of Sindh, Karachi in C.P.No.D-253 of 2015]
Chairman National Accountability Bureau
through
Prosecutor
General
Accountability, NAB Headquarters, Sector
G-5/1, Islamabad
…Appellant (s)
Versus
Faraz Ahmed Sherwani son of Afroz
Ahmed Sherwani and others.
…Respondent(s)
For the Appellant(s)
: Mr. Imran ul Haq, Deputy Prosecutor
General, NAB
Mr. Muhammad Sharif Janjua, AOR
For Respondents No.1-2
: Mr. Muhammad Shoaib Shaheen,
ASC
Date of Hearing
: 09.06.2021
O R D E R
GULZAR AHMED, CJ.- The Respondents No.1 & 2
(the
respondents)
were
initially
appointed
as
Regular
Stenographers (BPS-15) vide Notification dated 29.07.2004 by the
appellant. The Finance Division, Government of Pakistan issued
Office Memorandum dated 23.12.2011, by which the post of
Stenographer was up-graded from BPS-15 to BPS-16. The benefit
of such Office Memorandum was given to the respondents and
they
were
up-graded
in
BPS-16
vide
Notification
dated
31.07.2012. In the meantime, the respondents were promoted to
CIVIL APPEAL NO.1000 of 2020
- 2 -
the post of Personal Assistant (BPS-16) with effect from
27.06.2012 vide Notification dated 05.07.2012. The Respondent
No.2 along with one Jawaid Ali Panhwar filed a Constitution
Petition No.2056 of 2013, in the High Court of Sindh at Karachi
(the High Court), in which prayer was made that the
respondents/petitioner be granted promotion in BPS-16 with
effect from 31.05.2007, when the vacancies became available and
till such time the respondents be restrained from holding
Departmental Promotion Committee (DPC) for grant of promotion
and also prayed that the post of Personal Assistant be up-graded
as done in the case of Private Secretary, Stenographer and Steno-
typist.
Para-13
of
this
very
Constitution
Petition,
the
respondents/petitioners have alleged as follows: -
“That it may be submitted that six posts of
Private Secretary (BPS-17) remained vacant for
filling up through 100% promotion quota
amongst Personal Assistant (BPS-16) in NAB.
But despite promotions to the post of (BPS-17)
from amongst the officers of NAB & Regional
NAB's, the Departmental Promotion Committee
constituted
on
06.02.2013
in
NAB
HQ
Islamabad
did
not
follow
the
method
of
promotion shown in the NAB TCS. These vacant
posts have been filled amongst the 4 X Personal
Assistant (BPS-16) and 2X Stenographer (BPS-
16) without any legal/ cogent reason by way of
promotion vide Notification dated 08.02.2013,
due to which the Personal Assistants (BPS-16)
including the Petitioners have suffered grave
injustice besides huge financial loss on the one
hand and have lost their seniority on the other
hand.
The
method
of
promotion
for
Stenographers
to
Personal
Assistant
and
CIVIL APPEAL NO.1000 of 2020
- 3 -
Personal Assistant to Assistant Director/Private
Secretary
should
have
been
followed
in
accordance with the NAB TCS which has not
been done in the instant promotion case. Hence,
the whole process has become illegal, arbitrary
and discriminatory qua the fundamental rights
of the affected persons including the Petitioners
have been violated.”
2.
This very Constitution Petition was disposed of by the
High Court of Sindh vide its order dated 11.12.2013 with
observations as follows: -
The case of the petitioners is that they
were
promoted
as
Stenographers/Personal
Assistants and are performing their duties in
BPS-16. The petitioners are claiming that the
Respondents No.5 and 6 were juniors to them in
service, but in the DPC they have been
considered and promoted to the posts of Private
Secretaries/Assistant Directors in BPS-17. It is
further alleged by the learned counsel for the
petitioners that the petitioners were promoted
from the post of Stenographers to the Personal
Assistants, while the Respondents No.5 and 6
were
promoted
from
the
post
of
Stenographers/Personal Assistants to the post
of Private Secretaries/Assistant Directors. The
petitioners prayed that they may be treated at
par and may not be discriminated while they are
also serving with the Respondent No.1 for the
last several years.
Mr. S. Amjad Ali Shah, Special Prosecutor
for NAB/Respondents No.1 to 4 as well as Mr.
Muhammad
Asif
Mangi,
learned
Standing
Counsel both have contended that the case of
the petitioners will be considered in the next
CIVIL APPEAL NO.1000 of 2020
- 4 -
DPC and if they will be found eligible, they will
be promoted on the basis of their performance
and previous ACRs and they will be treated alike
with the Respondents No.5 and 6. Upon such
statement, learned counsel for the petitioners
are satisfied.
This petition is disposed of with the
directions to the Respondents No.1 to 4 to
consider the case of the petitioners in the next
DPC.”
3.
Pursuant to this order of the High Court, the cases of
the respondents were placed before the DPC. Vide Notification
dated 27.05.2014, the respondents were promoted on regular
basis to the post of Private Secretary (BPS-17) with effect from
22.05.2014. The respondents filed Constitution Petition No.253 of
2015 in the High Court of Sindh challenging the Notification dated
27.05.2014 being contrary to the rules and fundamental rights of
the respondents and sought direction to consider the respondents
for promotion against the post of Assistant Director (BPS-17) with
effect from 24.07.2012, the date when the respondents became
eligible for promotion in accordance with their 25% prescribed
quota available for promotion.
4.
This very constitution petition filed by the respondents
was dismissed by the High Court vide judgment dated
24.10.2017. The review application filed by the respondents before
the High Court was also dismissed vide order dated 30.10.2017.
The respondents filed Civil Petition No.687-K of 2017 in this
Court. Vide order dated 31.12.2018, this Court passed the
following order:
CIVIL APPEAL NO.1000 of 2020
- 5 -
“Having heard the learned counsel and perused
the record and further documents that have
been placed on record through CMA No. 1867-K
of 2018 whereby the creation of the post,
method of its appointment and adaptation of the
government rules by the NAB were not before
the
High
Court,
therefore,
we
deem
it
appropriate by consent of the parties to remand
the matter to learned bench of High Court to
consider
the
documents.
The
impugned
judgment is being set aside without dilating
upon the implication of such documents which
are sought to be placed before us. The
documents sought to be filed by the NAB before
this court shall be filed before learned bench of
High Court and the bench may on the
consideration of such documents or any other
documents as may be sought to be placed by the
parties may proceed to hear the matter afresh
and decide the same without being influenced by
its earlier decision within a period of not more
than six months from the date of this order.
Petition is accordingly converted into appeal,
Impugned Judgment is set aside. Matter is
remanded. C.P. No. D-253 of 2015 shall be
deemed to be pending and shall be decided as
directed above.”
5.
Pursuant to the order of remand through the
impugned judgment, the High Court has allowed the constitution
petition filed by the respondents striking down the notification
dated 27.05.2014, whereby the respondents were promoted to the
post of the Private Secretary (BPS-17) and directed to re-visit the
nomenclature of the respondents so as to suitably designate them
against any of the notified posts in place under TCS-2002 as on
CIVIL APPEAL NO.1000 of 2020
- 6 -
27.05.2014. We may note that the High Court has not specifically
granted relief to the respondents that they be promoted to the post
of Assistant Director (BPS-17) rather has directed the appellant to
re-visit the nomenclature of the respondents and suitably
designate them as per TCS-2002. So it means that the
nomenclature to be given to the respondents in terms of TCS-2002
on their promotion from the post of Personal Assistant (BPS-16)
could be anyone i.e. Assistant Director, Investigation Officer or
Section Officer (BPS-17), because in the TCS-2002, these are the
three posts available for promotion from the post of Personal
Assistant (BPS-16). We note that while giving the impugned
judgment, the High Court did not materially comply with the order
of remand dated 31.12.2018, where it was specifically noted that
further documents placed on record through CMA No.1867-K of
2018, whereby creation of the post, method of its appointment
and adaptation of the government rules by the NAB were not
before the High Court and therefore, by consent of the parties the
matter was remanded to the High Court to consider the
documents.
6.
In the first place, we note that respondent No.2 in his
earlier Constitution Petition No.2056 of 2013 before the High
Court of Sindh has specifically made a mention that six posts of
Privates Secretary (BPS-17) remained vacant for filling up through
100% quota amongst Personal Assistants (BPS-16) in NAB.
Respondent No.2 has, thus, admitted as a fact that there were
posts of Private Secretary (BPS-17), which were provided to be fill
CIVIL APPEAL NO.1000 of 2020
- 7 -
in through 100% promotion quota from amongst the Personal
Assistant (BPS-16) in NAB. This very fact, which was available on
the record was omitted to be considered by the High Court.
7.
We have gone through the history of employment of
Private Secretary (BPS-17) in the establishment of NAB and have
noted that as back as on 15.11.2002, three temporary posts of
Private Secretary (BPS-17) were created. The very TCS-2002 was
amended by Corrigendum dated 19.02.2003 and the post of
Private Secretary (BPS-17) was added in TCS-2002. The addition
of the post of Private Secretary (BPS-17), however, was cancelled
from TCS-2002 vide Corrigendum dated 28.09.2004. Though this
cancellation was made but the NAB continued to employ Private
Secretaries in BPS-17 on temporary basis, in that, three
temporary posts of Private Secretary (BPS-17), were extended for
the Financial Year 2005-2006. One more temporary post of Private
Secretary (BPS-17) was created vide order dated 15.02.2006 and
again one more post of Private Secretary (BPS-17) was created vide
order dated 24.03.2006. Five temporary posts of Private Secretary
(BPS-17) were extended for one year till 31.05.2007. These were
continued for the Financial Year 2007-2008 vide order dated
22.07.2007. On 02.01.2008, three temporary posts of Private
Secretary (BPS-17) were converted into permanent posts. Two
Private Secretary (BPS-17) who remain on temporary posts were
extended for the Financial Year 2008-2009 vide order dated
11.07.2008 and the same were also continued for the Financial
Year 2009-2010 vide order dated 10.12.2009 and for the Financial
CIVIL APPEAL NO.1000 of 2020
- 8 -
Year 2011-2012 vide order dated 28.07.2011. Vide order dated
30.01.2012, two temporary posts of Private Secretary (BPS-17)
were converted to permanent posts. Thus, on this date there were
five permanent posts of Private Secretary (BPS-17) in NAB. Again
on 01.06.2012 one temporary post of Private Secretary (BPS-17)
was created and on 10.07.2012, five more temporary posts of
Private Secretary (BPS-17) were created. On 29.03.2013, four
more temporary posts of Private Secretary (BPS-17) were created.
In all, there were thus, ten temporary posts of Private Secretary
(BPS-17) which continued until Financial Year 2018-2019 vide
orders dated 18.07.2013, 23.07.2014, 10.07.2015, 31.07.2016,
07.07.2017 and 03.07.2018. Thus, at the time when the
notification
dated
27.05.2014
was
issued,
by
which
the
respondents were promoted on regular basis on the post of Private
Secretary (BPS-17), there existed in the organization of the NAB,
five permanent posts and ten temporary posts of Private Secretary
(BPS-17).
8.
To support that the respondents were justifiably
promoted to the post of Private Secretary (BPS-17), the appellant
has relied upon the above orders by which the posts of Private
Secretary (BPS-17) were created in NAB. The respondents have
further taken a stand that in exercise of the powers under
paragraph No.14.08 of TCS-2002 the NAB has adopted the rules
applicable to the other civil servants on 24.10.2005, which
specifically provides, inter alia, as follows:
It is further pointed out that despite these FIA
posts, the recruitment rules of following three
CIVIL APPEAL NO.1000 of 2020
- 9 -
categories of NAB’s own posts are also required
to be framed out since their creation: -
a.
Private Secretary (BPS-17) x 3 posts
b.
Librarian (BPS-17) x 1 post
c.
Protocol Officer (BPS-16) x 1 post
Foregoing in view, in light of Deputy Financial
Advisor, Finance Division’s remarks and to
proceed further in the case, the following course
of actions are proposed: -
a.
………………………………………………
b.
………………………………………………
c.
We may fill the three posts of PS
(BS-17), one post of Librarian (BS-
17) and one post of Protocol Officer
(BS-16)
by
adopting
the
rules
applicable to the other civil servants
in light of para 14.08 of NAB TCS;
d.
We may fill all the vacant posts
related
to
promotion
quota
by
holding the respective Departmental
Selection Committees meeting or by
grant of current charge to meet the
remarks
of
Deputy
Financial
Advisor; and”
9.
This adoption was made with the approval of the
Chairman, NAB, given on 24.10.2005. Further reliance has been
placed by the respondents on SRO No.99(KE)/87, dated
22.10.1987, which provides as follows:
“In pursuance of sub-rule(2) of rule 3 of the Civil
Servants (Appointment, Promotion and transfer)
Rules, 1973, the following method, qualifications
and
other
conditions
are
laid
down
for
appointment to the post of Private Secretary
(BPS-17) to the Secretary/Additional Secretary
CIVIL APPEAL NO.1000 of 2020
- 10 -
and other officers in BPS 22/21 in the Federal
Government: -
2.
Method of Appointment:- Appointment to
the post shall be made by promotion on the
basis
of
selection
by
the
DPC
of
the
Ministry/Division/Department concerned and
with the approval of the appointing authority,
from
amongst
the
regularly
appointed
Stenographers
of
the
Ministry/Division/
Department concerned:
Provided that failing promotion, the post of
Private Secretary shall be filed by transfer in
accordance with para 4 below.
3.
Conditions for Promotion:- Promotion to the
post in column 1 below shall be made by
selection from amongst the persons who hold
the post specified in column 2 on a regular basis
and
possess
qualifications
and
experience
prescribed in column 3:
Name of
the Post
Persons eligible
Conditions of
eligibility
Private
Secretary
(BPS-17)
Regularly appointed
Stenographers,
including those in
the selection grade.
Seven
Year
satisfactory
Service
as
stenographer,
including service in
selection grade.
10.
It seems that for appointment to the post of Private
Secretary (BPS-17), the respondents have adopted the rules as
mentioned in the SRO dated 22.10.1987 and this very aspect of
adoption was not disputed from the side of the respondents,
rather as noted above, respondent No.2 in his earlier constitution
petition before the High Court had admitted as a fact that the
posts of Private Secretary (BPS-17) were available in the
establishment of NAB which were to be filled in by 100%
promotion quota from amongst the Personal Assistants (BPS-16).
11.
All these documents, which were placed on the record
CIVIL APPEAL NO.1000 of 2020
- 11 -
and landing support to the case of the appellant that there existed
the posts of Private Secretary (BPS-17) in the organizational set up
of NAB and said posts were to be filled in through 100%
promotion quota from amongst the Personal Assistants (BPS-16),
remained altogether concealed or at least not adverted to by the
learned Division Bench of the High Court in the impugned
judgment, although this Court while remanding the matter has
emphasized that all these documents be considered by the High
Court.
12.
The question remains that what is the effect of the
introduction of the posts of Private Secretary (BPS-17) in the
organizational set up of the appellant, more particularly, in view of
TCS-2002. It is admitted that TCS-2002 was formally amended
vide SRO No.1106(I)/2015, dated 30.10.2015, wherein in “Method
of Appointment” at Serial No.9, the post of Private Secretary (BPS-
17) is mentioned and the method of appointment is 100% by
promotion. The post of Stenographer (BPS-16) has been omitted
and the post of Assistant Private Secretary (BPS-16) has been
created. In the “Conditions for Promotion” to the post of Private
Secretary (BPS-17) the persons eligible for promotion are Assistant
Private Secretary (BPS-16) rather than Stenographer (BPS-16).
This very SRO although was issued on 30.10.2015 and published
in the Gazette of Pakistan on 11.11.2015 but in actual fact, the
posts of Private Secretary (BPS-17) already existed in the
organizational set up of the appellant way back from 15.11.2002
and on 02.01.2008, three temporary posts of Private Secretary
CIVIL APPEAL NO.1000 of 2020
- 12 -
(BPS-17) were converted into permanent posts and then on
30.01.2012, two more posts of Private Secretary (BPS-17) were
converted into permanent posts. The respondents were aware of
the fact that these posts of Private Secretary (BPS-17) did exist in
the NAB and these posts of Private Secretary (BPS-17) were being
filled up by 100% promotion from amongst the post of Personal
Assistant/Stenographer (BPS-16), which is apparent from the plea
of respondent No.2 in his very Constitution Petition No.2056 of
2013.
13.
The respondents have also referred to the notification
dated 30.04.2007 whereby Mr. Shaukat Ali, Mr. Liaqat Ali, Mr.
Qaleem-ud-Din Qureshi, Mr. Muhammad Shabbir and Mr. Tariq
Mehmood were promoted from the posts of Personal Assistants
(BPS-16) on the recommendation of DPC as Private Secretary
(BPS-17). Further, Mr. Muhammad Maroof, Stenographer (BPS-
16), Mr. Arshad Mehmood, Personal Assistant (BPS-16), Mr.
Arshad Khan, Personal Assistant (BPS-16), Mr. Muhammad
Sohail, Personal Assistant (BPS-16), Mr. Riasat Ali Khan,
Stenographer (BPS-16) and Mr. Mukhtar Ali, Personal Assistant
(BPS-16) were promoted to the posts of Private Secretary (BPS-17)
vide notification dated 08.02.2012. Through the notification
impugned by the respondents dated 27.05.2014, Syed Waqar
Hussain, Ms. Izzat Khatoon, Mr. Iltaf Hussain, Mr. M. Khalid
Farooq, Mr. Faraz Ahmed Sherwani and Mr. Muhammad Zafar
Ahmad, (the last two are the respondents) were all promoted to
the posts of Private Secretary (BPS-17). Apparently, only the
CIVIL APPEAL NO.1000 of 2020
- 13 -
respondents have challenged the notification, while the remaining
seem to have accepted their promotion, as there is nothing on
record to show that they have not accepted their promotion to the
posts of Private Secretary (BPS-17).
14.
There is no dispute that TCS-2002 did not mention the
post of Private Secretary (BPS-17) but the fact remains that firstly
the Private Secretary, though on temporary post, was appointed in
the NAB on 15.11.2002. Subsequently, more Private Secretaries
were appointment on 15.02.2006, 24.03.2006, 01.06.2012,
10.07.2012 and 29.03.2013, while three temporary posts were
converted into permanent posts on 02.01.2008 and further two
permanent posts of Private Secretary (BPS-17) were created on
30.01.2012. It is also not disputed that the posts of Private
Secretary (BPS-17) were created in NAB by adopting the rules
applicable to the Government Servants. Thus, the posts of Private
Secretary (BPS-17), apparently, were created by following the rules
as were applicable to the Government Servants and this was done
under paragraph 14.08 of TCS-2002, which provides as follows:
“In matters not covered, under these TCS the
employees of the NAB shall be governed by the
rules applicable to the other civil servants and
the instructions issued from time to time by the
Federal Government on such subject.”
Thus, on the basis of this very paragraph in TCS-2002, in
matters not covered under the TCS-2002, the employees of NAB
were to be governed by the rules as applicable to the other civil
servants and instructions issued from time to time by the Federal
CIVIL APPEAL NO.1000 of 2020
- 14 -
Government on the subject. The rules applicable to the civil
servants for appointment to the posts of Private Secretary (BPS-
17) were adopted by NAB on 24.10.2005 and as quoted above, the
rules applicable to other civil servants in the light of paragraph
14.08 of TCS-2002 were applicable to the posts of Private
Secretary (BPS-17). Thus, as it appears that the posts of Private
Secretary (BPS-17) were created in NAB by adopting the rules, as
noted above, on 24.10.2005, for all intends and purposes, in our
view, TCS-2002 stood amended by adoption of the rules applicable
to other civil servants in respect of the posts of Private Secretary
(BPS-17) on 24.10.2005. When the posts were created by following
the rules as were applicable to the other civil servants, obviously
the manner in which they were to be filled in was also to be
adopted and such adoption was provided in SRO dated
22.10.1987 where the posts of Private Secretary (BPS-17) were to
be filled in from amongst the Stenographers, including those in
the Selection Grade. The post of Stenographer and the post of
Personal Assistant, both being in BPS-16, their line of promotion
as per rules was to the post of Private Secretary (BPS-17).
Reference in this regard is made to the case of Muhammad Amin
v. Chief Engineer, Irrigation and others [2012 PLC (C.S.) 834],
wherein this Court has observed as follows:-
“7.
The appellant's case for the purpose of
promotion to the post of Superintendent will
depend upon the Rules applicable to him in
the year 1993. The two relevant Rules are, as
stated above, of 1962 and 1998, on which
reliance is placed by the appellant and the
amendments brought about in the years
1983, 1985 and 1986, on which the case of
CIVIL APPEAL NO.1000 of 2020
- 15 -
the respondents rests. Undoubtedly, under
the 1962 Rules, made especially for the
Irrigation and Power Department, there was
no mention of Senior Scale Stenographer
and promotion to the post of Superintendent
was to be made from combined seniority list
of Stenographers and Assistants. These
Rules
for
the
Irrigation
and
Power
Department were entirely replaced by the
1998 Rules, wherein the post of Senior Scale
Stenographer was also incorporated and
promotion to the post of Superintendent was
to be made from Senior Scale Stenographers
and not Stenographers. In between these two
Rules, the Governor of Punjab, in exercise of
the powers conferred upon him by section 23
of the Punjab Civil Servants Act, 1974,
amended the Rules in the year 1983,
whereby
the
post
of
Senior
Scale
Stenographer was introduced and promotion
to the post of Superintendent was to be
made from the Senior Scale Stenographers.
These Rules were further amended in the
years 1985 and 1986 but as far as the
method of the said promotion, the Rule
remained unchanged. These Rules were
made applicable to all the Government
Departments of Punjab, which obviously
included
the
Irrigation
and
Power
Department. The 1962 Rules thus stood
amended
by
implication.
The
learned
counsel for the appellant had referred to the
advice of December, 1990 given by the
Government of Punjab, Services, General
Administration and Information Department,
to the Irrigation and Power Department,
stating that the service Rules of the latter
Department needed to be amended so as to
reflect the change, to include the post of
Senior Scale Stenographer, from which
promotion is to be made to the post of
Superintendent. This advice, however, does
not mean that the 1983 amendment in the
Rules remained inapplicable to the Irrigation
and Power Department. The advice of
changing Rules was meant to remove any
confusion
in
the
Irrigation
Department
regarding
promotion
to
the
post
of
Superintendent. The advice explicitly stated
that the promotions were to be made in
accordance with the changed Rules. It was
made clear that under the scheme of Basic
Pay Scale the original posts of Stenographer
CIVIL APPEAL NO.1000 of 2020
- 16 -
and Stenotypist have been changed to those
of
Senior
Scale
Stenographer
and
Stenographer, respectively. The 1998 Rules
relating
to
the
Irrigation
and
Power
Department were replacement of the 1962
Rules and the change already made about by
the 1983 amendment were reflected therein.
It cannot be said that the change regarding
promotion in the Irrigation and Power
Department was made for the first time in
the year 1998. It was already in existence
since 1983 and thus expressly incorporated
in the year 1998.”
The principle laid down by this Court as noted above is fully
applicable to the case in hand.
15.
For all the reasons discussed above, we find that the
impugned judgment of the High Court is not sustainable. The
same is, therefore, set aside and the appeal is allowed.
CHIEF JUSTICE
JUDGE
Bench-I
‘APPROVED FOR REPORTING’
Rabbani/*
JUDGE
Announced on ______________ at _____________.
CHIEF JUSTICE
| {
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: Mr. Justice Anwar Zaheer Jamali, HCJ
Mr. Justice Amir Hani Muslim
Mr. Justice Iqbal Hameedur Rahman
Civil Appeal No. 1002/2014
(On
appeal
against the
judgment
dated
18.7.2014 passed by the Election Tribunal,
Bahawalpur
and
D.G.Khan
Divisions,
Bahawalpur in E. P. No. 13/2013)
Sultan Mahmood Hinjra
Appellant
Versus
Malik Ghulam Mustafa Khar, etc.
Respondents
For the Appellant:
Mr. Muhammad Shahzad Shoukat, ASC
Mr. Arshad Ali Ch., AOR (Absent)
For Respondent No. 1:
Ch. Muhammad Wasi Zafar, ASC
Mr. Mehr Khan Malik, AOR
For Respondent No. 5:
Sardar Muhammad Aslam, ASC
Mr. M. S. Khattak, AOR
Date of Hearing:
20.04.2016.
JUDGMENT
Iqbal Hameedur Rahman, J.- This appeal is directed against
the judgment dated 18.7.2014 passed by the learned Election
Tribunal, Bahawalpur & D. G. Khan Divisions, Bahawalpur,
whereby the election petition filed by Respondent No. 1 bearing
number E. P. No. 13/2013 against the Appellant and 17 others was
partly accepted and the election of the Appellant was declared as
void and re-election ordered.
2.
The relevant facts of the matter are that the Appellant and the
Respondent
contested
elections
for
the
seat
of
NA-176
Muzaffargarh-I in the general election held on 11.05.2013. The
C. A. No. 1002/2014
2
Appellant, Sultan Mahmood Hinjra was declared as the returned
candidate after securing a total of 87335 votes, whereas Respondent
No. 1 secured a total of 74845 votes. Accordingly, the Appellant was
notified as the Returned Candidate. The success of the Appellant
was challenged by Respondent No. 1 by means of an Election
Petition. It was averred in the election petition that the Appellant
utilized his influence in the Education Department for the
appointment of Presiding and Assistant Presiding Officers favorable
to the Appellant and that the objections of Respondent No.1 in this
regard were not attended to; the unofficial result of 60 polling
stations reflected that the Respondent No.1 had secured 29608 votes
whereas the Appellant had secured 9454 votes, thereafter the results
stopped coming in, however, the next morning when the unofficial
results were announced, the Appellant’s votes had drastically
increased to a total of 87,335 and those of the Respondent No.1 were
74,845, as such, it was stated that these results were obtained
through the commission of corrupt and illegal practices as during
the process of polling and counting of votes, the Presiding Officers
and Assistant Presiding Officers committed corrupt and illegal
practices in violation of the law. It was also canvassed in the petition
that no notice under Section 39(1) of the Representation of Peoples
Act, 1976 (the ROPA, 1976) was issued to the Respondent No.1 by
the Returning Officer and that no date, time or place was fixed for
the consolidation of the result thereby compelling the Respondent
No.1 to submit an application in this regard. It was pleaded that
upon receipt of the said application, the Returning Officer (RO) fixed
C. A. No. 1002/2014
3
15.05.2013 as the date of hearing, however, in the absence of the
respondent, the learned RO illegally prepared a fictitious final result
sheet dated 14.05.2013. It was stated that by relying on this forged
and fictitious report and by mentioning incorrect facts in his order,
the RO dismissed the said application. With regard to pre-elections
disqualification, it was averred in the petition that the appellant
knowingly
misstated
various
facts
and
intentionally
omitted/concealed important information in his nomination papers
including inter alia the details of assets of his wife and children; that
even though the Appellant mentioned that a criminal case bearing
number 134/2000 was registered against him, but the same was
cancelled pursuant to report of the Anti Corruption Establishment,
however, no such report or order was produced before the learned
RO. It was further averred in the petition that the Appellant is a
defaulter of payment of Agricultural Income Tax, therefore, he is
disqualified from being elected as a member of the National
Assembly. In this regard it was stated in the petition that
Appellant’s agricultural income was Rs. 4,000,000/- ,Rs. 3,500,000/-
and Rs. 4,200,000/- for the years 2010-11, 2011-12 and 2012-13
respectively, however, no tax was paid for the year 2010-11 on
account of floods and paid only Rs. 1,950/- each in the year 2011-12
& 2012-13. These admissions prove that he is a defaulter as even on
the said declared income, the amount of income tax payable was
much more than the one paid by him. The Respondent No.1 also
averred in his election petition that the Appellant acquired
government land on lease situated in Mouza Parhar Sharqi by
C. A. No. 1002/2014
4
making misstatements through deed No. 1793 dated 17.09.1991 and
sold half of the same on that very day and the remaining half
subsequently. It was contended that the Appellant has no house
adjacent to the said government land and as such he misstated when
he said that he required the land for extension of his dera. The
Respondent No.1 also stated in his petition that the Appellant
illegally procured allotment of a plot which was a part of a scheme
prepared by the provincial government for the poor and the down
trodden. The Respondent No.1 also stated in his petition that the
process of the election was rife with instances of corrupt practices, in
that, the ballot papers were handed over by the polling staff to the
polling agents of the Appellant who marked stamps thereon,
fictitious ballot papers were issued to favour the Appellant, the
Appellant’s polling agents opened the ballot boxes and started
process of counting of votes themselves, during which the polling
agents of the Respondent No.1 were not allowed to be present and
that to facilitate this, Presiding Officers and Assistant Presiding
Officers prepared false reports. The Respondent No.1 also alleges in
his petition that during counting of votes several ballot papers were
observed to have not been issued at the concerned polling station,
and that after the process of counting was complete, the Presiding
Officers did not prepare statement of count in the prescribed form.
Additionally, it was urged that the Presiding Officer also did not
prepare the prescribed forms showing the number of ballot papers
entrusted to him, number of unissued ballot papers, number of
ballot papers taken out from the boxes and counted, number of
C. A. No. 1002/2014
5
tendered ballot papers, number of challenged ballot papers and
number of spoilt ballot papers and further that at all the polling
stations, the Presiding Officers did not give any certified copy of
statement of count and the ballot paper account to the polling agents
of the Respondent No.1. To substantiate this allegation, it was
averred that no statement of count or ballot paper account contains
the signature of the polling agents of the Respondent No.1. The
Respondent No.1 also averred in his petition that 40,000 bogus ballot
papers/votes were added in the record to ensure the success of the
Appellant. Further, that Mr. Asghar Ali Pachar Advocate, who
appeared before the RO at the time of consolidation of result had not
been appointed by Respondent No. 1 as his attorney. While relying
on major differences of about 9,900 votes cast for NA-176 and for PP-
251 & PP-253 at the common polling stations of these constituencies,
as well as in the unofficial and official results, inasmuch the votes of
the Appellant increased but the number of votes of the Respondent
No.1 were decreased, as a result the entire election was conducted in
an illegal and non transparent manner, and accordingly prayed for
the declaration that the election of the Appellant as void and that the
Respondent No.1 be declared as returned candidate, or in the
alternative, the election as a whole be declared as void.
3.
The Appellant contested the petition on legal as well as factual
plane. It was urged that the petition merits dismissal for non-
compliance of the mandatory provisions of Section 55(3) of the
ROPA, 1976. On facts, it was stated that no substantive material has
been brought on record to substantiate the allegations contained in
C. A. No. 1002/2014
6
the petition. It was also asserted in the written statement that
Respondent No. 1 committed corrupt and illegal practices through
his son Bilal Mustafa Hussain and Ashraf Rind candidate for MPA
to maneuver favourable result, who launched criminal assault
alongwith 100 supporters to possess forcibly the ballot boxes and
election record, resulting in the registration of FIR No. 232/2013.
Out of the divergent pleadings of the parties, the learned Tribunal
framed as many as 15 issues. Thereafter, the parties were afforded
an opportunity to adduce evidence. After completion of the trial, the
learned Tribunal partly allowed the petition by declaring the
election of the Appellant void, and ordering a re-election in NA-176,
hence this appeal.
3.
Learned counsel for the Appellant at the very outset
vehemently argued that the petition merited dismissal on the
ground that the same had not been duly verified in terms of Section
55 of the ROPA, 1976 and in accordance with Order VI rule-15(2) of
CPC, instead the same has been verified by means of a separate
affidavit. No date has been given at the foot of the petition. Learned
counsel submits that the Tribunal erroneously arrived at the
conclusion that verification through an affidavit is a suitable
alternative to the mode of verification mandatorily prescribed under
Section 55 of the ROPA, 1976. Learned counsel for the Appellant also
contended that the signature on the petition and the affidavit are
visibly different as such the signature has been fabricated; that the
affidavit has been attested in Islamabad whereas the petition has
been prepared in Multan, the dates of the petition and verification
C. A. No. 1002/2014
7
are different. Learned counsel submitted that as per the mandate of
the ROPA, 1976, annexures to the petition also have to be verified,
however, the affidavit annexed with the petition does not make
reference to the annexures appended with the petition, therefore, the
petition has not been verified in terms of Section 55 of ROPA, 1976.
In this regard, he placed reliance on the cases of Feroze Ahmed
Jamali vs. Masroor Ahmad Khan Jatoi and others (2016 SCMR 750),
Lt.
Col(R)
Ghazanfar
Abbas
Shah
vs.
Mehr
Khalid
MahmoodSargana and others (2015 SCMR 1585),Inayatullah vs.
Syed Khursheed Ahmed Shah and others (2014 SCMR 1477) and
Malik Umar Aslam vs. Sumera Malik and another(PLD 2007 SC
362). Regarding the merits of the case, the learned counsel for the
Appellant submits that main allegation against the Appellant was
that of corrupt and illegal practices, however, no substantial
evidence in this regard has been produced and all that there is on
the record is the sole statement of the Respondent No.1 as such
allegation of rigging has not been proved, even the allegation of
concealment of assets has not been proved through evidence.
Further contended that during Appellant’s cross examination, no
question regarding the allotment of land or default in payment of
tax was put to him. Learned counsel contended that the learned
Tribunal arrived at contradictory findings, inasmuch as it has been
observed in the impugned judgment that the Appellant was not a
defaulter, however, despite such observation, the Tribunal came to
the conclusion that tax had not been paid by the Appellant, further
submitted no such demand had been raised in this regard by the
C. A. No. 1002/2014
8
concerned authorities as such the Appellant could not be considered
to be a defaulter strictosenso, and in this regard, reliance was placed
on the case of Nadeem Sarwar vs. Election Commission of Pakistan
through Election Commissioner, Punjab and 3 others(2013 CLC
1481). Learned counsel submitted that while arriving at the
conclusion that the Appellant illegally got land allotted to him, the
Tribunal relied on an application which was not part of the record,
as the same was not tendered in evidence and the same has been
illegally scanned and made part of the judgment. In conclusion,
learned counsel for the Appellant submits that non-observance of
statutory provisions by election staff, unless shown to materially
affect the result of the election in view of the fact that the margin of
difference of votes is substantial, cannot be made basis to declare the
whole election as void and in this regard placed reliance on the case
of Muhammad SiddiqueBaloch vs. Jehangir Khan Tareen and others
(PLD 2016 SC 97). Further argued that in election laws, the finding
of disqualification must be based on positive evidence, as the
standard of evidence in election matters is similar to that of a
criminal trial. Accordingly, the Tribunal cannot decide the same on
the basis of conjectures and surmises. In this regard, he placed
reliance on the cases of Muhammad Saeed and 4 others vs. Election
Petitions Tribunal, West Pakistan and others (PLD 1957 SC 91),
Khan Muhammad Yusuf Khan Khattak vs. S. M. Ayub and 2 others
(PLD 1973 SC 160), Syed Saeed Hassan vs. Pyar Ali and 7
others(PLD 1976 SC 6) and Lahore Improvement Trust, Lahore
through its Chairman vs. The Custodian, Evacuee Property, West
C. A. No. 1002/2014
9
Pakistan, Lahore and 4 others (PLD 1971 SC 811 (836)). He lastly
argued that the Respondent No.1 had not filed any list of documents
or witnesses as required by law, as such the election petition merited
dismissal under Section 63 of the ROPA, 1976 due to non-
compliance of mandatory provisions Section 55 of the ROPA, 1976.
4.
Conversely, while supporting the impugned judgment, the
learned counsel for the Respondent No.1 submitted that allotment of
13 marlas of commercial property was illegally procured through a
simple application moved to the Chief Minister, who was not
empowered to allow the same. States that land was allegedly
required by the Appellant for extension of his dera, but said land was
not adjacent to Appellant’s property and further, the said land was
further alienated on the same day and adverted to Registry of Sale
Deed of Ahata at pages-393 & 435 regarding sale to Dr. Faiz
Muhammad, as such making false statement and getting Ahata of 2
kanals and then selling both the properties to make money
disqualified the Appellant to contest election as he was not Sadiq and
Ameen. In support of his arguments he relied upon the judgments of
this Court delivered in the cases of Sardarzada Zafar Abbas and
others vs. Syed Hassan Murtaza and others (PLD 2005 SC 600) and
Lt. Col(R) Ghazanfar Abbas Shah vs. Mehr Khalid Mahmood
Sargana and others (2015 SCMR 1585).
5.
We have heard the arguments of the learned counsel for the
parties and also perused the material placed on the record as well as
the impugned judgment with their able assistance.
C. A. No. 1002/2014
10
6.
Since the learned counsel for the Appellant at the very outset
has raised the question with regard to the maintainability of the
election petition filed by the Respondent No. 1, hence we are
forfeited to address this issue first. It was objected by the learned
counsel for the Appellant that the petition had not been verified in
terms of the mandatory provisions of Section 55 of the ROPA, 1976
read with Order VI Rule 15 CPC as neither the petition nor the
annexures or schedules appended thereto had been verified, but
instead an affidavit had been belatedly filed to cure such defect. It
would be pertinent to reproduce the above quoted provisions of
law:
55. Contents of Petition:-
(1)………………….
(2)………………….
(3) Every election petition and every schedule or annex to that
petition shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 (Act V of
1908), for the verification of pleadings.
Order VI Rule 15.Verification of Pleadings (1) Save as otherwise
provided by any law for the time being in force, every pleading
shall be verified on oath or solemn affirmation at the foot by the
party or by one of the parties pleading or by some other person
proved to the satisfaction of the Court to be acquainted with the
facts of the case.
(2) The person verifying shall specify, by reference to the
numbered paragraphs of the pleadings, what he verifies of his
own knowledge and what he verifies upon information received
and believed to be true.
(3) The verification shall be signed by the person making it and
shall state the date on which and the place at which it was
signed.”
From the above it is crystal clear that verification of an election
petition in the prescribed manner is a mandatory requirement and
that too in accordance with the provisions of Order VI Rule 15
C. A. No. 1002/2014
11
C.P.C. specifying to numbered paragraphs of the pleadings what he
verifies of his own knowledge and what he verifies upon
information received and believed to be true. From the record it
reveals that the Appellant while filing his election petition did not
comply with the mandatory requirements with regard to the
verification of the election petition and to cure such defect
subsequently submitted an affidavit in this regard, wherein the
entire contents of his election petition were reproduced. It would be
pertinent to mention at this juncture that although the provisions
relating to the verification of pleadings are generally directory in
nature, the position is different in election laws by virtue of Section
63 of the ROPA, 1976 which casts upon the Tribunal a duty to
dismiss the election petition if the provisions of Sections 54 or 55 of
the ROPA, 1976 have not been complied with, as such its compliance
has been held to be mandatory in nature by virtue of the penal
consequences prescribed under Section 63 of the ROPA, 1976.
7.
We would now proceed to examine the affidavit, which finds
mention at the foot of the petition and purportedly serves to verify
the same. In the said affidavit, the Respondent/Election Petitioner
has reproduced the entire contents of his election petition. In order
to determine the sufficiency of verification by affidavit, it would be
useful to reproduce the provisions of High Courts Rules and Orders,
Chapter 12, Volume No. IV, Rules No. 11, 12, 14, 15 and 16 as these
have material bearing on the case at hand:-
“11. Identification of Deponent- Every person making an affidavit
shall , if not personally known to the Court, magistrate
C. A. No. 1002/2014
12
12. Mode of attestation-
14. Attesting Officers duty
15. Attesting, signing and making of affidavit.
16. Manner of administering oath to deponent.
-
FORM OF VERIFICATION OF OATH OR
AFFIRAMTION
(Vide paragraph 15 above)
Oath.
I solemnly swear that this may declaration is true, that it conceals
nothing, and that no part of it is false............. so help me God.
Affirmation.
I solemnly affirm that this my declaration is true, that it conceals
nothing and that no part of it is false.
II-FORM OF CERTIFICATE
(vide paragraphs 12, 14 and /5 above)
Certified that the above was declared on............... (here enter
oath)/affirmation
as
the
case
may
be)
before
me
this................(date) day of.............(month).........(of 19 , at ..................
(place) in the district of (name of district)............ by ..................
(full name and description of declarant) who is.............. here enter
"personally known to me" or identified at (time and place of
identification) by (full name and descriptor: of person marking
the identification), who is personally known to me".
(Full Signature) A. B.
(Officer) District Judge (or as the case may be) of
............
II-A
The exhibits marked A.B.C. (as the case may be) above referred to
are annexed hereto under this date and my initials.
Certified further that this affidavit has been read and explained
to (name) .................. the declarant who seemed perfectly to
understand the same at the time of making thereof. "
Placing reliance on the case of Lt Col (R) Ghazanfar Abbas Shah vs
Khalid MehmoodSargana (2015 SCMR 1585), would be beneficial
here, wherein, the issue of verification by an affidavit was agitated
before this Court and while referring to the above Rules, this Court
highlighted the following pre-requisites for a valid affidavit:
1.
Identification of Deponent (Rule 11)
C. A. No. 1002/2014
13
2.
Particulars of deponent and identifier to be mentioned at the
foot of the affidavit (Rule 11)
3.
Time and place of making of the affidavit to be specified (Rule 11)
4.
Certification by court/magistrate/other officer at the foot of
the affidavit that such affidavit was made before them. (Rule 12)
5.
Date, Signature and name of the office and designation of the
court/magistrate/other officer to be subscribed underneath
the Certification. (Rule 12)
6.
Every exhibit referred to in the affidavit to be dated and
initialed by the court/magistrate/other officer. (Rule 12)
7.
Where deponent of an affidavit does not understand the
contents of an affidavit, the court/magistrate/other officer
administering oath must read out the contents of the affidavit
to such person so that he understands. Where such is the
case, the court/magistrate/other officer shall note at the foot
of the affidavit that the affidavit has been read out to the
deponent and he understands its contents. (Rule 14).
8.
Deponent to sign/mark and verify the affidavit and the court,
magistrate or other officer administering the oath or
affirmation to attest the affidavit. (Rule 15)
9.
Oath to be administered by the court/magistrate/other
officer in accordance with the Indian Oaths Act 1878 and
affidavit to be verified by deponent and attested by
court/magistrate/other officer on forms appended thereto
(Rule 16)”
When the affidavit at hand is examined in the light of the above it
transpires that certain essential requirements are missing therefrom.
Firstly, it has not been mentioned whether the Respondent No.1 was
administered oath by the Oath Commissioner before the attestation
was made. Secondly, it has not been specified whether the
Respondent
No.1
was
duly
identified
before
the
Oath
Commissioner. In this regard, it has simply been stated at the foot of
the affidavit that the Respondent No.1 was present before the Oath
Commissioner in person, however, the details of the person
identifying the Respondent No.1 have not been mentioned whereas
according to the above quoted provisions, the Oath Commissioner is
bound to specify at the foot of the affidavit the name and description
of the person by whom identification of the deponent was made and
in this regard a certificate has to be appended. Furthermore, it is also
C. A. No. 1002/2014
14
not clear from the affidavit that the Respondent No.1 was identified
with reference to his ID card and in this regard, no ID card number
is given, as such the identification does not seem to have been made.
There is yet, another aspect to the matter. The affidavit in question
does not make any reference to the numbered paragraphs contained
therein which the Respondent No.1 verifies on his own knowledge
and what he verifies upon information received and believed to be
true. Further, the affidavit in question also does not make any
reference to the verification of the annexures appended along with
the petition, which although have been mentioned in the said
affidavit.
8.
This Court in a chain of judgments has addressed the issue of
verification of pleadings wherefrom reproducing the relevant
portions would be beneficial here. In the case of Zia ur Rehman Vs.
Syed Ahmed Hussain and others (2014 SCMR 1015) it has been held
as under:-
“10.
Admittedly both the election petitions filed by the
respondents in the afore-mentioned appeals were not verified on
oath in the manner prescribed under the afore-quoted provision.
If the law requires a particular thing to be done in a particular
manner it has to be done accordingly. Otherwise it would not be
in-compliance with the legislative intent. Non-compliance of this
provision carries a penal consequences in terms of section 63 of
the Representation of the People Act whereas no penal provision
is prescribed for non-compliance with Order VI, Rule 15 of the
Civil Procedure Code. The effect of non-compliance of section 55
of the Representation of the People Act, 1976 came up for
consideration before this Court in Iqbal Zafar Jhagra v. Khalilur
Rehaman (2000 SCMR 250) wherein at page 290 it was candidly
held that “the verification of pleadings has been provided under
Order VI,. Rule 15, C.P.C. which when read with section 39,
C.P.C., clearly shows that the pleadings are to be verified on oath
and the oath is to be administered by a person, who is duly
authorized in that behalf. It is an admitted position that the
petition filed by Syued Iftikhar Hussain Gilani though mentions
that it is on oath, the oath was neither verified nor attested by a
person authorized to administer oath and as such it could not be
C. A. No. 1002/2014
15
said that requirements of section 36 of the Act were complied
with. We have considered the reasons given by the learned
Tribunal in holding that the petition filed by Syed Iftikhar
Hussain Gillani did not comply the provisions of section 36 of the
Act and are of the view that these reasons do not suffer from any
legal infirmity.”
And in the case of Sardarzada Zafar Abbas and others Vs. Syed
Hassan Murtaza and others (PLD 2005 SC 600), this Court has laid
the following guidelines:-
“The verification on oath of the contents of an election petition, is
provided under section 55(3) of the Representation of the People
Act of 1976, (hereinafter to be referred to as the Act). It provides
that every election petition and every schedule or annexure to
petition shall be signed by the appellant and verified in the
manner laid down in the Code of Civil Procedure, 1908. The Code
contains such provisions under Order VI, rule 15, which requires
the verification of pleadings, on oath. Such verification is not to
be signed in routine by the deponent but being on oath, it
requires to be attested either by the Oath Commissioner or any
other authority competent to administer oath. It needs hardly to
be emphasized that every oath is to be practically administered.
So far as, the provisions of civil law are concerned, such
verifications generally are of directory nature. An omission to do
so can be rectified subsequently during trial and even the Court
can direct such rectification. While, on the other hand, under
election laws such verification on oath is mandatory because of
being followed by penal consequences under section 63(a) of the
Act that makes it mandatory for the Tribunal to dismiss election
petition if the provisions of sections 54 and 55 of the Act have not
been complied with. Similar view was taken by this Court in
Iqbal Zafar Jhagra’s case (2000 SCMR 250), though related to the
Senate elections. It is, therefore, settled that the verification on
oath of an election petition though mannered in accordance with
civil law yet it entails upon penal consequences and hence is
mandatory.”
9.
In the above perspective, and while placing reliance on the
case of Lt. Col (R) Ghazanfar Abbas Shah (supra), the affidavit at
hand, can hardly be considered to be a proper verification. The
learned Election Tribunal therefore, erred in holding that the election
petition had been duly verified. In our considered opinion, the
election petition had not been duly verified in accordance with law
and even the affidavit annexed thereto could also not be considered
C. A. No. 1002/2014
16
to be proper verification as it failed to meet the criteria mentioned above,
therefore, the election petition merited outright dismissal by the election
tribunal.
10.
In conclusion to our discussion we are of the opinion that when an
objection with regard to the maintainability of an election petition for non-
compliance of a mandatory provision is raised then the Tribunal should
decide that very objection first because if such objection sustained then the
Tribunal left with no option but to dismiss the election petition.
Mentioning the case of Zia ur Rehman (supra) would again be beneficial
here wherein it has been held as under:-
“7. …………… If an objection is raised with regard to
maintainability of such a petition for non-compliance of a
mandatory provision, the Court/Tribunal should decide that
preliminary objection. Because if that objection is sustained then
the Court is left with no option but to dismiss the
petition……………”
11.
For what has been discussed above, this appeal is allowed,
impugned judgment dated 18.07.2014 passed by the Election Tribunal is
set aside and the election petition filed by the Respondent No.1 is hereby
dismissed under Section 63 of the ROPA, 1976 as not being in conformity
with the mandatory provisions of Section 55 of the ROPA, 1976.
Chief Justice
Judge
Judge
Announced in open Court at Islamabad on
Judge
‘Not Approved For Reporting’
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C
4
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE IJAZ UL AHSAN
CIVIL APPEAL NO.10 10 OF 2020.
(Against the order dated 20.02,2019 passed by
the Federal Service Tribunal, Lahore Bench,
Lahore in Review Petition No. 03 of 2019).
The Chief Postmaster General, Post Office,
Multan and others.
Appellant(s)
Versus
Hameed-ud-Din.
For the Appellant(s):
For the Respondent(s):
Date of Hearing:
Respondent(s)
Mr. Ayyaz Shaukat, DAG.
Mr. Mehmood A. Sheikh, AOR.
Mian Mahmood Hussain, ASC.
25.06.2021.
JUDGMENT
IJAZ UL AHSAN, J. - . The Appellant through
this Appeal has challenged the judgment of the Federal
Service Tribunal, Lahore dated 20.02.20 19 passed in Review
Petition No.03 of 2019. Through the Review Petition, the
Appellant prayed that the judgment of the Federal Service
Tribunal, Lahore, dated 19.12.2018 passed in Service Appeal
No. 271(L) of 2017 be reviewed (hereinafter referred to as
"Impugned Judgments"). Through the Service Appeal, the
Respondent had challenged the order dated 24.02.2017
whereby his departmental appeal was rejected. The learned
Federal Service Tribunal (hereinafter referred to as "FST")
through the Impugned Judgment allowed the Service Appeal
of the Respondent thereby converting his penalty of dismissal
from service to that of stoppage of increment for one year
CIVIL APPEAL NO.OP 2021
2
without cumulative effect. Aggrieved, the Appellants filed a
Review Petition before the FST, Lahore, which was dismissed.
2. The necessary facts giving rise to this Us are that
the Respondent was posted in GPO, Multan as Postal Clerk,
Utility Bills Compilation and was further entrusted with the
additional duty of Assistant Chief Postmaster (Counter) GPO
("ACPM"), Multan w.e.f. 14.05.15 to 11.09.15. The
Respondent while working against the said post signed the
Postal Payment Order ("PPO") Paid Statement for July 2015 to
September 2015 and sent the same to the office of the
Director of Accounts. The said Accounts Office informed that
the PPO Paid Vouchers amounting to Rs. 11,09,500 which
ought to have been with the PPOs were missing, even after a
lapse of 04 months i.e. from July to September 2015. When
inquired, the Respondent stated that he had kept the said
vouchers in a bag, however, the said bag was lost. The
Respondent was placed under suspension on 25.11. 15 on the
allegation that he failed to submit PPOs for July, August, and
September 2015. The department served the Respondent with
a charge sheet and statement of allegations vide order dated
02.01.2016. After completion of the inquiry, the Respondent
was served with a Show Cause Notice dated 05.03.16 which
was responded to on 26.01.16. Vide order dated 28.04.2016
the Respondent was dismissed from service and recovery of
Rs. 10,39,500 was ordered by the competent authority. The
departmental appeal of the Respondent was dismissed vide
order dated 24.02.17. The Respondent preferred a service
N
CIVIL APPEAL NOM/dJF 2021
':1
appeal before the Service Tribunal which was partly allowed
and the penalty was modified. The Appellants are aggrieved of
the said order. Hence, this appeal.
3.
Leave to appeal was granted by this Court vide
order dated 25.11.2020 in the following terms:-
"Learned Counsel contends that the respondent was
entrusted for payment of PPOs in the sum of Rs.
11,09,500. The respondent was required to maintain the
paid vouchers of such PPOs and submit them along with
the monthly statement, but he did not do so and it was
found that the Post Office had incurred a loss of the said
amount. The charge was framed against the respondent,
who in response thereto, filed a letter mentioning that he
is depositing Rs. 40,000 towards the loss amount and
requested that this case may not be referred to the FIA. It
seems that the petitioner conducted an inquiry and in
such inquiry, the respondent was found responsible for
the commission of such loss and recommended dismissal
from service and recovery of the loss amount. Thus,
through the order dated 28.04.16 the respondent was
imposed with the penalty of dismissal from service and
recovery of the loss amount, against which the
respondent filed a service appeal before the Federal
Service Tribunal (Tribunal), which was decided by the
judgment dated 19.12.2018, converting the penalty of
dismissal from service and recovery to stoppage of
increment for one year without cumulative effect. The
petitioner filed a review petition before the Tribunal
stating that the Tribunal has wrongly exercised
jurisdiction in modifying the penalty, however, by the
impugned order dated 20.02.2019, the Tribunal
dismissed the review petition.
2. Learned Deputy Attorney General contends that the
loss amount could not be explained by the respondent
and even he did not place before the petitioner the record
pertaining to the loss amount and by depositing Rs,
40,000, the respondent has admitted that he was
responsible for causing loss to the government. He further
contends that the Tribunal has interfered with the
penalty imposed on the respondent on the ground that he
has not committed misappropriation or embezzlement but
the inquiry report shows that such was the case."
4.
Learned Deputy Attorney General appearing on behalf of
the Appellants contends that the Director of Accounts ("DA")
vide letter dated 05.08.2009 requested for the provision of
-
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r
L
CIVIL APPEAL NO. /0/40? 2021
4
PPO Paid Vouchers or recovery of the lost paid vouchers
amounting to Rs. 11,09,500. The Respondent in his
application dated 26.01.2016 informed that he had returned
an amount of Rs. 40,000 and further promised to credit the
remaining amount of loss voluntarily which amounts to an
admission by the Respondent of his guilt. Further, that the
Respondent was allowed to provide the department with the
Serial Numbers of the lost PPOs, however, he failed to do so.
He further submitted that the Respondent signed the PPO
Paid Statement himself for July to September 2015 and
dispatched the same to the office of the DA ("DA") while the
regular ACPM was present on duty which is a violation of
Rule 402/27 of the Pakistan Post Office Manual Volume 6.
Thereafter, the Appellant Department informed that the
supporting vouchers (PPO Paid) amounting to Rs. 11, 09,500
were not supplied even after a lapse of four months and, this
act of the Respondent has caused the Appellant Department a
loss of Rs. 11,09,500. Further, that the Respondent when
asked stated that the vouchers were kept by him in a bag
which was lost, however, he failed to report this loss to his
superiors which at any stage was a violation of the relevant
rules of the Appellant -Department which the Respondent
was bound to follow.
S. Learned ASC appearing on behalf of the
Respondent submitted that it is only after the payment is
made that vouchers are issued. Just because the vouchers
were purportedly missing, it cannot be held that the
CIVIL APPEAL NO.148)P 2021
5
Respondent misappropriated or embezzled the amount when
the Respondent has stated that he placed the vouchers in a
bag which was lost due to no fault of his own. Further, that
the Respondent was condemned unheard and the
departmental order was passed without affording the
Respondent a fair opportunity to defend himself. Further, that
the charges levelled against the Respondent in the charge
sheet are different from those which are mentioned in the
Show Cause Notice issued to the Respondent. He further
added that parallel inquiries were conducted against the
Respondent in the shape of a preliminary inquiry and a final
inquiry. The result of these inquiries was that the preliminary
inquiry prejudiced the final inquiry and prompted the
Appellant Department to impose the penalty suggested in the
preliminary inquiry report. The Chief Postmaster conducted a
preliminary inquiry against the Respondent and recorded
adverse findings therein, which prejudiced the formal inquiry
which was to take place subsequently. After the formal
disciplinary proceedings concluded, the recommendations of
I
the Chief Postmaster were accepted, consequently, the
penalty of dismissal from service was imposed upon the
Respondent in a slipshod manner. Lastly, the learned ASC
submitted that no allegation of fraud or misappropriation was
levelled against the Respondent and a case of mere negligence
is different from a case of misappropriation and misconduct
and cannot be treated at par with it so as to warrant the
dismissal of the Respondent and recovery of loss (if any) from
him.
CIVIL APPEAL NO /6/40? 2021
6. We have heard the learned Deputy Attorney
General and the learned ASC appearing on behalf of the
parties. The issues which require adjudication by this Court
are as follows:-
I.
Was the Respondent condemned unheard in
violation of the principles of natural justice and
the law?
II.
Was the inquiry conducted against the
Respondent in violation of the prescribed
procedure?
III.
Was the penalty of dismissal and recovery
commensurate with the seriousness of allegations
levelled against the Respondent?
WAS THE RESPONDENT CONDEMNED UNHEARD IN
VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE
AND THE LAW?
7.
It is an admitted fact that the Respondent was
granted a personal hearing. The Respondent in his appeal
before the FST has stated that he was called for a personal
hearing, however, the personal hearing was "meaningless".
The learned DAG has submitted that the Respondent was
heard twice. Once on 30.03.2016 and then on 28.04.2016
and that during the personal hearing on 28.04.2016, the
Respondent admitted the fact that he was negligent and he
failed to submit the PPO Paid Vouchers.
8.
We have examined the order of the Postmaster-
General, Southern Punjab Circle, Multan. The said orde
- I -
CIVIL APPEAL NO$b OF 2021
7
states that the Respondent was called for a personal hearing
on 17.02.2017. The Respondent appeared in person and
stated that due to heavy workload, he could not submit the
statement of PPOs to the DA and he kept the same in a bag
that was stolen. He further stated that this was unintentional
and that he was a Hafiz-e-Quran who had an unblemished
service record. The fact that the Respondent was able to
explain his working conditions, his religious qualification, and
that he had an unblemished service record goes to establish
that the personal hearing granted to the Respondent was not
meaningless, however, the Respondent was unable to justify
his actions which prompted the Appellant-Department to take
action against him. This aspect of the case has been left
unconsidered by the FST. In the presence of these facts and
circumstances, it cannot by any stretch of imagination be
held that the Respondent was condemned unheard. The
Respondent has not brought anything on the record to
establish that he asked his superiors to change his duties so
that he could perform them more efficiently, owing to his
workload. He voluntarily performed the duties he was
assigned. He cannot blame the Appellant Department in this
regard and pin the blame of his negligence on his
circumstances.
9. We are, therefore, unable to agree with the learned
ASC for the Respondent to the effect that he was condemned
unheard. Even otherwise, sufficient material is available on
the record which establishes that the Respondent wa
CIVIL APPEAL N0J4$OF 2021
8
granted various opportunities to defend himself. The findings
of the FST in this regard are against the record and
unsustainable in law as well as fact. When confronted with
the aforesaid averments, the learned ASC replied by saying
that the charges against the Respondent were different in the
charge sheet and the show-cause notice. This, in our view,
does not address the question of whether or not the
Respondent was condemned unheard. When he has stated
that the personal hearing was in his opinion "meaningless", it
cannot be held that a hearing was not granted and the rule of
audi alterarn partem was violated. If the hearing was not up to
the satisfaction of the Respondent or he did not get the relief
that he was expecting, the Appellant Department cannot be
held to have condemned him unheard. The only grievance of
the Respondent is that he was not heard properly and the
Respondent has left this ground unsubstantiated. As such,
the findings of the FST in this regard are erroneous and
unsustainable.
WAS THE INQUIRY CONDUCTED AGAINST THE
RESPONDENT IN VIOLATION OF THE PRESCRIBED
PROCEDURE?
10. The learned ASC appearing on behalf of the
Respondent has stated that the inquiry proceedings against
the Respondent were conducted in a disorderly manner. The
learned DAG in this regard has drawn our attention to the
Show Cause Notice, Charge Sheet and Statement of
Allegations served upon the Respondent. A perusal of the said
documents reveals that the Respondent was issued a charge
-
S -
CIVIL APPEAL NO1*DF 2021
9
sheet and was asked to submit his defence. He was issued a
Show Cause Notice to which he replied rebutting the
allegations against him. An inquiry was conducted in which
he participated and thereafter, the penalty of dismissal from
service along with recovery was imposed upon the
Respondent. The Respondent then preferred a departmental
appeal which was rejected. This prompted the Respondent to
approach the FST by filing a service appeal.
11. The Respondent was proceeded against under the
law. Nowhere has the Respondent during the pendency of the
aforesaid process stated that the proceedings against him
were biased or were being conducted improperly. He
participated in the proceedings and was able to give his
defence, which was left to the Appellant Department to accept
or not accept. Not only a regular inquiry but a preliminary
inquiry was also held against the Respondent. The contention
of the learned ASC for the Respondent that two parallel
inquiries were being conducted, one of which prejudiced the
final inquiry proceedings against the Respondent is not
supported by the record. We have perused the final inquiry
report and the preliminary inquiry report of the Chief
Postmaster. Both of these reports are comprehensive and
have analysed the Respondent's case thoroughly. The fact
that there are similarities in both the said reports is
inconsequential because the foundation of the charges
levelled against the Respondent which has been made the
basis of the preliminary inquiry and final inquiry is the same.
J
CIVIL APPEAL N0./8b0F 2021
10
The preliminary inquiry report merely recommended that the
Respondent be proceeded against on the charges which were
levelled against the Respondent. The Final Inquiry Report
investigated the charges levelled against the Respondent and
held him guilty of the allegations. It can be seen from the
preliminary inquiry report that disciplinary action along with
a recovery of Rs. 11,09,500 was recommended against the
Respondent, whereas, the final order of dismissal mentions
that he was dismissed from service and recovery of Rs.
10,39,500 was ordered to be effected by the Respondent. The
difference which exists in each of these inquiries and also the
order of dismissal sufficiently establishes that the said order
and inquiry reports were independent of each other and were
prepared after examining the record and due application of
mind. The Respondent has not been able to establish from
the record that any official of the Appellant-Department was
biased or had a grudge against the Respondent which
prompted them to proceed against the Respondent with
malice or ill will.
WAS THE PENALTY OF DISMISSAL AND RECOVERY
COMMENSURATE WITH THE SERIOUSNESS OF
ALLEGATIONS LEVELLED AGAINST THE RESPONDENT?
12. It is an admitted fact that the Appellant Department
suffered a financial loss of Rs. 11,09,500, which could have been
prevented but for the alleged loss of or inability of the Respondent
to account for the PPO Paid Vouchers. The Respondent signed the
PPO Paid Statement while the incumbent APCM was present on
duty. Furthermore, the Respondent in his application dated
26.01.2016 has stated that he will make up for the loss caused to
-
I
CIVIL APPEAL NO4IOOF2O2 I
11
the Appellant Department and has further requested that his case
may not be sent to the FIA. It is pertinent to mention that PPOs are
documents that were of fundamental importance and needed to be
proved or if they had been lost, independent evidence should have
been produced to show that the payments were made against
surrendered PPOs which had been cancelled, retained and relevant
particulars thereof had been entered in the relevant records. The
Respondent was also required to present the vouchers against
which PPO payments were made to authenticate such payments.
No such evidence/material/documents were placed on record. The
Appellant Department gave several opportunities to the
Respondent to prove his innocence. The Respondent in return
deposited an amount of Rs. 40,000, which in our view, amounts to
admission on his part of the misappropriation. This aspect of the
case has been ignored by the learned FST in the impugned
judgment.
13. The learned FST has taken the stance that all the
allegations against the Respondent stood proved, however, he
could not have been held responsible ipso facto for embezzlement
or misappropriation. We are unable to agree with this observation
for the reason that, when the FST, on one hand, held that the
Respondent was indeed responsible for the loss caused to the
Appellant-Department, it could not assume the role of the
competent authority and hold that embezzlement or
misappropriation was not proved without holding that there was a
defect in the inquiry proceedings which caused serious prejudice to
the Respondent.
14.
The Tribunal has recorded in its order that the
Respondent had deposited three amounts i.e. Rs. 4,13,400 and Rs.
--
C
.
I
CIVIL APPEAL NO. 2021
12
2,9 1,400, which totals Rs. 11,09,500 with the department towards
the settlement of his liability. The learned Counsel for the
Appellants states that this finding is factually incorrect. We have
asked the learned ASC for the Respondent to show us any material
on the record which establishes that the Respondent did make the
said payments. He has been unable to do so. Lastly, we asked the
learned ASC for the Respondent if there was a mistake in the
impugned judgment, and, he candidly admitted that there was
indeed a factual error in the impugned judgment insofar as
payment of the said amount is concerned. As such, given the said
facts and circumstances, the learned FST could not have
arbitrarily changed the impugned penalty into that of stoppage of
increment of one year without cumulative effect.
15.
The learned FST has incorrectly applied the relevant
law, misunderstood the facts and circumstances of the case, and
has misread the record which warrants interference by this Court.
As a result of this, the impugned judgment passed by the learned
FST is unsustainable and liable to be set aside.
16.
For the reasons noted above, this appeal is allowed
and the impugned judgments of the learned FST dated 19.12.2018
and 20.02.2019 are accordingly set aside.
SChie 4^atb e
ISLAMABAD.
25.06.2021.
HarisZC/ *
yZApproved For Repori
ti'
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Nasir-ul-Mulk, CJ
Mr. Justice Gulzar Ahmed
Mr. Justice Mushir Alam
C.As.No.1011 & 2786 of 2006
AND
Civil Petition No.538 of 2006
[On appeal against a common Judgment dated
31.05.2006 passed by the Lahore High Court, Multan
Bench, in ICA No.229 of 1999 & RFA No.328 of 2001]
Mst. Nasreen Zahra
(in CA.1011)
Government of the Punjab through Secretary
Communication & Works Department, Lahore
(in CA.2786)
Appellant(s)
Mst. Nasreen Zahra
(in CP.538)
Petitioner(s)
VERSUS
Multan Development Authority Multan & another
(in CA.1011)
Mst. Nasreen Zahra wife of Javed Haider Gardezi
(in CA.2786)
Assistant Commissioner (C) Land Acquisition
Collector City Sub Division Multan & 6 others
(in CP.538)
Respondent(s)
For the Appellant(s)
[in CA.1011 & CP.538]
: Syed Najam-ul-Hassan Kazmi, Sr. ASC
Mr. Muhammad Ali Shah Gillani, ASC
[in CA.2786]
: Mr. Razzaq A. Mirza, Addl.A.G.Punjab
(also on Court’s Notice in CP.538 & CA.1011)
For the Respondent(s)
[R.1 in CA.1011]
: Mr. Anwar Kamal, Sr. ASC
[R.2 in CA.1011]
: Ex-parte
[R.1 in CA.2786]
: Syed Najam-ul-Hassan Kazmi, Sr. ASC
Mr. Muhammad Ali Shah Gillani, ASC
[R.2 in CA.2786]
: Mr. Anwar Kamal, Sr. ASC
[R.7 in CP.538]
: -do-
Date of Hearing
: 29.01.2015
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 2 -
JUDGMENT
GULZAR AHMED, J.— Civil Appeal No.1011 of 2006 and Civil
Petition No.538 of 2006 have been filed by Mst. Nasreen Zahra while
Civil Appeal No.2786 of 2006 is filed by Government of the Punjab
through Secretary Communication & Works Department, Lahore.
There is a common impugned judgment dated 31.05.2006 of a learned
Division Bench of the Lahore High Court, Multan Bench.
2.
Brief facts of the matter are that a Notification dated
07.05.1976 was issued under Section 4 of the Land Acquisition Act,
1894 (the Act) by the Collector/Deputy Commissioner, Multan District,
Multan, which was published on 10.12.1976 notifying the acquiring of
certain lands by Government of the Punjab at the public expense for
the public interest i.e. construction of Multan Bye-Pass. A
Corrigendum Notification dated 18.03.1977 was issued whereby the
land of Mst. Nasreen Zahra was included in the project of construction
of Multan Bye-Pass. Another Notification dated 21.01.1980 was issued
under Section 4(1) of the Punjab Acquisition of Land (Housing) Act,
1973 read with Chapter VI of the Punjab Development of Cities Act,
1976 by the Deputy Commissioner, Multan, notifying that the land
specified in the Notification is needed by the Multan Development
Authority (MDA) at its expense for the construction of Multan Bye-
Pass Phase-II, which shall be deemed to be a Housing Scheme under
Section 25 of the Punjab Development of Cities Act, 1976. Mst.
Nasreen Zahra challenged this Notification dated 21.01.1980 by filing
Writ Petition No.7932 of 1980, which was allowed vide judgment dated
23.12.1990. Against this judgment, MDA filed ICA No.12 of 1991
which through judgment dated 18.03.1992 was dismissed. The
judgment of ICA was challenged by the MDA before this Court in Civil
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 3 -
Appeal No.492 of 1993, which was dismissed vide judgment dated
26.05.1998 with direction to the Land Acquisition Collector, Multan
(LAC) to deliver the Award allowing compensation under the Land
Acquisition Act, 1894 and also determine the Authority who will pay
the compensation. The Award dated 26.08.1998 was announced and
Mst. Nasreen Zahra was awarded compensation of her land @
Rs.20,000/- per marla with 15% compulsory acquisition charges and
the acquiring agency namely MDA was directed to deposit the amount
of compensation. The Award was reviewed by the LAC through his
further order dated 04.10.1998 whereby the rate of acquisition was
reduced from Rs.20,000/- per marla to that of Rs.10,000/- per marla.
Mst. Nasreen Zahra, being aggrieved, challenged the order of review
dated 04.10.1998 by filing Writ Petition No.11480 of 1998 while the
MDA also filed Writ Petition No.1439 of 1999 challenging the Award
dated 26.08.1998 and its review dated 04.10.1998. Both these Writ
Petitions were decided vide judgment dated 25.10.1999 whereby the
order of review dated 04.10.1998 was declared illegal while the Award
dated 26.08.1998 was upheld. Writ Petition of Mst. Nasreen Zahra
was thus allowed and that of the MDA was dismissed. MDA filed ICA
No.229 of 1999 which was dismissed vide judgment dated 08.10.2001,
against which the MDA filed C.P.No.3857-L of 2001 in this Court. In
the meanwhile Mst. Nasreen Zahra had filed Reference under Section
18 of the Act with the Referee Court for enhancement of
compensation, which was dismissed vide judgment dated 30.07.2001.
Against this judgment of Referee Court, Mst. Nasreen Zahra filed RFA
No.328 of 2001. The MDA also field RFA No.366 of 2001 against this
judgment. The C.P.No.3857-L of 2001 was disposed of by this Court
vide order dated 07.07.2004 by consent of the parties’ counsel
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 4 -
whereby the ICA No.229 of 1999 was remanded to the Lahore High
Court, Multan Bench for decision along with the two RFAs. By the
impugned judgment dated 31.05.2006 the learned Division Bench of
the Lahore High Court, Multan Bench partly allowed ICA No.229 of
1999 to the extent that it is the Punjab Government and not the MDA
who has to pay the compensation. The RFA No.366 of 2001 filed by
the MDA was found to be not maintainable and dismissed while the
RFA No.328 of 2001 filed by Mst. Nasreen Zahra was not pressed for
enhancement of compensation instead only the claim under Section 34
of the Act was pressed, which the Court did not allow and therefore
dismissed the said RFA. Mst. Nasreen Zahra filed C.A.No.1011 of 2006
and C.P.No.538 of 2006 while Government of the Punjab has filed
C.A.No.2786 of 2006 in this Court.
3.
Syed
Najam-ul-Hassan
Kazmi,
learned
Senior
ASC
appearing for the appellant/petitioner Mst. Nasreen Zahra has taken us
through the record of the case and has contended that Mst. Nasreen
Zahra is entitled for payment of interest in that no compensation was
deposited in Court nor was it paid to her. He contended that under
Section 31 of the Act, it was the responsibility of the Collector to
tender the payment of compensation awarded by him to Mst. Nasreen
Zahra and that at no time she has refused to receive the
compensation. The learned Senior ASC contended that where such
default is made, the Collector becomes liable to pay interest in terms
of Section 34 of the Act. In support of his arguments, the learned
Senior ASC has relied upon the case of Hissar Improvement Trust V.
Smt. Rukmani Devi & another [AIR 1990 SC 2033]; Mangat Ram
Tanwar & another V. Union of India [AIR 1991 SC 1080]; and
Imamuddin Shah through Attorney V. Deputy District Officer
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 5 -
(Revenue) and Land Acquisition Collector Sanghar & another [2005
MLD 69 Karachi].
4.
Mr. Razzaq A. Mirza, learned Additional Advocate General,
Punjab, appearing for Government of the Punjab has contended that
there were in all 108 effected parties whose land was acquired by the
MDA out of whom 107 effected parties have received compensation
without any protest. Only Mst. Nasreen Zahra did not receive the
compensation. He further contended that Government of the Punjab
was not a party in the proceedings before this Court; therefore, it was
not heard and that the Reference was filed against the MDA and it was
the MDA who filed appeal against the judgment given in the Reference.
He further contended that the first Award given by the LAC was @
Rs.20,000/- per acre which comes to Rs.153/- per marla while in the
present case the Award is given @ Rs.20,000/- per marla, which is
challenged by Government of the Punjab. He contended that though
the project for which the land was acquired was funded by the Federal
Government but the Federal Government has assigned the project to
the Provincial Government of the Punjab and MDA was its executing
agency. He contended that Government of the Punjab had no
opportunity to contest the Award announced in favour of Mst. Nasreen
Zahra.
5.
We will first of all deal with the contentions of the learned
Additional Advocate General, Punjab because they are in the nature of
preliminary objections. The learned Additional Advocate General has
raised the objection that Government of the Punjab was not heard in
the determination of compensation of the land acquired from Mst.
Nasreen Zahra and that its challenge to the award of compensation be
accepted now by this Court. We may note that Mst. Nasreen Zahra
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 6 -
had filed her claim for awarding compensation before the LAC through
her petition dated 30.06.1998 in which respondent No.1 was the
Province of Punjab. Yet again we note that in Writ Petition No.7932 of
1980 filed by Mst. Nasreen Zahra, Government of the Punjab was a
party where it was represented by its Additional Advocate General, as
is apparent from the judgment dated 23.12.1990. Against this
judgement, MDA filed C.A.No.492 of 1993 in this Court in which too
Government of the Punjab was a party but as it appears it did not
make appearance in the said Civil Appeal. In the second round of
litigation before this Court, the MDA also filed C.P.No.3857-L of 2001,
in which Government of the Punjab was a party. In the RFA No.328 of
2001 filed by Mst. Nasreen Zahra, Government of the Punjab was not
impleaded as a party but in the RFA No.366 of 2001 filed by the MDA,
Government of the Punjab was very much a party. At the time of
hearing of the two RFAs so also ICA No.229 of 1999, Government of
the Punjab was very much represented through its learned Assistant
Advocate General namely Mr. Muhammad Qasim Khan and this is
reflected from the impugned judgment. In the face of so many
proceedings in which Government of the Punjab was a party, it is hard
to imagine as to how Government of the Punjab could be considered to
have remained unheard in the matter of determination of the
compensation to Mst. Nasreen Zahra. In the three proceedings in
which the impugned judgment was announced by the High Court, at
least in two of them Government of the Punjab was directly a party,
and those proceedings contained all material facts relating to acquiring
of land from Mst. Nasreen Zahra for construction of Multan Bye-Pass
and in the determination of compensation and giving of Award by the
Collector. Government of the Punjab had an opportunity of raising this
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 7 -
objection that it has not been heard in the proceedings of
determination of compensation but no such objection seems to have
been raised by Government of the Punjab before the High Court. In
any case, it became aware of the fact of acquiring of land of Mst.
Nasreen Zahra when initial Writ Petition No.7932 of 1980 was filed by
her and the culmination of such proceedings into an Award when RFA
of MDA was served upon it. No steps were taken by Government of
the Punjab to ensure its representation at the stage of determination
of compensation before the Collector or before the Referee Court. It,
however, was represented in the two RFAs which arose from judgment
of the Referee Court. Thus, we find no substance in this objection of
the learned Additional Advocate General, Punjab. As regard the next
submission of the learned Additional Advocate General that there were
108 effectees of whom 107 have been paid compensation and only
Mst. Nasreen Zahra has not received the compensation. Though such
submission was made by the learned Additional Advocate General but
he did not point out from record as to who were those 107 effectees to
whom compensation was paid and if paid at what rate and on the basis
of which Award and of what date, as the proceedings for acquiring of
land for construction of Multan Bye-Pass were initiated as early as on
07.05.1976 when the first Notification under Section 4 of the Act was
issued. The Award in the case of Mst. Nasreen Zahra was made by the
Collector on 26.08.1998 by which Mst. Nasreen Zahra was allowed
compensation @ Rs.20,000/- per marla and it was not shown to us
from the record that such compensation, after the Award, was
tendered to Mst. Nasreen Zahra and that she refused to receive the
same. What this argument of the learned Additional Advocate General
reflects is that there was no cavil to the compensation awarded to Mst.
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 8 -
Nasreen Zahra but the grievance was that she did not receive the
same while the other effectees have received their compensation. As
regards the submission of the learned Additional Advocate General
that the first Award given by the LAC was @ Rs.20,000/- per acre
which comes to Rs.153/- per marla while in the present case the
Award is given @ Rs.20,000/- per marla and the latter Award is
claimed to be challenged by Government of the Punjab before this
Court. The Award in this case was made by the Collector as back as
on 26.08.1998 and it could not be directly challenged by Government
of the Punjab before this Court by filing C.A.No.2786 of 2006.
However, we have looked into the record to ascertain the factum on
the basis of which this argument of the learned Additional Advocate
General is based and have found a copy of an Additional Award of the
Collector, Land Acquisition, MDA, Multan, dated 02.10.1980 in respect
of land in villages Ravi Mari Seatal and Kotla Muhammad Baqa for
Multan Bye-Pass Phase-II. This Additional Award is available at page
226 of CMA No.1831 of 2006 filed by the learned Senior ASC for Mst.
Nasreen Zahra. This Award was made under the Punjab Acquisition of
Land (Housing) Act, 1973, where it was noted that average sale price
for two years prior to acquisition proceedings supplied by the
Tehsildar, Multan, was Rs.91,318/40 P.A., whereas the maximum
compensation prescribed by the Act was Rs.20,000/- per acre and the
latter amount was awarded as compensation. It has already been
noted above, that application of Punjab Acquisition of Land (Housing)
Act, 1973 for acquiring of land of Mst. Nasreen Zahra for Multan Bye-
Pass was declared to be illegal by this Court vide its judgment dated
26.05.1998 and directions were given for computation of the Award
according to the Land Acquisition Act. In the face of the judgment of
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 9 -
this Court being in the field we cannot at all look into this argument of
the learned Additional Advocate General as the same is not tenable.
In any case, there is nothing on record to show that compensation
allowed by the Additional Award dated 02.10.1980 @ Rs.20,000/- per
acre was accepted by any of the effectees whose land was acquired for
the construction of Multan Bye-Pass. As regards the liability of
Government of the Punjab for payment of compensation for the land
acquired for construction of Multan Bye-Pass, the very first Notification
dated 07.05.1976 issued under Section 4 of the Act shows that the
land was acquired by Government of the Punjab for public purpose i.e.
construction of Multan Bye-Pass. Through a Corrigendum Notification
dated 18.03.1977, the land of Mst. Nasreen Zahra was included in the
project i.e. construction of Multan Bye-Pass. The beneficiary of land in
terms of the above Notification is Government of the Punjab and this
fact alone is sufficient to establish its liability for payment of
compensation for the land acquired.
6.
We now take up the issue of payment of interest, as
claimed by Mst. Nasreen Zahra in her petition dated 30.06.2006 filed
before the Collector and in the Reference application also such claim
was made by her. In RFA No.328 of 2001 this was the only claim
pressed by Mst. Nasreen Zahra. The relevant provisions that deal with
payment of compensation in the Act is Section 31 (1) & (2) which read
as follows :-
“Sec.31. Payment of compensation or deposit of
sum in the Court.--(1) On making an award under
Section 11, the Collector shall tender payment of the
compensation awarded by him to the persons interested
entitled thereto according to the award, and shall pay it to
them unless prevented by some one or more of the
contingencies mentioned in the next sub-section.
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 10 -
(2)
If they shall not consent to receive it, or if there be
no person competent to alienate the land, or if there be
any dispute as to the title to receive the compensation or
as to the apportionment of it, the Collector shall deposit
the amount of the compensation in the Court to which a
reference under Sec.18 would be submitted”.
Section 34 of the Act deals with the payment of interest and it reads
as follows :-
“Sec.34. Payment of interest.--When the amount of
such compensation is not paid or deposited on or before
taking possession of the land, the Collector shall pay the
amount awarded with interest thereon at the rate of six
per centum per annum from the time of so taking
possession until it shall have been so paid or deposited”.
7.
It is clear from reading of the provisions of Section 31 that
on making of Award under Section 11 of the Act, the Collector is bound
to tender the payment of compensation awarded by him to the person
entitled thereto according to the Award. In case the Collector is
prevented from tendering compensation awarded by him, the Collector
is required to deposit the compensation in the Court to which
Reference under Section 18 of the Act is made. The compliance of the
provision of Section 31 of the Act by the Collector is mandatory for the
simple reason that its non-compliance give rise to penal consequences
and such penal consequences are those as are provided in Section 34
of the Act i.e. interest prescribed therein will become payable.
8.
Syed Najam-ul-Hassan Kazmi, learned Senior ASC for Mst.
Nasreen Zahra has emphatically contended before us that neither the
compensation awarded by the Collector to Mst. Nasreen Zahra was
tendered to her nor was it deposited in the Referee Court where
Reference was filed by Mst. Nasreen Zahra. The learned Additional
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 11 -
Advocate General was unable to show us that on making of the Award,
the Collector in fact tendered/offered compensation awarded by him to
Mst. Nasreen Zahra. Further we also note that the learned Additional
Advocate General did not point out to us that the compensation
awarded by the Collector was deposited in the Court where Mst.
Nasreen Zahra has filed Reference under Section 18 of the Act. The
payment of interest as provided in Section 34 of the Act is mandatory
and it has been so held by this Court in the case of Collector of Land
Acquisition, Nowshera V. Fazal Rahim & 3 others [1984 SCMR 1043].
Therefore, in the absence of any proof that compensation amount
awarded by the Collector was tendered to Mst. Nasreen Zahra or was
deposited with the Referee Court, in our view, will establish the claim
for payment of interest, as provided under Section 34 of the Act. We
may note that in the impugned judgment, the High Court while
disallowing the claim for payment of interest to Mst. Nasreen Zahra
assigned the reason that the Provincial Government has released
Rs.10 Million to the MDA for compensation. This reason from reading
of the provisions of Section 31 and 34 of the Act becomes altogether
irrelevant in that the mandatory requirement of law is that the
compensation amount awarded by the Collector was required to be
tendered to Mst. Nasreen Zahra and in case the Collector was
prevented from tendering the compensation amount to Mst. Nasreen
Zahra, he was required to deposit the same in the Referee Court
where Reference under Section 18 of the Act was field by Mst. Nasreen
Zahra. This having not been done, we are of the view that Mst.
Nasreen Zahra is entitled to payment of interest, as provided under
Section 34 of the Act.
C.As.No.1011 & 2786 of 2006 & C.P.No.538 of 2006
- 12 -
9.
We, therefore, allow Civil Appeal No.1011 of 2006 to the
extent as noted above and dismiss Civil Appeal No.2786 of 2006. Civil
Petition No.538 of 2006 is converted into an appeal and is also allowed
in the above terms.
CJ.
Bench-I
ISLAMABAD
J.
APPROVED FOR REPORTING
*Hashmi*
J.
Announced in open Court on
07.07.2015
J.
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE JAMAL KHAN MANDOKHAIL
Civil Appeal No.1018/2016
(On appeal from the judgment dated
22.01.2016 passed by the Peshawar
High
Court,
Peshawar
in
C.R.
No.235/08)
Shan Muhammad alias Shany
…Appellant
Versus
Said Mashal
..Respondent
For the appellant:
Mr. Abdul Rehman Qadar, ASC
Syed Rifaqat Hussain Shah, AOR
For the respondent:
Mr. Amjad Ali, ASC
Date of hearing:
12.05.2022
ORDER
MAZHAR ALAM KHAN MIANKHEL, J-. The respondent herein had
filed a pre-emption suit against the present appellant with regard to a
sale effected through mutation No.1310 attested on 23.12.2004. The
suit was contested by the present appellant by filing his written
statement wherein he through a general/evasive denial alleged that
Talabs were not performed in accordance with law and not within the
stipulated time besides other legal and factual objections. After a full-
fledged trial, the suit was decreed by the Civil Judge-VII, Swabi vide
his judgment and decree dated 29.06.2007 but in appeal of the
present appellant, the appellate court while accepting the appeal vide
its judgment and decree dated 27.2.2008, set aside the judgment and
decree dated 29.06.2007 of the trial court and dismissed the suit of
C.A.1018/16
2
the
present
respondent.
The
respondent/pre-emptor,
feeling
aggrieved, approached the High Court by way of civil revision and the
learned Judge-in-Chambers vide impugned judgment and decree
dated 22.01.2016 accepted the same by restoring the judgment and
decree of the trial Court. The vendee-appellant, being dissatisfied,
has questioned the same through the instant appeal.
2.
We have heard the learned counsel for the parties and
have gone through the available record with their able assistance.
The only point urged and argued by the learned counsel for the
appellant was with regard to non-mentioning of the date of issuance
of notice of Talb-i-Ishhad (the ‘Notice’) in the plaint and delivery of
physical possession of the suit property prior to attestation of
mutation which makes the plaint of respondent as barred by time.
The learned counsel by placing reliance on the cases of Mst.
Saleem Akhtar Vs. Chaudhry Shauk Ahmed (2009 SCMR 673), Mst.
Bashiran Begum Vs. Nazar Hussain and another (PLD 2008 SC 559)
and Mian Pir Muhammad and another Vs. Faqir Muhammad through
L.Rs. and others (PLD 2007 SC 302) submitted that the pre-emptor
has failed to mention the date of Notice in his plaint which in view of
the law laid down by this Court in the above referred judgments is
sine qua non and in absence of such date the suit of the respondent
is liable to dismissal. On the other hand, the learned counsel for the
respondent supported the judgments rendered by the trial Court as
well as the High Court in favour of the respondent.
3.
In light of the arguments of learned counsel for the
appellant, we have noted that though the date of Notice is not
mentioned in the plaint but the appellant has never alleged such
C.A.1018/16
3
deficiency in his written statement and has simply denied the
performance of Talabs in accordance with law within the stipulated
time; no further details whatsoever were given in his written
statement. The appellant, while appearing as a witness as DW-1, has
repeated the same stance and was not specific with regard to the
argument advanced by the learned counsel for the appellant. The
evidence led by the respondent clearly establishes the fact that the
Notice (Ex.PW-4/1), which bears the date of its issuance/execution,
was tendered in evidence without any objection by the present
appellant. The postman in this regard, who appeared as PW.1, has
stated in categorical terms that the said Notice through a registered
cover was delivered to the defendant. Besides the above, there is
nothing in rebuttal by the present appellant. When confronted as to
whether objection with regard to non-mentioning of date of issuance
of Notice was raised in his written statement or in his grounds of
appeals before the fora below or before this Court, his answer to such
query was in negative. The appellant has never ever raised this
ground during the trial or in both of his appeals. Learned counsel for
the appellant has tried to make out a case which was never pleaded
by him earlier and the law does not allow him to make out a new case
by raising such a factual plea. We have gone through the entire
evidence regarding the performance of Talabs and have found that
the entire evidence establishes the fact that both the Talabs were
performed by the respondent in accordance with law. It appears that
substantial compliance of the statutory provisions has been made by
the respondent and no prejudice has been caused to the appellant
which is also in accordance with the law laid down by this court in
the above referred judgments, and many other judgments on the
point. In view of the ample evidence on the record which goes un-
C.A.1018/16
4
rebutted, the respondent cannot be non-suited for a bonafide
omission of non-mentioning of the date of notice in the plaint. Notice
was available on the file along with plaint from day one. So, simply
non-mentioning the date of issuance of notice cannot be held to non-
suit the respondent in the peculiar circumstances of the case.
Though in the above judgments it has been held that mentioning the
date of issuance of notice in the plaint is must but the same has not
been elaborated as to why and what for the mentioning date in the
plaint is must. Had in the said cases/judgments, this aspect was
clarified then one could have considered the same in the light of
peculiar circumstances of the case. As explained above in detail, in
presence of entire evidence on the point, mere non-mentioning of
date of issuance of notice would not be fatal for preemptor. The above
judgments in the circumstances are distinguishable and have no
bearing on the merits of the case in hand.
4.
As far as the second argument regarding delivery of
possession of the suit property prior to attestation of mutation is
concerned, there is no evidence on the record in this regard except a
single sentence by the appellant and his vendor in their respective
statements that after the sale transaction, physical possession of the
property was delivered to the appellant on the second day but neither
any entry in the daily diary of Patwari Halqa was tendered in
evidence nor any Khasra Girdawari reflecting change of possession in
favour of the appellant was available on the file in support of the
argument of the learned counsel for the appellant. Mere alleging such
an important matter in their statements, even if not cross-examined,
cannot be termed as a sufficient evidence to hold the suit of the
respondent as barred by time. For such an important aspect of the
C.A.1018/16
5
case, there should have been a detailed evidence reflecting the mode
and manner of change of possession with specific date and time and
the persons witnessing such change of possession. In absence of
such evidence, it cannot be held that possession of the property was
handed over to the appellant prior to attestation of mutation.
5.
The judgments and decrees rendered by the trial Court
as well as the learned Judge-in-Chambers of the High Court would
reflect that the same are based on proper appraisal of the entire
evidence and we do not see any infirmity, misreading or non-reading
of any material evidence on the record which could suggest a
different opinion by this court. Hence this appeal, being meritless, is
dismissed as such.
C.M.A. No.2781/2016:
In
view
of
our
above
findings, this application has lost its fate and is accordingly disposed
of.
Judge
Judge
Islamabad,
15th May, 2022
Nasir Khan /-
‘Approved for reporting’
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Anwar Zaheer Jamali, CJ
Mr. Justice Mian Saqib Nisar
Mr. Justice Amir Hani Muslim
Mr. Justice Ejaz Afzal Khan
Mr. Justice Mushir Alam
Civil Appeals No.101 & 102-P of 2011.
(On appeal from judgment dated 27.04.2010, of
the Peshawar High Court, Peshawar, passed in
Writ Petitions No.205 of 2010 and 33 of 2009).
Regional Commissioner Income Tax,
Northern Region, Islamabad.
(in Civil Appeal No.101-P/2011)
Commissioner of Income Tax Company Zone,
Income Tax Officer, Peshawar
(in Civil Appeal No.102-P/2011).
…Appellants.
VS
Syed Munawar Ali and others.
(in Civil Appeal No.101-P/2011)
Kiramatu Ullah Khan and others.
(in Civil Appeal No.102-P/2011).
…Respondents.
For the Appellants:
Mr Shahid Raza, ASC.
(in both Appeals)
For Respondent No.:
Mr Ijaz Anwar, ASC.
1-8 in C.A.No.101-P/11
& for Respondents No.1-39
In C.A.No.102-P/11).
Date of hearing:
17.02.2016.
JUDGMENT
AMIR HANI MUSLIM, J. - These Appeals, by leave of the
Court, are directed against common judgment dated 27.04.2010, passed by
the Peshawar High Court, Peshawar, whereby the Writ Petitions filed by the
C.A.No.101-P/11 etc.
2
Respondents were disposed of with the direction to the Appellants to act
according to law and to do what is required by the law to do within a
minimum possible time.
2.
The facts necessary for the adjudication of the present
proceedings are that the Respondents and others while working as
Superintendents/Supervisors with the Appellants filed an Application before
the Chairman, Federal Board of Revenue (Revenue Division) for
upgradation of their posts from BS-13 to BS-16, inter alia, on the ground
that since the post of Superintendent has been upgraded to BS-16 in
Federal/Provincial Government, therefore, the post of Superintendent may
also be upgraded in the Federal Board of Revenue from BS-13 to BS-16.
The said Application remained undecided, and the Respondents filed Writ
Petitions before the Peshawar High Court, which were disposed of by a
learned Division Bench by the consolidated impugned judgment.
3.
The Appellants filed Civil Petitions for leave to Appeal against
the judgment of the Peshawar High Court in which leave was granted to
consider whether in view of the bar contained under Article 212 (3) of the
Constitution, the High Court has the jurisdiction to entertain a Constitution
Petition relating to the terms and conditions of service of civil servants.
Hence these Appeals.
4.
The learned Counsel for the Appellants has contended that the
jurisdiction of the learned Peshawar High Court was barred under Article
212 (3) of the Constitution, as the issue of upgradation which was the
subject matter of the Writ Petitions relates to the terms and conditions of
C.A.No.101-P/11 etc.
3
service of the Respondents and could not have been adjudicated upon by the
High Court. He next contended that the terms and conditions of service of
civil servants fall within the domain of the Service Tribunal, therefore, the
impugned judgment was without jurisdiction.
5.
As against this, the learned Counsel for the Respondents have
contended that the issue of upgradation is not covered by the expression
“terms and conditions of service” of a civil servant, therefore, the High
Court has the jurisdiction to decide the issue.
6.
We have heard the learned Counsel for the parties and have
perused the record. The expression “upgradation” is distinct from the
expression “Promotion”, which is not defined either in the Civil Servants
Act or the Rules framed thereunder, and is restricted to the post (office) and
not with the person occupying it. The upgradation cannot be made to benefit
a particular individual in term of promoting him to a higher post and further
providing him with the avenues of lateral appointment or transfer or posting.
In order to justify the upgradation, the Government is required to establish
that the department needs re-structuring, reform or to meet the exigency of
service in the public interest. In the absence of these pre-conditions,
upgradation is not permissible.
7.
The aforesaid definition of the expression “Upgradation”
clearly manifests that it cannot be construed as promotion, but can be
granted through a policy. In fact, this Court in the judgment titled as Ali
Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456) and an
unreported judgment of this Court passed in the case of Chief Commissioner
C.A.No.101-P/11 etc.
4
Inland Revenue and another vs. Muhammad Afzal Khan (Civil Appeal
No.992 of 2014) has held that the issue relating to upgradation of civil
servants can be decided by a High Court in exercise of its constitutional
jurisdiction and bar contained under Article 212(3) of the Constitution
would not be attracted. The policy of upgradation, notified by the
Government, in no way, amends the terms and conditions of service of the
civil servant or the Civil Servants Act and or the Rules framed there-under.
The Service Tribunals have no jurisdiction to entertain any appeal involving
the issue of upgradation, as it does not form part of the terms and conditions
of service of the civil servants. The question in hand has already been
answered by the aforesaid two judgments of this Court.
8.
For the aforesaid reasons, we do not find any infirmity in the
impugned judgment; consequently these Appeals are dismissed.
Chief Justice
Judge
Judge
Judge
Judge
Islamabad the,
17th February 2016.
Approved for reporting.
Sohail/**
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE ANWAR ZAHEER JAMALI, CJ
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE KHILJI ARIF HUSSAIN
CIVIL APPEAL NO. 1020 OF 2014
(On appeal from the judgment dt. 20.5.14 passed by
the Election Tribunal, Lahore in Election Petition
No.190/13).
Muhammad Ahmad Chatta
… Appellant
VERSUS
Iftikhar Ahmad Cheema and others
… Respondents
For the Appellant:
Syed Hamid Ali Shah, ASC
For the Respondent-1:
Mr. Mubeen uddin Qazi, ASC with
Mr. Tariq Aziz, AOR
For respondfent-10:
In person.
For respondents,3-9,11-16:
Ex-parte.
Date of Hearing:
25.01.2016
JUDGMENT
Khilji Arif Hussain, J.- This appeal under Section 67(3) of the
Representation of the People Act, 1976 (the Act), is directed against the judgment
dated 20.5.2014 passed by the Election Tribunal, Lahore whereby the learned
Tribunal dismissed the petition, filed by the appellant.
2.
The brief facts necessary to decide the present appeal, are that appellant
and respondent No.1 (the respondent) contested the general elections, 2013 for
Member, National Assembly from Constituency No.NA-101 (Gujranwala-VII). The
nomination papers filed by the appellant and respondent, after scrutiny, were
declared as validly filed. The appellant secured 60,795 votes whereas respondent
No.1 got 99,924 votes and as such respondent No.1 declared returned candidate. The
appellant in his election petition, filed before the Election Tribunal, alleged that
respondent has not disclosed various properties owned by him and his spouse in the
CA 1020 of 2014
2
nomination papers, the detail of which is given in para 3 of memo of petition. The
appellant further questioned that respondent has concealed and deliberately avoided
to provide information in respect of four accounts as highlighted in para 5 of the
memo of petition. The respondent filed written statement in which he made an effort
to explain properties/accounts about non disclosure of the same. After framing the
issues, recording of evidence and hearing the parties, the learned Election Tribunal
dismissed the petition, as mentioned above. Hence, this appeal.
3.
The learned ASC for the appellant contended that respondent owned
various properties/accounts, the detail whereof is given in memo of petition and the
same were not disclosed by him in his nomination papers. However, after arguing at
some length, the learned counsel has not pressed this issue and confined his
arguments only to the extent of the property owned by his spouse and non-
disclosure of some accounts, maintained by him. He then drawn our attention to the
statement of accounts and contended that respondent had deliberately not disclosed
these accounts in his nomination papers and concealed the facts. He further
contended that respondent’s wife owned undivided share of land measuring 5-
kanals, 2-sarsai in joint Khewat No.19, Khatooni No.67-70 located in Aabadi of Chak
No.303/JB, District Toba Tek Singh, Agricultural land meansuring 34 kanals, 18
marlas, bearing Khewat No.44, Khatooni No.207, located in Revenue Estate, Chak
No.303/JB, House No.282, St. No.103, FECHS, Sector E-11/1, Islamabad and House
No.1, Jami/Roomi Road, Rawalpindi Cantt. In this view of the background, the
learned counsel contended that notification of respondent No.1 as returned
candidate, be declared as void. In support of his contention, he relied upon Iqbal
Ahmad Langrial vs. Jamshed Alam (PLD 2013 SC 179), Workers’ Party Pakistan vs.
Federation of Pakistan (PLD 2013 SC 406), Najeeb-ud-Din Owasi vs. Amir Yar Waran
(PLD 2013 SC 482), Khalid Pervaiz Gill vs. Saifullah Gill (2013 SCMR 1310) and
Muhammad Rizwan Gill vs. Nadia Aziz (PLD 2010 SC 828).
CA 1020 of 2014
3
4.
On the other hand, the learned counsel for respondent No.1 argued that
respondent has not disclosed the properties of his spouse as they have estranged
relations since long and as regards the various accounts mentioned in memo of
petition are concerned, it is contended that the same were dormant and as such the
respondent was not under obligation to disclose the same. He contended that
appellant has failed to establish any mens rea against the respondent for non-
disclosure of above mentioned assets/accounts and as such the Tribunal has rightly
dismissed his appeal. In support of his contention, he relied upon Hassan Nawaz vs.
Election Commission of Pakistan (2013 CLC 1101) and Muhammad Sameen Khan vs.
Returning Officer (2012 CLC 820).
5.
We have heard the arguments of learned counsel for the parties and
carefully gone through the available record. From the nomination paper, filed by the
respondent, it appears that the respondent take all possible care as a prudent man
while submitting the same which is evident from the facts that the respondent has
changed many sentences not attributed to him. He categorically stated on oath that
neither he nor his spouse or any other person dependent upon him owned any
company. Likewise, he stated that he maintained one account bearing No.2670-5, in
the National Bank of Pakistan, Main Branch, Wazirabad in which a sum of
Rs.15,00,000/- is available. As regards his assets, he declared that he owned 151-
kanals, 5 marlas of agricultural land and a house. The respondent in his written
statement before the Tribunal admitted that apart from the account mentioned in his
nomination papers, he was maintaining an account No.0010014643510016 with Allied
Bank of Pakistan, Gunnianwala More Branch and at the time of submitting his
nomination papers, the respondent withdraw an amount of Rs.15,00,000/- which
was deposited in the account maintained by him in National Bank of Pakistan,
Wazirabad Branch for election as per direction of the Election Commission of
Pakistan and after withdrawal of amount of Rs.15,00,000/- from Allied Bank, petty
negligible amount had left in the Allied Bank account because another cheque for
CA 1020 of 2014
4
purchase of machinery was also simultaneously issued, therefore, the said account
bona fidely omitted in the nomination papers. The respondent further admitted that
he maintain a joint account No.0010014643510022 with one Arshad Mehmood and
the amount in the said account was not owned by him as it was the property of the
village Mosque/Mosque Committee of village Kathor Kallan. The respondent was
merely a signatory being a trustee for this charitable purpose and that after death of
Arshad Mehmood, who was joint signatory of the account, about two years back, the
said account is lying dormant.
6.
From perusal of record, it transpires that at the time of submitting his
nomination papers, an amount of Rs.25,28,893.90/-, as on 30.6.2012, was available in
the respondent’s account bearing No.0010014643510016 which fact was not disclosed
by him in his nomination papers as required under the Act, 1976. The respondent’s
assertion that since on the date of submitting nomination papers, negligible amount
was available, therefore, it was not considered appropriate by him to mention in the
nomination papers, appears not correct. From scrutiny of record, it appears that even
at the time of submitting nomination papers, a sum of Rs.2,93,342.90/- was shown on
credit side in the said account. The contention of respondent that he issued another
cheque for purchasing some articles on the said date when he issued cheque of
Rs.15,00,000/-, is not supported by the documents on record as after withdrawal of
Rs.15,00,000/- by cheque No.10965677, two cheques bearing No.10965678 and
10965679 were debited from the said account and after deducting the same amounts,
there still remain much amount to be mentioned in his nomination papers. It further
transpires that after the issuance of above mentioned two cheques, substantial
amounts were credited in the said account which clearly established that, for all
practicable purposes, the account was operative and respondent, for the reasons best
known to him, deliberately not mentioned the same in his nomination papers.
7.
As regards the properties owned by spouse of the respondent, the
appellant categorically highlighted the property owned by spouse of the respondent
CA 1020 of 2014
5
which fact is not disputed by the respondent in his written statement. The
respondent stated that due to peculiar family circumstances and estranged relations
with his spouse, he bona fidely not mentioned the same in his nomination papers and
he came to know about properties of his spouse first time after the filing of election
petition by the appellant. He further stated that when the respondent requested his
sons for the requisite information, he came to know that even his estranged spouse
no longer owned the said residential properties and had already gifted the same to
their sons through oral gift deed. To prove the alleged oral gift deed dated
25.12.2012, respondent produced RW-8, RW-9 and RW-10. All these witnesses
attempted to prove the alleged oral gift deed but failed to prove delivery of
possession of said properties which is one of the ingredients to make a valid gift. The
witnesses accepted that they have not paid any tax in respect of the properties being
owner of the same nor produced any rent receipts to prove that after gift, they
received the rent of said properties. Even if, for the sake of arguments, it is accepted
that the alleged oral gift deed was declared by the respondent on 25th December,
2012 whereas under section 12(2)(f) of the Act, the respondent had to declare all the
assets owned by him or his spouse on 30th June, 2012. From the record of the register
haqdaran zamin for the year 2008-2009 issued on 19.6.2013, it appears that the spouse
of the respondent had been shown as owner of the said property. The respondent’s
spouse in his wealth statement for the year, 2012 declared House No.282, St. No.103,
FECHS, Sector E-11/1, Islamabad and House No.1, Jami/Roomi Road, Rawalpindi
Cantt., as her own property. At present, we are not touching the question whether
the respondent manoeuvred the documents regarding declaration of assets
submitted by him on 30.6.2012 by inserting that “I have no knowledge about the assets of
my wife because I have estrange relations with her” because an application in this regard
is already pending before the Election Tribunal. Section 12 of the Act, 1976 provided
a detailed procedure for submitting nomination papers. Section 14 provided that at
the time of scrutiny of the nomination papers, the Returning Officer can examine the
CA 1020 of 2014
6
nomination papers and decide any objection raised by any such person to any
nomination and after summary inquiry can reject the nomination papers of a
candidate if he satisfied that the candidate is not qualified to be elected as a member,
the proposer or the seconder is not qualified to subscribe to the nomination paper,
any provision of section 12 or section 13 has not been complied with or submits any
false or incorrect declaration or statement in any material particular or the signature
of the proposer or the seconder is not genuine. Section 76A of the Act, 1976 which
was inserted on 31.7.2002, give additional power to the Election Tribunal which
stipulates that “the Election Tribunal can declare election of the returned candidate as void if
he has submitted a false or incorrect declaration regarding payment of loans, taxes,
government dues or utility charges or has submitted a false or incorrect statement of assets
and liabilities of his own, his spouse or his dependents under section 12”.
8.
The learned counsel for the respondent relied upon the case of Malik
Muhammad Sameen Khan vs. Returning Officer (2012 CLC 820) wherein the Lahore
High Court held that appellant had provided approximate information of loan, and
had not concealed factum of securing the loan from Zarai Taraqiati Bank Ltd. In this
matter appellant mentioned that he secured Rs.3,50,000/- as loan whereas correct
figure was Rs.3,95,000/-. In the case of Hassan Nawaz vs. Election Commission of
Pakistan (2013 CLC 1101), it was alleged that candidate maneuvered release of
personal guarantee issued to secure finance from a Bank, the learned High Court
held that no one has questioned the release of personal guarantee and even Banking
Court deleted the name of the candidate from array of defendants and on the basis of
these facts set aside the order of rejection of nomination papers. The issues of both
the referred judgments are clearly distinguishable as to the matter in hand. In the
case of Khaleefa Muhammad Munawar Butt vs. Hafiz Muhammad Jamil Nasir (2008
SCMR 504) the appellant has not declared the amount received by him as part
payment of sale consideration of his property and this Court held that petitioner was
bound to have shown said amount as his asset in the column of nomination paper.
CA 1020 of 2014
7
Same view was earlier taken by this Court in the case of Muhammad Jamil vs.
Munawar Khan (PLD 2006 SC 24).
9.
From the perusal of record, it is established that while submitting the
nomination papers, the respondent has not submitted statement regarding assets of
his spouse as required under section 12 of the Act, 1976. The learned Election
Tribunal, without taking into consideration this aspect of the case and while holding
that respondent has not disclosed assets owned by his spouse and the account
maintained by him, dismissed the election petition merely on the ground that mens
rea is not proved and further the government exchequer has not suffered any loss on
account of non-disclosure of these material facts. This finding of the Tribunal is
against the spirit of law and as such calls for interference.
10.
Before parting with the judgment we will like to expunge the
observation made by the learned Presiding Officer that “subject to a few and very few
exceptions, the female legal heirs in Rural Punjab after having inherited agricultural land
from their predecessor-in-interest, surrender their inherited rights in favour of the male legal
heirs”. Even if, there is any such custom of surrendering inherited share by female
legal heirs in agriculture land to male legal heirs, the same is not only against the
injunction of Islam but also violative of law and Constitution of Pakistan and the
Courts should not take notice of any such custom, if any.
11.
In the foregoing discussions, this appeal is allowed. These are the
reasons of our short order announced today in Court.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
25th of January, 2016
A.Rehman
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE FAISAL ARAB
CIVIL APPEAL NO. 1022 OF 2012
(On appeal against the judgment dated 1.7.2010
passed by the High Court of Balochistan, Quetta in
C.P. No. 209/2009)
Hafeez ur Rehman
… Appellant
VERSUS
Judge Accountability Court No. 2 and another
…Respondents
For the Appellant:
Mr. Wasim Sajjad, Sr. ASC
For the Respondents:
Mr. Nasir Mehmood Mughal, Special
Prosecutor, NAB
For the Federation:
Mr. Abdur Rasheed Awan, DAG
Date of Hearing:
06.06.2016
ORDER
ANWAR ZAHEER JAMALI, CJ.- We have heard the
arguments of the learned ASC for the appellant and the learned
Special Prosecutor General, NAB. For the reasons to be recorded
separately, this Civil Appeal is dismissed.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
6th of June, 2016
Not Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN
CIVIL APPEALS NO.1023, 1024, 1357, 1358 AND 2155 OF 2016
(Against the judgment dated 19.1.2016 of the Peshawar High
Court, Peshawar passed in Writ Petitions No.2485-P and 506-
A/2014)
1.
Abdul
Haq
Khan
etc.
Vs.
Haji
Ameerzada etc.
In CA 1023/2016
2.
Deedar
Khan
etc.
Vs.
Maulana
Asmatullah etc.
In CA 1024/2016
3.
Malik Qadam Khan etc. Vs. Haji
Ameerzada etc.
In CA 1357/2016
4.
Malik Qadam Khan etc. Vs. Maulana
Muhammad Asmatullah etc.
In CA 1358/2016
5.
Government of KPK through Chief
Secretary, Civil Secretariat, Peshawar
etc. Vs. Haji Ameerzada etc.
In CA 2155/2016
For the appellant(s):
Mr. Aitzaz Ahsan, Sr. ASC
(In CAs 1023 & 1024/2016)
Sardar Abdul Raziq Khan, ASC
(In CAs 1357 & 1358/2016)
Mr. Waqar Ahmed Khan, Addl.A.G. KPK
Mr. Mugees Sana Ullah, Assistant
Commissioner, PATA
(In CA 2155/2016)
For the respondent(s):
Mr. Arshad Zaman Kayani, ASC
Ch. Akhtar Ali, AOR
(For respondents 1 to 7 in CA 1023/2016)
Syed Iftikhar Hussain Gillani, Sr. ASC
(For respondents 1 to 5 in CA 1024/2016)
Mr. Waqar Ahmed Khan, Addl.A.G. KPK
(For respondents 6 to 11 in CA 1023/2016)
Mr. Arshad Zaman Kayani, ASC
Ch. Akhtar Ali, AOR
(For respondent No.1 in CA 1357/2016)
Civil Appeal No.1023 of 2016 etc.
-: 2 :-
Mr. Waqar Ahmed Khan, Addl.A.G. KPK
(For respondents 8 to 13 in CA 1357/2016)
Mr. Imtiaz Ali, ASC
(For respondents 1, 11 to 15 in CA 1023/2016)
For Federation:
Mr. Sajid Ilyas Bhatti, DAG
Dates of hearing:
22.11.2016 & 23.11.2016
…
JUDGMENT
MIAN SAQIB NISAR, J.- These appeals, with the leave of
the Court, involve the sole proposition of law whether the re-
constitution of districts in the Provincially Administered Tribal Areas
(PATA) of Khyber Pakhtunkhwa (KPK) is violative of the provisions of
Article 246 of the Constitution of the Islamic Republic of Pakistan, 1973
(the Constitution).
2.
The facts are that vide notification dated 20.9.1976, issued
under Section 3 of the West Pakistan District Re-constitution
Ordinance, 1960 (the Ordinance), Hazara District was split into three
districts, namely, Abbottabad, Mansehra and Kohistan (Kohistan comprised
of 159 villages). Through another notification of even date issued under
Sections 5 and 6 of the West Pakistan Land Revenue Act, 1967 (the Act),
Hazara District ceased to be a part of Peshawar Division, and was to be
known as Hazara Division consisting of the aforementioned three
districts. Kohistan District comprised of Sub-division and Tehsil Dassu
which in turn comprised of the 159 villages of Kohistan (settled area).
Thereafter by a notification dated 1.10.1976 issued by the Governor,
KPK (note:- the notification does not state under which law it was issued), 154
villages of Swat District were included in Kohistan District (note:- Swat is
admittedly a PATA). On 30.12.1976, the Constitution (Sixth Amendment)
Act, 1976 (6th Amendment) was passed which added the phrase “tribal area of
Kohistan district” to Article 246(b)(i) of the Constitution. Another
Civil Appeal No.1023 of 2016 etc.
-: 3 :-
notification dated 8.10.1977 was issued under Sections 5 and 6 of the
Act which partially modified the second notification dated 20.9.1976
under which a new Sub-division and Tehsil Pattan were created and the
154 villages (formerly) of Swat District were made a part thereof.
Therefore at this point of time, Kohistan District comprised of two
Tehsils, namely Dassu (comprising 159 villages i.e. settled area) and Pattan
(comprising 154 villages i.e. former Swat District villages which were PATA). On
20.10.1995 a notification was issued under Sections 5 and 6 of the Act
which created another Sub-division in Kohistan District, i.e. Palas, and
for this purpose some of the villages which earlier formed a part of Sub-
division Pattan (500 villages in 10 Union Councils) were now made part of
Palas. Thus at this point, Kohistan District comprised of three Sub-
divisions and Tehsils, i.e. Dassu, Pattan and Palas. Vide notification
dated 23.8.2007 issued under Section 6(1) and (2) of the NWFP Land
Revenue Act, 1967 (the West Pakistan Land Revenue Act, 1967 was renamed thus)
Tehsil Kandia was created (note:- Kandia and Dassu are settled areas). Thereafter
vide notification dated 15.1.2014 issued under Sections 5 and 6 of the
KPK Land Revenue Act, 1967 (the NWFP Land Revenue Act, 1967 was renamed thus)
Kohistan (Lower) District was carved out of the existing Kohistan
District; the former comprised of Sub-divisions and Tehsils Pattan and
Palas while the latter comprised of Sub-divisions and Tehsils Dassu and
Kandia. It is instructive to note at this juncture that a notification dated
7.2.2014 partially amended the notification dated 15.1.2014, in that 63
villages out of the 154 villages formerly of Swat District were removed
from Tehsil Pattan and 20 were instead included in Tehsil Dassu, whilst
the remaining 43 were included in Tehsil Kandia. Thus both Kohistan
District and Kohistan (Lower) District comprised of settled areas as well
as PATA. This act of splitting Kohistan District vide notification dated
Civil Appeal No.1023 of 2016 etc.
-: 4 :-
15.1.2014 was challenged through eight constitutional petitions. The
first Writ Petition No.79-A/2014 titled “Action Committee Palas Vs.
Secretary to Govt. of KPK Revenue Department, Civil Secretariat,
Peshawar and others” was dismissed on 24.6.2014 as not being
maintainable. Of the remaining seven constitutional petitions, five were
dismissed through the impugned judgment (note:- none of the six dismissals
have been challenged before us). However vide the same judgment, two of them,
Writ Petition No.2485-P/2014 titled “Haji Amirzahda and others Vs.
Secretary to Govt. of KPK Revenue Department, Civil Secretariat,
Peshawar and others” and Writ Petition No.506-A/2014 titled “Maulana
Muhammad Asmatullah and others Vs. Secretary to Govt. of KPK
Revenue Department, Civil Secretariat, Peshawar and others” were
partially allowed. In all these constitutional petitions four issues were
raised:-
1.
Whether the impugned action of the Government of KPK is
ultra vires on the ground that the creation of districts could
only be made by the Provincial Government under the
Ordinance;
2.
Whether the impugned action of the Provincial Government
was
adverse
to
public
interest
and
resulted
in
administrative difficulties, practical inconvenience and
difficulties for the local population;
3.
Whether the impugned action of the Provincial Government
was illegal for being based on mala fide;
4.
Whether the impugned action of the Provincial Government
offends the mandate of Article 246 of the Constitution, in
that the constitutional status of PATA forming part of
Kohistan District, has been disturbed without any
constitutional amendment.
Civil Appeal No.1023 of 2016 etc.
-: 5 :-
The learned High Court decided the first three issues against the writ
petitioners by holding that:-
1.
The assertion of the writ petitioners that the action of the
Provincial Government lacked authority for not having been
invoked under the Ordinance of 1960 was not legally
correct. The impugned action of the Provincial Government
fell
within
the
authority
vested
in
the
Provincial
Government under the enabling provisions of the Act;
2.
The concerns raised in issue No.2, unless patently absurd
or unreasonable, were not justiciable. Thus it was best to
leave it to the wisdom of the Executive Authority of the
State to maintain the trichotomy of power as engrained in
the Constitution;
3.
The general and bald assertions of ill will and mala fide
attributed in the writ petitions were without particulars and
would not survive the legal test laid down by the Supreme
Court. The ground of mala fide taken in the writ petitions
did not fulfil the condition precedent to successfully
challenge the impugned action on this basis.
The findings on these issues going against the writ petitioners have not
been challenged before this Court and have therefore attained finality.
However, the two constitutional petitions mentioned above were allowed
on the fourth issue, as the learned High Court held that the PATA
excluded from Kohistan District and included in the newly established
Kohistan (Lower) District did not figure anywhere in Article 246 of the
Constitution thus the same could not be regarded as territory forming
part of PATA, and hence the impugned action of the Provincial
Government had disturbed the constitutional status of the said area.
2.
Mr. Aitzaz Ahsan, learned counsel for the appellants in Civil
Appeals No.1023 and 1024/2016 made the following submissions:-
Civil Appeal No.1023 of 2016 etc.
-: 6 :-
1.
Article 246(b) of the Constitution merely identifies the
physical areas forming part of PATA;
2.
The inclusion or exclusion of these identified areas (PATA) in
any other district will not change their character and PATA
status;
3.
PATA’s status can only be changed in accordance with
Article 247(6) of the Constitution which process has not
been undertaken in the matter and therefore the said area
retains its PATA status;
4.
The constitution or reconstitution of districts is not as
sacred as the constitutional limits of the provinces which
can only be altered in terms of the mandate of Article
239(4) of the Constitution;
5.
The constitution or reconstitution of districts is an
administrative function of the executive and shall not be
interfered with in the constitutional jurisdiction if such
executive authority has been properly and fairly exercised;
6.
On facts, the administrative changes made (the splitting of
Kohistan into two districts) are reasonable and in the public
interest considering the size and terrain of the original
Kohistan District.
He relied upon the judgment reported as The Collector Customs Vs.
Abdul Jabbar and others (PLD 2005 SC 247).
3.
Sardar Abdul Raziq Khan, learned counsel for the
appellants in Civil Appeals No.1357 and 1358/2016 adopted the
arguments of Mr. Aitzaz Ahsan, learned ASC. However he added that
the Government of KPK had addressed the grievances of the people of
these areas by issuing a revised notification dated 7.2.2014 returning
some of the villages to their respective tehsils. He argued that this
subsequent notification was never challenged yet the learned High
Court set it aside.
Civil Appeal No.1023 of 2016 etc.
-: 7 :-
4.
The
learned
Advocate
General
in
Civil
Appeal
No.2155/2016, while adopting the arguments of Mr. Aitzaz Ahsan,
learned ASC, submitted that Article 246 of the Constitution merely
defines the tribal areas and identifies their boundaries. It does not
confer territorial integrity to the areas mentioned therein and does not
bar the competent authority from making it a part of a district by
attaching or detaching it from a settled area. Further, while referring to
Section 4 of the Ordinance and Article 247(1) of the Constitution, he
contended that no authorization is required from the Federal
Government in this regard, rather the Governor is the competent
authority to take action in this case.
5.
On the other hand, Mr. Arshad Zaman Kiyani, learned
counsel for the respondents in Civil Appeals No.1023 and 1357/2016
(states that his concise statement, filed vide C.M.A.No.6393/2016 should be read as part of his
arguments) submitted that as shown in the map appearing at page 13 of
the noted C.M.A., the area east of the Indus River is settled whereas the
area west of the Indus River is tribal, and the culture, customs and
language etc. of both east and west parts are entirely different. Further,
while referring to Article 246 of the Constitution, he argued that there is
a distinction between the word “means” appearing in Article 246(b) and
the word “includes” appearing in Article 246(c). He submitted that by
virtue of the splitting of Kohistan the meaning of PATA changes and this
impinges on Article 246(b). Lastly he argued that in paragraph D of the
memo of appeal (Civil Appeal No.1023/2016) the appellants have admitted the
case of the respondent which is adequate to non-suit the appellants.
6.
Syed Iftikhar Hussain Gillani, learned counsel for the
respondents in Civil Appeal No.1024/2016 stated at the very outset
that in order to understand the proposition in hand, it is important to
Civil Appeal No.1023 of 2016 etc.
-: 8 :-
appreciate the scheme of the Constitution vis-à-vis the tribal areas. He
referred to Articles 103 and 104 of the Constitution of 1956 which
contained the concept of special areas (now called tribal areas). The term
tribal areas was first introduced in Articles 223 and 223A of the
Constitution of 1962 which provisions according to him were pari
materia to Articles 246 and 247 of the present Constitution. He pointed
out that previously, there was no concept of PATA, only Federally
Administered Tribal Areas, and the former concept was introduced in
Articles 260 and 261 of the interim Constitution of 1972 which is
reflected in Articles 246 and 247 of the present Constitution. He argued
that since 1956 the scheme has been the same throughout in that
anything to do with a tribal area, particularly one which is provincially
administered, requires the involvement of the Federal Government. In
this context he stated that wherever the Constitution talks about
administration by the Governor, it must be with the prior approval of
the President, and in the instant case, whilst issuing the impugned
notification the Provincial Government had tried to bypass the Federal
Government which is not permissible under the constitutional scheme.
He argued that the inclusion of the villages of Swat District (PATA) into
Kohistan District vide notification dated 1.10.1976 was unlawful and
this is bolstered by the fact that subsequently the 6th Amendment was
brought about in order to give cover to this act by adding the “tribal
area in Kohistan District” to Article 246(b)(i) of the Constitution, and
interestingly, in the 6th Amendment it was specifically mentioned
that it would take effect from 1.10.1976 which is the date
of the said notification, otherwise there was no need to specify
the
date.
He
vehemently
argued
that
though
the
President
can exclude, and not include, any area from a tribal area
Civil Appeal No.1023 of 2016 etc.
-: 9 :-
in accordance with Article 247(6) of the Constitution, it is only
Parliament which has the power to include an area as a tribal area
through a constitutional amendment, as it had done vide the 6th
Amendment. PATA are set out in Article 246(b)(i) of the Constitution
and any area not included or mentioned therein is not a PATA, therefore
until and unless Kohistan (Lower) District was added into the said
article by virtue of a constitutional amendment, the character of the
areas listed therein would stand changed in that they would cease to be
tribal area(s) for the purposes of our Constitution. He further stated
that a district with part-settled and part-tribal area could not be created
as it was against the scheme of the Constitution. Finally he submitted
that the notifications have been issued under the Act which has never
been extended to Kohistan District, and are therefore invalid on this
score as well.
7.
Mr. Imtiaz Ali, learned counsel for respondents Nos.1 and
11 to 15 in Civil Appeal No.1358/2016 adopted the arguments of Mr.
Syed Iftikhar Hussain Gillani, learned Sr. ASC and additionally stated
that it is clear from Article 246(b)(i) of the Constitution that the phrase
“which includes Kalam” therein was subsequently added which reflects
the fact that Kalam was not part of Swat initially and this connotes that
PATA cannot be changed without a constitutional amendment.
8.
The learned Additional Attorney General stated that certain
tribal areas were taken out of D. I. Khan and Bannu and put into Lakki
Marwat and Tank Districts by virtue of the 18th Amendment (note:- this was
in fact done by the 19th Amendment which change exists till date) and this means that
the tribal areas of Kohistan (Lower) District could only have been
created through a constitutional amendment.
Civil Appeal No.1023 of 2016 etc.
-: 10 :-
9.
Mr. Aitzaz Ahsan, learned Sr. ASC stated in rebuttal that
drawing an analogy with Abdul Jabbar’s case (supra) it could be said
that the Act was deemed to be applicable to the tribal areas in Kohistan
by virtue of the fact that the Act was previously made applicable to Swat
District, as Kohistan District was subsequently carved out of Swat for
administrative purposes. He further stated that the phrase “tribal area
of Kohistan” featuring in Article 246(b)(i) of the Constitution itself
envisages districts consisting of both settled and tribal areas.
10.
Heard. Before answering the question identified in the
opening paragraph of this opinion, let us first examine the meaning and
purpose of a “district”. A district is basically a type of territorial division
usually made for administrative or electoral purposes, etc. Territories
are marked off as districts to facilitate local governments in terms of
administration. In Pakistan, districts are the third tier of administrative
division, featuring after provinces and divisions. The creation and
variation of the limits of districts was governed by the West Pakistan
Land Revenue Act, 1967. At present for the purposes of KPK, it is the
KPK Land Revenue Act, 1967 which is in force. The relevant provisions
are contained in Section 6 thereof which read as under:-
“6.
Division to be divided into Districts and District
into Subdivision, etc. (1)
Each Division shall be
divided into such Districts, and each District may be
divided into such Sub-Divisions or Tehsils (which also
include Talukas) as Government may, by notification,
specify; and each sub-Division may consist of Tehsils and
having such limits, as Government may, by notification,
direct.
Civil Appeal No.1023 of 2016 etc.
-: 11 :-
(2)
Government may, by notification, vary the number
and limits of Division, Districts, Sub-Division or Tehsils
in the Province.”
Therefore it is the Government which has the power to divide a division
into districts and vary the number and limits of such districts by
issuing a notification under the Act.
11.
Let us now discuss the concept of Provincially Administered
Tribal Areas or PATA. Article 246 of the Constitution deals with PATA.
Prior to the 6th Amendment, Article 246 read as follows:-
“246. In the Constitution,–
(a)
“Tribal Areas” means the areas in
Pakistan which, immediately before the
commencing day, were Tribal Areas, and
includes—
(i)
the Tribal Areas of Baluchistan and
the North-West Frontier Province;
and
(ii)
the former States of Amb, Chitral,
Dir and Swat;
(b)
“Provincially Administered Tribal Areas”
means—
(i)
the districts of Chitral, Dir and
Swat
(which
includes
Kalam),
Malakand Protected Area, the
Tribal Area adjoining Hazara
district and the former State of
Amb; and
(ii)
Zhob
district,
Loralai
district
(excluding Duki Tehsil), Dalbandin
Tehsil of Chagai district and Marri
and Bugti tribal territories of Sibi
district; and
Civil Appeal No.1023 of 2016 etc.
-: 12 :-
(c)
“Federally Administered Tribal Areas”
includes—
(i)
Tribal Areas adjoining Peshawar
district;
(ii)
Tribal
Areas
adjoining
Kohat
district;
(iii)
Tribal Areas adjoining Bannu
district;
(iv)
Tribal Areas adjoining Dera Ismail
Khan district;
(v)
Bajaur in Malakand Agency;
(vi)
Mohmand Agency;
(vii)
Khyber Agency;
(viii)
Kurram Agency;
(ix)
North Waziristan Agency; and
(x)
South Waziristan Agency.”
After the 6th Amendment was introduced, Article 246 read as below:-
“246. In the Constitution,–
(a)
“Tribal Areas” means the areas in
Pakistan which, immediately before the
commencing day, were Tribal Areas, and
includes—
(i)
the Tribal Areas of Baluchistan and
the North-West Frontier Province;
and
(ii)
the former States of Amb, Chitral,
Dir and Swat;
(b)
“Provincially Administered Tribal Areas”
means—
(i)
the districts of Chitral, Dir and
Swat (which includes Kalam), the
Tribal Area in Kohistan district,
Malakand Protected Area, the
Tribal Area adjoining Mansehra
Civil Appeal No.1023 of 2016 etc.
-: 13 :-
district and the former State of
Amb; and
(ii)
Zhob
district,
Loralai
district
(excluding Duki Tehsil), Dalbandin
Tehsil of Chagai district and Marri
and Bugti tribal territories of Sibi
district; and
(c)
“Federally Administered Tribal Areas”
includes—
(i)
Tribal Areas, adjoining Peshawar
district;
(ii)
Tribal
Areas
adjoining
Kohat
district;
(iii)
Tribal Areas adjoining Bannu
district;
(iv)
Tribal Areas adjoining Dera Ismail
Khan district;
(v)
Bajaur Agency;
(va)
Orakzai Agency;
(vi)
Mohmand Agency;
(vii)
Khyber Agency;
(viii)
Kurram Agency;
(ix)
North Waziristan Agency; and
(x)
South Waziristan Agency.”
(Emphasis supplied)
A bare reading of Article 246(b) of the Constitution suggests that it is a
clause which defines and describes PATA and according to sub-part (i)
thereof, the tribal areas of Kohistan District have been declared to be
PATA. We find that the mention of particular names of certain districts
or areas in Article 246(b) is only for the purposes of describing the
geographical limits of PATA or to mark a certain area as a tribal area. It
is not the “districts” mentioned therein which have attained territorial
sanctity, rather it is the area identified as PATA which has attained
Civil Appeal No.1023 of 2016 etc.
-: 14 :-
territorial sanctity. This fine distinction needs to be appreciated. To
attach such sanctity to districts would be to equate them with
provinces, which interpretation to our mind is incorrect keeping in view
the scheme of the Constitution. In this context it is relevant to
reproduce Article 239(4) of the Constitution which reads as under:-
“A Bill to amend the Constitution which would have the
effect of altering the limits of a Province shall not be
presented to the President for assent unless it has been
passed by the Provincial Assembly of that Province by the
votes of not less than two-thirds of its total membership.”
Article 239(4) reproduced above essentially confers territorial sanctity
upon the geographical limits of a province by providing that such limits
cannot be changed without a constitutional amendment. Conversely,
there is no such bar in the Constitution which prevents the limits of
districts, whether in relation to a PATA or not, from being changed
without a constitutional amendment. To impute such a bar into Article
246(b) would be to read into it something which is not there and is not
envisaged by the Constitution. This is not a correct interpretation of the
law. The reading in of words or meaning into a statute when its
meaning is otherwise clear is not permissible. As a matter of statutory
interpretation, Courts generally abstain from providing casus omissus
or omissions in a statute, through construction or interpretation. An
exception to this rule is, when there is a self-evident omission in a
provision and the purpose of the law as intended by the legislature
cannot otherwise be achieved, or if the literal construction of a
particular provision leads to manifestly absurd or anomalous results,
which could not have been intended by the legislature. However, this
Civil Appeal No.1023 of 2016 etc.
-: 15 :-
power is to be exercised cautiously, rarely and only in exceptional
circumstances. The creation or variation of the limits of a district is not
governed by the Constitution, but as mentioned in the earlier portion of
this opinion, by the Act. The limits of a tribal area, in this case PATA,
are most certainly governed by the Constitution and the creation or
increase in the limits of PATA can only take place through a
constitutional amendment by amending the list provided in Article
246(b). The reduction in the limits of a tribal area is governed by Article
247(6) of the Constitution according to which the President has the
authority to declare that a tribal area or a part thereof has ceased to be
a tribal area. The said article is reproduced herein below for ease of
reference:-
“247(6)
The President may, at any time, by Order,
direct that the whole or any part of a Tribal Area shall
cease to be a Tribal Area, and such Order may contain
such incidental and consequential provisions as appear to
the President to be necessary and proper:
Provided that before making any Order under this
clause, the President shall ascertain, in such manner as
he considers appropriate, the views of the people of the
Tribal Area concerned, as represented in Tribal jirga.”
There is no bar in the Constitution that prevents a district from
comprising both a settled area and PATA. Furthermore, as stated by Mr.
Aitzaz Ahsan, learned ASC, the status of the areas marked as PATA
which fell within Kohistan District and Kohistan (Lower) District was
not changed despite the change in district. Such areas never ceased to
be tribal areas as the process provided in Article 247(6) of the
Constitution to remove their PATA status was never invoked. These
Civil Appeal No.1023 of 2016 etc.
-: 16 :-
areas remained PATA for all intents and purposes and they were simply
made part of a different district(s) for the purposes of local government
administration.
12.
Now that we have established that it is not the Constitution
but the Act which governs the creation and variation of limits of
districts, an ancillary question that arises is whether the Act is
applicable to PATA. In this context, Article 247(3) and (4) of the
Constitution are relevant which read as under:-
“(3)
No Act of Majlis-e-Shoora (Parliament) shall
apply to any Federally Administered Tribal Area or to
any part thereof, unless the President so directs, and no
Act of Majlis-e-Shoora (Parliament) or a Provincial
Assembly shall apply to a Provincially Administered
Tribal Area, or to any part thereof, unless the Governor
of the Province in which the Tribal Area is situate, with
the approval of the President, so directs; and in giving
such a direction with respect to any law, the President or,
as the case may be, the Governor, may direct that the law
shall, in its application to a Tribal Area, or to a specified
part thereof, have effect subject to such exceptions and
modifications as may be specified in the direction.
(4)
Notwithstanding anything contained in the
Constitution, the President may, with respect to any
matter within the legislative competence of Majlis-e-
Shoora (Parliament), and the Governor of a Province,
with the prior approval of the President, may, with
respect to any matter within the legislative competence
of the Provincial Assembly make regulations for the
peace and good government of a Provincially
Administered Tribal Area or any part thereof, situated in
the Province.”
(Emphasis supplied)
Civil Appeal No.1023 of 2016 etc.
-: 17 :-
Therefore for an Act of Parliament or a Provincial Assembly to be
applicable to PATA or any part thereof, the Governor of the Province in
which the tribal area is located, with the approval of the President,
must issue a direction to that effect. Further, the Governor also has the
power, with the prior approval of the President, to issue regulations for
the peace and good governance of PATA or any part thereof. The
question is whether the Act that was made applicable to the tribal areas
of Swat District still continues to remain applicable to such tribal areas
that are taken out from Swat District and made part of Kohistan
District and Kohistan (Lower) District? Prior to the formation of
Kohistan (Lower) District and even Kohistan District, the PATA that
formed a part thereof was a part of Swat District. The Governor of
NWFP, with the approval of the President, promulgated the Provincially
Administered Tribal Areas (Application of Laws) Regulation, 1974 (NWFP
Regulation No.1 of 1974) (the Regulation) pursuant to Article 247(4) of the
Constitution, and the relevant provisions thereof are reproduced below
for ease of reference:-
“1(2) It extends to the Provincially Administered Tribal
Areas of Chitral, Dir, Kalam, Swat and Malakand
Protected Area.
3.
The Laws specified in the Schedule as in force in
the North-West Frontier Province immediately before the
commencement
of
this
Regulation,
subject
to
modifications herein specified and so far as may be, all
rules, notification and orders made or issued thereunder,
shall apply to the Provincially Administered Tribal Area
of Chitral, Dir, Kalam, Swat and Malakand Protected
Area, hereinafter referred to as the said Areas.
Civil Appeal No.1023 of 2016 etc.
-: 18 :-
SCHEDULE
1…………………………………………………………………
2…………………………………………………………………
3…………………………………………………………………
4…………………………………………………………………
5.
The West Pakistan Land Revenue Act, 1967 (W. P.
Act No. XVII of 1967).”
According to Section 3 read with Entry 5 in the Schedule of the
Regulation, the Act was made applicable to the PATA of Swat.
Subsequently vide notification dated 1.10.1976 issued by the Governor,
KPK, 154 villages of Swat District were included in Kohistan District. As
we have established above, variation in the limits of a district does not
affect the PATA status of an area, therefore the tribal areas of Swat
District remained tribal areas even after they became a part of Kohistan
District. Since the Act was made applicable to PATA in Swat through
the Regulation, even if such tribal area was subsequently made a part
of Kohistan, it remained a tribal area for all intents and purposes and
the Act would be deemed to be applicable to such area. The case of
Abdul Jabbar cited by Mr. Aitzaz Ahsan, learned ASC deals with a
matter in which this Court had to answer inter alia the following
questions:-
“(a) Whether the provisions of Customs Act, 1969 have
been extended to the area in question within the
contemplation of Article 247 of the Constitution;
(b) Whether the area in question having once been
detached from the Malakand Division (to which the
Customs Act, 1969) was extended and subsequently
attached to Kohistan District of Hazara Division (to
which Customs Act, 1969 was not then extended) would
Civil Appeal No.1023 of 2016 etc.
-: 19 :-
still be deemed to be a part of Malakand Division for the
purpose of the extension of Customs Act, 1969;”
In answering the above a three member bench of this Court held as
follows:-
“It is to be noticed that there is no dispute between both
the parties that the tribal area of Kohistan was a part and
parcel of Swat District. Admittedly vide Regulation No.III
of 1975, Customs Act was extended to the Swat District
with effect from 22nd July, 1975. At that time
Constitutional position as per Article 246 of the
Constitution of Swat District was as follows…
Later on Kohistan area was carved out from Swat District
and ultimately status of District was also given to it by the
Provincial Revenue Department for administrative
purposes but by means of Act 1976 of the Constitution
following amendment was made in Article 246(b)…
7. Although by means of above amendment the tribal area
in Kohistan was recognized to be a Provincially
Administered Territory but fact remains that it is the same
area which was once a part of the Swat District where
Regulation No.III of 1975 was extended, therefore,
following the dictum laid down in the case of
Superintendent,
Land
Customs,
Torkham
(Khyber
Agency) (ibid) it would be deemed that the Act 1969 was
also extended to the tribal area in Kohistan…”
In a similar vein, since all the PATA in Kohistan District and Kohistan
(Lower) District were once a part of Swat District to which the
Regulation had extended the application of the Act, therefore, it (the Act)
would be deemed to be extended to the tribal areas in both Kohistan
District and Kohistan (Lower) District.
Civil Appeal No.1023 of 2016 etc.
-: 20 :-
13.
In the light of the above, all the appeals are allowed and the
impugned judgments are set aside to the extent that they hold that the
PATA in Kohistan (Lower) District do not find mention anywhere in
Article 246 of the Constitution, thus the same cannot be regarded as
territory forming part of PATA, and the impugned action of the
Provincial Government had disturbed the constitutional status of the
said area. Resultantly any subsequent actions taken pursuant to the
impugned judgments, including inter alia the letter dated 16.2.2016,
shall cease to have effect.
JUDGE
JUDGE
JUDGE
Announced in open Court
on 17.1.2017 at Islamabad
Approved For Reporting
Ghulam Raza/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE SARDAR TARIQ MASOOD
MR. JUSTICE FAISAL ARAB
CIVIL APPEAL NO. 1033 OF 2014
(On appeal against the judgment dated 20.06.2014
passed by the Election Tribunal-II, Quetta in
Election Petition No. 28/2013)
Muhammad Arif Muhammad Hassani
… Appellant
VERSUS
Amanullah and others
… Respondents
For the Appellant:
Mr. Kamran Murtaza, ASC
Mr. Qahir Shah, AOR
For the Respondent (1): Mr. Shakeel Ahmed, Sr. ASC
Mr. Abdul Sattar, ASC
Date of Hearing:
06.04.2016
JUDGMENT
FAISAL ARAB, J.- In the General Elections that were held on
11.5.2013, the appellant and respondent No. 1 were the main
contesting candidates from Balochistan Provincial Assembly seat
PB-39 Chagai-I. For 66842 registered voters of this constituency,
the Election Commission setup 73 polling stations. In all 35197
valid votes were polled. The turnout was 55%. The appellant
bagged 12289 votes and the respondent No. 1 bagged 13376 votes.
The rest went to other candidates. Leading with a margin of 1087
votes, the respondent No. 1 was declared returned candidate. The
appellant was not satisfied with the result. He alleged rigging on
Civil Appeal No. 1033/2014
2
the part of respondent No. 1 and filed an election petition before
the Election Tribunal, Quetta. The challenge was mainly based on
the grounds that (i) the respondent No. 1 employed corrupt and
illegal practices in 25 polling stations and did not allow his polling
agents to enter their respective polling stations; (ii) the Returning
Officer had changed locations of certain polling stations without
seeking prior permission from the Election Commission and
without notice to the contesting candidates due to which voters of
such polling stations could not cast their votes; and (iii) the
Returning Officer, in connivance with respondent No. 1 made
changes in the polling staff after appointment of the Presiding
Officer and other polling staff without intimation to the Election
Commission.
2.
During the pendency of the election petition, the
appellant filed an application before the Election Tribunal seeking
verification of thumb impressions on the counterfoils of the votes
polled in 25 disputed polling stations through biometric system of
NADRA, which was granted. Record reflects that the election
material was dispatched to NADRA for verification. As per NADRA’s
report out of 25 polling stations, it did not receive election material
of two polling stations i.e. Polling Station Nos. 64 and 73. The
Election Tribunal after recording evidence of the parties dismissed
the election petition. Aggrieved by such decision, the appellant filed
the present appeal.
Civil Appeal No. 1033/2014
3
3.
Learned counsel for the appellant, Mr. Kamran
Murtaza straightaway took us to paragraph 22 of the impugned
judgment. This paragraph contains a table based on the figures
taken from NADRA’s report. For the sake of convenience, this table
is reproduced below:-
4.
From NADRA’s report, the above table was taken. It
shows that out of 10273 votes that were cast, CNIC numbers on
748 counterfoils were either missing or contained incorrect CNIC
numbers; 41 votes were cast by 20 voters; 91 counterfoils did not
contain thumb impressions; thumb impressions on 61 counterfoils
could not be authenticated; on 5399 counterfoils thumb
impressions were of bad quality as inedible ink was not used hence
the same could not be deciphered; and, thumb impressions on
3933 counterfoils were authenticated. After adding up the figures
contained in serial numbers 2, 3, 4 and 6 of the above table,
learned counsel for the appellant submitted that when these 941
bogus votes are deducted from the vote count of respondent No. 1
1
Votes polled in polling stations whose election
material was received by NADRA
10,273
2
Invalid
NIC
number
mentioned
on
used
counterfoils, this also includes such counterfoils
that do not have CNIC mentioned over it.
748
3
Duplicate voters on used counterfoils
41
4
Used counterfoils without fingerprints
91
5
Fingerprints successfully authenticated on used
counterfoils and ER
3,933
6
Fingerprints on used counterfoils and ER failing
authentication
61
7
Fingerprints of bad quality affixed on used
counterfoils resultantly NADRA was unable to
decipher them due to non-utilization of proposed
ink beside other possibilities.
5,399
Civil Appeal No. 1033/2014
4
then keeping in view the small margin of 1087 votes with which
the respondent No. 1 was declared successful and the fact that
election material of polling station Nos. 64 & 73 was not
dispatched to NADRA for verification, it would be sufficient to hold
that election result of the constituency had been materially affected
as envisaged under Sections 68 & 70 of the Representation of the
Peoples Act, 1976 and the entire election of PB-39 is to be declared
as void. The whole thrust of the argument of appellant’s counsel
was based only on the data contained in NADRA’s report. In
support of his contentions, he relied upon the case of Dr. Raja
Aamir Zaman Vs. Omar Ayub Khan (2015 SCMR 890) as well as on
a recent unreported judgment of this Court rendered on 2.3.2016
in Civil Appeal No. 1219 of 2014 (Khalid Hussain Magsi Vs. Mir
Abdul Rahim Rind) where this Court upheld the judgment of the
Election Tribunal which nullified the entire election result of NA-
267 and ordered re-election in the entire constituency. The
decision of this Court in the case of ‘Khalid Hussain Magsi Vs. Mir
Abdul Rahim Rind is distinguishable from the facts of the present
case as the same was the result of phenomenal turnout of 96%
shown on 54 polling stations of NA-267 and not only this but all
such votes were shown to have been cast in favour of only one of
the contesting candidates whereas the rival contesting candidate
was shown to have bagged not a single vote. For the sake of
convenience certain excerpts from the judgment in the case of
‘Khalid Hussain Magsi Vs. Mir Abdul Rahim Rind are reproduced as
follows:-
Civil Appeal No. 1033/2014
5
6.
……………………..we have scrutinized the data of
Form XVI which is a consolidated statement of the results of
the
vote-count
of
the
entire
constituency.
From
the
consolidated statement it is apparent that on 54 polling
stations, where one of the two contesting candidate had
obtained no vote at all, the other contesting candidate had
obtained almost all votes that were polled. ……………………
7.
From the ……….tables containing vote count of 54
polling stations, it is surprising to note that on 21 polling
stations where the appellant obtained not a single vote, the
respondent No.1 bagged 98.4% of the total votes that were
cast. Similarly, on the remaining 33 polling stations where
respondent No. 1 obtained not a single vote, the appellant
bagged 99.8% of the total votes cast. It is also surprising to
note that in the above discussed 54 polling stations, in all
50,922 votes were polled, the average of vote count comes to
943 votes per polling station whereas in the rest of 111 polling
stations, where the remaining 37,358 votes were polled, this
average stands at only 337 votes per polling station. The first
question that comes to our mind is why on the above referred
54 polling stations where one contesting candidate had not
even bagged a single vote, the percentage of polled votes in
fovour of the other is phenomenal i.e. around 99%. The other
question that arises is why on these 54 polling stations the
turnout was almost triple in comparison to turnout on the rest
of 111 polling stations i.e. the percentage of turnout on the
above mentioned 54 polling stations was 96% whereas
turnout in the remaining 111 polling stations stood around
40% only. These unimaginable differences in the voting
pattern on 54 polling stations as against the remaining 111
polling stations cannot be a simple case of mere coincidence,
given the fact that both the contesting candidates were not
candidates with marginal following. They were politically
popular figures of the constituency as 92% of the total votes
that were polled went to both of them only. When the issue is
analysed from this perspective, the preponderance of
probabilities leads us to believe that both the candidates must
have exerted their respective political clout in their respective
areas of influence in order to bag maximum number of votes.
5.
From the above findings of this Court in the case of
Khalid Hussain Magsi it is evident that unimaginable voting figures
of 54 polling stations noticed by this Court coupled with the
findings contained in NADRA’s verification report confirmed
prevalence of illegal practices on a very large scale which lead us to
declare the elections of NA-267 constituency as a whole void in
Civil Appeal No. 1033/2014
6
terms of Section 70(b) of the Representation of the Peoples Act,
1976. There is no similarity of facts and circumstances between
the above referred unreported case and the present one. In the
present case, there were 21899 registered votes in the disputed 25
polling stations and a total of 11570 votes were cast in these
polling stations. The turnout was 53% as against the turnout of
55% on the rest of the undisputed 48 polling stations. A
comparative table of the voting pattern and the turnout on the
disputed and undisputed polling stations is as follows:-
Result of 25 disputed polling
stations
Result of 48 undisputed
polling stations
Total registered
votes
21899
44943
Total
votes
polled
11570
(53%)
turnout
24887 (55%) turnout
Total valid votes
cast
11005
24192
Votes
obtained
by appellant
2149
10140
Votes
obtained
by
respondent
No. 1
5447
7929
Lead of votes
3298 votes lead
gained
by
respondent No. 1
2213 votes lead gained by
the appellant
6.
Thus it is apparent from the above table that on both
the sets of polling stations no phenomenal difference in the polling
pattern or the voters’ turnout was noticeable as was noticed in the
case of Khalid Hussain Magsi referred above. Then the argument of
appellant’s counsel for deduction of 941 votes from the tally of
respondent No. 1’s vote count also does not appeal to reason. If we
accept the argument of the appellant’s counsel that based on
NADRA’s report 941 votes be deducted from the tally of the votes
Civil Appeal No. 1033/2014
7
cast in favour of respondent No.1 then it would mean to lay down a
principle that all disputed votes on a certain set of polling stations
should be deducted from the vote-count of such candidate who
had secured the highest number of votes in such polling stations,
in absence of the evidence as to which of the contesting party was
involved in corrupt practices. One cannot rule out the possibility
that a candidate may still loose though he may have himself
indulged in rigging practice. Without any substantial material
coming on record why it should be assumed that the winning
candidate has indulged in rigging. When the principle suggested by
appellant’s counsel is made applicable to a selected number of
polling stations of a constituency then the winning candidate may
also come up with his own list of selected polling stations of the
constituency where the runner-up candidate had secured the
highest number of votes in order to seek verification and then get
all the disputed votes, in case such are pointed out by NADRA,
deducted from the tally of votes bagged by the runner-up
candidate. We may mention here that in the remaining 48 polling
stations, it was the appellant, who was runner-up, had secured the
highest number of votes i.e. 10,140 as against 7927 votes secured
by respondent No.1 the winning candidate. We see no reason to
deduct all disputed votes from the vote count of respondent No. 1.
Therefore, the principle sought to be devised by appellant’s counsel
on the basis of NADRA’s verification of selected polling stations of a
constituency would not resolve the controversy but would further
complicate the controversy.
Civil Appeal No. 1033/2014
8
7.
Furthermore, in NADRA’s report it is stated that 748
used counterfoils had invalid CNIC numbers. The report describes
invalid CNIC numbers to mean such counterfoils on which either
CNIC numbers do not relate to the voters of the constituency or on
which CNIC numbers were missing. NADRA’s report does not say
that on these 748 counterfoils thumb impressions were missing or
that the thumb impressions were not verifiable. We don’t know
that the thumb impressions on all or some of these 748
counterfoils were found to be correct. If thumb impressions on any
of these 748 counterfoils had matched with that of the voters of the
constituency then such votes cannot be described as invalid votes,
irrespective of the fact that they contained incorrect CNIC numbers
or CNIC numbers were altogether missing. The reason being that
the possibility that the polling staff may have wrongly written or
omitted to write CNIC numbers on these 748 counterfoils cannot
be ruled out. Why a candidate be penalized for such an error or
omission. So the figure of 748 votes, as contained in NADRA’s
report, cannot be treated as invalid votes that were cast at the
behest of respondent No. 1. Furthermore, NADRA’s report shows
that there was duplication with regard to 41 votes as all these 41
votes were polled by 20 voters of the constituency. This shows that
20 duly registered voters polled more than once so in reality 21
votes were invalidly cast by them and not all of 41. It also cannot
be ascertained as to in whose favour these 21 bogus votes were
polled. Apart from the above analysis of NADRA’s report, if the
voting pattern and the turnout of voters, as discussed earlier, on
25 disputed polling stations is compared with the voting pattern
Civil Appeal No. 1033/2014
9
and the turnout on rest of the 48 polling stations, nothing
phenomenal is noticeable to hold prevalence of corrupt practices so
as to nullify the entire election result.
8.
In view of the above discussion, we are of the view that
NADRA’s verification report relating to election material of only 25
polling stations cannot be made basis for nullifying the entire
election result of the constituency. There has to be some
convincing material or record to reach the conclusion that the
election as a whole needs to be declared void. We may mention
here that in the election petition, it was claimed that appellant’s 25
polling agents were denied entry in the polling stations. We have
noticed that appellant examined 14 witnesses of which only 10
were polling agents of the appellant. Of these polling agents 6
claimed that they were denied entry in the polling stations. Four
polling agents did not even deny their entry in the polling stations.
None of the 15 remaining polling agents of 15 disputed polling
stations were even examined as witnesses. No attempt was made
by the appellant to even call Presiding Officers of the disputed
polling stations as court witnesses in order to establish that
appellant’s polling agents were denied entry in the polling stations
on the polling day. Apparently on account of lack of evidence that
the counsel for the appellant did not even refer to any piece of
evidence to establish that respondent No.1 had in any manner
resorted to rigging practices except for the figures of disputed votes
contained
in
NADRA’s
report.
Unsubstantiated
and
bald
Civil Appeal No. 1033/2014
10
allegations of rigging cannot be made basis to nullify the entire
election result.
9.
We are therefore of the view that no evidence has come
on record of the present case to nullify the election result of
Balochistan Provincial Assembly seat PB-39. This appeal fails and
is hereby dismissed.
JUDGE
JUDGE
JUDGE
Islamabad, the
Announced on ______________ by Hon’ble Mr. Justice Faisal Arab
Approved For Reporting
Khurram
Civil Appeal No. 1033/2014
11
Result of 24 out of 25 disputed polling stations where
respondent No. 1 got lead:
S.No.
Polling
Station
No.
Respondent’s
votes
Appellant’s votes
Total
of
valid
votes cast
Percentage of
rspdt No. 1’s
Votes
1
4
217
205
513
2
5
132
93
358
3
6
85
68
242
4
10
441
176
742
5
11
413
188
798
6
19
364
7
518
7
20
421
17
613
8
21
198
21
335
9
22
207
70
418
10
23
189
46
313
11
25
262
126
526
12
26
182
82
344
13
35
107
94
337
14
40
309
160
634
15
53
121
39
219
16
55
244
44
490
17
57
125
21
251
18
62
365
148
801
19
63
49
5
111
20
64
143
63
344
21
65
204
45
277
22
69
154
3
316
23
71
78
62
192
24
73
137
1
178
Total
votes
5147
1784
Result of 23 undisputed polling stations where respondent No.
1 got lead:
S.No
Polling
Station
No.
Respondent’s
votes
Appellant’s votes
Total
of
valid
votes cast
Percentage of
rspdt No. 1’s
Votes
1
3
325
239
731
2
7
244
221
528
3
8
174
165
388
4
9
469
242
973
5
12
223
171
547
6
13
177
118
384
7
14
335
317
908
8
15
136
2
214
9
16
124
115
315
10
24
180
63
450
11
18
97
26
233
12
29
336
139
529
13
34
205
15
332
14
36
116
43
293
15
37
469
289
989
16
38
249
206
637
17
43
293
233
800
18
54
197
8
261
19
56
102
48
186
20
58
255
116
659
21
59
223
85
524
22
60
241
157
777
23
67
119
9
177
Total
votes
5289
3027
Result of 26 polling station (including one disputed polling
station) where appellant got lead:
Civil Appeal No. 1033/2014
12
S.No
Polling
Station
No.
Respondent’s
votes
Appellant’s votes
Total
of
valid
votes cast
Percentage of
rspdt No. 1’s
Votes
1
1
180
242
555
2
2
143
204
453
3
17
54
268
363
4
27
126
303
507
5
28
151
243
460
6
30
105
312
443
7
31
1
627
673
8
32
55
219
293
9
33
8
646
702
10
39
99
102
426
11
41
220
407
877
12
42
156
198
499
13
44
190
587
870
14
45
230
572
895
15
46
110
275
502
16
47
34
270
446
17
48
101
280
516
18
49
107
292
366
19
50
30
157
222
20
51
90
145
347
21
52
129
221
514
22
61
21
36
165
23
66
6
144
155
24
68
3
68
87
25
70
(Disputed)
300
365
1135
26
72
78
175
378
Total
votes
2727
7358
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In the Supreme Court of Pakistan
(Appellate Jurisdiction)
Present:
Mr. Justice Anwar Zaheer Jamali
Mr. Justice Iqbal Hameedur Rahman
Mr. Justice Qazi Faez Isa
Civil Appeal No.1038 of 2000.
(On appeal from judgment of Lahore High Court, Lahore,
dated 30.6.2000, passed in Writ Petition No.914 of 2000)
The Chairman, National Accountability Bureau
…Appellant
Versus
Fehmida Begum & others
… Respondents
For the appellant:
Raja M. Ibrahim Satti, Sr. ASC.
Mr. Fauzi Zaffar, Addl.DPG NAB.
For respondents No.1&2:
Mr. M.A. Siddiqui, ASC.
Respondents No.3 to 8:
Ex-parte.
Date of hearing:
10.11.2014.
JUDGMENT
Anwar Zaheer Jamali, J.- This civil appeal with leave of the Court
in terms of the order dated 16.8.2000, is directed against the judgment dated
30.6.2000, passed by a five member Bench of the Lahore High Court, in Writ
Petition No.914/2000, whereby the said petition filed by respondent No.1 was
allowed and consequently the pending proceedings in Reference No.8/2000,
against respondent No.2, Mukhtar Hussain, the husband of the petitioner, were
quashed with a majority of three to two.
2.
The controversy involved in the said petition revolved around the
interpretation of “person” as defined in sub-section (o) of Section-5 of the
National Accountability Bureau Ordinance, 1999 (in short “the NAB Ordinance”),
which at the relevant time read as under:-
“(o)
“Person” includes in the cause of a corporate body, the sponsors,
Chairman, Chief Executive, Managing Director, elected Directors, by whatever
C.A No.1038 of 2000.
2
name called, and guarantors of the company or any one exercising direction or
control of the affairs of such corporate body, but will not include employees
appointed and designated as Director or Chief Executive; and in the case of any
firm, partnership or sole proprietorship, the partners, proprietor or any person
having interest in the said firm, partnership or proprietorship concern or
direction or control thereof.”
3.
As per the majority view of the Lahore High Court, respondent
No.2, being employee of the Company, despite being a guarantor, was not liable
for prosecution before the NAB Court in such capacity. While as per the separate
dissenting notes of the other two Hon’ble Judges, despite being an employee of
the company, respondent No.2 being also a guarantor as regards the loan, which
was the subject matter of the NAB reference, the proceedings in the NAB Court
against him could not have been quashed and he was liable to face such
prosecution.
4.
Raja M. Ibrahim Satti, learned Sr. ASC for the appellant in his
submissions, referred before us the definition of “person” under the NAB
Ordinance, as reproduced above and contended that the mere fact that as per
the assertions of the petitioner, respondent No.2 was also an employee of the
said company, his status of being a guarantor on behalf of the company would
not change. Thus, he will still be liable to face prosecution before the
Accountability Court in his capacity as a guarantor of the company. In addition to
it, he also referred before us the judgment in the case of Abdul Aziz Memon v.
State (PLD 2013 SC 594), wherein, inter alia, the definition of “person”, though it
was slightly amended during the pendency of these proceedings, has been
thoroughly examined and regarding its scope and application, the following
observations have been made:-
“16.
For what has been discussed above we hold and declare that the
provisions of the National Accountability Ordinance, 1999 are applicable even
to a person who is not holder of a public office and also to a person who has
not aided, assisted, abetted, attempted or acted in conspiracy with holder of a
C.A No.1038 of 2000.
3
public office and the words "any other person" appearing in section 9(a) of the
said Ordinance are to be understood and applied accordingly. For removal of
any doubt or ambiguity it is clarified that a stand alone private person can be
proceeded against under the said Ordinance if the other conditions mentioned
in that Ordinance in that respect are satisfied.”
5.
Conversely, learned ASC for respondents No.1 & 2, has strongly
supported the majority view of the three Hon’ble Judges contained in the
impugned judgment as regards the scope and application of sub-section (o) to
section-5 of the NAB Ordinance so as to extend benefit of acquittal to
respondent No.2 in terms of the said judgment. However, when he was
confronted with the ratio of the judgment in the case of Abdul Aziz Memon
(supra), the learned ASC had no plausible defence to offer except to agitate that
during the intervening period, the definition of “person” has been drastically
amended. In this context, he however did not controvert that under the old
definition of “person”, at the relevant time, the guarantor of a company was
fully covered, as also under the amended definition of “person”. Faced with this
situation, he further argued that the proceedings in Reference No.8/2000,
wherein respondent No.2 was one of the accused, have already been disposed of
by the Accountability Court, therefore, no fruitful purpose will be served in case
the impugned judgment is set aside at this stage, and respondent No.2 is called
upon to face the proceedings in the said reference after lapse of more than 14
years.
6.
In reply to it, learned ASC for the appellant has brought to our
notice the fact that an appeal against the said order of the Accountability Court
is pending before the Lahore High Court, and contended that the impugned
judgment as regards the interpretation of “person” defined in sub-section (o) to
section-5 of the NAB Ordinance, has affected a large number of NAB cases.
Therefore, in the light of the judgment in the case of Abdul Aziz Memon (supra)
C.A No.1038 of 2000.
4
and the law, its applicable interpretation is to be corrected by this Court as of
duty. He further contended that the trial of respondent No.2 before the
Accountability Court in Reference No.8/2000 will of course be subject to its
revival/resurrection by the appellate Court, thus, its earlier disposal cannot be
made basis for disposal of this appeal without proper adjudication on the
relevant question of law involved in it.
7.
We have carefully considered the above noted submissions,
which, on facts, are not disputed. Thus, now the only point for consideration in
this appeal before us is the true import and interpretation of the word “person”
as contained in sub-section (o) of section 5 of the NAB Ordinance. The majority
view of the Lahore High Court, observed that by using the word “includes” in the
definition of “person” the intention of the legislature was to restrict the meaning
of “person” to sponsors, Chairman, Chief Executive, Managing Director, elected
Directors, by whatever name they are called, and guarantors of the corporate
body or anyone exercising direction or control of the affairs of such a corporate
body. It was further observed that the definition of “person” contains an
exclusionary element as well, whereby employees of a corporate body appointed
or designated as Directors are excluded from the definition for the purposes of
the NAB Ordinance to save the employees of a corporate body from
unwarranted prosecution under the Ordinance. The Lahore High Court thus held,
by way of majority, that as Respondent No. 2 was neither a sponsor nor the
owner of the defaulting corporate body; nor did he exercise any dominative
influence in the workings of the company, therefore, he was not a “person” as
defined in sub-section (o) of section 5 of the NAB Ordinance.
8.
We are, however, unable to agree with the majority view of the
Lahore High Court. The observations of the High Court, as summarized
hereinabove, appear to be contrary not only to the purpose and preamble of the
C.A No.1038 of 2000.
5
NAB Ordinance, but also to settled principles of statutory interpretation. As per
the preamble, one mischief that the Ordinance sought to curb was recovery of
outstanding amounts from those persons who committed default in the
repayment of amounts to Banks, Financial Institutions, Government Agencies
and other agencies. Admittedly, Respondent No. 2 was the surety or guarantor
of the loan facilities etc., availed by Ittefaq Foundry (Pvt.) Ltd., which form the
subject matter of the instant case. The terms of the guarantee executed by
Respondent No. 2 have been reproduced by the two learned Judges of the
Lahore High Court, in their respective dissenting notes. According to the terms of
the guarantee, Respondent No. 2’s responsibility under the guarantee is that of a
principle debtor and he is liable under the guarantee until all moneys due from
Ittefaq Foundry (Pvt.) Ltd. have been paid. Therefore, once the company
defaulted in its liability to repay the loan amount, it was the obligation of
Respondent No. 2 to repay the said amount. As rightly pointed out by one of the
learned judges of the Lahore High Court, in his dissenting note, if the personal
guarantees of the nature executed by Respondent No. 2 were to be read in the
exclusionary clause of the definition of “person” it would have disastrous effects
on the recovery of loans advanced by banks.
9.
Furthermore, the Lahore High Court in holding, by way of
majority, that Respondent No. 2 was not a “person” for the purposes of the NAB
Ordinance since he “was neither sponsor nor owner of the defaulting corporate
entity; nor he exercise any dominative influence in the working of defaulting
Company” seems to have overlooked the fact that the NAB Ordinance applies
with equal force to guarantors of a company as to sponsors or “owners” of a
company. It may be noted that a person may be a Director or employee of the
company while at the same time be a guarantor as well. The NAB Ordinance only
provides for exclusion of those individuals from the definition of “person” who
C.A No.1038 of 2000.
6
are in fact employees but have been appointed as the Chief Executive or
Directors of the company. In the instant case, Respondent No. 2 was not only a
Director of Ittefaq Foundary (Pvt.) Ltd., but he was also its guarantor. Therefore,
the question of the applicability of the exclusion contained in sub-section (o) of
section 5 of the NAB Ordinance does not arise in the instant case.
10.
We are further fortified in our view, that Respondent No. 2 is a
“person” for the purposes of the NAB Ordinance, by the judgment in the case of
Abdul Aziz Memon (supra), the relevant portion of which has been reproduced
above. It may be observed at this point that although the definition of “person”
appearing in sub-section (o) of section 5 of the NAB Ordinance has been
amended from time to time, however, admittedly, the amendments have
brought no material change in the scope of the said word, in the context of
guarantors of a company.
11.
The upshot of the above discussion is that this appeal is allowed
and the judgment of the three Hon’ble Members of the Bench of the Lahore High
Court, passed in Writ Petition No.914/2000 dated 30.6.2000, is set aside.
However, any further proceedings against respondent No.2 in NAB Reference
No.8/2000, will be subject to the fate of the appeal pending before the Lahore
High Court.
Announced.
Islamabad,
25th November, 2014.
Judge
Not approved for reporting.
�ا�
Judge
Judge
Judge
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE IJAZ UL AHSAN
CIVIL APPEAL NO.1042 OF 2018
(Against the order dated 10.8.2018 of the
Election Commission of Pakistan, Islamabad
passed in Case No.3(1)/2016-GA)
Shaukat Ali
…Appellant(s)
VERSUS
E.C.P. through its Secretary, Islamabad & others
…Respondent(s)
For the appellant(s):
Mr. Gohar Ali Khan, ASC
For ECP:
Mr. M. Arshad, D.G. Law, ECP
On Court’s notice:
Mr. Sohail Mahmood, DAG
Amicus Curiae:
Mr. Bilal Hassan Minto, ASC
For private respondent(s):
Not represented
Date of hearing:
26.9.2018
JUDGMENT
MIAN SAQIB NISAR, CJ.- The Appellant contested General
Elections held on 25th May 2018 on the ticket of Pakistan Tehreek-e-
Insaaf (PTI) from PK-23 Shangla-1 (District Shangla) KPK. There were
135 polling stations in that constituency according to the final polling
scheme notified by the Election Commission of Pakistan (ECP) for
200,525 registered voters---113,827 male, and 86,698 females. The
turnout in the Elections was approximately 34.82% as the count
provisionally compiled on 26-07-2018 showed that a total of 69,827 votes
were cast. The appellant was shown as having secured the highest votes
i.e. 17399.
Civil Appeal No.1042 of 2018
-: 2 :-
2.
An application for recount was submitted to the ECP by
Respondent No.12 (Muhammad Rishad Khan) who had secured 15533
votes. The application was allowed and after recount the final
consolidated result on Form.49 was issued on 29-07-18 showing 17712
as the Petitioner’s votes and 16007 as the Respondent’s. A further
application was then made to the ECP by Mr. Wali Khan, brother of
Respondent No.12, alleging that women had been restrained from casting
their votes which had resulted in less than 10% turn out for women (i.e.
5.02%) and therefore the poll being null and void notification declaring
the Appellant as the returned candidate should not be issued. After
hearing the contesting parties, the ECP allowed the application on 10-08-
18 and directed a re-poll in the whole constituency under Section 9(1) of
the Election Act 2017. This appeal was filed against the said order of the
ECP dated 10-08-18 detailed reasons for which were filed in this court at
a later stage through CMA- No: 7708 of 2018.
3.
On 04-09-2018 when this appeal came up for hearing, Syed
Iftikhar Gillani Sr. ASC appearing for the Appellant contended that
Section 9(1) of the Act was ultra vires Articles 8(2) (c) and 25 (2) of the
Constitution. When confronted that this ground was not taken before the
ECP or in the memo of appeal he urged that since the ground related to
the vires of a statutory provision and interpretation of the Constitution, it
could be raised at any time.
4.
Notices were issued to the ECP and the Attorney General for
Pakistan in terms of Order XXVIIA Rule 1 of the Code of Civil Procedure
and Mr Bilal Hasan Minto, ASC was appointed amicus curiae. No order
staying the elections was passed and the appeals were later fixed for
today i.e. 26-09-18.
Civil Appeal No.1042 of 2018
-: 3 :-
5.
Mr. Gohar Ali Khan ASC, appearing for the Appellant has
submitted that since re-election has already taken place in PK 23
Shangla 1 and the Appellant has been returned again, this time with
women voter turnout of 13.75%, therefore the appeal has become
infructuous.
Be that as it may, counsel for the Appellant and the Amicus Curiae
were asked to make their submissions on the questions of law involved
as we consider it appropriate to settle the issue regarding the vires and
interpretation of Section 9(1) ibid.
6.
Counsel for the Appellant has raised two arguments. Firstly,
that Section 9(1) read with its explanation permitting re-poll when
women turnout is less than 10 % offends Article 4 (2) (c) which
guarantees everyone equal protection of the law and also Article 25 (2)
which states that there shall be no discrimination on the basis of sex.
Secondly, he submitted that Section 9 (1) which permits the ECP to order
re-poll if women turn out is less than 10 % in a constituency may result
in the election being held again and again ad infinitum which makes the
provision absurd.
7.
Learned amicus curiae submitted the view that the general
clause regarding equal protection contained in Article 4 is to be read in
light of and in consonance with Article 25 which is the specific article
dealing with equal treatment and safeguards against discrimination. He
pointed out that sub-article (3) of Article 25 clearly allows for positive
discrimination in favour of women and that taking of measures in an
effort to ensure adequate participation of women in elections would be
covered by sub-article (3) ibid and therefore section 9 (1) is intra vires.
8.
Regarding the second contention of the counsel for the
Appellants, the amicus curiae stated that in the context of low turnout of
Civil Appeal No.1042 of 2018
-: 4 :-
women, re polling may only be ordered under Section 9 (1) when from
facts apparent on record and after inquiry---if deemed necessary---the
ECP concludes that there existed an agreement restraining women from
voting and because of that agreement the results of poll (at specific
polling stations or the entire constituency) have been materially affected.
He further submitted that the explanation clause to Section 9(1) states
that the ECP may presume that women voters were prevented from
casting their votes through an agreement only if the female turnout is
less than 10 % in the entire constituency and the use of the word “may”
as opposed to “shall” implies that the ECP would have to provide reasons
for making the a presumption, i.e reasons in addition to the turnout
being less than 10 %. He submitted that, in the context of voting by
women, what emerges from reading the entire section is, that if it is
found on the face of record or from an inquiry that women have been
restrained through an agreement materially affecting the result of a poll
at certain polling stations or the entire constituency; OR, if valid reasons
exist for making a presumption under the explanation clause when
women turn out is less than 10% in the constituency; then, it is of no
consequence that polling in specific polling stations or the entire
constituency will have to be held again, or multiple times---as long as the
provisions of Section 9 (1) are attracted. Section 9 (1) is meant, inter alia,
to safeguard or enable the exercise of a constitutional right by women
and the inconvenience of multiple re-polls cannot be a counter veiling
consideration especially when sub article (3) of Article 25 specifically
mandates such a safeguard. In regard to the validity of positive and
beneficial provisions favouring women he referred to Musarrat Uzma
Usmani Vs. Government of Punjab (PLD 1987 Lahore 178) and
Civil Appeal No.1042 of 2018
-: 5 :-
Shireen Munir and others Vs. Government of Punjab through
Secretary Health, Lahore (PLD 1990 SC 295).
9.
Learned Amicus Curiae, submitted, lastly that in the present
case, the reasons provided by the ECP in para 5 of its order were that in
the sister constituency of Shangla 2 in the same district with similar
cultural background women turn out had been 17.28% and that this was
sufficient reason to presume that women in Shangla 1 had be restrained
through an agreement materially affecting the result. In the present case,
the reasons given by the ECP in its order stood vindicated because in the
re-poll which have already been held, the women turn out increased to
13.75%.
10.
Having considered the above submissions, we are inclined to
generally agree with the submissions made by the learned amicus curiae.
It is apparent from Section 9(1) of the Election Act that it affords women
special treatment stating as follows:
“9. Power of the Commission to declare a poll
void.—(1) Notwithstanding anything contained in
this Act, if, from facts apparent on the face of the
record and after such enquiry as it may deem
necessary, the Commission is satisfied that by
reason of grave illegalities or such violations of
the provisions of this Act or the Rules as have
materially affected the result of the poll at one or
more polling stations or in the whole constituency
including
implementation
of
an
agreement
restraining women from casting their votes, it
shall make a declaration accordingly and call
upon the voters in the concerned polling station or
stations or in the whole constituency as the case
may be, to recast their votes in the manner
provided for bye-elections.
Civil Appeal No.1042 of 2018
-: 6 :-
Explanation. —If the turnout of women voters is
less than ten percent of the total votes polled in a
constituency, the Commission may presume that
the women voters have been restrained through
an agreement from casting their votes and may
declare, polling at one or more polling stations or
election in the whole constituency, void.”
Clearly, it is a provision consciously designed for a society in which
several practices depriving women of their legitimate legal rights are
commonplace. This is also recognized by the Constitution, Article 25
whereof provides as follows:
“25. Equality of citizens. — (1) All citizens are
equal before law and are entitled to equal
protection of law.
(2) There shall be no discrimination on the basis
of sex.
(3) Nothing in this Article shall prevent the State
from making any special provision for the
protection of women and children.”
Clause (3) unequivocally allows for special provisions to be made for the
benefit of women as an exception to the general rule of equal treatment
contained in this article (or in Article 4). We do not think that this clear
provision admits of any debate as regards the permissibility of positive
discrimination in favour of women but for authority, reference may be
made to this court’s decision in Shirin Munir’s case (PLD 1990 SC 295)
which held that not only were women entitled to compete on equal merit
Civil Appeal No.1042 of 2018
-: 7 :-
with boys in co-educational medical colleges on all seats (as opposed to
reserving only a few seats for women which practice was under challenge
in this case) but that it was also perfectly permissible under Article 25 (3)
to have medical colleges admitting only women.
11.
In the present case the right involved is a very precious right
guaranteed directly by the Constitution i.e. the right to vote; and we find
that the safeguards provided in respect of women by Section 9 (1) are
permissible under Article 25 (3) and hence, intra vires.
12.
As regards the Appellant’s argument that one of the
consequences of giving effect to the provisions of Section 9 (1) regarding
women’s turnout may result in infinite rounds of elections we feel that
that is only a theoretical possibility. It is a theoretical possibility just like
one that may arise by virtue of Article 223 (3) of the Constitution which
permits a person to contest elections from multiple constituencies, in
fact, from all 266 seats, and if he/she wins from all 266 seats a
reelection on 265 of them will automatically have to be held again. Then,
in the next round, if another person does exactly the same i.e. contests
from all 265 seats, the whole exercise will have to be repeated for another
264 seats and so on and so forth. In the case of Section 9(1) of the
Election Act the possibility of infinite rounds of elections is actually far
less because this provision does not permit automatic re-poll at all. The
main section requires re-poll, on satisfaction based on facts apparent on
record or an inquiry—if necessary---that women were restrained through
an agreement which materially affected the result of the election whereas
the explanation permits the making of a presumption that women were
restrained through an agreement if the turnout of women in the entire
constituency is less than 10 %. The re-poll under the explanation is not
automatic and reasons have to be provided by the ECP which, in the
Civil Appeal No.1042 of 2018
-: 8 :-
present case, were not only provided, but were also vindicated in the re
poll when women turnout rose from 5.02% to 13.75% which also seems
to suggest that the spectre of a possible re-poll may actually act as a
deterrent for the practice of restraining women from participation in
polls. Of course, if the turnout had again been less than 10 %, the ECP
would have been entitled to make the said presumption again but would
have had to support it by fresh reasons.
13.
It is clear then, that each time the ECP invokes its power
under the explanation it will have to provide reasons for its order which,
in any case, would be justiciable before the court of competent
jurisdiction.
14.
With the above observations, this appeal is disposed of.
CHIEF JUSTICE
Islamabad, the
26th of September, 2018
Not Approved For Reporting
JUDGE
JUDGE
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE TARIQ PARVEZ
CIVIL APPEALS NO.1049 TO 1055/2011, CIVIL MISC. APPLICATION
NO.1841/2016 IN CIVIL APPEAL NO.1054/2011, CIVIL APPEALS
NO.24 TO 26, 64 TO 66, 918 TO 944, 961 AND 1061/2013, 1266 TO
1299, 1364 TO 1379/2014, 72 TO 74, 178, 179, 388, 316 TO 321,
583 TO 585/2015 AND CIVIL PETITION NO.1767/2012, CIVIL MISC.
APPLICATION NO.8118/2015 IN CIVIL PETITION NO.1767/2012,
CIVIL APPEALS NO.107 TO 114 AND 755/2016, CIVIL PETITION
NO.1005/2016, CIVIL APPEALS NO.1022 AND 1341/2016 AND
CONSTITUTION
PETITIONS
NO.5
TO
8/2016,
CIVIL
APPEAL
NO.1298/2016, CIVIL MISC. APPLCIATIONS NO.3520 TO 3522/2016
IN CONSTITUTION PETITIONS NO.5 TO 7/2016
(Against
the
judgment dated 19.8.2011/3.10.2012,15.2.2012/1.3.2013/20.5.2013/
1.5.2013/28.5.2013/29.5.2014/11.3.2011/29.10.2015/27.10.2015/23.9.2014/25.2.201
6/17.11.2015/20.5.2015/12.1.2016 of the Lahore High Court, Lahore/High Court of
Sindh, Karachi/Lahore High Court, Lahore/High Court of Sindh, Karachi/Peshawar High
Court,
Peshawar/High
Court
of
Sindh,
Karachi/Peshawar
High
Court,
Peshawar/Islamabad High Court, Islamabad/Peshawar High Court, Peshawar passed in
W.Ps.No.8763, 3643, 4216, 4217, 8766, 8767 & 8768/2011, Const.Ps.No.1588-D, 1589-D
& 1743-D/2012, W.Ps.No.2100 to 2102/2012, Const.Ps.No.3753-D/2009, 1483-D, 4119-
D, 4120-D & 4121-D/2011, 3618-D/2010, 367-D, 699-D, 3482-D, 3483-D, 3484-D, 3488-D
to 3494-D & 495-D/2011, 3521-D/2010, 702-D, 703-D, 704-D, 706-D, 1048-D & 1619-
D/2011, 452-D/2010, 2109-D/2013 & 2039/2010, T.Rs.No.2 to 4, 38 & 42/2012, 9, 34,
42, 44, 45, 76, 79, 86, 98 & 100/2013, 4/2014, 43, 46, 48, 64, 65, 77, 78, 80, 81, 82, 84,
85, 97, 99, 101 & 123/2013, 5/2014, 87/2013, W.Ps.No.1425/2010, 981 & 3420/2012,
3155 & 3156/2013, 144, 1139 & 579/2014, 3155 & 3156/2013, 3420/2012,
1139/2014, 981/2012, 144 & 579/2014, 1425/2010, T.Rs.No.9/2012, 19 & 102/2013 &
15 & 16/2014, 74, 18, 55 to 57, 51, 52 & 81 to 83/2014, Const.P.No.260/2008,
T.Rs.No.35, 38 & 45 to 50/2015, W.Ps.Nos.2250 & 4203/2012 & T.Rs.No.58/2015,
W.P.No.31/2015 and T.R.No.54/2015)
Workers Welfare Funds M/o Human Resources
Development, Islamabad through Secretary
In
C.As.1049
to
1055/2011, 64 to
66/2013 & 1364 to
1371/2014
Employees Old Age Benefits Institution through
its Chairman and another
In C.As.24, 25 &
26/2013
Karachi Electric Supply Company Ltd.
In C.A.918/2013
Agar International (Pvt.) Ltd.
In C.A.919/2013
M/s Sindh Abadgar’s Sugar Mills Ltd.
In C.A.920/2013
M/s Mirza Sugar Mills Ltd.
In C.A.921/2013
M/s Pangrio Sugar Mills Ltd.
In C.A.922/2013
Civil Appeal No.1049/2011 etc.
-: 2 :-
M/s Naveena Exports Ltd.
In C.A.923/2013
M/s Gul Ahmed Textile Mills Ltd.
In C.A.924/2013
M/s Indus Dyeing & Manufacturing Co. Ltd.
In C.A.925/2013
M/s Blessed Textile Ltd.
In C.A.926/2013
M/s Bhanero Textile Mills Ltd.
In C.A.927/2013
M/s Nagina Cotton Mills Ltd.
In C.A.928/2013
M/s Faisal Spinning Mills Ltd.
In C.A.929/2013
M/s Sapphire Textile Mills Ltd.
In C.A.930/2013
M/s Sapphire Finishing Mills Ltd.
In C.A.931/2013
M/s Sapphire Fibers Ltd.
In C.A.932/2013
M/s Reliance Cotton Spinning Mills Ltd.
In C.A.933/2013
M/s Amer Cotton Mills (Pvt.) Ltd.
In C.A.934/2013
M/s Diamond Fabrics Ltd.
In C.A.935/2013
M/s Hassan Ali Rice Export Company
In C.A.936/2013
M/s Lucky Cement Ltd.
In C.A.937/2013
M/s Lucky Textile Mills Ltd.
In C.A.938/2013
M/s Lucky Energy (Pvt.) Ltd.
In C.A.939/2013
M/s Lucky Knits (Pvt.) Ltd.
In C.A.940/2013
M/s Fazal Textile Mills Ltd.
In C.A.941/2013
M/s Adamjee Enterprises etc.
In C.A.942/2013
M/s Younus Textile Mills Ltd.
In C.A.943/2013
M/s Younus Textile Mills Ltd.
In C.A.944/2013
Sohail Textile Mills Ltd.
In C.A.961/2013
Arif Habib Corporation Ltd. through its Chief
Financial Officer & Company Secy.
In C.A.1061/2013
Chief
Commissioner
Inland
Revenue,
RTO,
Peshawar
In
C.As.1266
to
1281 & 1372 to
1377/2014 & 72,
74, 178, 179 &
Civil Appeal No.1049/2011 etc.
-: 3 :-
316/2015, 1341 &
1298/2016
Commissioner Inland Revenue, RTO, Peshawar
In
C.As.1282
to
1299, 1379/2014,
388, 317 to 321,
583 to 585/2015,
107
to
114
&
1022/2016
Chief Commissioner Inland Revenue, Zone-II, RTO
Peshawar
In C.A.73/2015
Employees Union, FFC (CBA), Fauji Fertilizer
Company Ltd.
In C.P.1767/2012
& CMA.8118/2015
Federation of Pakistan through Secretary M/o
Finance Islamabad and another
In C.A.755/2016
ICI Pakistan Employees Union Soda Ash Khewra
In C.P.1005/2016
PKP Exploration 2 Limited
In Const.P.5/2016
& CMA 3520/2016
PKP Kandanwari Limited
In Const.P.6/2016
& CMA 3521/2016
KUFPEC Pakistan B.V.
In Const.P.7/2016
& CMA 3522/2016
PKP Kirthar B.V.
In Const.P.8/2016
…Appellant(s)/Petitioner(s)
VERSUS
East Pakistan Chrome Tannery (Pvt.) Ltd through
its GM (Finance), Lahore etc.
In C.As.1049/2011
Sunrize Bottling Company (Pvt.) Ltd. through its
Chief Executive Officer etc.
In C.A.1050/2011
Haseeb Waqas Sugar mills through its G.M.
Finance etc.
In C.A.1051/2011
Abdullah Sugar Mills Ltd. thr. its G.M. Finance etc.
In C.A.1052/2011
Chiniot Textile Mills through its G.M. Finance etc.
In C.A.1053/2011
East Pakistan Chrome Tannery through its G.M.
Finance etc.
In C.A.1054/2011
& CMA 1841/2016
Ayesha Spinning Mills thr. its G.M. Finance etc.
In C.A.1054/2011
Soneri Bank Ltd. Karachi and another
In C.A.24/2013
Civil Appeal No.1049/2011 etc.
-: 4 :-
Bank Al-Falah Ltd. Karachi and another
In C.A.25/2013
Standard Chartered Bank Ltd. Karachi & another
In C.A.26/2013
M/s JDW Sugar Mills Ltd. through its Company
Secretary, Lahore Cantt etc.
In C.As.64, 65 &
66/2013
Federation of Pakistan through Secretary M/o
Finance etc.
In C.As.918 to
944/2013
Federation of Pakistan through Secretary Law and
Justice Division, Islamabad etc.
In C.A.961/2013
Federation
of
Pakistan
through
Secretary
Islamabad
In C.A.1061/2013
M/s Shoaib Pipe Store
In C.A.1266/2014
M/s New Ruby Jewelers, Peshawar
In C.A.1267/2014
M/s Choice Communication, Peshawar
In C.A.1268/2014
Nasrullah Jan Inamullah Jan & Co. (Pvt.) Ltd.
In C.A.1269/2014
Gateway Gas (Pvt.) Ltd. Peshawar
In C.A.1270/2014
Chashma Sugar Mills (Pvt.) Ltd.
In C.A.1271/2014
Universal Plastic Industries (Pvt.) Ltd.
In C.A.1272/2014
Abdul Rehman & Co.
In C.A.1273/2014
Gul Construction Company Pvt. Ltd.
In C.A.1274/2014
Gul Construction Company Pvt. Ltd.
In C.A.1275/2014
Lucky Cement (Pvt.) Ltd.
In C.A.1276/2014
Jaffar shah, Government Contractor Bannu
In C.A.1277/2014
Dr. Safia Shahid Nowshera
In C.A.1278/2014
Wireless Communication, Peshawar
In C.A.1279/2014
Inayatullah Khan & Co.
In C.A.1280/2014
Spinzer Travel Pvt. Ltd.
In C.A.1281/2014
Ziaullah & Co.
In C.A.1282/2014
Nisar Ahmed & Brothers, Peshawar
In C.A.1283/2014
Worldwide Chemicals, Peshawar
In C.A.1284/2014
Civil Appeal No.1049/2011 etc.
-: 5 :-
Imdad Khan Brothers, Peshawar
In C.A.1285/2014
Imdad Khan Brothers, Peshawar
In C.A.1286/2014
Lucky Cement (Pvt.) Ltd.
In C.A.1287/2014
Jaffar Shah, Government Contractor, Bannu
In C.A.1288/2014
Unique Technologies
In C.A.1289/2014
Unique Technologies
In C.A.1290/2014
Worldwide Chemicals, Peshawar
In C.A.1291/2014
Muhammad Saleem Marwat
In C.A.1292/2014
Inter Construct (Pvt.) Ltd.
In C.A.1293/2014
Muhammad Saleem Marwat
In C.A.1294/2014
Speed Zone (Pvt.) Ltd.
In C.A.1295/2014
Inayatullah Khan & Co.
In C.A.1296/2014
Unique Technologies
In C.A.1297/2014
Spinzer Travel Pvt. Ltd.
In C.A.1298/2014
Dr. Safia Shahid
In C.A.1299/2014
Government of Pakistan through Federal Secretary
Finance and Revenue Division, Islamabad etc.
In C.As.1364, 1365,
1369 & 1371/2014
Federation of Pakistan through Secretary Cabinet
Division, Islamabad etc.
In C.As.1366, 1367
& 1368/2014
Federation of Pakistan through Secretary M/o
Finance & Economic Affairs, Islamabad etc.
In C.A.1370/2014
M/s M.K.B. Enterprises Pvt. Ltd.
In C.A.1372/2014
M/s Cherat Cement Pvt. Ltd.
In C.A.1373/2014
M/s Rehman Cotton Mills Ltd. etc.
In C.A.1374/2014
M/s Utman Ghee Industries Pvt. Ltd. etc.
In C.A.1375/2014
M/s Saif Textile Mills Ltd. etc.
In C.A.1376/2014
M/s Lucky Cement Ltd. etc.
In C.A.1377/2014
M/s ECOPACK Ltd. and another
In C.A.1378/2014
Civil Appeal No.1049/2011 etc.
-: 6 :-
M/s Associated Industries Ltd. and another
In C.A.1379/2014
Gadoon Textile Mills (Pvt.) Ltd.
In C.A.72/2015
New Ahmed Roller Flour Mills (Pvt.) Ltd.
In C.A.73/2015
Ghulam Sadiq Ghulam Habib & Co. (Pvt.) Ltd.
In C.A.74/2015
Gadoon Textile mills (Pvt.) Ltd.
In
C.As.178
&
179/2015
M/s Bilour Industries (Pvt.) Ltd.
In C.A.388/2015
Lucky Cement (Pvt.) Ltd.
In C.A.316/2015
M/s Sohail Vegetable Ghee Mills Pvt. Ltd.
In
C.As.317
to
319/2015
M/s Faisal Company (Pvt.) Ltd.
In
C.As.320
&
321/2015
M/s Ithfz Match Pvt. Ltd.
In C.A.583/2015
M/s Khan Match Pvt. Ltd.
In
C.As.584
&
585/2015
Federation of Pakistan through Secretary M/o
Human Resource Development Islamabad etc.
In
C.P.1767/2012
& CMA 8118/2015
M/s Chashma Sugar Mills Ltd.
In C.A.107/2016
M/s Premier Sugar Mills Ltd.
In C.A.108/2016
M/s Bilour Industries Pvt. Ltd.
In C.As.109, 111 &
113/2016
M/s M. B. Dyes Chemicals & Silk Industries Swabi
In C.As.110, 112 &
114/2016
Akbar Ali Khan
In C.A.755/2016
Federation of Pakistan through Secretary Law,
Islamabad etc.
In C.P.1005/2016
M/s F.C. NWFP, Security Services Pvt. Ltd.
In C.A.1022/2016
M/s Cherat Packaging Ltd. etc.
In C.A.1341/2016
Federation of Pakistan etc.
In
Const.Ps.5
to
8/2016
&
CMAs
3520,
3521
&
3522/2016
Lucky Cement (Pvt.) Ltd.
In C.A.1298/2016
…Respondent(s)
Civil Appeal No.1049/2011 etc.
-: 8 :-
(in C.A.1378/2014)
Mr. Arshad Zaman Kiyani, ASC
Mr. Muhammad Saleem Khan, ASC
Mr. Asif Fasih-ud-Din Vardaq, ASC
Qazi Ahmed Naeem Qureshi, ASC
Mr. Tariq Aziz, AOR
(in C.P.1767/2012)
Ms. Misbah Gulnar Sharif, ASC
(in C.A.942/2013)
Mr. Tasleem Hussain, ASC
(in C.As.1374 & 1379/2014)
Mr. Habib Ahmed Qureshi, ASC
(in C.A.1364/2014)
Mr. Sohail Mahmood, DAG
Mr. Abid Hussain Channa, S.O. (Finance)
Mr. Mudassir Khalid Abbasi, A.A.G. Punjab
Mr. Abbas Ali, Law Officer, Labour Deptt.
Punjab
Mr. Noor Ahmed Wahgra, Dy. Director
(Legal), EOBI
Mr. Faisal Tariq, Dy. Director (Legal)
Workers Welfare Fund, Islamabad
Nemo
(in C.As.1272, 1274, 1278 & 1299/2014)
Not represented
(in C.As.1061, 1266 to 1268, 1270, 1273, 1275, 1277, 1279
to 1289, 1364, 1366 to 1368, 1370 to 1372, 1375/2014, 72
to 74, 178, 179, 317 to 319, 583/2015, 110, 112, 114 &
1022/2016)
Date of hearing:
27.09.2016
…
JUDGMENT
MIAN SAQIB NISAR, J.- These matters involve common
questions of law, thus are being disposed of together. The key question
involved in these matters is whether the levies/contributions/payments
under various laws which were amended through different Finance Acts
are in the nature of a tax or not. This would in turn determine whether or
not the amendments were lawfully made through Finance Acts, i.e. Money
Bills, as defined in Article 73 of the Constitution of the Islamic Republic of
Pakistan, 1973 (Constitution).
2.
The facts pertaining to these matters are broadly divided into
three categories for ease of reference. The first set of facts are that
Sections 2 and 4 of the Worker Welfare Ordinance, 1971 (Ordinance of 1971)
Civil Appeal No.1049/2011 etc.
-: 9 :-
were amended by Section 12 of the Finance Act of 2006 and subsequently
by Section 8 of the Finance Act of 2008 which broadened the scope of the
obligation on industrial establishments to contribute towards the Workers’
Welfare Fund established under Section 3 of the Ordinance of 1971. The
said amendments (and notices demanding enhanced payment by virtue of the amendments)
were challenged through writ petitions before various High Courts of the
country. It is pertinent to mention that there are divergent views of the
learned High Courts on this question. The view of the learned Lahore High
Court in the judgment dated 19.8.2011 reported as East Pakistan
Chrome Tannery (Pvt.) Ltd Vs. Federation of Pakistan and others
(2011 PTD 2643) is that the levy in question was a fee and not a tax,
therefore the amendments made by the Finance Acts of 2006 and 2008 to
the Ordinance of 1971 could not have been lawfully brought through a
money bill, rather should have been brought through the regular
legislative procedure under the Constitution. The learned Peshawar High
Court, vide judgment dated 29.5.2014, followed suit. Subsequently the
learned Peshawar High Court disposed of numerous tax references on the
basis of this decision, against which the appeals are before us. We would
like to point out at the very outset that as regards those cases in which
the revenue authorities/collecting agencies have assailed the judgment of
the learned Peshawar High Court, although no rights of the collecting
agencies have been affected as their job is to merely collect contributions
for the Workers’ Welfare Fund, we are nevertheless deciding those cases
as well keeping in view the importance of the matter and the conflicting
judgments impugned before us. There is a contrary view of the Full Bench
of the learned High Court of Sindh expressed in the judgment dated
1.3.2013 reported as Shahbaz Garments (Pvt.) Ltd Vs. Pakistan
Civil Appeal No.1049/2011 etc.
-: 10 :-
through Secretary Ministry of Finance, Revenue Division, Islamabad
and others (PLD 2013 Kar 449) (Full Bench judgment) to the effect that the
levy in question was a tax and not a fee, therefore the amendments made
by the Finance Acts of 2006 and 2008 to the Ordinance of 1971 were
lawfully brought through a money bill. The aforementioned judgments
have been challenged by the parties before us.
3.
The second set of facts are that various provisions of the
Employees Old Age Benefits Act, 1976 (Act of 1976) pertaining to
contributions to be made thereunder were amended by Section 9 of the
Finance Act of 2008 effectively widening the scope of the obligation on
employers to contribute towards the Employees’ Old-Age Benefits Fund
established under Section 17 of the Act of 1976. These amendments were
challenged through constitution petitions before the learned High Court of
Sindh which, through its judgment dated 3.10.2012 reported as Soneri
Bank Limited through Jaffar Ali Khan and others Vs. Federation of
Pakistan ah21 through Secretary Law and Justice Division, Pak
Secretariat, Islamabad and others (2013 PLC 134), held that the levy in
question was a fee and not a tax, therefore the amendments made by the
Finance Act of 2008 to the Act of 1976 could not have been lawfully
brought through a money bill.
4.
The third set of facts are that various provisions of the
Workmen Compensation Act, 1923, the West Pakistan Industrial and
Commercial Employees (Standing Orders) Ordinance, 1968 (Ordinance of
1968), the Companies’ Profit Workers’ Participation Act, 1968 (Act of 1968),
the Minimum Wages for Unskilled Workers Ordinance, 1969 (Ordinance of
1969) and the Act of 1976 were amended through the Finance Act of 2007
which amendment(s) in effect broadened the scope of the obligation of the
Civil Appeal No.1049/2011 etc.
-: 11 :-
employers in the respective statutes (the obligation(s) in each statute shall be
discussed during the course of the opinion). These amendments were challenged
through a constitution petition before the learned High Court of Sindh
which, through its judgment dated 26.2.2011, held that the changes
sought to be made by amendments through the Finance Act of 2007 did
not fall within the purview of Article 73(2) of the Constitution, hence, the
said amendments could not have been lawfully brought through a money
bill. All the aforementioned judgments have been challenged before us.
5.
The contentions of the learned counsel can be grouped into
two for the sake of convenience. The first set of arguments is of those
counsel who espouse the view that the levies/contributions in question
are in the nature of a tax, hence, the amendments brought in the
respective statutes were validly and lawfully made through Money Bills,
i.e. different Finance Acts.
6.
Ms. Asma Jehangir, learned counsel for Employees Old-Age
Benefits Institution (Institution), sought to challenge the judgment passed in
the case of Soneri Bank (supra). Her basic argument was that the levy in
the Act of 1976 is a tax and not a fee, and an amendment could be validly
brought in the Act of 1976 through a money bill. The Act of 1976 is the
outcome of the obligation of the State to sustain the working class from
falling below the poverty line. This obligation has been recognized in the
Constitution (Articles 9, 37 and 38). Under Article 37 of the Constitution the
State has become a signatory to and ratified the conventions of the
International Labour Organisation to set up institutions so that the aged,
disabled, pregnant women, and survivors of accidents and their families
are paid benefits. The Institution is a conduit for the obligation that the
State owes in terms of ensuring social benefits and economic rights.
Civil Appeal No.1049/2011 etc.
-: 12 :-
Therefore these payments are not a privilege or a service rendered, rather
they are tantamount to a right. Additionally, a vested right had been
created in favour of the beneficiaries. Further, the employers are
contributors to the welfare of the State [on behalf of the general public
including the employees] and therefore it has become a common burden.
Moreover, the State can contribute as per Section 9 of the Act of 1976
hence the levy/contribution is a tax and not a fee. She relied upon the
judgments reported as Federation of Pakistan through Secretary
Ministry of Petroleum and Natural Resources and another Vs. Durrani
Ceramics and others (PLD 2015 SC 354), Federation of Pakistan
through Secretary M/o Petroleum and Natural Resources and another
Vs. Durrani Ceramics and others (2014 SCMR 1630), Mir Muhammad
Idris and others Vs. Federation of Pakistan through Secretary
Ministry of Finance and others (PLD 2011 SC 213), Sindh High Court
Bar Association through its Secretary and another Vs. Federation of
Pakistan through Secretary, Ministry of Law and Justice, Islamabad
and others (PLD 2009 SC 879), Collector of Customs and others Vs.
Sheikh Spinning Mills (1999 SCMR 1402), Messrs Elahi Cotton Mills
Ltd and others Vs. Federation of Pakistan through Secretary M/o
Finance, Islamabad and 6 others (PLD 1997 SC 582), Sheikh
Muhammad Ismail & Co. Ltd, Lahore Vs. The Chief Cotton Inspector,
Multan Division, Multan and others (PLD 1966 SC 388), Flying
Cement Company Vs. Federation of Pakistan and others (2015 PTD
Lah
1945),
Tata
Textile
Mills
Ltd
through
Authorized
Attorney/Representative, Karachi and 57 others Vs. Federation of
Pakistan through Secretary, Revenue Division/FBR, Islamabad and
another (2013 PTD Kar 1459), Shahbaz Garments (supra), Messrs
Civil Appeal No.1049/2011 etc.
-: 13 :-
Mutual Funds Association of Pakistan (MUFAP) Vs. Federation of
Pakistan through Secretary, Ministry of Finances, Government of
Pakistan and another [2010 PLC (Lab) Kar 306], Syed Nasir Ali and 33
others Vs. Pakistan through Secretary Ministry of Law, Islamabad and
3 others (2010 PTD 1924), Messrs Fatima Enterprises Ltd Vs. The
Federation of Pakistan through Secretary, Education, Ministry of
Education, Islamabad and others (1999 MLD 2889), Messrs Saif
Textile Mills Limited Vs. Pakistan through Secretary, Finance
(Finance Division), Islamabad and 3 others (PLD 1998 Pesh 15), Sind
Glass Industries Limited Vs. Chief Controller of Import and Export,
Islamabad (1990 CLC 638) and Trustees of the Port of Karachi Vs.
Gujranwala Steel Industries and another (1990 CLC 197). From the
Indian jurisdiction, learned counsel relied upon the judgments reported as
Calcutta Municipal Corporation and others Vs. Shrey Mercantile Pvt.
Ltd and others (AIR 2005 SC 1879), City Corporation of Calicut Vs.
Thachambalath Sadasivan and others (AIR 1985 SC 756), The Chief
Commissioner, Delhi and another Vs. The Delhi Cloth and General
Mills Co. Ltd and others (AIR 1978 SC 1181), The State of
Maharashtra and others Vs. The Salvation Army, Western India
Territory (AIR 1975 SC 846), The Secretary, Government of Madras,
Home Department and another Vs. Zenith Lamp and Electrical Ltd.
(AIR 1973 SC 724), The Delhi Cloth and General Mills Co. Ltd Vs. The
Chief Commissioner, Delhi and others (AIR 1971 SC 344) and The
Comissioner,
Hindu
Religious
Endowments,
Madras
Vs.
Sri
Lakshmindra Thirtha Swamiar of Sir Shirur Mutt. (AIR 1954 SC 282).
7.
Mr. Mir Afzal Malik, learned counsel for the Workers’ Welfare
Fund submitted that the levy/contribution in the Ordinance of 1971 is
Civil Appeal No.1049/2011 etc.
-: 14 :-
also in the nature of a tax and not a fee, therefore the amendments have
been validly brought about by Money Bills. He argued that although both
tax and fee are compulsory extractions, tax is not related to a particular
service but is intended to meet the expenses of the State, whereas a fee is
meant to compensate the Government for expenses incurred in rendering
services to the person from whom the fee is collected. Further, the money
received in the Workers’ Welfare Fund is for the benefit of the workers and
not for the payers, i.e. industrial establishments, therefore such
levy/contribution does not fall within the definition of fee. He referred to
various constitutional provisions including Articles 70(4), 73, 77, 142(b)
and (c), 143, 165A and 260(1) and Entry No.52 of Part I of the Fourth
Schedule of the Constitution. He relied upon the judgments reported as
Shahbaz Garments (supra), Mutual Funds Association (supra), Collector
of Customs (supra), Abdul Majid and another Vs. Province of East
Pakistan and others (PLD 1960 Dacca 502), The Commissioner, Hindu
Religious Endowments, Madras (supra), Pakistan Burmah Shell Limited
and another Vs. Federation of Pakistan through the Secretary,
Ministry of Finance, Government of Pakistan, Islamabad and 3 others
(1998 PTD 1804), Muhammad Ismail (supra), Messrs Khyber Electric
Lamps Manufacturing Limited and others Vs. Chairman, District
Council, Peshawar and another (1986 CLC 533), Rahimullah Khan and
65 others Vs. Government of N.W.F.P. through Secretary Agricultural
Forest and Co-operation Department, Peshawar and 5 others (1990
CLC 550), PLD 1997 Kar 604, 1990 CLC 638, Calcutta Municipal
Corporation (supra), The Hingir-rampur Coal Co. Ltd and others Vs. The
State of Orissa and others (AIR 1961 SC 459), Mahboob Yar Khan and
Civil Appeal No.1049/2011 etc.
-: 15 :-
another Vs. Municipal Committee, Mian Channu and 2 others (PLD
1975 Lah 748) and Elahi Cotton (supra).
8.
Mr. Rehman Ullah, learned counsel for the appellants in Civil
Appeals No.107 to 114 and 755/2016 submitted that the subject
levies/contributions were in the nature of tax, not fee. Mr. Hafiz S. A.
Rehman, learned counsel for the appellant in Civil Petition for Leave to
Appeal No.1767/2012, submitted that the amendments made in several
labour laws through the Finance Act of 2007 were lawful for the reasons
enumerated in the Full Bench judgment of the High Court of Sindh which
(judgment) he fully supported. Mr. Malik Jawwad Malik, learned counsel for
the appellant in Civil Petition for Leave to Appeal No.1005/2016 adopted
the arguments of Mr. Hafiz S. A. Rehman, learned ASC.
9.
The second set of arguments is of those counsel who oppose
the view that the levies/contributions in question are in the nature of a
tax, rather it is their stance that they are in the nature of a fee, hence,
the amendments brought in the respective statutes through Money Bills,
i.e. different Finance Acts, were made without lawful authority.
10.
Mr. Rashid Anwar, learned counsel for the appellants in Civil
Appeals No.923 to 930, 937 and 938/2013, identified two main issues:-
firstly, with respect to the scope of Article 73 of the Constitution
pertaining to Money Bills, and secondly, whether the Ordinance of 1971
levies a tax or a fee. He briefly discussed the history and origins of the
concept of Money Bills and how it became a part of our constitutional
structure. He made reference to the Parliament Act, 1911 according to
which in case there is a conflict between the House of Commons and the
House of Lords regarding a Money Bill, when the Speaker of Parliament
certifies a bill as a Money Bill, the word of the House of Commons will
Civil Appeal No.1049/2011 etc.
-: 16 :-
prevail: according to him this principle is reflected in our Constitution too.
Generally, all bills should be passed by both houses of Parliament, i.e. the
National Assembly and the Senate. The Senate can be bypassed only to
the extent permitted by the Constitution, that is, in respect of matters
which fall strictly within the definition of a Money Bill, as provided in
Article 73 supra. He submitted that the amendments made by the Finance
Act of 2006 and 2008 did not fall within the definition of a Money Bill and
hence such amendments were invalid. He then moved on to the question
of whether the levy/contribution in the Ordinance of 1971 was a tax or a
fee. In this regard he referred to the Durrani Ceramic’s case (supra) and
submitted that there are two tests to answer such a question, first, we
ought to examine whether any benefit is being provided to any class,
particular individuals, community or a specific area and if/where the
benefit cannot be measured in exactitude, so long as the levy is to the
advantage of the payers, consequential benefit to the community at large
would not render the levy a tax. Further, where there is ambiguity,
reference can be made to the stance of the Government itself, because the
budget documents are prepared by the Government and if it classifies the
levy/contribution as non-tax revenue then that is conclusive proof that it
is not a tax. In this respect he referred to certain documents according to
which the Accountant General Pakistan Revenues has taken a categorical
position that the Workers’ Welfare Fund receipts are accounted for under
the heads of account of ‘non-tax receipts’. Learned counsel by referring to
the Preamble and Section 6 of the Ordinance of 1971 stated that this law
is meant to provide facilities to workers, and according to judgments of the
Supreme Court, a fee should confer some benefit on the contributor
directly or indirectly. When an employer makes contributions to the
Civil Appeal No.1049/2011 etc.
-: 17 :-
Workers’ Welfare Fund it directly benefits the worker but also indirectly
benefits the employer in that the worker is enabled to be more productive.
He further submitted that as a general rule, tax revenues go to the
national exchequer and are disbursed by it to meet the Government’s
budgetary requirements and the same cannot be done by statutory bodies
which are not the Government.
11.
Mr. Hashmat Ali Habib, learned counsel for the appellant in
Civil Appeal No.919/2013 argued that the levy/contribution is in the
nature of a fee and not a tax. The same argument(s) were put forward by
Mr. Ishaq Ali Qazi, learned ASC and Mr. Mehmood Abdul Ghani, learned
ASC (while responding to Ms. Asma Jehangir’s arguments), the latter of whom relied
upon the judgments reported as Kohinoor Chemical Co. Ltd and
another Vs. Sind Employees’ Social Security Institution and another
(PLD 1977 SC 197), (NLR 2004 Labour 10), Government of North-West
Frontier Province through Secretary Agriculture and others Vs.
Rahimullah and others (1992 SCMR 750), Muhammad Ashraf Tiwana
and others Vs. Pakistan and others (2013 SCMR 836), Mir Muhammad
Idris (supra), Messrs Azgard Nine Ltd Vs. Pakistan through Secretary
and others (PLD 2013 Lah 282), Messrs Quetta Textile Mills Limited
through Chief Executive Vs. Province of Sindh through Secretary
Excise and Taxation, Karachi and another (PLD 2005 Kar 55) and Niaz
Ahmed Khan Vs. Province of Sind and others (PLD 1977 Kar 604).
12.
Mr. Raheel Kamran, learned counsel for the petitioners in
Constitutional Petitions No.5 to 8/2016 submitted that after the 18th
Constitutional Amendment the concurrent legislative lists were abolished
and the subjects devolved upon the Provinces. He argued that there is an
order dated 14.1.2016 passed by the learned Single Judge of the High
Civil Appeal No.1049/2011 etc.
-: 18 :-
Court of Sindh stating that the Full Bench (of the High Court of Sindh) has
declared such a levy to be a tax, and the outcome of this is that as a tax, it
would fall within Entry 47 of the Federal Legislative List which is tax on
income, therefore the Provinces can neither legislate on this subject nor
collect the levy.
13.
Heard.
The
Constitution
has
provided
the
legislative
procedure for the introduction and passing of Bills by Parliament.
Generally, all Bills (pertaining to matters in the Federal Legislative List) though they
may originate in either house, i.e. National Assembly or Senate, must be
passed by both houses after which the Bill receives the Presidential
Assent. However there is an exception provided by the Constitution.
According to Article 73 of the Constitution, Money Bills are to originate in
the National Assembly and can be passed by the Assembly whilst
bypassing the Senate. What constitutes a Money Bill has been set out in
Article 73(2) of the Constitution, and Article 73(3) specifically sets out
what shall not constitute a Money Bill. The relevant portions of Article 73
are reproduced below for ease of reference:-
73. Procedure with respect to Money Bills.—(1)
Notwithstanding anything contained in Article 70, a Money
Bill shall originate in the National Assembly:
Provided…………………………………………………………
(1A) ………………………………………………………………
(2) For the purposes of this Chapter, a Bill or amendment
shall be deemed to be a Money Bill if it contains provisions
dealing with all or any of the following matters, namely:—
(a) the imposition, abolition, remission, alteration or
regulation of any tax;
Civil Appeal No.1049/2011 etc.
-: 19 :-
(b)
the borrowing of money, or the giving of any
guarantee, by the Federal Government, or the
amendment of the law relating to the financial
obligations of that Government;
(c)
the custody of the Federal Consolidated Fund, the
payment of moneys into, or the issue of moneys from,
that Fund;
(d)
the imposition of a charge upon the Federal
Consolidated Fund, or the abolition or alteration of
any such charge;
(e)
the receipt of moneys on account of the Public
Account of the Federation, the custody or issue of
such moneys;
(f)
the audit of the accounts of the Federal Government
or a Provincial Government; and
(g)
any matter incidental to any of the matters specified
in the preceding paragraphs.
(3) A Bill shall not be deemed to be a Money Bill by reason
only that it provides–
(a) for the imposition or alteration of any fine or other
pecuniary penalty, or for the demand or payment
of a licence fee or a fee or charge for any service
rendered; or
(b)
for the imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body
for local purposes.
(4) ………………………………………………………………
(5) ………………………………………………………………
Civil Appeal No.1049/2011 etc.
-: 20 :-
Therefore any Bill which does not fall within the purview of Article 73(2) of
the Constitution would not constitute a Money Bill and cannot be passed
under the legislative procedure (mandate) provided by Article 73, by
bypassing the Senate, rather the regular legislative procedure under
Article 70 would be required to be followed. In the instant matters, the
relevant sub-article is (2)(a) of Article 73, which pertains to the imposition,
abolition, remission, alteration or regulation of any tax, read with sub-
article (2)(g) which relates to any matter incidental to any of the matters
specified in sub-articles (2)(a) to (f). Thus we must consider whether the
levies/contributions in question under the various laws are in the nature
of a tax: which would render the amendments thereto through the Finance
Acts valid and lawful.
14.
Whether the various levies/contributions in the instant
matter constitute a tax as opposed to a fee depends on whether they
possess the characteristics of a tax or not. The key characteristics of a
‘tax’ and a ‘fee’ have been the subject of much debate in our
jurisprudence. In the judgment reported as Government of North-West
Frontier Province through Secretary Agriculture and others Vs.
Rahimullah and others (1992 SCMR 750) it was held that:-
“The distinction between "tax" and "fee" lies primarily in
the fact that a tax is levied as a part of common burden
while a fee is paid for a special benefit or privilege.”
This Court in the more recent judgment reported as Federation of
Pakistan through Secretary M/o Petroleum and Natural Resources
and another Vs. Durrani Ceramics and others (2014 SCMR 1630), after
Civil Appeal No.1049/2011 etc.
-: 21 :-
taking into account considerable case law from our jurisdiction and
abroad, came to the following definitive conclusion:-
19.
Upon examining the case-law from our own and
other jurisdictions it emerges that the 'Cess' is levied for a
particular purpose. It can either be 'tax' or 'fee' depending
upon the nature of the levy. Both are compulsory exaction
of money by public authorities. Whereas 'tax' is a
common burden for raising revenue and upon collection
becomes part of public revenue of the State, 'fee' is
exacted for a specific purpose and for rendering services
or providing privilege to particular individuals or a class
or a community or a specific area. However, the benefit so
accrued may not be measurable in exactitude. So long as
the levy is to the advantage of the payers, consequential
benefit to the community at large would not render the levy
a 'tax'. In the light of this statement of law it is to be
examined whether the GIDC is a 'tax' or a 'fee'.
[Emphasis supplied]
There are no two opinions about the fact that a tax is basically a
compulsory exaction of monies by public authorities, to be utilized for
public purposes. However its distinguishing feature is that it imposes a
common burden for raising revenue for a general as opposed to a specific
purpose,#; the latter being one of the key characteristics of a fee. Now let
us examine each of the subject levies/contributions in light of the above
touchstone.
15.
According to the Preamble of the Ordinance of 1971, it was
passed to provide for the establishment of a Workers’ Welfare Fund, in
order to provide residential accommodation and other facilities for workers
and for matters connected therewith or incidental thereto. The Workers’
Welfare Fund is constituted under Section 3 of the Ordinance of 1971
Civil Appeal No.1049/2011 etc.
-: 22 :-
which, amongst other things, consists of contributions by industrial
establishments. ‘Industrial establishments’, as defined in Section 2(f) of
the Ordinance of 1971, are liable to pay to the Workers’ Welfare Fund a
sum equal to two percent of their total income per year, provided that the
total income of which [in any year of account commencing on or after the
date specified by the Federal Government in the official gazette in this
behalf] is not less than five lakh rupees. Section 7 pertains to the creation
of the Governing Body of the Workers’ Welfare Fund to whom the
management and administration whereof shall be entrusted. According to
Section 10, amongst other things, the function of the Governing Body
shall be:-
(a)
to allocate funds, in accordance with the principles
laid down under section 9, to the Provincial Governments,
any agency of the Federal Government and any body
corporate for any of the purposes mentioned in clauses
(a) and (b) of section 6;
[Emphasis added]
Section 6 provides for the purposes to which monies in the Workers’
Welfare Fund may be applied. It reads as follows:-
“6.
Purposes to which moneys in the Fund may be
applied.—Moneys in the Fund shall be applied to –
(a)
the financing of projects connected with the
establishment of housing estates or construction of
houses for the workers;
(b)
the financing of other welfare measures including
education training, re-skilling and apprenticeship
for the welfare of the workers;
Civil Appeal No.1049/2011 etc.
-: 23 :-
(c)
the meeting of expenditure in respect of the cost of
management and administration of the Fund;
(d)
the repayment of loans raised by the Governing
Body; and
(e)
investment in government, government guarantees,
non-government securities and Real Estate.”
Going further, Section 10A provides that:-
10A.
Vesting of money allocated from the fund.—Any
money allocated under clause (a) of section 10 shall be a
grant-in-aid and shall vest in the Government, agency or
body corporate, to whom it is allocated under that clause,
but it shall not be applied to any purpose other than that
for which it is allocated, or permitted, by the Governing
Body.
[Emphasis added]
From the above it is clear that the Governing Body of the Workers’
Welfare Fund, established to manage and administer the said fund, is
supposed to do so in light of the exhaustive purposes enumerated in
Section 6 ibid. Further, the Governing Body can only allocate funds to
the Provincial Government, or any agency of the Federal Government and
any Body Corporate for the purposes mentioned in Section 6(a) and (b)
and for no other purpose, and any funds so allocated to any such body
cannot be used for any purpose other than that for which they are
allocated or as permitted by the Governing Body. This clearly establishes
two things: that the Government has no control over the Workers’
Welfare Fund, and that the funds can only be used for very specific
purposes as stated exhaustively in the Ordinance of 1971 itself, and not
for general or undefined purposes. This particular feature of the
Civil Appeal No.1049/2011 etc.
-: 24 :-
contribution(s) made in terms of the Ordinance of 1971 automatically
preclude them from being classified as a tax.
16.
Besides there are certain other features of the contributions
made to the Workers’ Welfare Fund that suggest they are not in the
nature of a tax. In this regard, Section 4(7) of the Ordinance of 1971 is
important which reads as follows:-
“4(7) The payment made by an industrial establishment to
the Fund under sub-section (1) shall be treated as an
expenditure for purposes of assessment of income-tax.
Section 4(7) basically states that the payments made by industrial
establishments to the Workers’ Welfare Fund under the Ordinance of 1971
are to be considered as expenditure while assessing income tax. It is a
necessary corollary that the contributions to the Workers’ Welfare Fund
cannot be a tax if they are to be considered as an expenditure while
assessing income tax. This argument is bolstered by Section 60A in Part
IX of Chapter III of the Income Tax Ordinance, 2001 (Ordinance of 2001) which
reads as follows:-
“60A. Workers’ Welfare Fund.—A person shall be entitled
to a deductible allowance for the amount of any Workers’
Welfare Fund paid by the person in tax year under
Workers’ Welfare Fund Ordinance, 1971.”
A deductible allowance has been defined in Section 2(16) of the Ordinance
of 2001 as “an allowance that is deductible from total income under Part IX of Chapter
III”, meaning thereby that any contributions made by a person under the
Ordinance of 1971 will be deducted from the total income of that person.
Civil Appeal No.1049/2011 etc.
-: 25 :-
This also suggests that the contributions are not a tax, as they are being
deducted from the total income, as opposed to being considered as a tax
credit, in which case the contributions would be subtracted from the total
tax to be paid. In the light of the foregoing, we are of the view that the
contributions made to the Workers’ Welfare Fund are not in the nature of
a tax.
17.
We now advert to the levies/contributions made under the Act
of 1976. According to the Preamble of the Act of 1976, it is a law relating
to old-age benefits for the persons employed in industrial, commercial and
other organisations and matters connected therewith. The Employees’
Old-Age Benefits Institution was set up under Section 4 of the Act of 1976;
the Institution is to be generally directed and superintended by the Board
(see Section 6). The Employees’ Old-Age Benefits Fund was set up under
Section 17 of the Act of 1976 into which all contributions made under the
said Act are to be paid. The employer [defined in Section 2(c)] is required to
make monthly payments or contributions to the Institution in respect of
insured employees at the rate of five per cent of his wages (see Section 9).
Section 3 provides that all employees in an industry or establishment [both
of which terms have been defined in Section 2(g) and (e) of the Act of 1976 respectively] shall be
insured in the manner prescribed by or under the Act of 1976. Under the
said Act, the insured person is also required to make monthly
contributions under Section 9B thereof at the rate of one per cent of his
wages, from 1.7.2001. Section 17(4) of the Act of 1976 is important, it
provides that “the assets of the Institution shall be utilized solely for the purposes of
this Act”. The various benefits available under the Act of 1976 are old-age
pension (Section 22), old-age grant (Section 22A), survivors’ pension (Section 22B)
and invalidity pension (Section 23). Thus the scheme of the Act of 1976
clearly suggests that the contributions are to be used for specific purposes
Civil Appeal No.1049/2011 etc.
-: 26 :-
pertaining to employees’ old-age benefits, as opposed to general purposes.
Again this feature of the subject contribution removes it from the ambit of
a tax.
18.
Coming to the five different labour laws amended by the
Finance Act of 2007; one of them was the Act of 1976 which we have
discussed in the preceding paragraph hence is not required to be
addressed again. The Preamble to the Workmen’s Compensation Act, 1923
states that it was passed to provide for the payment of compensation for
injury by accident by certain classes of employees to their workmen.
According to Section 3 of the Act of 1923, an employer shall be liable to
pay compensation in accordance with the provisions of Chapter II of the
said Act if personal injury is caused to a workman by accident arising out
of and in the course of his employment. The Act of 1923 contains very
comprehensive details of the amount of compensation to be paid (Section 4),
the method of calculation of wages (Section 5) and the distribution of
compensation (Section 8), etc. The scheme under the Act of 1923 is a form of
insurance, providing compensation to workers (or their dependents in case of a
fatal accident if the Commissioner thinks fit) injured in the course of employment in
exchange for relinquishment of the employee’s right to take legal action
against the employer (see Section 3(5) of the Act of 1923). In the light of the above
it is manifest that the compensation payments made under the Act of
1923 are not a common burden exacted to meet the general expenses of
the State, rather they are particular payments made for a very specific
purpose, i.e. to compensate workmen injured in the course of
employment, therefore they cannot be said to be in the nature of a tax.
19.
The same is the case with the payments made under the
Ordinance of 1968 which provides for the regulation of the conditions of
Civil Appeal No.1049/2011 etc.
-: 27 :-
the employment of workmen and other incidental matters in industrial or
commercial establishments in accordance with the Standing Orders in the
Schedule to the said Ordinance (See section 3). The Ordinance of 1968 is
quite extensive, however we are only concerned with the contributions
which have been amended by the Finance Act of 2007, as it is the said Act
which has been called into question as being unlawful. The provision
which was amended by the Finance Act of 2007 is Clause (6) of Standing
Order 12 which broadly provides for payment of gratuity by the employer
in case a workman resigns from service or his services are terminated by
the employer for any reason other than misconduct. The proviso that was
added by the Finance Act of 2007 reads as follows:-
“Provided further that if through collective
bargaining the employer offers and contributes to an
“Approved Pension Fund” as defined in the Income Tax
Ordinance, 2001 (XLIX of 2001), and where the
contribution of the employer is not less than fifty per cent of
the limit prescribed in the aforesaid Ordinance, and to
which the workman is also a contributor for the remaining
fifty per cent or less, no gratuity shall be payable for the
period during which such contribution has been made.”
The subject contribution is gratuity payments. What is gratuity? Basically
it is a lump sum payment made by the employer to an employee at the
end of his service (either by retirement or termination for reasons other than misconduct) as
a mark of recognition for the latter’s service. In other words it is a defined
benefit plan. These payments made by employers are very specific as
opposed to having a generic purpose to meet the State’s expenses and can
therefore by no stretch of imagination be referred to as a tax.
Civil Appeal No.1049/2011 etc.
-: 28 :-
20.
The Act of 1968 provides for companies [defined in Section 2(b)] to
which the Act applies to establish a Workers’ Participation Fund and to
make annual payments of five per cent of its profits during that year to the
said Fund (see Section 3) to provide benefits that accrue from it to the eligible
workers of the company. Employees may voluntarily choose to contribute
to the Workers’ Participation Fund as per Clause 7 of the Schedule of the
Act of 1968. The Workers’ Participation Fund is to be managed and
administered by a Board of Trustees in accordance with the provisions of
the Act of 1968, the scheme and any rules made in this behalf [see Section
4(5)]. The Workers’ Participation Fund is basically a profit-sharing plan
that gives employees a share in the profits of a company, with the primary
aim to give the employees a sense of ownership and greater participation
in the company. These contributions too, are for a specific purpose, i.e. a
plan for the benefit of employees, much like other investment plans, and
therefore do not qualify as a tax.
21.
Finally, according to the Preamble of the Ordinance of 1969, it
was enacted to fix the minimum rates of wages for unskilled workers
employed in certain commercial and industrial establishments [defined in
Section 2(b) and (f) respectively]. Such responsibility was pinned on commercial
and industrial establishments under Section 4 of the Ordinance of 1969.
Not only was this statute enacted for the aforementioned specific purpose,
we fail to understand as to how the requirement of payment of minimum
wages to unskilled workers can be construed as a tax, thereby permitting
any amendments made to the Ordinance of 1969 to be effected through a
Money Bill.
22.
As we have established from the discussion above that none
of the subject contributions/payments made under the Ordinance of
Civil Appeal No.1049/2011 etc.
-: 29 :-
1971, the Act of 1976, the Act of 1923, the Ordinance of 1968, the Act of
1968 and the Ordinance of 1969 possess the distinguishing feature of a
tax, i.e. a common burden to generate revenue for the State for general
purposes, instead they all have some specific purpose, as made apparent
by their respective statutes, which removes them from the ambit of a tax.
Consequently, the amendments sought to be made by the various Finance
Acts
of
2006,
2007
and
2008
pertaining
to
the
subject
contributions/payments do not relate to the imposition, abolition,
remission, alteration or regulation of any tax, or any matter incidental
therto (tax). We would like to point out at this juncture that the word
‘finance’ used in Finance Act undoubtedly is a term having a wide
connotation, encompassing tax. However not everything that pertains to
finance would necessarily be related to tax. Therefore merely inserting
amendments, albeit relating to finance but which have no nexus to tax, in
a Finance Act does not mean that such Act is a Money Bill as defined in
Article 73(2) of the Constitution. The tendency to tag all matters pertaining
to finance with tax matters (in the true sense of the word) in Finance Acts must
be discouraged, for it allows the legislature to pass laws as Money Bills by
bypassing the regular legislative procedure under Article 70 of the
Constitution by resorting to Article 73 thereof which must only be done in
exceptional circumstances as and when permitted by the Constitution.
The special legislative procedure is an exception and should be construed
strictly and its operation restricted. Therefore, we are of the candid view
that
since
the
amendments
relating
to
the
subject
contributions/payments do not fall within the parameters of Article 73(2)
of the Constitution, the impugned amendments in the respective Finance
Acts are declared to be unlawful and ultra vires the Constitution.
Civil Appeal No.1049/2011 etc.
-: 30 :-
23.
There is another aspect of the matter which requires due
attention. No doubt the feature of having a specific purpose is a
characteristic of a fee, which the subject contributions/payments possess
as discussed in the preceding portion of this opinion. However, there are
certain other characteristics of a fee, such as quid pro quo, which must be
present for a contribution or payment to qualify as a fee. This was the
main argument of the learned counsel who categorized the subject
contributions in the nature of a tax, that they (the contributions) lacked the
element of quid pro quo or in other words the benefit of the contribution
did not go the payers. The industrial establishments or employers etc.
were liable to pay the contribution but they were not the beneficiaries of
the purpose for which such contributions were being made; the
beneficiaries were their employees or workers etc. Mr. Rashid Anwar
attempted to argue that the benefit need not be direct and can be indirect,
therefore although the employees were directly benefited by contributions
made to the Employees’ Old-Age Benefit Fund as they received the
disbursements, the employers received an indirect benefit in that this
results in happier employees which ultimately leads to greater
productivity. Whilst this may be true, albeit a strained argument, the
attempt of the learned counsel challenging the legality of the amendments
in
the
Finance
Acts
has
all
along
been
to
categorize
the
contributions/payments as a fee, which would mean that they were not a
tax. While a fee is obviously not a tax, there was absolutely no need to try
and squeeze the contributions/payments into the definition of a fee, when
all that is required is to take them out of the ambit of a tax. We may
develop this point further; although Article 73(3)(a) of the Constitution
states that a Bill shall not be a Money Bill if it provides for the imposition
Civil Appeal No.1049/2011 etc.
-: 31 :-
or alteration of a fee or charge for any service rendered, this does not
mean that if a particular levy/contribution does not fall within Article
73(2) it must necessarily fall within Article 73(3). Sub-articles (2) and (3)
are
not
mutually
exclusive.
There
may
very
well
be
certain
levies/contributions that do not fall within the purview of Article 73(3) but
still do not qualify the test of Article 73(2) and therefore cannot be
introduced by way of a Money Bill, and instead have to follow the regular
legislative
procedure.
The
discussion
above
that
the
subject
contributions/payments do not constitute a tax is sufficient to hold that
any amendments to the provisions of the Ordinance of 1971, the Act of
1976, the Act of 1923, the Ordinance of 1968, the Act of 1968 and the
Ordinance of 1969 could not have been lawfully made through a Money
Bill, i.e. the Finance Acts of 2006 and 2008, as the amendments did not
fall within the purview of the provisions of Article 73(2) of the
Constitution.
24.
In light of the foregoing, the instant matters are disposed of in
the following manner:-
(a)
Civil Appeals No. 1049 to 1055/2011, 24 to 26/2013,
64
to
66/2013,
1266
to
1299/2014,
1364
to
1379/2014,
72
to
74/2015,
316
to
321/2015,
388/2015, 583 to 585/2015, 107 to 114/2016,
755/2016, 1022/2016, 1341/2016, and Civil Petition
for Leave to Appeal No.1005/2016 are dismissed;
(b)
Civil Petition for Leave to Appeal No.1767/2012 is
dismissed. Besides, the noted CPLA is barred by 586
days and no sufficient cause for condonation of delay
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE MANZOOR AHMAD MALIK
MR. JUSTICE IJAZ UL AHSAN
CIVIL APPEALS NO.104-L, 106-L AND 107-L OF 2015
(Against the judgment dated 17.2.2015 of the Lahore High Court,
Lahore passed in R.F.A. No.779/2010)
1.
Al-Meezan
Investment
Management
Company Ltd.
…in C.A.104-L/2015
2.
Soneri Bank Limited
…in C.A.106-L/2015
3.
National Fertilizer Corporation of
Pakistan (Pvt.) Ltd. through its
Chairman
…in C.A.107-L/2015
…Appellant(s)
VERSUS
WAPDA First Sukuk Company Limited, Lahore etc.
…Respondent(s)
(in all appeals)
For the appellant(s):
Mr. Uzair Karamat Bhandari, ASC
Mrs. Tasneem Amin, AOR
(in C.A.104-L/2015)
Mr. Shehryar Kasuri, ASC
(in C.A.106-L/2015)
Mr. Asad Javed, ASC
Mr. Mahmudul Islam, AOR
(in C.A.107-L/2015)
For the respondent(s):
Ms. Ayesha Hamid, ASC
Syed Fayyaz A. Sherazi, AOR
(for respondents No.1 & 2 in all appeals)
Mr. Asad Javed, ASC
Mr. Mahmudul Islam, AOR
(for respondent No.3 in C.As.104-L & 106-L/2015)
Mr. Uzair Karamat Bhandari, ASC
Ms. Tasneem Amin, AOR
(for respondent No.4 in C.A.106-L/2015 and
for respondent No.3 in C.A.107-L/2015)
Mr. Fayyaz A. Sherazi, AOR
(for respondent No.6 in C.As.106-L & 107-L/2015)
Mr. Shehryar Kasuri, ASC
(for respondent No.5 in C.As.104-L & 107-L/2015)
Date of hearing:
10.10.2016
…
Civil Appeal No.104-L/2015 etc.
- 2-
JUDGMENT
MIAN SAQIB NISAR, J.- Through this order we will
decide three civil appeals bearing Nos.104-L, 106-L and 107-L of
2015 which arise out of the common judgment dated 17.2.2015
passed by the Lahore High Court whereby it set aside the order dated
21.5.2010 of the Trial Court rejecting the plaint of the Respondent
Nos. 1 and 2. For the purposes of this common judgment we will
treat Civil Appeal No.104-L of 2015 as the main appeal. The appellant
therein, Al-Meezan Investment Management Company Limited will be
referred to as the appellant. The factual background of these appeals
is that WAPDA/respondent No. 2 wanted to raise funds for its various
projects
and
to
this
end
the
Wapda
First
Sukuk
Company/respondent No.1 was incorporated, which is a public
limited company wholly owned by respondent No.2, which is a
statutory authority constituted under the Pakistan Water and Power
Development Authority Act, 1958. In terms of the Declaration of
Trust dated 15.11.2005 the respondent No.1 issued sukuk
certificates having a value of Rs.8,000,000,000/- (rupees eight billion) (388
physical certificates worth Rs.3,374,500,000/- and the remaining with Central Depository
System governed by Central Depository Act 1997) due and payable in 2012. In
terms of the Purchase Agreement dated 15.11.2005 respondent No.1
purchased and respondent No.2 sold 10 turbines at the Mangla Hydel
Power Station which became the trust assets owned by respondent
No.1.
Through
the
Purchase
Undertaking
dated
15.11.2005
respondent No.2 undertook to buy back the 10 turbines at the time of
the dissolution/maturity of the sukuk certificates in 2012. As per
Ijara Agreement dated 15.11.2005 between respondent Nos.1 and 2
and MCB Bank Limited as the delegate of the Trustee viz respondent
Civil Appeal No.104-L/2015 etc.
- 3-
No.1, the rental payments in respect of these sukuk certificates were
to be made on the 22nd of April and the 22nd October of each year
upto and including 22nd October 2012 [the maturity date]. Through
Agency Agreement dated 15.11.2005 executed by respondent No.1,
Citibank NA, Lahore Branch was the Paying Agent, Jahangir Siddique
& Company Limited was the Reference Agent and the WAPDA Bonds
Cell of respondent No.2 was the Registrar, Transfer Agent and
Replacement Agent.
2.
The National Fertilizer Corporation [hereinafter the “NFC”]
[the appellant in Civil Appeal No.107-L of 2015] purchased 300 physical
certificates of the value of Rs.750,000,000 (rupees seven hundred and fifty
million). On receipt of a letter dated 12.2.2009 purportedly issued by
the Deputy General Manager Accounts of NFC to the effect that NFC
had sold certificates of the value of Rs.180,000,000 (rupees one hundred
and eighty million) out of its holding of Rs.750 million to Swift
Engineering Solutions and surrender of 72 physical certificates of
aforesaid value of Rs.180 million for transfer to said Swift
Engineering Solutions, the Wapda Bonds Cell of the respondent No. 2
issued/substituted 6 physical certificates of the value of Rs.180
million to Swift Engineering Solutions. The appellant purchased the
said 6 certificates from the Swift Engineering Solutions on 6.3.2009.
Thereafter request was received by respondent Nos. 1 and 2 from the
appellant to transfer the 6 physical sukuk certificates to the Central
Depository System which was done by respondent No.2’s Bond Cell
on 17.3.2009.
3.
During the course of April 2009, when NFC received
profit for only Rs.57 million sukuk certificates from Citibank (the Paying
Agent) against its holding of Rs.750 million, it raised this issue with
Civil Appeal No.104-L/2015 etc.
- 4-
respondent Nos. 1 and 2. NFC informed respondent Nos. 1 and 2 that
it had not sold its sukuk certificates to Swift Engineering Solutions
and in time the apparent fraud was revealed. NFC informed
respondent Nos. 1 and 2 that the purported letter dated 12.2.2009
was fake and had not been signed by Deputy General Manager
(Accounts) of NFC and that any transaction made by respondent Nos.
1 and 2 on basis of said letter was illegal and fraudulent. Respondent
No.2 informed the Central Depository Company (hereinafter the “CDC”)
(respondent No.6) that further transfer/transaction of subject sukuk
certificates be stopped till further instructions. Despite aforesaid
instructions sukuk certificates were further sold by the appellant and
CDC gave effect to the said sales. Presently the subject sukuk
certificates are variously owned by BankIslami (respondent No.4) and
Soneri Bank (appellant in Civil Appeal No.106-L of 2015) and Meezan Bank (in
respect of whom an application under Order 1 Rule 10 CPC was pending before the Trial
Court when the plaint was rejected vice order dated 21.5.2010).
4.
At this stage inquiry No.76/2009 dated 12.5.2009 was
registered with FIA Crimes Circle, Lahore by respondent No.2. FIA
inquired into the matter and on basis of their inquiry FIR
No.28/2009 dated 5.8.2009 was lodged and separate criminal
proceedings on the basis thereof are at varying stages before the
competent courts of law, the fate whereof does not concern us in
these civil proceedings; it is sufficient that fraud was prima facie
established in respect of the “sale” of sukuk certificates of the value
of Rs.180 million from NFC to Swift Engineering Solutions.
5.
Upon becoming aware of the doubtful transaction of the
sale of the sukuk certificates to the appellant, respondent Nos. 1 and
2 sought a refund of the rental ijara payment made to the appellant
Civil Appeal No.104-L/2015 etc.
- 5-
in April 2009. On 22.10.2009 the appellant filed Suit No. 1497 of
2009 titled “Al-Meezan Investment Management Company Ltd and
Central Depository Company Vs. Wapda First Sukuk Company Ltd
and 3 others” before the Sindh High Court at Karachi [hereinafter “Suit
No.1497/2009”] claiming, inter alia, that it was the rightful owner of the
sukuk certificates valuing Rs.180 million at all material times and
seeking a declaration that it was entitled to the rental profit of
Rs.13,640,900/- paid in April 2009. In addition NFC claimed the
rental on the sukuk certificates valuing Rs.180 million from the
respondent Nos.1 and 2 and insists that it is the rightful/lawful
owner thereof and claimed further rentals/profits on said certificates.
Similar claims to be the rightful/lawful owners of the sukuk
certificates valuing Rs.180 million were put forward by BankIslami,
Soneri Bank and Meezan Bank, alongwith claims to rental ijara
payments on the basis of their holding in respect of said certificates.
6.
In view of the conflicting claims to the sukuk certificates
valuing Rs.180 million, on 12.12.2009 respondent Nos.1 and 2 filed
an interpleader suit under Section 88 CPC before the Civil Court at
Lahore [hereinafter the “Interpleader suit”] stating that they claim no title in
the certificates valuing Rs.180 million and are ready to pay the rental
profits, and ultimately in October 2012 the principal amount, to
whoever is determined to be the true owner by the learned court. It is
pertinent to mention that initially pursuant to order passed by the
learned Civil Court at Lahore in the Interpleader suit and later in
compliance with orders dated 19.7.2010 and 10.10.2012 passed by
the learned High Court in RFA No.779/2010 allowing the
respondents’ applications to that effect, the respondent Nos.1 and 2
deposited the rental ijara payments for the sukuk certificates valuing
Civil Appeal No.104-L/2015 etc.
- 6-
Rs.180 million and finally the encashment value of Rs.180 million at
the time of maturity into an account maintained by the Civil Court
for said purpose.
7.
NFC filed a written statement in the Interpleader suit
wherein it raised certain preliminary objections on the basis whereof
the learned Civil Court rejected the plaint vide order dated 21.5.2010
holding that the Interpleader suit was not maintainable in terms of
Order 35 Rule 5 CPC and in terms of the proviso to Section 88 CPC
and lastly on the basis of the ratio of G. Hari Karmarkar Vs. J. A.
Robin and others (AIR 1927 Rangoon 91). Respondent Nos.1 and 2
challenged the said order through RFA No.779/2010 which was
accepted vide the order dated 17.2.2015 passed by the Lahore High
Court, impugned in these appeals.
8.
Mr. Uzair Bhandari, learned counsel for the appellant
apprised us of the detailed facts set out hereinabove. He stated that
the appellant is a bona fide purchaser without notice and its title to
the sukuk certificates valuing Rs.180 million is duly recorded in the
Central Depository Register and is not liable to be rectified by virtue
of Section 11 of the Central Depositories Act, 1997. He stated that
the various claimants to the sukuk certificates valuing Rs.180 million
are not claiming the same debt but two different and distinct debts
and respondent Nos.1 and 2 are liable to satisfy both claims viz those
of the NFC and of the appellant and those who claim title on the
basis of the appellant’s title. He sought to persuade us that the
relationship of the appellant and respondent No.1 is that of principal
and agent. Respondent No.1 acts as the agent of the appellant in
respect of the trust assets and conducts transactions on behalf of the
appellant with respect thereto in its capacity as agent; this
Civil Appeal No.104-L/2015 etc.
- 7-
relationship precludes respondent No.1 from filing an Interpleader
suit because Order 35 Rule 5 CPC specifically bars the agent from
bringing an interpleader suit against his principal. He also relied on
the proviso to Section 88 CPC to argue that as Suit No.1497/2009
was filed prior in time and the pith and substance of the controversy
can be adjudicated therein, therefore the Interpleader suit is not
maintainable. He submitted that the Interpleader suit was not filed
through an authorized person as the documents establishing his
authority were not placed on the record of the Civil Court. He
submitted that respondent Nos.1 and 2 had not approached the
court with clean hands and that the Interpleader suit was simply a
device to transfer the loss caused by the fraud onto the appellant and
those parties who claim title from it. He in support of his contention
has cited judgments from the foreign jurisdiction such as:- Conley et
al. Vs. Alabama Gold Life Insurance Company [(1880) 67 Ala.
472], National Life Ins. Co. Vs. Pingrey and others [(1880) 141
Mass. 411], Sablicich Vs. Russell [(1866) 2 EC 441], Ann Dalton
Vs. The Midland Railway Company [(1852) 138 ER 985], Farmers
Irrigating Ditch Reservoir Company Vs. Nick Kane, et al. [(1988)
845 F.2d 229], Atoka Coal & Min. Co. Vs. Hodges et al. [(1894) 59
FR 836], Finn Vs. Missouri State Life Ins. Co. [(1931) 222 Ala.
413] and Great American Insurance Company, a Corporation Vs.
Bank of Bellevue and American Home Assurance Company
[(1966) 366 F.2d 289].
9.
Learned counsel for appellant in Civil Appeal No.106-L of
2015 concurred with the grounds urged by Mr. Uzair Bhandari and
submitted that respondent Nos.1 and 2 had accepted indemnity from
the NFC and the same constituted a violation of the provisions of
Civil Appeal No.104-L/2015 etc.
- 8-
Order 35 Rule 1(c) CPC and therefore the Interpleader suit was not
maintainable. Learned counsel for the NFC urged the same grounds
before us.
10.
Ms. Ayesha Hamid, learned counsel for respondent Nos.
1 and 2 submitted that respondent Nos.1 and 2, faced with the
adverse claims of the NFC, the appellant, BankIslami, Soneri Bank
and Meezan bank were entitled to file an Interpleader suit in order for
the Civil Court to determine the lawful ownership of the sukuk
certificates valuing Rs.180 million. Respondent Nos.1 and 2 claimed
no interest in the disputed sukuk certificates and this was proved by
the fact that all rental ijara payments and the final encashment value
of the disputed certificates had been deposited with the Civil Court
since institution of the interpleader suit and it was for the said Court
to release the amount to the rightful owner. She stated that the
respondent No.1 was a trustee in respect of the trust assets and the
certificate holders were the beneficiaries; there was no relationship of
agent and principal betwixt them as respondent No.1 could not bind
NFC to third parties and nor was it bound to render accounts to the
certificate holders. Reliance in this regard was placed on the case
cited as Bolan Beverages Pvt Ltd Vs. Pepsico Inc. (PLD 2004 SC
860), which lays down the tests for establishing the relationship of
agent and principal. Ms. Ayesha Hamid stated that the Interpleader
suit is not hit by the proviso of Section 88 CPC for the reason that all
the claimants to the disputed sukuk certificates are not party to the
Suit No.1497/2009 before the Sindh High Court, notably Soneri
Bank, BankIslami and Meezan Bank are missing from the array of
defendants and the prayer in the said suit is not for the Court to
determine the ownership of the disputed sukuk certificates but
Civil Appeal No.104-L/2015 etc.
- 9-
rather to declare that at all material times the appellant was the
rightful owner thereof and is entitled to retain the rental payment
received in April 2009. Therefore, the rights of all parties could not
properly be decided in Suit No.1497/2009. She provided us with a
list of cases relating to the disputed sukuk certificates pending before
the Sindh High Court in addition to Suit No. 1497/2009; Suit No.
726/2012 filed by Meezan Bank, Suit No. 1269/2010 filed by Soneri
Bank and Suit No.1086/2013 filed by the appellant. In addition NFC
has also filed Suit No.40163/2015 before the Civil Court at Lahore
[hereinafter collectively referred to as the “other suits”]. She relied on the case
cited as Abdul Karim Vs. Florida Builders (Pvt) Ltd (PLD 2012 SC
247) to argue that the objections as to the Interpleader suit not being
filed by duly authorized person, or as to the motivations or purpose
for filing the Interpleader suit do not fall within the parameters laid
down by this Court for rejection of plaint and hence the Interpleader
suit was maintainable.
11.
Heard. The instant appeals have raised rather interesting
and intriguing questions of law before us as there is no precedent in
our jurisprudence with respect to Interpleader suits. In this context
we feel it would be useful to examine the origins of this law. The law
of Interpleader comes from the laws of England. Halsbury’s Laws of
England1 explains the same in the following terms:-
“Where a person, for example an enforcement officer who
has levied a writ of execution, is in possession of property
or its proceeds of sale and he is, or expects to be, sued in
respect thereof by two or more persons making adverse
1 Halsbury’s Laws of England/Civil Procedure (Volume 12(2009) 5th Edition, Paras
1109-1836, para 1586.
Civil Appeal No.104-L/2015 etc.
- 10-
claims thereto, he may apply to the court for an order
requiring the claimants to litigate their differences and to
abide by the court’s final order in respect thereof. He is
thereafter safeguarded by being able to act in respect of the
property or its proceeds of sale consistently with, or as may
be directed by, the court’s final order. In these
circumstances he is said to apply to the court for relief by
way of interpleader.”
Further elucidation for the scope and the description of interpleader
suit is found in Black’s Law Dictionary, which reads as under:-
“1. A suit to determine a right to property held by a usu.
disinterested third party (called a stakeholder) who is in
doubt about ownership and who therefore deposits the
property with the court to permit interested parties to
litigate ownership. Typically, a stakeholder initiates an
interpleader both to determine who should receive the
property and to avoid multiple liability…2. Loosely, a party
who interpleads. – Also termed (in civil law) concursus.
“Interpleader is a form of joinder open to one who
does not know to which of several claimants he or
she is liable, if liable at all. It permits him or her to
bring the claimants into a single action, and to
require them to litigate among themselves to
determine which, if any, has a valid claim. Although
the earliest records of a procedure similar to
interpleader were at common law, it soon became
an equitable rather than a legal procedure.”
Charles Alan Wright, The Law of Federal Courts §
74, at 531 (5th ed. 1994).”
The law relating to interpleader was originally codified in the sub-
continent in the Code of Civil Procedure, 1882 at Sections 470 to
Civil Appeal No.104-L/2015 etc.
- 11-
476. It is now contained in Section 88 and Order 35 of our Code of
Civil Procedure, 1908. The law of Interpleader may have its origins in
equity but since it is now codified in our statute, equity must yield to
law. Section 88 and Order 35 Rules 1, 3 and 5 CPC are reproduced
below for ease of reference.
“88. Where interpleader suit may be instituted.-- Where
two or more persons claim adversely to one another the
same debt, sum of money or other property, movable or
immovable, from another person, who claims no interest
therein other than for charges or costs and who is ready to
pay or deliver it to the rightful claimant, such other person
may institute a suit of interpleader against all the claimants
for the purpose of obtaining a decision as to the person to
whom the payment or delivery shall be made and of
obtaining indemnity for himself:
Provided that where any suit is pending in which the rights
of all parties can properly be decided, no such suit of
interpleader shall be instituted.
Order XXXV
1.Plaint
in
interpleader
suits.---In
every
suit
of
interpleader the plaint shall, in addition to other statements
necessary for plaints, state—
(a) that the plaintiff claims no interest in the subject-matter
in dispute other than for charges or costs;
(b) the claims made by the defendants severally; and
(c) that there is no collusion between the plaintiff and any
of the defendants.
3. Procedure where defendant is suing plaintiff.- Where
any of the defendants in an inter-pleader suit is actually
suing the plaintiff in respect of the subject-matter of such
suit, the Court in which the suit against the plaintiff is
Civil Appeal No.104-L/2015 etc.
- 12-
pending shall, on being informed by the Court in which the
inter-pleader suit has been instituted, stay the proceedings
as against him; and his costs in the suit so stayed may be
provided for in such suit; but if and in so far as, they are
not provided for in that suit, they may be added to his costs
incurred in the inter-pleader suit.
5. Agent and tenants may not institute interpleader suit.-
Nothing in this Order shall be deemed to enable agents to
sue their principals, or tenants to sue their landlords, for
the purpose of compelling them to interplead with any
persons other than persons making claim through such
principals or the landlords.
Illustrations
(a)
A deposits a box of jewels with B as his agent. C
alleges that the jewels were wrongfully obtained
from him by A, and claims them from B. B cannot
institute an interpleader suit against A and C.
(b)
A deposits a box of jewels with B as his agent. He
then writes to C for the purpose of making the
jewels a security for a debt due from himself to C. A
afterwards alleges that C’s debt is satisfied, and C
alleges the contrary. Both claim the jewels from B.
B may institute an interpleader suit against A and
C.”
12.
There are certain conditions precedent which are
required to be satisfied before an Interpleader suit can be
competently filed. Firstly, there must be rival claimants. Secondly,
the same debt, sum of money or other property, moveable or
immoveable must be claimed by two or more claimants. Thirdly, the
person from whom such debt, sum of money etc. is being claimed
Civil Appeal No.104-L/2015 etc.
- 13-
must claim no interest in the same. These conditions are set out in
Section 88 CPC and reinforced by Order 35 Rule 1 CPC.
13.
There is no quibbling with the fact that respondent Nos.1
and 2 are faced with several rival claimants. The appellant, NFC,
Soneri Bank, BankIslami and Meezan Bank are calling on respondent
Nos.1 and 2 to make good for various amounts in respect of rental
ijara payments as well as laying claim to differing sums of money on
account of the encashment value of the disputed sukuk certificates
on the basis of their holding of the said certificates. Therefore, the
first
condition
precedent
stands
satisfied
in
the
present
circumstances.
14.
Do the disputed sukuk certificates of the value of Rs.180
million which are claimed by NFC on the one hand and by the
appellant and those who claim to derive title from them, represent
the same debt, sum of money or other property? It is an admitted fact
that the disputed sukuk certificates were originally purchased by the
NFC. It is an admitted fact by all parties to the present appeals that
the onward “sale” of the sukuk certificates of the value of Rs.180
million from NFC to Swift Engineering Solutions was effected through
apparent fraud. At whose door such apparent fraud is to be laid is
the subject of separate criminal proceedings and does not concern us
for the moment. At the time of the fraudulent “sale” of the disputed
sukuk certificates, apparently 72 forged physical sukuk certificates
were surrendered to the Wapda Bonds Cell and instead of the
surrendered certificates the Wapda Bonds Cell issued/substituted 6
physical sukuk certificates. Because the substituted 6 physical
sukuk
certificates
were
not
forged
or
fake,
the
appellant
disingenuously claims that it is a bona fide purchaser without notice
Civil Appeal No.104-L/2015 etc.
- 14-
and that the 6 new physical sukuk certificates represent a different
debt/sum of money being claimed from the respondent Nos. 1 and 2.
We are not convinced that this is so: the substitution of the 72
physical sukuk certificates by the 6 physical sukuk certificates does
not give rise to a new debt. The appellant and those who claim to
derive title from it and NFC on the other hand are rivals claimants for
the same debt/sum of money. Section 11 of the Central Depositories
Act, 1997 cannot override fraud if it is once established as it is
settled law that fraud vitiates the most solemn of proceedings and a
superstructure built on a foundation of fraud must fall like a house
of cards.
15.
Do respondent Nos.1 and 2 claim an interest in the
disputed sukuk certificates? Ms. Ayesha Hamid, learned counsel for
the respondent Nos.1 and 2 stated categorically that respondent
Nos.1 and 2 have divested themselves of the entire amount to be paid
on account of the disputed sukuk certificates and have deposited the
rental ijara payments alongwith the encashment value of the
disputed sukuk certificates with the learned civil court. This
establishes the bona fides of the respondent Nos.1 and 2. At the time
the rental ijara payment was made to NFC in October 2009
respondent Nos.1 and 2 sought and obtained an indemnity from NFC
to the effect that “It is hereby undertaken that NFC will remit back to WAPDA
Rs.13,640,900/- if it is found that NFC had actually transferred certificates worth
Rs.180 million to the Swift Engineering Solution. NFC will also extend full
cooperation to the investigation Agency for further probe into the matter.” This
undertaking is altogether different from the ‘indemnity’ referred to in
G. Hari Karmarkar’s case [relied on by the learned Civil Court in its order dated
21.5.2010 rejecting the plaint] in terms of which the plaintiff filing an
Civil Appeal No.104-L/2015 etc.
- 15-
interpleader suit had entered into an agreement with one of the
parties whereby he would have to pay very much less to said party if
it succeeded. On those facts it was held that it could not be said that
the plaintiff in the suit had no interest in the result of the
proceedings initiated by him. An Indemnity is a collateral contract or
assurance, by which one person engages to secure another against
an anticipated loss or to prevent him from being damnified by the
legal consequences of an act or forbearance on the part of one of the
parties or of some third person2. In the present circumstances does
this undertaking indemnify the respondent Nos. 1 and 2 against
anticipated claims by the appellant or those who claim to derive title
from the appellant? Patently not. The aforesaid “indemnity” is no
more than an assurance by NFC to return a particular ijara rental
payment to the respondent Nos.1 and 2 in case it is found disentitled
to the same. When interpreting Section 88 CPC’s requirement that
the plaintiff “claims no interest” in the debt/sum of money etc in
dispute and Order 35 Rule 1(c) CPC’s requirement that, “that there is no
collusion between the plaintiff and any of the defendants” in an interpleader
suit, we must first look to the text of the statute, its history,
traditions, precedent, purpose and consequences. The purposive
interpretation of the provisions ibid lead us to conclude that what is
to operate as a bar to an interpleader suit is collusion; collusion
between the plaintiff and one or more of the defendants that would
destroy the neutrality of the plaintiff in an interpleader suit. An
indemnity per se is not barred under the relevant provisions.
Collusion is a deceitful agreement or compact between two or more
persons, for the one party to bring an action against the other for
2 Black’s Law Dictionary
Civil Appeal No.104-L/2015 etc.
- 16-
some evil purpose, as to defraud a third party of his right: a
secret arrangement between two or more persons, whose interests are
apparently conflicting, to make use of the forms and proceedings of
law in order to defraud a third person, or to obtain that which justice
would not give them, by deceiving a court or its officers.3 It was not
argued before us by any of the appellants that the “indemnity”
obtained from NFC by the respondent Nos.1 and 2 was the outcome
of some deceitful arrangement or some secret negotiations. If the
respondent Nos.1 and 2, on account of the so-called indemnity were
more interested in the appellant succeeding or NFC for that matter
there may be some remote possibility that their neutrality was
compromised in some manner. But if NFC were to be declared the
rightful owner they would retain the rental ijara payment made to
them under the aegis of the so-called indemnity, respondent Nos.1
and 2 would not be entitled to the said payment. If, suppose, the
appellant or some party deriving title from the appellant were to be
declared the rightful owner, respondent Nos.1 and 2 would, on the
basis of the so-called indemnity, be entitled to the return of the rental
ijara payment, only for the same to be paid onwards to the declared
rightful owner. In neither of these two scenarios is it the case that
respondent Nos.1 and 2 are more interested, financially, if one party
succeeds over another. In the circumstances of the present appeals
we do not find that the undertaking obtained by respondent Nos.1
and 2 from the NFC is tantamount to either collusion with a party to
the Interpleader suit or an interest in the suit property i.e. the
disputed sukuk certificates.
3 Black’s Law Dictionary.
Civil Appeal No.104-L/2015 etc.
- 17-
16.
Let us now address the question of the purported bar of
Order 35 Rule 5 CPC; all the learned counsels for the three different
appellants variously argued that the relationship inter se respondent
Nos.1 and 2 and the certificate holders was that of agent and
principals respectively and on account thereof respondent No.1 in
particular was barred from filing an Interpleader suit. Why is an
agent precluded from interpleading his principal? Again, a purposive
construction of the statute is our best guide. An agent owes a duty of
care to his principal. An agent is accountable to his principal. Indeed,
he has a fiduciary duty to his principal, having been entrusted with
the care of the principal’s property or funds. In these circumstances
the agent cannot absolve himself of his responsibility to be held
accountable to his principal by suing him and compelling him to
interplead with another party (other than a person who claims through the
principal). This rule is based upon the sound legal principle that an
agent cannot be allowed to dispute the authority of his principal.
Similarly, the tenant is barred from filing a suit of interpleader
against his landlord as he is not to dispute the title of his landlord
during the subsistence of tenancy (other than a persons who claims through the
landlord). The Declaration of Trust dated 15.11.2005 clearly defines the
role of respondent No.1 as Trustee with respect to certificate-holders,
as defined in the Trust Act 1882. In any event, in the Bolan
Beverages case (supra) this Court has clearly set out the parameters of
the relationship of agent and principal. It was held at paragraph 15
that:-
“We hold in the light of the above discussion as well as the
law, that an agent is a hyphen that joins and a buckle that
Civil Appeal No.104-L/2015 etc.
- 18-
binds the relation between the principal and the third party.
Where an agent is not a link between the principal and a
third party, the institution of agency is not created. Where a
person is not liable to the principal for the submission of
accounts such person cannot be dubbed as agent.”
Describing the essentials for the relationship of agency in the
judgment of the Lahore High Court reported as Concentrate
Manufacturing Company of Ireland and 3 others versus Seven-Up
Bottling Company (Private) Limited and 3 others (2002 CLD 77) it
has been held:-
“From the above, it is clear that in effect an agent is the
connecting link between the principal and third person---a
sort of conduit pipe or an intermediary. This intermediary
has the powers to create legal relationship between the
principal and third party. He has competence to make the
principal responsible to the third person. He is an
imperative bridge by crossing which, the third person can
reach the principal to enforce his legal right or vice versa.
The principal is liable to the third person for all the act and
deeds performed, within the authority of agency, by his
agent, as if those were personally performed by him. The
agent
necessarily
and
the
principal
in
certain
circumstances are liable to each other for accounts. If a
so-called agent is not liable to the so-called principal for
the submission of accounts, such as the profit and loss, he
cannot be termed as agent.”
The provisions of Order 35 Rule 5 are not attracted to the facts of the
Interpleader suit. In any event it cannot be assumed that the
agent/principal relationship existed between respondent No.1 and
Civil Appeal No.104-L/2015 etc.
- 19-
certificate holders, including the appellants, without framing an issue
thereon and recording evidence.
17.
Now let us address the question of the proviso to Section
88 CPC; does the pendency and prior filing of Suit No.1497/2009 of
the appellant bar the Interpleader suit? It is admitted by the
appellant at ground VIII of its memorandum of appeal that
subsequent purchasers of the disputed sukuk certificates are not
impleaded in its Suit No. 1497/2009 pending before the Sindh High
Court, Karachi. In juxtaposition the Interpleader suit brings all
claimants to the disputed sukuk certificates before the civil court at
Lahore and respondent Nos.1 and 2 had filed an appropriate
application under Order 1 Rule 10 CPC before the Civil Court at
Lahore in the Interpleader suit with respect to Meezan Bank Ltd to
implead it as respondent No.6 when the suit was rejected vide order
dated 21.5.2010. Still further, as is evident from a bare perusal of the
plaint filed by the appellant in its Suit No.1497/2009 for declaration,
injunction and damages, the matters in issue in the two suits are not
the same, and it is only in respondent Nos.1 and 2’s Interpleader suit
that it can be definitively decided as to who is the true and original
owner of the disputed sukuk certificates of the value of Rs.180
million. We are not convinced that the respondent Nos.1 and 2 could
be non-suited on the basis of the proviso to Section 88 CPC.
18.
Whether or not the person filing the Interpleader suit on
behalf of respondent Nos.1 and 2 was duly authorized to do so is an
issue that can only be proved through evidence if and when the trial
court deems it appropriate to frame an issue in respect thereof. Other
objections raised by the learned counsels for the appellant, such as
the motivation(s) of the respondent Nos.1 and 2 in filing the
Civil Appeal No.104-L/2015 etc.
- 20-
Interpleader suit are not germane to the question of rejection of a
plaint on the touchstone of Order 7 Rule 11 CPC. This Court in the
case cited as Haji Abdul Karim and others Vs. Messrs Florida
Builders (Pvt.) Ltd (PLD 2012 SC 247) has comprehensively
discussed the scope and parameters of Order 7 Rule 11 CPC and has
set out the following guidelines for interpretation thereof:-
“Firstly, there can be little doubt that primacy, (but not
necessarily exclusivity) is to be given to the contents of the
plaint ………….
Secondly, it is also equally clear, by necessary inference,
that the contents of the written statement are not to be
examined and put in juxtaposition with the plaint in order
to determine whether the averments of the plaint are
correct or incorrect……..
Thirdly, and it is important to stress this point, in carrying
out an analysis of the averments contained in the plaint the
court is not denuded to its normal judicial power………”
The said judgment also defines the scope of Order 7 Rule 11(d) CPC:
suffice it to say that the question of whether a suit is maintainable or
not is moot with respect to whether or not a plaint is to be rejected as
being barred by law. Both are a different species altogether and it
may well be that a plaint is not rejected in terms of Order 7 Rule 11
CPC but the suit is dismissed eventually as not maintainable for a
possible host of reasons.
19.
For the aforesaid reasons we uphold the impugned order
dated 17.2.2015 and dismiss the appeals. Before parting we would
like to note with appreciation the able assistance rendered by Mr.
Uzair Bhandari and Ms. Ayesha Hamid. We also note with concern
that the Interpleader suit is pending before the Civil Court at Lahore
Civil Appeal No.104-L/2015 etc.
- 21-
since 2009 and is still at a preliminary stage: given that the entire
eventual decretal amount is already deposited with the learned Civil
Court, the learned Civil Court at Lahore is directed to proceed with
the Interpleader suit on day to day basis and decide the same as soon
as possible but no later than 3 months from receipt of this order. No
order as to costs.
JUDGE
JUDGE
JUDGE
Bench-I
Lahore, the
10th October, 2016
Approved For Reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE MAQBOOL BAQAR
CIVIL APPEAL NO.1050 OF 2009
(Against the judgment dated 17.2.2009 of
the Peshawar High Court, Peshawar
passed in Custom Reference No.24/2007)
Collector of Customs, Peshawar
…Appellant(s)
VERSUS
Wali Khan etc.
…Respondent(s)
For the appellant(s):
Mr. Muhammad Habib Qureshi, ASC
Mr. M. S. Khattak, AOR
For the respondent(s):
Mr. Isaac Ali Qazi, ASC
(respondent No.1)
Nemo
(respondent No.2 and 4)
Ex-parte
(respondent No.3)
Date of hearing:
19.01.2017
…
ORDER
MIAN SAQIB NISAR, CJ.- This appeal with the leave of the
Court entails the facts that the customs authorities seized certain
goods, i.e. cloth and black tea both of foreign origin, belonging to
respondents No.3 and 4 (the owners) along with the transportation
vehicles belonging to respondents No.1 and 2, under Sections 2(s), 16
and 157 of the Customs Act, 1969 (the Customs Act) read with Section 3(1)
of the Imports and Exports (Control) Act, 1950 (the Imports and Exports Act)
punishable under Sections 156(1), (8), (89) and 164 of the Customs Act.
After investigation and issuance of show cause notices to the
respondents, the Additional Collector Customs passed an order-in-
original dated 14.2.2007 according to which the goods and vehicles
Civil Appeal No.1050 of 2009
-: 2 :-
were outrightly confiscated. Aggrieved, the respondents filed an appeal
which was allowed by the Collector Customs (Appeals) vide order dated
12.3.2007 and the order-in-original was modified to the extent that the
confiscated goods were allowed to be redeemed upon payment of a
redemption fine of 30% of the customs value of the goods in addition to
payment of the duties/taxes leviable subject to production of an NOC
from the concerned Trial Court where the criminal proceedings were
taking place and imposition of a personal penalty of Rs.100,000/- each
upon the owners of the goods. This order was challenged by both the
sides and the Customs, Federal Excise & Sales Tax Appellate Tribunal
(the Tribunal) while dismissing the appeal of the appellant-department and
accepting that of the respondents, through an order dated 27.6.2007,
reduced the redemption fine on cloth from 30% to 15% and remitted in
full the personal penalty upon the owners of the goods. The appellant’s
reference before the learned High Court was dismissed. Leave in this
case was granted on 21.7.2009 to consider the following questions:-
“i)
Whether provision of Section 2(s) of the Customs
Act, 1969, was correctly interpreted and applied by the
Tribunal and the High Court;
ii)
Whether imposition of fine in lieu of confiscation
of goods is not in addition to any other penalty in terms of
Section 181 of the customs Act, 1969; and
iii)
Whether the redemption fine of 15% is in violation
of SRO 574(1)/2005 dated 06.06.2005.”
2.
Learned counsel for the appellant submitted that the goods
could only have been outrightly confiscated, as the option of redemption
of goods upon payment of fine under Section 181 of the Customs Act
was not available to the respondents in view of SRO No.574(I)/2005
dated 6.6.2005 (SRO No.574). He further argued that assuming that this
Civil Appeal No.1050 of 2009
-: 3 :-
option was available to the respondents, then the redemption fine could
not be less than 30% as provided by Column 3 of the Table of the said
SRO. He stated that the respondents have admitted that the cloth was
smuggled, whereas black tea is notified under SRO No.566(I)/2005
dated 6.6.2005 (SRO No.566) and both goods were smuggled in terms of
Section 2(s) of the Customs Act as they were brought into Pakistan in
breach of a prohibition/restriction and the respondents had evaded
payment of customs duties/taxes leviable thereupon. In support of his
submissions, learned counsel relied upon the judgment of this Court
dated 30.9.2014 passed in Civil Appeal No.112/2005 titled “Muhammad
Saeed & another Vs. Collector Customs & Central Excise Peshawar”.
3.
Contrarily, learned counsel for respondent No.1 argued that
the goods were freely importable as there was no law that prohibits or
restricts them from being brought into Pakistan and therefore they did
not fall within the purview of smuggling. While arguing that the law
treats smuggled goods and non-duty paid goods differently, he conceded
that duty was leviable upon such goods as they were being brought
through an unauthorized route. Learned counsel stated that there was
a difference between Clauses 89 and 90 of the table under Section 156
of the Customs Act, and that the respondents’ case fell within the latter.
4.
Heard. In order to resolve the proposition at hand, we find
it expedient to reproduce the relevant provisions of law which read as
under:-
The Customs Act, 1969
“2. Definitions.- In this Act, unless there is anything
repugnant in the subject or context:-
(s)
“smuggle” means to bring into or take out of
Pakistan, in breach of any prohibition or
restriction for the time being in force, or en route
Civil Appeal No.1050 of 2009
-: 4 :-
pilferage of transit goods or evading payment of
customs-duties or taxes leviable thereon,-
(i)
gold bullion, silver bullion, platinum,
palladium,
radium,
precious
stones,
antiques, currency, narcotics and narcotic
and psychotropic substances; or
(ii)
manufactures of gold or silver or platinum
or palladium or radium or precious stones,
and any other goods notified by the
Federal
Government
in
the
official
Gazette, which, in each case, exceed one
hundred and fifty thousand rupees in
value; or
(iii)
any goods by any route other than a route
declared under section 9 or 10 or from any
place other than a customs-station and
includes
an
attempt,
abetment
or
connivance of so bringing in or taking out
of such goods; and all cognate words and
expressions
shall
be
construed
accordingly;
16. Power to prohibit or restrict importation and
exportation of goods.- The Federal Government may,
from time to time, by notification in the official Gazette,
prohibit or restrict the bringing into or taking out of
Pakistan of any goods of specified description by air, sea
or land.
156. Punishment for offences.-(1) Whoever commits any
offence described in column 1 of the Table below shall, in
addition to and not in derogation of any punishment to
which he may be liable under any other law, be liable to
the punishment mentioned against that offence in column
2 thereof:-
TABLE
Offences
Penalties
Section of
this
Act
to which
offence
has
reference
(1)
(2)
(3)
89.(i)
If any person without
lawful
excuse,
the
such goods shall be
liable
to
General
Civil Appeal No.1050 of 2009
-: 5 :-
proof of which shall
be on such person,
acquires
possession
of, or is in any way
concerned
in
carrying,
removing,
depositing,
harbouring, keeping
or concealing, or in
any manner dealing
with smuggled goods
or
any
goods
in
respect
to
which
there
may
be
reasonable suspicion
that
they
are
smuggled goods;
confiscation
and
any
person
concerned in the
offence
shall
be
liable to a penalty
not exceeding ten
times the value of
the
goods;
and,
where the value of
such goods exceeds
three
hundred
thousand rupees, he
shall
further
be
liable,
upon
conviction
by
a
Special Judge, to
imprisonment for a
term not exceeding
six years and to a
fine not exceeding
ten times the value
of such goods
90.
If any person, without
lawful
excuse
the
proof of which shall
be on such person,
acquires
possession
of, or is in any way
concerned
in
carrying,
removing,
depositing,
harbouring, keeping
or concealing or in
any manner dealing
with any goods, not
being goods referred
to in clause 89, which
have been unlawfully
removed
from
a
warehouse, or which
are chargeable with a
duty which has not
been paid, or with
respect
to
the
importation
or
exportation of which
there is a reasonable
suspicion that any
prohibition
or
restriction
for
the
such goods shall be
liable
to
confiscation,
and
any
person
concerned
shall
also be liable to a
penalty
not
exceeding ten times
the value of the
goods.
General
Civil Appeal No.1050 of 2009
-: 6 :-
time being in force
under or by virtue of
this Act has been
contravened, or if any
person is in relation
to any such goods in
any
way,
without
lawful
excuse,
the
proof of which shall
be on such person,
concerned
in
any
fraudulent evasion or
attempt at evasion of
any duty chargeable
thereon, or of any
such prohibition or
restriction
as
aforesaid or of any
provision of this Act
applicable to those
goods;
181. Option to pay fine in lieu of confiscated goods.-
Whenever an order for the confiscation of goods is passed
under this Act, the officer passing the order may give the
owner of the goods an option to pay in lieu of the
confiscation of the goods such fine as the officer thinks fit
Provided that the Board may, by an order, specify
the goods or class of goods where such option shall not
be given:
Provided further that…………………………………
Explanation.- Any fine in lieu of confiscation of goods
imposed under this section shall be in addition to any duty
and charges payable in respect of such goods, and of any
penalty that might have been imposed in addition to the
confiscation of goods.”
The main controversy is whether Section 2(s) of the Customs Act was
correctly interpreted and applied by the Tribunal and the learned High
Court in that the confiscated goods, i.e. cloth and black tea, are
smuggled goods entailing the consequences of Clause 89 or non-duty
Civil Appeal No.1050 of 2009
-: 7 :-
paid items covered by Clause 90 of the table given in Section 156 of the
Customs Act.
5.
In order to resolve the controversy, we first have to
ascertain the meaning of the phrase “smuggled goods” as provided in
the Customs Act. The definition of “smuggle” provided in Section 2(s) of
the Customs Act can be broken down as follows:- (a) to bring into or
take out of Pakistan, in breach of any prohibition or restriction for the
time being in force; OR (b) en route pilferage of transit goods; OR (c)
evading payment of customs-duties or taxes leviable thereon; OF (i) gold
bullion, silver bullion, platinum, palladium, radium, precious stones,
antiques,
currency,
narcotics
and
narcotic
and
psychotropic
substances; OR (ii) manufactures of gold or silver or platinum or
palladium or radium or precious stones, and any other goods notified
by the Federal Government in the official Gazette, which, in each case,
exceed one hundred and fifty thousand rupees in value; OR (iii) any
goods by any route other than a route declared under section 9 or 10 or
from any place other than a customs-station and includes an attempt,
abetment or connivance of so bringing in or taking out of such goods.
Some restricted goods are mentioned in Section 2(s) of the Customs Act
[see Clauses (i) and (ii) thereof]. However, the Federal Government is
empowered under Section 16 of the Customs Act to prohibit or restrict,
by notification, the bringing into or taking out of Pakistan of any goods
of specified description by air, sea or land. Section 3 of the Imports and
Exports Act also authorizes the Government to “prohibit, restrict or
otherwise control the import and export of goods of any specified description.” In this
context, the Federal Government, in exercise of the powers conferred by
Sections 2(s)(ii) and 156(2) of the Customs Act vide SRO No.566,
notified certain goods to be prohibited/restricted for the purpose of the
said sections. This notification held the field when the goods in question
Civil Appeal No.1050 of 2009
-: 8 :-
i.e. cloth and black tea, were recovered from the respondents on
06.01.2007. Item No.35 of SRO No.566 is “Black Tea (except Op-Pekoe)”,
thus black tea is a restricted/prohibited item and falls within the
meaning of smuggled goods in terms of Section 2(s) of the Customs Act.
With regard to cloth, Item No.28 of SRO No.566 is “man-made fiber, man-
made yarn and fabric”. According to the learned counsel for the appellant,
the cloth recovered from the respondents squarely falls within this item,
whereas the learned counsel for the respondents contended that the
same applies only to man-made cloth and not to the cloth confiscated in
this case. It would be expedient at this juncture to interpret the scope of
the item ibid in conjunction with the other items. The other relevant
items are that of No.27, 29 and 42 of SRO No.566 provide for “Cotton,
cotton yarn and fabric”, “Wool, woolen yarn and fabric” and “Natural silk, natural
silk yarn and fabric” respectively. Thus, cotton, wool, natural silk and their
yarn and fabric on one hand and man-made fiber, yarn and fabric on
the other have been dealt with separately. It is important to note that
while both categories of yarn and fabric involve some mechanical
process for its making, the distinction between both the categories lies
in the fact that Items No.27, 29 and 42 refer to naturally occurring
materials including cotton, wool and silk, whereas Item No.28 pertains
to man-made or synthetic fibers/fabric. By way of example, the latter
category can include polyester, acrylic, nylon etc. The cloth in question
has been referred to A/S cloth in the orders of the forums below, which
stands for artificial silk cloth and is undoubtedly a man-made fabric as
it comprises of synthetic fiber and thus is squarely covered by Item
No.28 of SRO No.566. Hence the cloth from foreign origin is a
restricted/prohibited item as per Item No.28 of SRO No.566 and falls
within the meaning of smuggled goods in terms of Section 2(s) of the
Customs Act.
Civil Appeal No.1050 of 2009
-: 9 :-
6.
Adverting now to the applicability of Clause 89 or 90 of the
table in Section 156 of the Customs Act, it is to be noted that Section
156 ibid provides for the punishment against any contravention of the
Customs Act. Clause 89(i) of the table in Section 156 ibid provides that
any person who, without any lawful excuse, acquires possession of, or
is in any way concerned in carrying, removing, depositing, harbouring,
keeping or concealing, or in any manner dealing with smuggled goods
or any goods in respect to which there may be reasonable suspicion
that they are smuggled goods, he shall be liable for the punishment
detailed in Column 2 thereof. A few salient features need to be pointed
out. First, Clause 89(i) deals with smuggled goods as well as those
goods regarding which there is reasonable suspicion that they are
smuggled. Secondly, a person is permitted to acquire possession etc. of
such goods only with lawful excuse, the burden of proof of which lies on
such person, and in case he fails to do so, it would be presumed that
the goods were smuggled entailing the consequences provided in
Column 2 of Clause 89 ibid. On the other hand, Clause 90 contained in
the table under Section 156 of the Customs Act deals with “any goods, not
being goods referred to in clause 89.” This makes it abundantly clear that the
said clause deals with goods that are not smuggled and regarding which
there is “fraudulent evasion or attempt at evasion of any duty chargeable thereon.”
In this eventuality too, the burden lies on the person involved in such
activities to prove the contrary, in the absence of which it will be
presumed that the goods were non-duty paid in terms of Clause 90 ibid.
In this regard, first the department has to show that the goods which
are of a foreign origin could only be imported on payment of duty or
under a license or their import is prohibit or restricted. It will then be
for the possessor of such goods to show that they were lawfully
imported either before any restrictions/prohibitions were imposed or in
Civil Appeal No.1050 of 2009
-: 10 :-
accordance with such restrictions/prohibitions.1 As held above in
paragraph 5, the foreign cloth and black tea are notified items in terms
of SRO No.566, therefore, they are restricted/prohibited goods and
therefore fall within the ambit of smuggled goods as defined in Section
2(s)(ii) of the Customs Act. Resultantly, it is Clause 89 of Section 156 of
the Act that deals with smuggled goods which is applicable to the
instant case and not Clause 90 thereof.
7.
The confiscated goods were admittedly of foreign origin and
there was no proof that they were lawfully imported into Pakistan (by an
authorized importer under a valid license and through an authorized route), the burden of
which, according to Clause 89 as mentioned above, was on the
respondents. When confronted, learned counsel for the respondents
failed to provide any concrete evidence except contending that these
goods are easily available in the market and can be purchased from
anywhere. Thus, the respondent has failed to prove that the confiscated
goods were not smuggled goods. Therefore the forums below have erred
in holding that the confiscated goods were not notified and thus do not
fall within the purview of Section 2(s) of the Customs Act.
8.
We would now like to discuss the question as to whether
the option to pay a fine in lieu of confiscation of goods, in addition to
any other penalty, could be given or not. Section 181 of the Customs
Act allows an officer passing an order for confiscation of goods to give
the owner of the goods an option to pay a fine in lieu of such
confiscation. However, according to the first proviso to Section 181 ibid,
the Board may by an order specify the goods or class of goods where
such option shall not be given. The Board in exercise of the powers
conferred by Section 181 has issued SRO No.574 which provides, inter
1 Messrs S. A. Haroon and others Vs. The Collector of Customs, Karachi and the Federation of Pakistan
(PLD 1959 SC (Pak) 177) and Sikandar A. Karim Vs. The State (1995 SCMR 387).
Civil Appeal No.1050 of 2009
-: 11 :-
alia, that “no option shall be given to pay fine in lieu of confiscation in respect of…
(i) smuggled goods falling under clause (s) of section 2 of the Customs Act, 1969 (IV of
1969) or (ii) conveyance including packages and containers found carrying offending
goods of section 2(s) of the Customs Act, 1969…” Thus, the imposition of
redemption fine at 30% by the Collector Customs (Appeals) and 15% by
the learned Tribunal is in violation of Section 181 of the Customs Act
and SRO No.574 issued thereunder.
9.
In the light of the above, this appeal is allowed and the
impugned judgments of the learned High Court, the Tribunal and the
Collector Customs (Appeals) are set aside.
CHIEF JUSTICE
JUDGE
JUDGE
Announced in open Court
on 23.2.2017 at Islamabad
Approved For Reporting
Waqas Naseer/*
CHIEF JUSTICE
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: Mr. Justice Anwar Zaheer Jamali, CJ.
Mr. Justice Mian Saqib Nisar.
Mr. Justice Amir Hani Muslim.
Mr. Justice Iqbal Hameedur Rahman.
Mr. Justice Khilji Arif Hussain.
CIVIL APPEAL NO. 1072/2005.
(On appeal against the judgment dated
29.12.2003 passed by the Federal Service
Tribunal,
Islamabad,
in
Appeal
No.
6(P)/CS/2003)
Chairman, Pakistan Railway, Government of Pakistan,
Islamabad, etc.
Appellant(s)
Versus
Shah Jehan Shah
Respondent(s)
AND
CIVIL APPEAL NO. 686/2012.
(On appeal against the judgment dated
09.04.2012 passed by the KPK Service
Tribunal,
Peshawar,
in
Appeal
No.
1539/2009)
Mst. Robina Shaheen
Appellant(s)
Versus
Director Education (E &SE), KPK, Peshawar, etc. Respondent(s)
For the Appellant(s)
(in C. A. 1072/2005):
Hafiz S. A. Rehman, Sr. ASC
(in C. A. 686/2012):
Mr. Riaz Sherpao, ASC
Mir Adam Khan, AOR
For the Respondent(s)
(in C. A. 1072/2005):
Mr. Abdur Rehman Siddiqui, ASC
For Respondent No. 5
(in C. A. 686/2012):
Mr. Ijaz Anwar, ASC
Mr. M. S. Khattak, AOR
On behalf of KPK:
Mr. Waqar Ahmed Khan, Addl. AG
Date of Hearing:
14.03.2016 and 15.03.2016
…
Civil Appeals No.1072/2005 & 686/2012.
-2 -
JUDGMENT
MIAN SAQIB NISAR, J:- These appeals, by leave of the
Court, involve a similar question of law, hence are being disposed of
together. The key question involved herein is whether persons who have
rendered more than five years’ service in a temporary establishment are
entitled to the grant of pensionary benefits within the meaning of Article
371-A of the Civil Service Regulations (CSR), and a re-visitation of the
judgment of this Court reported as Mir Ahmad Khan v. Secretary to
Government and others (1997 SCMR 1477).
Civil Appeal No.1072/2005:
2.
This appeal entails the facts in that the respondent was
appointed as an Assistant Executive Engineer (BPS-17) in Pakistan
Locomotive Factory Risalpur, Pakistan Railways on 11.7.1989 on an ad
hoc basis whereafter his employment was converted into a contract
employment for two years with effect from 1.7.2000. Subsequently, due
to the respondent’s failure to qualify for regularization before the
Federal Public Service Commission, his services were terminated on
4.9.2002. He filed a departmental appeal on 8.10.2002 for the grant of
pensionary benefits which (departmental appeal) was dismissed vide order
dated 9.1.2003. Subsequently, the respondent approached the learned
Federal Service Tribunal (Tribunal) challenging not the termination of his
services or the conversion of services from ad hoc to contractual, rather
only non-payment of pensionary benefits. The learned Tribunal while
relying upon the case of Mir Ahmad Khan (supra) accepted the
respondent’s service appeal on 29.12.2003 through the impugned
judgment holding as follows:-
Civil Appeals No.1072/2005 & 686/2012.
-3 -
“7.
In view of the clear provision available in
Civil Service Regulations as CSR 371-A(i) and in the
light of the judgment of Honourable Supreme Court,
reproduced below, there is no ambiguity that the
Appellants who have put in more than 10 years of
uninterrupted service were entitled to pension as per
rules………
9.
In view of the rulings of Honourable
Supreme Court, we accept the appeals, set aside the
impugned orders and direct the respondents to give
pension to the Appellants as admissible to them under
CSR 371-A (i). They are also entitled to receive their
other legal dues like General Provident (GP) Fund etc.
However, Respondents would be at liberty to detect any
valid/legal dues outstanding against them from amount
payable to them.”
Aggrieved of the above order, the appellants approached this Court, and
leave was granted on 15.9.2005 in the following terms:-
“………Since interpretation of a number of provisions
of Civil Service Regulations as to entitlement to pension
of the government servants, which will have impact on
a large number of cases, is involved leave is granted to
consider whether temporary service rendered by the
three respondents qualified for pension”?”
Subsequently, this Court on 21.2.2012 was of the view that a larger
bench should hear the matter for the following reason(s):-
“………The learned counsel for the appellant states
that admittedly respondent is not a Civil Servant and he
Civil Appeals No.1072/2005 & 686/2012.
-4 -
cannot claim pensionary benefits thus the judgment in
the case of Mir Ahmed Khan (ibid) needs to be revisited
in that if such wide interpretation is given to
Regulations 371-A all contractual and temporary
employees working in the Government Department
would become entitled to pensionary benefits on
termination of their employment, without being
regularly employed. Since Mir Ahmed Khan’s case was
decided by three members’ Bench, the matter be placed
for consideration of the Hon’ble Chief Justice for
placing the case before a larger Bench.”
3.
The basic argument of the learned counsel for the appellants
was that Article 371-A was an enabling, as opposed to charging
provision, and that the use of the word “count” in Article 371-A of the
CSR, as opposed to “eligible” or “qualify”, does not mean that
government servants who have rendered more than five years’
continuous temporary service in a temporary establishment are entitled
to the grant of pension, rather that such period of service would be only
be counted/added for the purposes of calculating pension, which the
government servant has to nevertheless qualify for by fulfilling the three
conditions of qualification for pension as provided in Article 361 of the
CSR. In support of his arguments, he made reference to various Articles
of the CSR and Fundamental Rules (FR). Learned counsel attempted to
buttress his submissions by drawing an analogy with the judgment
reported as Federation of Pakistan and others v. Rais Khan (1993
SCMR 609), in which it was held that the period of ad hoc service
followed by regular service in the same scale shall be counted towards
length of service prescribed for promotion or move-over in the next
higher scale, thus in the same manner, the period of temporary service
Civil Appeals No.1072/2005 & 686/2012.
-5 -
of more than five years would be counted towards pension if it was
followed by regular service.
4.
On the other hand learned counsel for the respondent
argued that the word “count” can be used interchangeably with
“qualify” or “eligible”, and in fact “count” is more often than not the
precise word used for the purposes of pensionary benefits. Further, the
appellants’ interpretation of Article 371-A of the CSR that the period of
temporary service of more than five years would be counted towards
pension if it was followed by regular service would only be true if the
said article specifically provided “temporary followed by permanent
service”, but this is not the case. Further, the words “except as
otherwise provided” in Article 368 of the CSR gives sanction to the grant
of pensionary benefits to temporary employees. In support of his
arguments,
learned
counsel
placed
reliance
upon
two
office
memorandums issued by the Ministry of Finance at Serial No.5 and 6 of
Chapter V of Section VI of the Compendium of Pension Rules and
Orders.
5.
Heard. Before resolving the proposition at hand, we find it
expedient to reproduce the relevant articles of the CSR which read as
under:-
“361.
Except as otherwise provided in these
Regulations, the service of an officer does not qualify
for pension unless it conforms to the following three
conditions:-
First.- The service must be under Government.
Second.- The employment must be substantive and
permanent.
Third.- The service must be paid by Government.
Civil Appeals No.1072/2005 & 686/2012.
-6 -
These three conditions are fully explained in the
following Section.
368.
Except
otherwise
provided
in
these
Regulations services does not qualify unless the officer
holds
a
substantive
office
on
a
permanent
establishment.
369.
An establishment, the duties of which are not
continuous, but are limited to certain fixed periods in
each year, is not a temporary establishment. Service in
such an establishment, including the period during
which the establishment is not employed, qualifies; but
the concession of counting as service the period during
which the establishment is not employed does not apply
to an officer who was not on actual duty when the
establishment was discharged, after completion of its
work, or to an officer who was not on actual duty on
the first day on which the establishment was again re-
employed.
370.
An officer transferred from a temporary to a
permanent appointment can count his service in the
temporary
office,
it,
though
at
first
created
experimentally or temporarily, it eventually becomes
permanent.
371.
An officer without a substantive appointment
officiating in an office which is vacant, or the
permanent incumbent of which does not draw any part
of the pay or count service, may, if he is confirmed
without interruption in this service, count his
officiating service.
371-A.
Notwithstanding
anything
contained
in
Articles 355(b), 361, 368, 370 and 371 of these
Regulations, temporary and officiating service, in
Civil Appeals No.1072/2005 & 686/2012.
-7 -
the case of Government servants who retired on or
after the 1st January, 1949, or who joined service
thereafter, shall count for pension according to
the following rule:-
(i)
Government servants borne on temporary
establishments who have rendered more
than 5 years continuous temporary service
shall count such service for the purpose of
pension or gratuity excluding broken
periods of temporary service, if any,
rendered previously, and
(ii)
Continuous
temporary
and
officiating
service of less than five years immediately
followed by confirmation shall also count
for gratuity or pension, as the case may
be.”
(Emphasis supplied)
We begin with the basics. The CSR pertains to salary, leave, pension
and travelling allowance of those serving in the civil departments.
Despite the nomenclature used, i.e. Civil Service Regulations, the
application of the CSR is not restricted to “civil servants” as defined in
the Civil Servants Act, 1973 (Act), but also applies to “government
servants”. Interestingly, “government servants” has neither been
specifically defined in the Act nor in the CSR. However, we are not
treading those waters, rather leaving it for an appropriate case, as the
applicability of the CSR to the respondent is not disputed in the instant
matter. Although we would like to observe that whether or not a
particular article of the CSR applies only to a civil servant or extends to
the broader pool of government servants would ultimately depend on
the particular wording of the article under consideration. The CSR
Civil Appeals No.1072/2005 & 686/2012.
-8 -
classifies pension into four basic types:- compensation pension, invalid
pension, superannuation pension and retiring pension. In order to be
able to claim pensionary benefits, one must fulfill the three conditions
of qualifying service for pension stipulated in Article 361 of the CSR:- (i)
the service must be under the Government; (ii) the employment must be
substantive and permanent; and (iii) the service must be paid by the
Government. An interpretation of the provisions pertaining to the
second condition is relevant to the matter at hand. Article 368 of the
CSR provides that the officer must hold a substantive office on a
permanent establishment. Articles 370 and 371 of the CSR in essence
allow for temporary and officiating services respectively, to be counted
towards an officer’s service if such service (temporary or officiating)
becomes permanent.
6.
Article 371-A(i) allows for governments servants who have
rendered temporary service for more than five years at a temporary
establishmentto count such service for the purposes of their pension (or
gratuity), but the temporary service must be continuous, and excludes
broken periods of temporary service rendered previously. By way of
example, Article 371-A(i) would attract to a government servant who
rendered continuous temporary service at a temporary establishment
for six years and was subsequently confirmed at the end of his
temporary service, those six years would be counted towards his
service for the purposes of pensionary benefits. The said article would
also encompass the situation where a government servant rendered
continuous temporary service at a temporary establishment for six
years but was not confirmed at the end of his temporary service, rather
two years after his temporary service ended he was taken back and
Civil Appeals No.1072/2005 & 686/2012.
-9 -
confirmed, then again those six years would be counted towards his
service for the purposes of pensionary benefits, excluding the broken
period of two years (the interregnum). On the other hand, Article 371-A(ii)
provides that government servants who have rendered temporary and
officiating service for less than five years immediately followed by
confirmation shall also count for gratuity or pension (as the case may be),
which (service) must also be continuous. By way of illustration, where a
government servant rendered continuous temporary or officiating
service for three years and was subsequently immediately confirmed,
those three years would be counted towards his service for the
purposes of pension. However, due to the inclusion of the word
“immediately” and the omission of the words “excluding broken periods
of temporary service” in clause (ii) of the Article 371-A, in a situation
where a government servant rendered continuous temporary or
officiating service for three years but was not confirmed at the end of
his temporary service, rather two years after his temporary service
ended he was taken back and subsequently confirmed, then those three
years would not be counted towards his pensionary benefits. However,
it is important to note that Article 371-A presupposes that such a
government servant, whether falling under clause (i) or (ii), is otherwise
entitled to pension (or gratuity, as the case may be). In other words, Article
371-A cannot be used as a tool to bypass the conditions for qualifying
service of pensionary benefits, and such government servant has to
fulfill the minimum number of years for grant of pension. This is due to
the use of the word “count” as opposed to “qualify” or “eligible”, as
rightly argued by the learned counsel for the appellant. As per the
settled rules of interpretation, when a word has not been defined in the
Civil Appeals No.1072/2005 & 686/2012.
-10 -
statute, the ordinary dictionary meaning is to be looked at. Chambers
21st Dictionary defines “count” as “to find the total amount of (items), by adding
up item by item; to include”. Oxford Advanced Learner’s Dictionary of
Current English (7th Ed.) defines “count” as “to calculate the total number of
people, things, etc. in a particular group; in include sb/sth when you calculate a total;
to consider sb/sth in a particular way; to be considered in a particular way”. Thus in
light of the above, service rendered for more than five years as
contemplated by Article 371-A would only be added, included, or taken
into account for the purposes of pensionary benefits, and not make
such government servant qualify for pension per se. This interpretation
is bolstered by logic, reason and common sense. If we were to accept
the reasoning of the learned Service Tribunal in the impugned judgment
and the arguments of the learned counsel for the respondents, it would
create a bizarre and anomalous situation, where a government servant
who has rendered temporary service in a temporary establishment for,
let us say, seven years, would be entitled to pensionary benefits, and on
the other hand, a government servant rendering services as a regular
employee for fifteen years would not (yet) have completed the requisite
number of years to qualify for grant of pension. It is absurd, ludicrous
and inconceivable that a government servant, who is in regular
employment, would become entitled to pension after serving the
minimum years of qualifying service as prescribed by the law, whereas
while interpreting Article 371-A, a government servant who has served
as a temporary employee could be given preference over a regular
employee, and after a minimum service of only five years would
automatically become entitled to pension. Holding so would be against
the object and spirit of the concept of pension which has been
Civil Appeals No.1072/2005 & 686/2012.
-11 -
discussed by this Court in Regarding pensionary benefits of the
Judges of Superior Courts from the date of their respective
retirements, irrespective of their length of service as Judges (PLD
2013 SC 829) as follows:-
“…pension is not the bounty from the State/employer to
the servant/ employee, but it is fashioned on the
premise and the resolution that the employee serves his
employer in the days of his ability and capacity and
during the former's debility, the latter compensates him
for the services so rendered. Therefore, the right to
pension has to be earned and for the accomplishment
thereof, the condition of length of service is most
relevant and purposive.”
(Emphasis supplied)
Thus, we are not inclined to interpret Article 371-A in such a way so as
to render the provisions stipulating minimum years for grant of
pensionary benefits superfluous and redundant. As far as the
provisions of Article 371-A are concerned, which is a non-obstante
clause to Articles 355(b), 361, 368, 370 and 371 stipulated therein,
suffice it to say that such article by itself does not provide for the
entitlement for the purposes of pension, rather, at the cost of
repetition, it is restricted to the counting of the period of a minimum of
five years which has been rendered by the temporary employee that
once he is appointed on a permanent basis, such period shall be taken
into account for the object of calculating his entitlement to pension
with respect to the requisite minimum period under the law. Therefore
we are not persuaded to hold the words “Notwithstanding anything contained
in Articles 355(b), 361, 368, 370 and 371 of these Regulations…” in Article 371-A
Civil Appeals No.1072/2005 & 686/2012.
-12 -
to allow those who do not fulfill the requisite conditions for qualifying
for pension to bypass such conditions, so as to render the articles of the
CSR providing for such conditions unnecessary and surplus. Therefore,
we are of the candid view, that Article 371-A of the CSR would not ipso
facto or simpliciter allow government servants rendering temporary
service in a temporary establishment for more than five years to be
entitled to grant of pension, rather such period would only be counted
towards such government servants’ pension if otherwise entitled to
pension.
7.
It is not disputed that the respondent rendered continuous
temporary serviceand that his length of service was continuous and for
more than five years. However, the question that needs to be answered
is whether he was working in a “temporary establishment” or not.
“Temporary establishment” has not been defined in the CSR, the
Fundamental and Supplementary Rules issued by the Government of
Pakistan, the ESTA Code or the Compendium of Pension Rules and
Orders. In this context Article 369 of the CSR mentions temporary
establishment but only explains what it is not and thus is not very
helpful. Therefore as mentioned earlier in the opinion, as per the settled
rules of interpretation, the dictionary meaning of the words has to be
resorted to. The Concise Oxford Dictionary (6th Ed.) has defined
“temporary” as “lasting, meant to last, only for a time”, and “establishment” as
an “organized body of mean maintained for a purpose”. Chambers 21st Century
Dictionary defines “temporary” as “lasting, acting or used, etc for a limited
period of time only”, and “establishment” as “a public or government
institution”. Oxford Advanced Learner’s Dictionary of Current English (7th
Ed.) defines “temporary” as “lasting or intended to last or be used only for a short
Civil Appeals No.1072/2005 & 686/2012.
-13 -
time; not permanent” and “establishment” as “an organisation, a large
institution…” In light of the above dictionary meanings, “temporary
establishment” can be said to mean an organisation or institution
which is not permanent, rather effective for a certain period only.
Admittedly the respondent was serving in Pakistan Locomotive Factory
Risalpur, Pakistan Railways, which does not in any way fall within the
meaning and purview of “temporary establishment”. Thus the
respondent could not reply upon Article 371-A of the CSR. Besides, if
hypothetically speaking Pakistan Locomotive Factory Risalpur was a
temporary establishment, even then the respondent would not be able
to take the benefit of Article 371-A (supra) as he otherwise does not
qualify for pensionary benefits having not been subsequently taken into
permanent employment, which is sine qua non for the grant thereof.
8.
Adverting to the law laid down in the case of Mir Ahmad
Khan (supra) wherein it was held:-
“Admittedly the appellant put in more than ten years’
temporary service before his services were terminated
he was, therefore, entitled to pensionary benefits under
Regulation 371-A(i) of Civil Service Regulations.”
In light of the discussion in paragraph No.6, the judgment delivered in
Mir Ahmad Khan’s case (supra) is declared to be per incuriam.
9.
In view of the foregoing, we find that the respondent was not
entitled to the grant of pensionary benefits in terms of Article 371-A of
the CSR, and the learned Service Tribunal had erroneously allowed him
pension by wrongly relying upon the case of Mir Ahmad Khan (supra)
which is declared to be per incuriam.
Civil Appeals No.1072/2005 & 686/2012.
-14 -
10.
The above are the detailed reasons for our short order of
even date whereby the appellants’ appeal was accepted and the
impugned judgment was set aside, which reads as follows:-
“We have heard the arguments of learned ASCs for the
parties. For the reasons to be recorded later, this
appeal is allowed, the impugned judgment of the
Federal Service Tribunal dated 29.12.2003 is set aside
and the service appeal preferred by the respondent is
dismissed.”
Civil Appeal No.686/2012:
11.
The brief facts of the instant appeal are that the appellant
was a Professional Teaching Certification (PTC) Teacher in the
Commissionerate for Afghan Refugees, Peshawar (Commissionerate), from
28.2.1987 to 17.1.2005, i.e. approximately 18 years. During her
employment at the Commissionerate, she applied for two months leave
on 20.1.2004, after which she was appointed as a PTC Teacher in the
Schools and Literacy Department, Government of Khyber Pakhtunkhwa
(department) and she assumed charge of her post on 25.11.2004 and
tendered her resignation with the Commissionerate on 10.1.2005.
Thereafter she filed a departmental appeal to respondent No.1 claiming
that her 18 years’ service with the Commissionerate be counted for the
purposes of her pension, which (departmental appeal) was accepted vide
order dated 24.6.2008. However, the said order stated that her 10 years’
service be counted towards calculation of her pension, as opposed to 18
years, which the appellant was dissatisfied with thus she filed a
corrigendum application for correction of the said mistake. However, in
response, the department on 20.7.2009 informed the appellant that her
Civil Appeals No.1072/2005 & 686/2012.
-15 -
prior service with the Commissionerate could not be counted towards
her pension. Aggrieved, the appellant filed an appeal before the learned
Khyber Pakhtunkhwa Service Tribunal which was dismissed vide the
impugned judgment dated 9.4.2012 whereafter she approached this
Court. Leave was granted on 5.7.2013 in the following terms:-
“………Prima facie, it is difficult to understand that
admittedly when the petitioner had served for a period
of about 18 years in the Commissionerate and
thereafter joined the Education Department and
initially the Education Department had also accepted
her claim allowing computing of her previous service
for the purpose of pension then what prevailed with the
department subsequently in disallowing continuity. In
view of the judgment cited by the learned counsel in the
case of Zafar Shah (2003 SCMR 686) in such like
circumstances, continuity for the purpose of extending
the benefit of pension is permissible.
3.
Inter alia, to examine this aspect of the case,
leave to appeal is granted in this case………”
Subsequently on 19.9.2013, it was decided that this case was to be
heard along with Civil Appeal No.1072/2005 before the larger bench as
they both involved similar questions of law.
12.
Learned counsel for the appellant primarily submitted that
the time spent at the Commissionerate is to be counted towards her
pension in terms of Article 371-A of the CSR.
13.
On the other hand, learned counsel for the respondents
stated that due to the special facts and circumstances prevalent at that
time, the decision rendered in the case of Mir Ahmad Khan (supra) is
Civil Appeals No.1072/2005 & 686/2012.
-16 -
good law, however in the instant matter, the appellant is not entitled to
inclusion
of
the
period
she
spent
as
an
employee
of
the
Commissionerate for the purposes of pensionary benefits for the reason
that she was in fact a project employee of a non-governmental
organisation called Basic Education for Afghan Refugees (BEFARe), and
not an employee of the Federal Government, and that she had resigned
from the Commissionerate on 10.1.2005 after which she joined the
department.
14.
Learned Additional Advocate General, KPK adopted the
arguments of Mr. Hafiz S. A. Rehman, learned counsel for the
appellants in Civil Appeal No.1072/2005.
15.
Heard. The appellant’s main grievance is that the eighteen
years she spent at the Commissionerate be counted towards her service
at the department for the purposes of the grant of pensionary benefits
as per Article 371-A of the CSR, suffice it to say that the
Commissionerate for Afghan Refugees does not in any way fall within
the meaning of “temporary establishment” as defined in Civil Appeal
No.1072/2005 above to mean an organisation or institution which is
not permanent, rather effective for a certain period only as described.
Even otherwise, the appellant’s service with the department was
temporary and on a contract basis, and there is nothing on the record
which suggests that she was subsequently confirmed or made
permanent within the department. Therefore keeping in view the
interpretation of Article 371-A of the CSR explained above with regard
to Civil Appeal No.1072/2005 in that the said article would not ipso
facto allow government servants rendering temporary service in a
temporary establishment for more than five years to be entitled to grant
Civil Appeals No.1072/2005 & 686/2012.
-17 -
of pension, rather such period would only be counted towards such
government servants’ pension if otherwise entitled to pension, we are
of the opinion that the appellant is not entitled to pensionary benefits
as claimed by her.
16.
In light of the above, we find no infirmity in the impugned
judgment warranting interference by this Court, therefore this appeal is
dismissed as being devoid of merit.
Chief Justice
Judge
Judge
Judge
Judge
Announced in open Court
At Islamabad on 14-4-2016
Approved for reporting
Ghulam Raza/*
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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 MAQBOOL BAQAR
CIVIL APPEAL NO.1074 OF 2009
(Against the judgment dated 20.3.2009 of
the Lahore High Court, Lahore passed in
W.P.No.11983/2005)
Federation of Pakistan through Secretary Revenue Division,
Islamabad etc.
…Appellant(s)
VERSUS
M/s Sahib Jee etc.
…Respondent(s)
For the appellant(s):
Mr. Khalid Abbas Khan, ASC
For respondent No.1:
Nemo
For respondents 2 & 3:
Ex-parte
Date of hearing:
19.01.2017
…
ORDER
MIAN SAQIB NISAR, CJ.- On a complaint filed by
respondent No.1 (respondent) against the appellant-department, the
Federal Tax Ombudsman passed an order and made a recommendation
in favour of the respondent which (order) was not assailed by the
appellant by way of a representation in terms of Section 32 of the
Establishment of the Office of Federal Tax Ombudsman Ordinance,
2000 (the Ordinance). Instead the appellant filed a review petition in terms
of Section 14(8) of the Ordinance which was dismissed vide order dated
26.1.2004. This order was then challenged by the appellant through a
representation under Section 32 of the Ordinance which was accepted
by the President on 9.6.2005. Aggrieved, the respondent challenged the
order through a constitution petition which was allowed by the learned
Civil Appeal No.1074 of 2009
-: 2 :-
High Court through the impugned judgment. Leave was granted by this
Court in the following terms:-
“Leave is granted to consider whether the petitioners had
the remedy of representation before the President of
Pakistan against the order passed in review by Federal
Tax Ombudsman.”
2.
Heard. The Ordinance is a comprehensive legislative
instrument and a complete code in itself in consonance with its objects.
The powers of the Federal Tax Ombudsman are enunciated by Section
14 of the Ordinance. Section 10 of the Ordinance sets out the procedure
to deal with complaints or grievance petitions and the process of
collecting and recording of evidence. Section 11(1) of the Ordinance
prescribes “If the Federal Tax Ombudsman is of opinion that the matter considered
amounts to mal-administration, he shall communicate his finding with a
recommendation to the Revenue Division within a period of sixty days from the date of
receipt of the complaint, reference or motion, as the case may be (emphasis supplied)”. It
is further provided by Section 11(2) that “The Revenue Division shall, within
such time as may be specified by the Federal Tax Ombudsman, inform him about the
action taken on his recommendations or the reasons for not complying with the same”.
Be that as it may, recourse against any recommendation made
pursuant to Section 11, is provided by means of a representation to the
President as prescribed by Section 32 of the Ordinance which reads as
under:-
32.
Representation to President.– The Revenue
Division or any person aggrieved by a recommendation of
the Federal Tax Ombudsman may, within thirty days of
the recommendation, make a representation to the
Civil Appeal No.1074 of 2009
-: 3 :-
President who may pass such order thereon as he may
deem fit.”
In addition, the Federal Tax Ombudsman is also empowered by Section
14(8) to exercise the power of review. The provision reads as under:-
“The Federal Tax Ombudsman shall have the power to
review any finding communicated or recommendation
made or any order passed by him”.
3.
From the above noted provisions of the Ordinance,
particularly Section 32 thereof, it is abundantly clear that when the
Revenue Division or any person is aggrieved of a recommendation
made by the Federal Tax Ombudsman in terms of Section 11 of the
Ordinance, it/he may file a representation to the President of Pakistan
within 30 days of such recommendation. This remedy of representation,
though not stricto sensu akin to an appeal, is nevertheless a statutory
remedy and, therefore, the provision must be strictly construed and
applied, meaning thereby that a representation is only available to
either the Revenue Division or an aggrieved person as against a
recommendation of the Federal Tax Ombudsman within 30 days’ time.
Section 32 of the Ordinance does not envisage a representation against
an order passed by the Federal Tax Ombudsman which is not in the
nature of a recommendation. However, as mentioned earlier, Section
14(8) of the Ordinance empowers the Federal Tax Ombudsman to
review “any finding communicated or recommendation made or any order passed by
him”. This power of review either invoked on behalf of an aggrieved
person or the Revenue Division (note:- perhaps even under the exercise of suo motu
powers, but as this is not a moot point before us therefore no definitive opinion is being
expressed) has a wider scope and three kinds of decisions can be reviewed
Civil Appeal No.1074 of 2009
-: 4 :-
by the Federal Tax Ombudsman:- (i) the findings which were
communicated in terms of Section 11; (ii) a recommendation made by
him; or (iii) any other order passed by him. If, whilst exercising this
power of review, the Federal Tax Ombudsman sets aside his earlier
decision, irrespective of whether it was a recommendation or not, and
passes a new recommendation in the order of review, then this (new
recommendation) shall have been passed pursuant to Section 11(1) ibid and
a representation would be competent against it. Conversely, where a
recommendation earlier made by the Federal Tax Ombudsman is not
set aside while exercising the power of review, the order dismissing the
review petition would not be tantamount to a fresh recommendation in
terms of Sections 11 and 32 of the Ordinance against which a
representation could be competently filed. In light whereof, we do not
find any merit in this appeal which is hereby dismissed.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
19th January, 2017
Approved For Reporting
Waqas Naseer/*
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SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed
Mr. Justice Maqbool Baqar
Mr. Justice Faisal Arab
Mr. Justice Ijaz ul Ahsan
Mr. Justice Sajjad Ali Shah
C.As.No.1076 to 1089/2019
[Against the judgment dated 20.02.2018, passed by the High Court of
Balochistan, Quetta in W.Ps.No.288-292, 296-297 of 2012 ]
Martin Dow Marker Ltd., Quetta.
(in CAs No.1076-1082)
Asadullah Khan.
(in CA No.1083)
Naeem Khan.
(in CA No.1084)
Muhammad Shamrez Khan.
(in CA No.1085)
Noor ur Rehman.
(in CA No.1086)
Rizwan Ali Bukhari.
(in CA No.1087)
Muhammad Aslam.
(in CA No.1088)
Banaras Khan.
(in CA No.1089)
…Appellant (s)
Versus
Asadullah Khan & others.
(in CA No.1076)
Muhammad Aslam & others.
(in CA No.1077)
Banaras Khan & others.
(in CA No.1078)
Noor ur Rehman & others.
(in CA No.1079)
Muhammad Shamrez & others.
(in CA No.1080)
Rizwan Ali Bukhari & others.
(in CA No.1081)
Naeem Khan & others.
(in CA No.1082)
Merck (Private Ltd.), Quetta & others. (in CAs No.1083-1089)
…Respondent(s)
For the Appellant (s)
(in CAs No.1076-1082) and
For the Respondent (s)
(in CAs No.1083-1089)
: Mr. Shahid Anwar Bajwa, ASC
Mr. Habib ur Rehman, Head of
Admn, Martin Dow.
For the Respondent (s)
(in CAs No.1076-1082) and
For the Appellant (s)
(in CAs No.1083-1089)
: Mr. Muhammad Sajid Khan, ASC
Mr. Ayaz Khan Swati, Addl.A.G.
Balochistan
Date of Hearing
: 05.12.2019
J U D G M E N T
GULZAR AHMED, J. — The private respondents in
C.As.1076 to 1082 of 2019 and appellants in C.As.1083 to 1089 of
C.As.No.1076 to 1089/2019
- 2 -
2019 (the respondents) were employed by the Martin Dow Marker
Limited/appellant-company in C.As.1076 to 1082 of 2019 and
Merck Private Ltd. (whose operations were acquired by Martin Dow
Marker Limited)/respondent-company in C.As.1083 to 1089 of
2019 (the appellant). Some of the respondents were employed
directly as officers and others were promoted as officers. Vide letter
dated 22.05.2009, the services of all the respondents were
terminated on the ground that their services were no longer
required by the appellant-company. The respondents challenged
the termination orders by filing grievance petitions before the
Labour Court. Such grievance petitions were allowed by the Labour
Court vide judgment dated 29.06.2011 with the direction to the
appellant to reinstate the respondents in service with full back
benefits. The appellant filed appeals before the Labour Appellate
Tribunal, which were dismissed vide judgment dated 17.04.2012.
Thereafter, the appellant filed Constitution Petitions before the
High Court of Balochistan at Quetta. The High Court, through the
impugned judgment dated 20.02.2018, disposed of these petitions,
maintaining the relief of reinstatement in service of the
respondents as granted by the Labour Court and upheld by the
Labour Appellate Tribunal but disallowed back benefits to the
respondents. The appellant as well as the respondents have
challenged the said judgment of the High Court by filing separate
appeals before this Court.
2.
Learned counsel for the appellant has contended that
the respondents were not workmen but were appointed or
C.As.No.1076 to 1089/2019
- 3 -
promoted as officers. He states that they were being paid the
salaries of officers and that the work assigned to them was also
that of officers. Additionally, the respondents were not members of
the workers’ union and those who were promoted as officers, had
their names removed from the membership of the workers’ union.
He has contended that all the forums below, have in this regard
misread the evidence on the record and have based their findings
merely on oral assertions made by the respondents and not on any
written material. He has further contended, that the respondents’
conduct throughout the proceedings has been aimed at keeping
the appellant entangled in the litigation without demonstrating
their bona fides to work as employees, and that this is well
reflected by the fact that they are using the Court and its
proceedings as a tool for their enrichment without doing any work
whatsoever for the appellant. He has referred to a letter dated
26.02.2018, issued by the appellant to each of the respondents
where all the respondents were reinstated in service and asked to
report for duty, however, none of the respondents replied to such
letter nor reported for duty uptill now, rather oral objection of the
respondents heard by the appellant was that they should be
reinstated as officers and not as workmen, despite the fact that
they were offered salary of officers, similar to the one they were
drawing at the time of their termination or rather more than that.
Learned counsel has further contended that the respondents have
conducted themselves in such a manner, where their very
approach appears to be not bona fide, rather it appears that they
are pursuing these cases with unclean hands, and hence, equity
C.As.No.1076 to 1089/2019
- 4 -
does not entitle them to any relief; more so, the relief of
reinstatement granted to the respondents by the forums below
ought to be refused to them.
3.
On the other hand, learned counsel appearing for the
respondents has contended that so far as the question, as to
whether the respondents were workmen or not, is concerned, the
same has been established before the Labour Court through
evidence and the Labour Court has accepted such position of the
respondents and declared them to be workmen. Such finding of the
Labour Court was upheld by the Labour Appellate Tribunal, so
also by the High Court and now at this stage, such concurrent
finding of the three forums below cannot be interfered with by this
Court.
4.
Learned counsel for the respondents was confronted
with the letter dated 26.02.2018, sent by the appellant, whereby
the respondents were reinstated in service, he admitted that such
letter was issued by the appellant to all the respondents but the
respondents did not accept the same for the reason that they were
being reinstated as workmen and not as officers, which was the job
they were undertaking at the time of their termination.
5.
We have considered the submissions of the learned
counsel for the parties and have also gone through the record of
the case.
6.
The question about respondents being workmen or not
need not detain us for long for the reason that such question has
C.As.No.1076 to 1089/2019
- 5 -
already been considered by the Labour Court so also by the Labour
Appellate Tribunal and there is concurrent finding of fact that the
respondents are workmen and such concurrent finding has also
been upheld by the High Court by the impugned judgment. For
displacing such concurrent finding of fact, upheld by the High
Court exercising writ jurisdiction under Article 199 of the
Constitution, learned counsel for the appellant was required to
show and establish misreading of evidence and wrongful exercise
of jurisdiction by the forums below in holding that the respondents
were workmen. Incidentally, no evidence from record was shown to
us, which may lend support to the submissions of the learned
counsel for the appellant that the respondents were not workmen.
Thus, we are not persuaded to disturb the finding of the forums
below on this question.
7.
As regards further submission of the learned counsel
for the appellant that the respondents were issued letter dated
26.02.2018 by the appellant by which the respondents were
reinstated in service by the appellant but none of the respondents
have
reported
for
duty
uptill
now
needs
some
serious
consideration.
8.
After having succeeded in the three forums below, the
respondents were issued respective letter of reinstatement in
service dated 26.02.2018 by the appellant, a copy whereof is
available at page 191 of the record of Civil Appeal No.1076 of 2019.
The learned counsel for the respondents admitted issuance of this
letter of reinstatement to all the respondents and also admitted
C.As.No.1076 to 1089/2019
- 6 -
that pursuant to this letter none of the respondents have joined
duty with the appellant. Learned counsel for the respondents was
asked to give reasons as to why the respondents have not complied
with the order of reinstatement contained in the letter dated
26.02.2018, he stated that the respondents were employed as
officers, however, by this letter of reinstatement they were not
given employment as officers but that of a workman. Learned
counsel for the respondents was also asked whether any of the
remunerations and dues were reduced by the appellant by this
letter of reinstatement dated 26.02.2018, his reply was in negative.
This scenario, before this Court, obviously, created a serious issue
regarding the bona fide of the respondents. The very bona fide of
the respondents in pursuing their remedies before the Courts of
law seeking their reinstatement in service of the appellant,
becomes doubtful, in that, the contention of the learned counsel
for the appellant that the respondents are pursuing these cases
only for obtaining monetary benefits and have no intention, desire
or will, to work as workmen in the establishment of the appellant,
seems convincing, more so, when it was not seriously disputed by
learned counsel for the respondents.
9.
This development before us, led us to take a step back
and ponder on the very bona fide of the respondents in pursuing
these cases before the Courts of law, for that, through letter dated
26.02.2018, they were reinstated but admittedly till date, none of
them have joined duty with the appellant. We have asked the
learned counsel for the respondents to show that any written
C.As.No.1076 to 1089/2019
- 7 -
communication by the respondents to the appellant in response to
the letter of reinstatement dated 26.02.2018 was made, he replied
in the negative, meaning thereby that the respondents have not
objected to the letter of reinstatement. Non objection to the letter of
reinstatement and also non reporting for duty reflect gravely on the
part of the respondents.
10.
We may note that the appellant in the letter of
reinstatement has given two days’ time to the respondents to join
duty, failing which they will be marked absent and appropriate
action will be taken. It is obvious that neither the respondents
reported for duty nor action was taken by the appellant. We have
tried to balance this very aspect of the matter and have resolved
the same by reasoning that the respondents had no reason or
justification at all nor any was shown to us for their none reporting
for duty on their reinstatement in service by letter dated
26.02.2018.
11.
On the other hand, there being three judgments of the
forums below in favour of the respondents on the point of
reinstatement and appellant having filed these appeals, which
being pending, the appellant in deference did not take action
against the respondents for the none reporting for duty, rather
placed the copy of letter of reinstatement on record of their appeals
and left the matter to be dealt with by this Court, which in our
view, was the fair and correct conduct of the appellant. Further, if
the appellant had taken action against the respondents, multiple
C.As.No.1076 to 1089/2019
- 8 -
litigation would have arisen and there would be no end to the
dispute.
12.
There is no denial of the fact that under Standing
Order 15 of the Schedule to the Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968, non-obeying of a
reasonable order of the employer by the employee and remaining
absent from duty for more than 10 days constitute misconduct on
the part of an employee, the penalty for which includes dismissal
from service. Here in this case, the respondents have not obeyed
the order of reinstatement of their employer, the appellant, and
have also remained absent from duty for more than one year and
nine months and the respondents have given no reason whatsoever
for not complying with the letter of reinstatement in service dated
26.02.2018, except an oral assertion that they were offered
reinstatement as workmen and not as officers. This assertion, on
the part of the respondents itself is contradictory, for that, they
have themselves approached the Labour Court claiming to be
workmen and the Labour Court and the Labour Appellate Tribunal
having given concurrent finding of fact that the respondents were
workmen and such concurrent finding of fact having being upheld
by the High Court vide the impugned judgment, it was altogether
unbecoming on the part of the respondents to claim their
reinstatement as officers and such desire of the respondents, by no
means, can be considered to be a reasonable one. 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
C.As.No.1076 to 1089/2019
- 9 -
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 Sharif, 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. & others v. M/s Travels Shop (Pvt) Ltd. & others [PLD 2014
SC 1]; Mst. Amatul Begum v. Muhammad Ibrahim Shaikh [2004
SCMR 1934]; and Imam Bakhsh & 2 others v. Allah Wasaya & 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 & 2 others v. Mst. Ahmero & 11 others
[2000 SCMR 866]; and S.A.M. Wahidi v. Federation of Pakistan
through Secretary Finance & others [1999 SCMR 1904].
14.
This Court does not wish to go on the premise that the
respondents have committed misconduct of non-obedience of
reasonable order of their employer or have remained absent from
duty for more than ten days, in terms of Standing Order 15 ibid,
but takes a simplistic view of the matter, as has unfolded before it
that of respondents own making, showing no regard to the orders
C.As.No.1076 to 1089/2019
- 10 -
of the three forums below, which they have obtained on their own
grievance petitions, by which they were reinstated in service and
such reinstatement was granted by the appellant. Thus, it appears
that the respondents themselves abandoned the relief they had
obtained from the forums below. Nothing was shown to us by the
learned counsel for the respondents that the findings of the High
Court, not allowing the back benefits to the respondents, could be
found to be suffering from any misreading of the record or
wrongful exercise of jurisdiction.
15.
In this view of the matter, the appeals filed by the
respondents (Civil Appeals No.1083 to 1089 of 2019), are
dismissed.
16.
So far as the appeals filed by the appellant are
concerned, the same have been filed challenging the impugned
judgment,
whereby
the
respondents
have
been
granted
reinstatement in service only. It is already observed above that the
respondents have themselves abandoned the relief of reinstatement
in service granted to them as is established from the fact that as
back as on 26.02.2018, they were given letter of reinstatement in
service by the appellant, which reinstatement in service was not
accepted by the respondents as they remained absent from duty.
During the course of hearing before the Court, the learned counsel
for the respondents did not at all mention that the respondents are
willing and prepared to report for duty and work in the
establishment of the appellant. Thus, where the respondents
themselves are not willing and prepared to work in the
C.As.No.1076 to 1089/2019
- 11 -
establishment of the appellant and this conduct of the respondents
is apparently, based upon the fact that they are not going to get
any monetary benefit pursuant to the impugned judgment and also
the letter of reinstatement, for that, the impugned judgment has
not allowed back benefits to them and such also stands refused by
this Court. The respondents seem to be content and satisfied with
their current situation, whatever it may be. In this view of the
matter, the only conclusion which could be arrived at is none other
than that of allowing the appeals filed by the appellant.
Consequently, the appeals filed by the appellant (Civil Appeals No.
1076 to 1082 of 2019) are allowed and the impugned judgment
dated 20.02.2018 passed by the learned Division Bench of the
High Court allowing the reinstatement in service of the
respondents is set aside. No order as to costs.
JUDGE
JUDGE
JUDGE
JUDGE
JUDGE
Larger Bench-II
ISLAMABAD
05.12.2019
Approved for reporting.
Rabbani*/
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE FAISAL ARAB
CIVIL APPEAL NO.1079 OF 2011 AND C.M.A.2273/2013
(Against the judgment dated 08.08.2011 of the High Court of Sindh, Karachi
passed in C.P. No.1337/2010)
Collector of Customs (Export) and others
…Appellant(s)
VERSUS
Saifuddin
…Respondent(s)
For the appellant(s):
Mr. Shakeel Ahmed, ASC
For the respondent(s):
Sardar Muhammad Aslam, ASC
Ch. Akhtar Ali, AOR
Date of hearing:
17.5.2017
…
JUDGMENT
MIAN SAQIB NISAR, CJ.- The facts of this appeal are that
the respondent (seller) entered into various contracts dated 7.7.2009 with
a British buyer for the export of copper, aluminum and brass scrap. The
customs authorities charged regulatory duty at the rate of 25% ad
valorem on such export vide notification dated 13.03.2010 (the notification)
issued by the Federal Government in terms of Section 18(3) of the
Customs Act, 1969 (the Act) which was to remain in force till 30.6.2010.
The respondent successfully challenged the notification and the
imposition of regulatory duty through a constitution petition before the
learned High Court which held that irrespective of the notification, the
respondent was not liable to pay regulatory duty. Leave was granted on
7.12.2011 “to consider whether the High Court erred in law to hold that Section 31
and 31-A excludes application of Section 131 of the Customs Act, 1969 for the purpose of
calculation of duty and taxes for export purpose.”
CIVIL APPEAL NO.1079 OF 2011
-: 2 :-
2.
Heard. To answer the key question as to whether the
respondent was liable to pay regulatory duty upon the goods he exported,
it must be seen whether regulatory duty was leviable under the law. In
this regard, Section 18 of the Act is relevant which reads as under:-
18. Goods dutiable.- (1) ………………………………………
(1A)
……………………………………………………………
(2)
No export duty shall be levied on the goods
exported from Pakistan.
(3)
The Federal Government may, by notification in
the official Gazette, levy, subject to such conditions,
limitations or restrictions as it may deem fit to impose, a
regulatory duty on all or any of the goods imported or
exported, as specified in the First Schedule at a rate not
exceeding one hundred per cent of the value of such
goods as determined under section 25 or, as the case may
be, section 25A.
(4)
The regulatory duty levied under sub-section (3)
shall–
(a)
be in addition to any duty imposed under sub-
section (1) or under any other law for the time
being in force; and
(b)
be leviable on and from the day specified in the
notification
issued
under
that
sub-section,
notwithstanding the fact that the issue of the official
Gazette in which such notification appears is
published at any time after that day.
(5)
…………………………………………………………
(6)
…………………………………………………………
[Emphasis supplied]
Section 18 of the Act is a charging section and sub-section (2) thereof
provides that no export duty shall be levied on the goods exported from
Pakistan.
However,
under
sub-section
(3)
thereof,
the
Federal
Government is authorized, by notification in the official Gazette, to levy a
CIVIL APPEAL NO.1079 OF 2011
-: 3 :-
regulatory duty on all or any of the goods exported, as specified in the
First Schedule, subject to such conditions, limitations or restrictions as
it may deem fit. Furthermore, the rate of the duty would not be more
than one hundred per cent of the value of such goods, as determined
under Section 25 or 25A of the Act. According to sub-section (4), the
regulatory duty so levied, would be in addition to any duty imposed
under sub-section (1) or under any other law for the time being in force
and would be leviable on and from the day specified in the notification,
notwithstanding the fact that it was published at any time after that day.
3.
In this regard learned counsel for the respondent argued
that allowing the Federal Government to impose regulatory duty on
exports under Section 18(3) of the Act would render sub-section (2)
thereof redundant, and that the notifications issued by the Federal
Government under Section 18(3) supra constitute subordinate legislation
and would thus be subservient to sub-section (2) from which the
intention of the legislature is clear, in that no export duty is to be levied
on the goods exported from Pakistan. This is also the finding of the
learned High Court in the impugned judgment. We disagree. It is worthy
to note that sub-sections (2) and (3) of Section 18 of the Act are part of
the same provision (Section 18) and were introduced at the same time, i.e.
in 2005 vide Finance Act, 2005 (VII of 2005) when the erstwhile Section
18 was substituted. Therefore, neither of the sub-sections could be said
to be subordinate to the other. What is important is the intention of the
legislature, which is to be gathered from a holistic reading of Section 18
of the Act. While adopting the rule of harmonious interpretation of
statutes, we find that sub-section (2) provides the general rule that all
goods exported from Pakistan shall not be charged with export duty,
whereas sub-section (3) provides the exception to such general rule, in
that it specifically authorizes the Federal Government to impose a
CIVIL APPEAL NO.1079 OF 2011
-: 4 :-
regulatory duty, by notification in the official Gazette, on all or any of the
goods imported or exported. A combined reading of both the sub-sections
makes it abundantly clear that neither do they conflict with each other
nor does either have supremacy over the other. ‘Regulatory duty’ has
been examined in the judgment reported as Messrs Sh. Abdur Rahim,
Allah Ditta Vs. Federation of Pakistan and others (PLD 198 SC 670)
wherein the rationale for conferring the power to impose such duty was
discussed. This Court held in the judgment (supra) that regulatory duty is
meant to remove/check distortions in the market and to ensure stability,
and that the Federal Government was validly delegated with the
power/discretion to impose the same (regulatory duty). Therefore, the two
sub-sections are consistent. Hence, the notification issued by the Federal
Government under Section 18(3) of the Act imposing a regulatory duty on
certain export items is valid and legal and such duty would be
chargeable from the date of the notification, i.e. 13.3.2010 till 30.6.2010.
4.
In order to answer the question as to whether regulatory
duty was in fact payable by the respondent, we need to examine the
relevant date for determination of the rate of duty on exported goods. In
this regard, Section 31 of the Act is relevant which reads as under:-
31. Date for determination of rate of duty on goods
exported.- The rate and amount of duty applicable to any
goods exported shall be the rate and amount chargeable
at the time of the delivery of the goods declaration under
section 131:
Provided that where the export of any goods is
permitted without a goods declaration or in anticipation of
the delivery of such a declaration, the rate and amount of
duty applicable shall be the rate and amount chargeable on
the date on which loading of the goods on the outgoing
conveyance commences:
Provided further that the Federal Government may,
by notification in the official Gazette, for any goods or
CIVIL APPEAL NO.1079 OF 2011
-: 5 :-
class of goods, specify any other date for determination of
the rate of duty.
[Emphasis supplied]
As per this Section, the relevant time for determination of the rate of duty
on goods exported is the date of the delivery of the goods declaration
under Section 131 of the Act, which reads as below:-
131. Clearance for exportation.- (1) No goods shall be
loaded for exportation until-
(a)
the owner of any goods to be exported has made a
declaration in such form and manner as
prescribed by the Board, by filing a goods
declaration to Customs containing correct and
complete particulars of his goods, and assessed
and paid his liability of duty, taxes and other
charges, if any;
(b)
the claim of duty drawback, if any, has been
calculated and reflected in the declaration filed for
export through Customs Computerized System;
(c)
Customs has, on the receipt of goods declaration
under clause (a), satisfied itself regarding the
correctness of the particulars of export, including
declaration, assessment, and payment of duty, taxes
and other charges and verified the admissibility of
the duty drawback claimed as specified in clause
(b); and
(d)
the appropriate officer has permitted passenger‘s
baggage
or
mail
bags,
to
be
exported
notwithstanding clauses (a), (b) and (c).
(2)
…………………………………………………………
[Emphasis supplied]
Section 131 ibid deals with the clearance of goods for exportation for
which there are various elements [parts (a) to (d) of sub-section (1)] out of which
one, i.e. sub-section (1) part (a), is that no goods shall be loaded for
exportation until the owner has made a declaration by filing a goods
declaration to the customs authorities. This is the sole element which
Section 31 ibid refers to. From a plain reading of both Sections 31 and
CIVIL APPEAL NO.1079 OF 2011
-: 6 :-
131 [particularly sub-section (1)(a)] of the Act, it is manifest that the common
feature is that of goods declaration and therefore duty shall be charged
at the rate applicable on the date when the goods declaration is delivered
or filed.
5.
In this context, as regards the goods for which the
declarations were filed on or after the date of the notification, i.e.
13.3.2010, in the light of the above discussion on Sections 31 and 131 of
the Act, we find that such export goods were liable to regulatory duty as
envisaged by the notification. In juxtaposition, those goods for which the
declarations were filed prior to the issuance of the notification, such
export were goods were not liable to regulatory duty under the
notification. However, the learned counsel for the appellant submitted
that with respect to the latter category of goods, though the declarations
were filed prior to the issuance of the notification, they too were liable to
regulatory duty as they (goods declarations) were subsequently amended
after the date of the notification. In this regard it is pertinent to note that
the instant appellant raised this objection before the learned High Court
but the respondent explained that the amendments to the goods
declarations were necessitated due to the change of the vessel on which
the scrap was to be exported. The learned High Court accepted this
explanation on the ground that as long as the ‘particulars of the goods’,
required to be correct and complete as per Section 131(1)(a) of the Act,
remained the same, then any subsequent substitution, amendment of
revision in respect of any other information to be contained in the
declaration, is immaterial for the purpose of Section 31 of the Act. We
find that the view taken by the learned High Court in this regard is
correct and uphold the same.
6.
It is the respondent’s case that the contracts for the sale of
goods to be exported had been entered into on 7.7.2009 before 13.3.2010
CIVIL APPEAL NO.1079 OF 2011
-: 7 :-
which is the date of the notification. Therefore, on the basis of the
judgment reported as Al-Samrez Enterprise Vs. The Federation of
Pakistan (1986 SCMR 1917) no duty can be imposed and collected from
the respondent. It is the case of the appellants that the respondent is not
entitled to the benefit of the law laid down in Al-Samrez’s case (supra)
which has been nullified by the legislature through the insertion of
Section 31A in the Act according to which, for the purposes of Section
30, 30A and 31, the rate of duty applicable to any goods shall include: (a)
any amount of duty imposed under Section 18, 18A and 18C; and (b) the
amount of duty that may have become payable in consequence of the
withdrawal of the whole or any part of the exemption or concession from
duty; whether before or after the conclusion of a contract or
agreement for the sale of such goods or opening of a letter of credit in
respect thereof. Thus, according to the learned counsel for the appellant,
the time of conclusion of the contract becomes irrelevant and thus the
respondent would be liable to pay regulatory duty upon his export goods.
For ease of reference, Section 31A is reproduced hereunder:-
31A. Effective rate of duty.- (1) Notwithstanding anything
contained in any other law for the time being in force or
any decision of any Court, for the purposes of section 30
69, 30A and 31, the rate of duty applicable to any goods
shall include any amount of duty imposed under section 18,
18A and 18C and the amount of duty that may have become
payable in consequence of the withdrawal of the whole or
any part of the exemption or concession from duty whether
before or after the conclusion of a contract or agreement
for the sale of such goods or opening of a letter of credit in
respect thereof.
(2)
……………………………………………………………
7.
As mentioned in the earlier portion of this opinion, according
to Sections 31 and 131 of the Act, the only relevant factor is that of
CIVIL APPEAL NO.1079 OF 2011
-: 8 :-
delivery of the goods declaration. It is worthy to note that the two said
sections make no reference whatsoever to the date of entering into or
conclusion of contract. This Court in Al-Samrez’s case (supra) held that if
a binding contract was concluded between the parties (importer and the foreign
exporter) or steps were taken by the importers creating a vested right
under the existing notification granting exemption, the benefit of an
exemption could not be taken away and destroyed in modification of the
earlier one. In order to overcome the said decision, Section 31A supra
was inserted in the Act, wherein the legislature used the words “before or
after the conclusion of a contract or agreement for the sale of such goods or opening of a
letter of credit”. However, we find that this has absolutely no nexus to the
issue at hand for which “delivery of the goods declaration” is relevant as per
Sections 31 and 131 of the Act, as mentioned above. Thus, as the
decisive factor remains to be delivery of the goods declaration, Section
31A ibid would have no relevance or application to the instant case.
8.
In the light of the above, this appeal is partly allowed. It is
dismissed to the extent that where the goods declarations were filed
before the date of the notification, i.e. 13.3.2010, no regulatory duty was
payable by the respondent. However, where the goods declarations were
filed on or after such date, the respondent was liable to pay regulatory
duty as envisaged by the notification and to this extent, the appeal is
allowed.
C.M.A. No.2273/2013
9.
As we have heard the learned counsel for the respondents,
therefore this application is disposed of accordingly.
10.
The foregoing are the reasons for our short order of even date
which reads as under:-
“For the reasons to be recorded later, this appeal is partly
allowed, in that it is dismissed to the extent of the Goods
CIVIL APPEAL NO.1079 OF 2011
-: 9 :-
Declaration (GD) filed by the respondent for export of his
goods before the imposition of Regulatory Duty on
13.03.2010, and is allowed to the extent that the GD was
filed, and even if not filed, on or after 13.03.2010.”
CHIEF JUSTICE
JUDGE
JUDGE
ISLAMABAD.
17th May, 2017.
Approved for reporting
Mudassar/
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT
Mr. Justice MaqboOI Baqar
ML Justice Qazi Muhammad Amin Ahmed
Civil
IN s . 1079 and 1080 of 2015
(Against the judgment doted 22.05.2015 of
the Islamabad High Court, Islamabad
passed in CR Nos. 475 & 552/2001)
Intelligence Bureau Employees Cooperative
Housing Society thr. its Secretary
Versus
Shabbir Hussain & others
Appellant(s)
Respondent(s)
For the Appellate(s)
Syed Noyab Hassan Gardezi, ASC
Mr. Ahmed NawaZ Ch. AOR
Malik Attat Hussain Awan, ASO
Mr. Agha Muhammad All, ASC
Syed Rifaqat Hussain Shah, AOR
Ex-parte
10 .06 .202 1
For Respondent No. 1
For respondent No-6
Others
Date of Hearing
JIJDGMENJ
Maabool BaciaLJ. The instant appeal with leave of the
Court has arisen out of judgment dated 22.05.2015 of the
Islamabad High Court, whereby the learned Judge in Chambers
dismissed the Civil Revisions filed by the appellant and
maintained the judgment and decrees of the fora below.
2. The respondent No. 1, Shabbir Hussain, on 27.06.1990,
brought a suit for declaration, possession and permanent
injunction against Muhammad Aslam, the respondent No. 2, and
Mst. Channo Bibi, the predecessofrmnlnterest of respondent Nos. 3
& 4. He claimed that his maternal grandfather, Niaz All owned
and possessed, 50% of lands, bearing various khasra numbers, as
I
CA-L079 10e0115
2
mentioned in the plaint, in the revenue estates of village
Lohibher, village Panwal and village Phokar ("the suit lands"). It
was averred that the only child of Niaz Ali, Mst. Ghori, who was
the mother of respondent No. 1, passed away in the year 1953.
Niaz Ali also expired in the year 1970, and on 14.04.1970,
respondent No. 2, who was the father of respondent No. 1, and
was also the nephew of Niaz Ali, and Mst. Channo Bibi, who was
sister of Niaz AU, got the mutation of succession of the suit lands
recorded in their favour to the exclusion of respondent No. L of
which mutation, respondent No. 1 came to know two months
before filing of the suit, whereupon he requested the said two
respondents to transfer the suit lands to him, as he being the
grandson of Niaz All, was legally entitled to the same. However,
they refused to comply and thus the respondent No. I was
constrained to file the suit.
3.
Muhammad Aslam, the respondent No. 2 filed a
conceding written statement, whereas Mst. Channo Bibi, through
her written statement contested the suit on the ground of its
being barred by limitation. It was contended that the suit was
bad for misjoinder of different causes of action and was mob
fide.
4.
There is no denying the fact that the suit lands were
owned by Niaz Au. It has also not been disputed that Niaz Ali was
the maternal grandfather of Respondent No.1. It is also an
admitted fact that Mst. Ghori, the only child of Niaz Ali and the
mother of respondent No.], died in the year 1953. It is also a
S
common ground between the parties that upon demise of Niaz
All in the year 1970, the only persons left behind to succeed to
the estate of the deceased were respondent No.1, 2 and Mst.
Channo Bibi. The respondent No.1 being the son of the pie-
deceased daughter of the deceased, which daughter was his
only child, was, under the relevant law, entitled to inherit 1/2 share
of the estate of the deceased at the time of his succession.
However, through mutations dated 14.4.1970, the succession of
the lands were recorded in favour of respondent No.1 and Mst.
Chanoo Bib!, to the exclusion of respondent No.1.
5. The respondent No.1, even if his age is counted from
the year 1953, when his mother died, was of 17 years when the
impugned mutation entries dated 14.4.1970, were recorded. He
became a major the very next year i.e. in the year 1971. The
lands in dispute, as came to light before the trial Court, during the
testimony of DW-1, the attorney of Mst. Chanoo on 10.3.1996,
were subsequently sold by respondent No.2 to the appellant
society. However it was as late as on 27.06.1990, that the
respondent No.1 filed the suit, and that too just in respect of the
inheritance mutations dated 14.4.1970 and against respondent
No.2 and Mst. Chanoo Bibi only. It was only after the factum of
sale of the lands came to fore as noted above, that the
respondent No.1, on 31.5.1997, filed the amended plaint
challenging the sale mutations in respect of the suit lands in
favour of the appellant, i.e. almost 10 years after the impugned
-I
CA 1079 & wee/is
4
sales, the lands, as noted in detail hereunder, having been sold in
the years 1986 and 1987.
6.
The appellant society through their written statement
raised various preliminary objections to the maintainability of the
suit. It was, inter alia, contended that the suit was hopelessly
barred by limitation. They denied the claim as set up by
respondent No.] in the plaint, it was averred that the appellant
had purchased, 11 Kanals and 7 Marlas of the suit lands from
respondent No.2, through registered sale deed dated 01.1.1987,
and from Mst. Chanoo Bibi, land measuring 3 Kanals and 7
Marlas, through registered sale deed dated 03.11.1986,
respectively. The appellant claimed that they had, before
purchasing the Iands,verified the vendor's title from the relevant
revenue record. It was alleged that the suit has been filed just to
blackmail the appellant.
7.
After conclusion of evidence, the Civil Judge,
decreed the suit as prayed. The appeals against the said
judgment and decree were dismissed. Revision filed by the
appellant and the legal heirs of Mst. Chanoo Bibi, were dismissed
through the impugned judgment.
8.
As noted earlier also the respondent No.] was at least
17 years of age when the impugned inheritance mutations were
recorded in favour of his father, the respondent No.2 and his
grandmother, Mst. Chanoo Bibi, the sister of late Niaz Ali. The
address of the respondent No.], in the record throughout is the
same as that of his father, the respondent No.2. Mst. Chanoo Bibi,
-J
CA 1079 & 10601IS
5
also lived in the some village. The suit lands are situated where
the respondent No.1 has lived throughout. As noted earlier, the
respondent No.] attained majority at the most, a year after the
impugned inheritance mutations were recorded. Even at the
time of impugned mutations, he was, by all accounts, of a
sensible age. In any event if the said respondent was truly and
genuinely aggrieved by the said impugned mutations, he ought
to have challenged the same within three years of his attaining
majority. However he filed the suit as late as on 27.06.1990.
Although in his plaint, the respondent No.] claimed that he came
to know about the inheritance mutations only a month before
filing of the suit. However, neither has he disclosed as to on what
date, how, and through whom he acquired the knowledge as
claimed. He further claimed that having known about the
mutations, he requested the respondent No.2 and Mst. Chanoo
Bibi, to transfer the suit land in his favour, but they refused.
However in that regard also neither has he given any details, nor
produced any evidence or material. In fact the attorney of
respondent No.], namely, lftikhar Ahmed, the PW-1, who
appeared as his sole witness, has not even claimed that the
respondent No.], received any information regarding the
inheritance mutations at all. It has come in the evidence that the
subject lands, after being sold to the appellant society, have,
way back in the year 1988, been developed into a housing
society, and the plots so created have been allotted to the
members of the society, who have built their houses/buildings
IMI
CA 1079 &ESQLLS
thereon. It has also gone unrebutted that roads have been built
and basic amenities have been provided in the housing society
so developed. The respondent No.1 did not even plead that he
remained away from his house/village anytime during the
relevant period.
9. In view of the foregoing, it is difficult to believe that
respondent No.1, throughout the long period of about 20 years,
remained ignorant of the impugned inheritance mutations, and
came to know about them only a month before filing the suit that
he filed on 27.06.1990. In fact there is not even a verbal utterance
by the plaintiff's witness in this regard at all. It is equally difficult to
believe that respondent No.1 remained ignorant of the
impugned sales till the time he filed the amended plaint,
impleading the appellant society as defendant, more so, when
throughout the relevant period he lived in the same village with
his father, and by the time the lands were sold, the respondent
No.1 has attained the age of about 33 years. It is inconceivable
that living in the some village where the lands are situated, the
respondent No.1 would not have noticed the fact that not only
the physical possession of the lands were delivered to the
appellants but the appellants also changed the usage/status of
the land from agricultural to residential/commercial, and
developed them into a housing society, with necessary
infrastructure and amenities, and that the lands were
sold/allotted to the members of the society who raised
construction of their houses/buildings therein.
U.S
cAJQ72_& 1080/15
7
10. However the respondent No.] concealed the
impugned sales from the Court and sought amendment in the
plaint with regard thereto only after DW-1, the attorney of Mst.
Chanoo Bibi, deposed about the sale before the trial Court on
10.3.1996, and filed the amended plaint challenging the sale
mutations for the first time on 31.5.1997.
H. It is not the case of the respondent No.] that he was
not aware that Niaz Ali has left behind the suit lands and/or that
he (the respondent No.1) was entitled to 50% share therein,
(although even the plea of ignorance of his entitlement would
not have been of any avail), he however neither objected to the
inheritance mutations dated 14.4.1970, nor made any efforts to
seek amend, and for the entries to be corrected to represent his
50% share in the lands till filing of the suit on 27.6.1990, although
the respondent No.1 attained majority in the year 1971 within
about one year of the date of impugned mutations, and had
become legally capable and competent to seek enforcement of
his legal rights. The respondent No.1 has also not pleaded any
circumstance which may have mislead him into believing that his
title/rights in the land were secure, and were not jeopardized. He
did not claim that he ever remained in possession of the lands,
actual or constructive, and/or he was getting his share in the
produce of the lands. The lands were sold by respondent No.2
and Mst. Chanoo Bibi, for valuable, consideration through
registered sale deeds in the year 1986 and 1987, respectively, it
hardly needs any mention that the registration of a sale deed is a
1
caJQzWQflA
notice of the sale embodied therein to the whole world. The
respondent No.1 has also not explained as to how and why he
failed to notice the delivery of physical possession of the lands to
the appellant society and as to how he lost sight of the appellant
society converting the status of the lands from agricultural to
residential/commercial, and its development into a housing
society with necessary infrastructure and amenities, and then of
allotting the plots so created to its members, who raised
construction thereon. It is really difficult, nay impossible to
imagine someone not noticing the above occurrences and
development in his very lands situated in his vicinity over a long
period of about 10 years, the respondent No.1's inaction,
I
indifference and indolence in the circumstances cannot be
interpreted as anything but his acquiesce in the respondent
No.2's and Mst. Chanoo Bibi's title in the suit lands and
manifestation of waiver of his rights in respect of the suit lands.
The following judgments of this Court may well be referred to in
this regard, At to Muhammad v. Mou!a Bokhsh (2007 SCMR 1446),
Mst. Grano v. Sahib Komala Bibi (RID 2014 SC 167), Dilbor Jan v.
.Sohrab Khan (1992 SCMR 743) and Lai Khan v. Mohammad
Yousaf (RID 2011 SC 657).
12. The appellant society, as noted earlier, purchased the
suit lands from respondent No.2 and Mst. Chanoo Bibi, in the
years 1986 and 1987 respectively. The suit lands were unabatedly
standing in the revenue record in the name of the said vendors.
The appellant's claim that they purchased the land after verifying
T
9
the vendor's Ow
nership from the revenue record has not been
rebutted. In terms of section 52 of the West Pakistan Land
Revenue Act 1967, Presumption of truth is attached to the land
revenue record Judgment of this Court in the cases of
Muhammad Shamim v. Mst. Nisar Fatima
(2010 SCMR 18), La/
Khan v. Muhammad Yousaf
(PED 2011 SC 657), Msf
thr.LR5
Phaphan
V. Muhammad Bakhsh (2005 SCMR 1287), may be referred
to in this regard.
13.
The learned counsel for the appellant Society
submitted that since section 4 of the Muslim Family
Ordinance, 1981,
which enabled the children of the Predeceased children of a
Propositus to i
nherit from the propositus like their father or
mother.
would have received had he/she been alive at the time of
opening
Of the succession; has been declared
against the tenants and
inj
unctions of Islam by the Federal Shariat Court in its
judgment in
the case of Allah Rakha and others v. Federation of Pakistan and
Other (riD 2000 Sc 1),
the respondent No.1 Was/is not entitled to
any share in the suit lands and Was thus rightly excluded from
succeeding to the same
14.
No doubt section 4 ibid has been declared repugnant
to Shariah however, since an appeal is Pending against the said
Judgment before the Shoriat Appellate Bench of this Court the
judgment,in t
erms of the provisions of Article 203-0(2) of the
Constitution, cannot be given effect until the
some is upheld by this
Court and in that eventuality also, it shall, as
specified in the
judgment itself, take effect from 31.2.2000, [the date, it may be
noted Was so specified in consonance with the provisions of Article
and th
erefore in any event cannot effect the previous
I
CA I 019& 060/15
10
operation of law or a succession taking place before the said date.
Reliance in this regard is placed on the judgments of this Court in
the cases of Mahmood Shah v. Syed Khalid Hussain Shah (2015
SCMR 869), Mst. Samia Naz v. Sheikh Pervaiz Afia! (2002 SCMR 164)
and Mst. Sawar Jan v. Mukhtar Ahmed (PID 2012 SC 217)
15.
However the contention of Mr. Gardezi, that the suit is
a collusive endeavour of respondent Nos. 1 & 2, the father and
the son, in the facts and circumstances of the case seems to be
plausible. This view gains strength also by the fact that
respondent No. 2, the father, has filed a conceding written
statement in the suit. In almost similar circumstances in the case
of Dilbar Jan (supra), where the sale of a property owned by the
sons of the vendor by virtue of its purchase by the vendor father
in their name, when they were minors, was, after ten years of the
sale, challenged by the sons on the ground that since at the time
of the impugned sale they had attained majority, it was only
them, and not their father, who could have lawfully sold the
property, this Court, whilst observing that since the impugned sale
was affected through a registered sale deed, of which the
plaintiff sons are presumed to have the knowledge, but they
failed to challenge the same for a long period of ten years and
filed the suit ten years after the impugned sale, held the suit to be
collusive.
16.
The learned counsel further submitted that since
respondent No. 1 by his conduct permitted respondent No. 2 and
Mst. Channo Bibi to hold themselves out as the real owners, the
appellant's Society, who has purchased the land for valuable
consideration in good faith, has acquired a good title to the land
CA 1079 & 1080/15
1
against respondent No. 1, and the transaction cannot be voided
on the ground that respondent No. 1 has not explicitly authorized
to make it. The learned counsel further submitted that the
impugned sales and transfer of the lands in the circumstances is
protected under and in terms of the provisions of section 41 of
the Transfer of Property Act, 1882.
17. Indeed, section 41 of the Transfer of Property Act,
1882, provides an exception to the rule as embodied in the
maxim, he gives not who hath not, and thus, nobody can transfer
to or confer upon another a right or a title better than he himself
possesses. Generally, a purchaser cannot take more than the
vendor has to sell however, section 41 of the Transfer of Property
Act provides an exception to the rule. It underpins the principle of
equity that whenever one of the two innocent person has to
suffer by the act of third person, he who has enabled that person
to occasion the loss, must sustain it, or where one of the two
innocent person suffer from the fraud of thirty party, the loss
should fall on him who has created, or could have prevented the
opportunity for fraud. However in order to invoke the protection
of the provisions of section 41, a transferee is essentially required
to demonstrate that (a) the transferor is the ostensible owner (b)
He was so by consent, express or implied, of the real owner (c)
The transfer is for consideration (d) The transferee has acted in
good faith, taking reasonable care to ascertain that the
transferor had power to transfer. Whereas in the facts and
circumstances of the present case as discussed hereinbefore,
--
C
CAIO79& 1080/15
12
one can clearly see that all the above ingredients are available
to the appellant to seek protection of the impugned transactions.
18.
The respondent No.] having acquiesced in the title of
respondent No. 2 and of Mst. Ohanno Bibi, the predecessor-in-
interest of respondent Nos.3 and 4, and having waived his right to
the lands, leading the appellants to believe that the said vendors
were in fact the owners of the lands. The appellant society thus
having purchased the lands for valuable consideration, without
I
knowledge of respondent No. I's purported entitlement were/are
entitled to protection under section 41 of the Transfer of Property
Act. We would therefore allow these appeals, and set aside the
impugned judgment rendered by the High Court No order as to
cost.
-fl
Announced in open Court
at Islamabad on ftO—
"APPROVED FOR REPORTING
(Aemir Sb.)
- - '1
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
CIVIL APPEAL NO.1083 OF 2017
(On appeal from order dated 20.6.2017, passed by the
Election Commission of Pakistan, in Case No.7(4)/2016-Law)
AND
CIVIL PETITION NO.3148 OF 2017
(On appeal from judgment dated 28.7.2017, passed by the
Islamabad High Court in W.P. No.2604/2017)
Raja Shaukat Aziz Bhatti
(in both cases)
… Appellant (s)/
Petitioner (s)
Versus
Major (R) Iftikhar Mehmood Kiani
(in CA.1083/2017)
Major (R) Iftikhar Mehmood Kiani
and another
(in CP.3148/2017)
… Respondent (s)
For Appellant (s)/
Petitioner (s)
: Malik Waheed Anjum, ASC with
Syed Rifaqat Hussain Shah, AOR
(in both cases)
For Respondent
No.1 (in both cases)
: Sardar M. Latif Khan Khosa,
Sr. ASC with
Syed Iqbal Hussain Gillani, ASC
assisted by
Sardar Shahbaz Ali Khan Khosa, Adv.
Rai Muddassur Iqbal, Advocate
Mr. Naz Gul Shah, Advocate
Ch. Akhtar Ali, AOR
For HEC
: Mian Muhammad Hanif, ASC with
Raja Abdul Ghafoor, AOR
For ECP
: Malik Mujtaba Ahmad,
Additional Director General
CA.1083/2017, etc.
2
For the Federation
On Court Notice
: Mr. Sajid Ilyas Bhatti, DAG
assisted by Barrister Minaal Tariq
Mirza Nassar Ahmad, DAG
Dates of Hearing
: 07.02.2018, 19.02.2018, 20.02.2018,
06.03.2018, 07.03.2018, 13.03.2015
and 15.03.2018
JUDGMENT
SH. AZMAT SAEED, J.- Through this common
judgment, it is proposed to decide Civil Appeal No.1083
of 2017 and Civil Petition for Leave to Appeal No.3148
of 2017 inter se the same parties and involving
common questions of law and fact. The aforesaid Civil
Appeal bearing No.1083 of 2017 under Section 103-AA
of the Representation of the People Act, 1976 (RoPA) is
directed against the Order dated 20.06.2017, passed
by the Election Commission of Pakistan (ECP); and the
above titled Civil Petition for Leave to Appeal bearing
No.3148
of
2017
under
Article
185(3)
of
the
Constitution of the Islamic Republic of Pakistan, 1973
is directed against the judgment dated 28.07.2017,
passed by the learned Islamabad High Court, in Writ
Petition No.2604 of 2017.
2.
The brief facts necessary for adjudication of
the lis at hand are that the Appellant/Petitioner
contested the elections for the Provincial Assembly of
CA.1083/2017, etc.
3
the Province of the Punjab from PP-4, Rawalpindi-IV,
held in May, 2013, and was declared as the Returned
Candidate. An application was field by the Respondent
[Major (R) Iftikhar Mehmood Kiani] before the Election
Commission
of
Pakistan
praying
that
the
Appellant/Petitioner be de-notified as a Member of the
Provincial
Assembly
as
he
(the
present
Appellant/Petitioner) had used false testimonials and
made a mis-declaration while contesting the elections
for the seat of the Provincial Assembly held in 2008.
On the basis of the aforesaid application and
purportedly in pursuance of an inquiry conducted on
the orders of this Court dated 15.06.2010 passed in
C.M.A. No.1624 of 2010 in Civil Appeal No.409 of 2010
reported as Muhammad Rizwan Gill v. Nadia Aziz and
others (PLD 2010 SC 828) the ECP concluded that, in
fact, the Appellant/Petitioner had contested the
elections in the year 2008 by using false testimonials
and vide impugned Order dated 20.06.2017, the
Notification in favour of the Appellant/Petitioner as a
Returned Candidate was withdrawn and follow up
actions were directed to be taken.
CA.1083/2017, etc.
4
3.
The Civil Appeal No.1083 of 2017 has been
filed by the Appellant purportedly under Section 103-
AA(4) of RoPA against the impugned Order dated
20.06.2017.
4.
The said impugned Order dated 20.06.2017
passed by the ECP was also challenged before the
learned
Islamabad
High
Court
by
the
Appellant/Petitioner through Writ Petition No.2604 of
2017, which was dismissed vide judgment dated
28.07.2017 and the same has been challenged before
this Court through the instant Civil Petition for Leave
to Appeal No.3148 of 2017.
5.
It is contended by the learned counsel for the
Appellant/Petitioner that the impugned Order of the
ECP dated 20.06.2017, is wholly without jurisdiction.
It is his case that the elections were conducted in May,
2013 wherein the Appellant/Petitioner was declared as
a Returned Candidate and a Notification, in this behalf,
was issued by the ECP on 22.05.2013. In terms of
Section 103-AA sub-section 4 of RoPA, the ECP is
conferred with the jurisdiction to declare the elections
null and void for the reasons mentioned in the said
provisions. However, such powers could only be
CA.1083/2017, etc.
5
exercised within 60 days of the issuance of the
Notification declaring the result, whereafter, the ECP
becomes functus officio. In the instant case, the
impugned Order has been passed by the ECP
purportedly under Section 103-AA of RoPA more than
three years after the issuance of the Notification,
declaring the Appellant/Petitioner as a Returned
Candidate, hence, is wholly without jurisdiction and
non-est in the eye of law.
6.
It is further contended that upon the
allegations that the Appellant/Petitioner had used false
and fake educational testimonials to support his
candidature in the elections of 2008, an FIR was
registered at the behest of the ECP against the present
Appellant/Petitioner and the conclusion drawn by the
Investigating Officer was that no crime had been
committed and the allegations are false and fictitious.
In this backdrop, a report under Section 173 Cr.P.C.
was filed before the concerned Magistrate by the police
recommending cancellation of the case. The Magistrate
concurred with the findings of the police and cancelled
the case. The ECP challenged the said Order before the
learned Lahore High Court and a Constitution Petition
CA.1083/2017, etc.
6
filed, in this behalf, was dismissed. Whereafter, the
jurisdiction of this Court was invoked by filing Criminal
Petition for Leave to Appeal bearing No.111 of 2013 in
which leave was granted vide Order dated 10.07.2013.
However, the Criminal Appeal bearing No.152 of 2013
arising therefrom was disposed of as having become
infructuous. Contemporaneously, the ECP instituted a
criminal complaint against the Appellant/Petitioner on
the same allegations. Such criminal complaint was
dismissed and the ECP has challenged the said Order
before the learned Lahore High Court which matter is
pending, however, to-date not even a notice has been
issued to the Appellant/Petitioner. In the above
circumstances, it is contended by the learned counsel
that
on
the
allegations
from
which
the
Appellant/Petitioner has been exonerated by the Court
of competent jurisdiction through an acquittal and
separately by cancellation of the FIR, the ECP could
not return a finding to the contrary and de-notify the
Appellant/Petitioner by holding that his educational
testimonials are fake. In this behalf, it is also urged
that the findings recorded in the impugned Order dated
20.06.2017, even otherwise, are not sustainable in law
CA.1083/2017, etc.
7
as the original record was not available with the ECP
which could form the basis of any such findings. It is
added that the impugned Order of the ECP hinges
upon an inquiry report of the Additional District and
Sessions Judge, Gujar Khan. The said report is
available on the file which is in two different formats
with two different sets of contents. Thus, the report of
the said Additional District and Sessions Judge
referred to by the ECP is at least unreliable, if not,
forged.
7.
It is further contended that even if it is
assumed that the proceedings have been initiated on
the instructions of this Court contained in the
judgment reported as Muhammad Rizwan Gill (supra),
a perusal of the above-said judgment would indicate
that a de-notification could only follow a guilty verdict
in proceedings initiated by the ECP before a Criminal
Court in pursuance of the direction of this Court. In
the instant case, the Appellant/Petitioner has been
acquitted, hence, the question of de-notification did not
arise.
8.
Without prejudice to above, it was further
contended that the ECP by way of the impugned Order
CA.1083/2017, etc.
8
dated 20.06.2017 has presumed that in the elections of
2008,
the
Appellant/Petitioner
had
claimed
his
educational qualification to be B.A. In fact, the
Appellant/Petitioner never claimed to be a B.A nor
submitted a Degree of B.A from any Pakistani
University but only claimed to have a qualification
equivalent to B.A. Thus, in the circumstances, the
question of the Appellant/Petitioner having appended a
fake B.A. Degree from the University of the Punjab did
not arise, hence, he could not be panelized for such
imaginary act especially when the two learned Courts
of competent jurisdiction have held to the contrary. It
was added that the Appellant/Petitioner in fact had
been awarded Diplomas from the Victoria College of
Technology and E-Commerce, United Kingdom, which
as per his understanding was equivalent to B.A. It is
nobody case that such Diplomas were forged or
fabricated. Even if it has now been discovered that the
said Diplomas are not equivalent to B.A., at best, this
fact would impact the elections of 2008, where the
minimum educational qualification was prescribed but
it would be irrelevant for the elections held in May,
2013 in view of the change in law. In support of his
CA.1083/2017, etc.
9
contention, the learned Counsel placed reliance upon
the judgments of this Court reported as (1) Mian
Muhammad Nawaz Sharif and others v. Imran Ahmed
Khan Niazi and others (PLD 2018 SC 1), (2)
Muhammad Hanif Abbasi v. Imran Khan Niazi and
others (PLD 2018 SC 189), (3) Imran Ahmad Khan
Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister
of
Pakistan/Member
National
Assembly,
Prime
Minister’s House, Islamabad and 9 others (PLD 2017
SC 265), (4) Muhammad Nasir Mahmood and another
v. Federation of Pakistan through Secretary Ministry of
Law, Justice and Human Rights Division, Islamabad
(PLD 2009 SC 107), (5) Syed Fakhar Imam v. Chief
Election Commission of Pakistan and others (PLD 2008
SC 730), (6) Muhammad Ijaz Ahmad Chaudhry v.
Mumtaz Ahmad Tarar and others (2016 SCMR 1) and
(7) Bartha Ram v. Lala Mehar Lal Bheel and another
(1995 SCMR 684).
9.
The learned counsel for the Respondent No.1
controverted the contentions raised on behalf of the
learned
counsel
for
the
Appellant/Petitioner
by
contending that this Court in the case of Muhammad
Rizwan Gill (supra) had categorically directed the ECP
CA.1083/2017, etc.
10
to verify the educational testimonials of all the
Parliamentarians. In pursuance of the aforesaid
judgment of this Court, the ECP embarked upon an
exercise as directed, in this behalf. The educational
testimonials submitted by the Appellant/Petitioner
with his Nomination Papers while contesting the
elections held in the year 2008, were sent by ECP to
the HEC for verification, which concluded that the
Appellant/Petitioner had claimed himself to be a holder
of B.A. Degree and a copy whereof had been appended
with his Nomination Papers. On verification from the
University concerned, it transpired that the said Degree
had been issued in favour of one Shaukat Aziz Sheikh
son of Abdul Aziz and obviously such a Degree was not
awarded
to
the
said
Appellant/Petitioner.
Consequently, for contesting the elections of 2008, a
Degree awarded to someone else had been used and
pressed
into
service
by
the
present
Appellant/Petitioner, who thereby used unfair means
to get elected and was, therefore, rightly de-notified by
the ECP.
10.
It was further contended that the powers
exercised by the ECP while passing the impugned
CA.1083/2017, etc.
11
Order were in compliance of the judgment of this Court
in the case reported as Muhammad Rizwan Gill
(supra), hence, the said order cannot be said to be
without jurisdiction. Even otherwise, it is contended,
that in terms of Article 218 (3) of the Constitution, it is
the duty of the ECP to ensure free and fair elections
and
guard
against
disqualified
persons
from
trespassing into the Parliament. The provisions of
Article 218 (3) of the Constitution cannot be ignored
and in fact a more dynamic interpretation needs to be
given to it and the other Articles of the Constitution,
including Article 225 must be read in harmony
therewith. Furthermore, it is contended, the sub-
Constitutional provision of RoPA, 1976 cannot control
or limit the scope or amplitude of Article 218 (3) of the
Constitution.
11.
In the alternative, it was contended, that it is
now settled law that in case a person suffering from a
pre-election disqualification or lack of qualification
slips through the net at the time of the scrutiny of the
Nomination Papers, and no application having been
filed with the ECP immediately after the elections and
thereafter, no Election Petition filed after the elections
CA.1083/2017, etc.
12
before the learned Election Tribunal, it does not mean
that the disqualification has been cured or that the
missing qualification has been acquired by the flux of
time. It is further contended that for the last more than
a half century, this Court has repeatedly held that in
such an eventuality the Constitutional jurisdiction of
the learned High Court under Article 199 of the
Constitution and of this Court under Article 184(3) of
the Constitution can always be invoked and exercised
to implement the law and determine the lack of
qualification or disqualification of a Member of the
Parliament. In the instant case, the obvious lack of
qualification of the Appellant/Petitioner is self-evident
on the record and cannot be ignored by this Court.
Furthermore, no technical barrier can be erected to
restrain this Court from exercising its jurisdiction, in
this behalf. Such jurisdiction has been repeatedly
exercised by this Court in a host of different
circumstances. Furthermore, it is added that this
Court can always exercise one jurisdiction even if
another
has
been
invoked
by
converting
the
proceedings.
CA.1083/2017, etc.
13
12.
It was next contended by the learned counsel
for the Respondent No.1 that in the Nomination Papers
submitted by the Appellant/Petitioner while contesting
the elections of 2008, he had shown his educational
qualification as B.A. Subsequently, interpolation was
made in the Nomination Papers and it was scribed B.A.
"ﺮﺑاﺮﺑ ﮯﮐ". The copies of both such documents, one with
and the other without the interpolation are available on
the file, leaving no manner of doubt that the said
Nomination Papers have been tempered with. It is
added that the Appellant/Petitioner relied upon the
B.A. Degree, which admittedly was found not awarded
to him having been earned by one Shaukat Aziz
Sheikh.
Conveniently
the
original
record
has
disappeared and the Appellant/Petitioner is trying to
take unfair advantage thereof. In the alternative, it is
added that the Appellant/Petitioner has now relied
upon the Diplomas from the Victoria College of
Technology and E-Commerce, United Kingdom. This
Court inquired about its equivalence from the Higher
Education Commission (HEC) and it has come on
record that Victoria College of Technology and E-
Commerce has not been accredited nor can award an
CA.1083/2017, etc.
14
educational degree equivalent to B.A. recognized by the
HEC. In the circumstances, there can be no escape
from the fact that the Appellant/Petitioner had made a
false declaration in his Nomination Papers in the
elections of 2008 by claiming to possess educational
qualification of B.A. or B.A. "ﺮﺑاﺮﺑ ﮯﮐ". Thus, in terms of
the law as settled by this Court in its various
pronouncements,
the
Appellant/Petitioner
having
made a false declaration in his Nomination Papers was
neither honest nor ameen, and, therefore, not qualified
in terms of Article 62(1) of the Constitution. In the
circumstances, it is contended, that not to dismiss the
Petition and the Appeal would perpetuate an illegality
and in fact an un-Constitutional act. In support of his
contentions, the learned counsel for Respondent No.1
has relied upon the judgments of this Court reported
as (1) Imran Ahmad Khan Niazi v. Mian Muhammad
Nawaz Sharif, Prime Minister of Pakistan/Member
National Assembly, Prime Minister’s House, Islamabad
and 9 others (PLD 2017 SC 265), (2) Malik Iqbal
Ahmad Langrial v. Jamshed Alam and others (PLD
2013 SC 179), (3) Syed Mehmood Akhtar Naqvi v.
Federation of Pakistan through Secretary Law and
CA.1083/2017, etc.
15
others (PLD 2012 SC 1089), (4) Muhammad Rizwan
Gill v. Nadia Aziz and others (PLD 2010 SC 828) and (5)
Farzand Ali v. Province of West Pakistan (PLD 1970 SC
98).
13.
Heard. Available record perused.
14.
The grievance of the Appellant/Petitioner
arises out of the Order of the ECP dated 20.06.2017
whereby the Notification in his favour as a Returned
Candidate to the Provincial Assembly of the Province of
the Punjab was withdrawn. The Appellant/Petitioner
has directly challenged the said Order before this Court
purportedly under Section 103-AA(4) of RoPA through
Civil Appeal bearing No.1083 of 2017. It appears that
by way of abundant caution the Appellant/Petitioner
also challenged the said Order of the ECP dated
20.06.2017 through a Constitutional Petition i.e. Writ
Petition bearing No.2064 of 2017 before the learned
Islamabad High Court, which was dismissed vide
judgment dated 28.07.2017, and has been challenged
before this Court through Civil Petition for Leave to
Appeal No.3148 of 2017.
15.
At the very outset, the Appellant/Petitioner
called into question the jurisdiction of the ECP to pass
CA.1083/2017, etc.
16
the impugned Order de-notifying him as a Member of
the Provincial Assembly. In pith and substance, it is
the case of the Appellant/Petitioner that with regard to
an alleged pre-election disqualification or lack of
qualification of a candidate or an illegality in the
conduct of the elections, the jurisdiction of the ECP to
pass orders under Section 103-A of RoPA can only be
exercised prior to the expiry of 60 days from the
notification of the result of the elections. In the instant
case, it is contended, that the impugned Order of the
ECP has been passed several years after the original
Notification declaring the Appellant/Petitioner as an
elected Member of the Provincial Assembly was issued.
16.
A perusal of the impugned Order of the ECP
dated 20.06.2017 reveals that pursuant to the
judgment of this Court reported as Muhammad Rizwan
Gill (supra) the ECP and the HEC inquired into the
validity
and
authenticity
of
the
educational
qualification of the Members of the Parliament and the
Provincial Assemblies. It is in pursuance to the
aforesaid directions of this Court that the ECP
conducted the requisite inquiries and purportedly
passed the impugned Order dated 20.06.2017. The
CA.1083/2017, etc.
17
aforesaid is clear and obvious from paragraph 2 of the
Order of the ECP dated 20.06.2017. Thus, it appears
that the contentions of the learned counsel for the
Appellant/Petitioner pertaining to the assumption of
jurisdiction of the ECP after the lapse of 60 days may
not be strictly applicable as the ECP was purportedly
acting in compliance of the directions of this Court.
17.
Furthermore, it is the case of the Respondents
and as is also evident from the Order of the ECP dated
20.06.2017 that Article 218(3) of the Constitution must
necessarily be read and interpreted in its broadest
amplitude thereby conferring jurisdiction on the ECP to
pass appropriate orders at any stage unfettered by
technical restrictions imposed by any sub-Constitutional
legislation pertaining to the conduct of elections
including RoPA. In this behalf, Article 225 of the
Constitution must also be read in harmony with Article
218(3) of the Constitution. The ECP, in this behalf, also
referred to the judgments of this Court including the
judgment reported as (1) Nawabzada Iftikhar Ahmad
Khan Bar v. Chief Election Commissioner Islamabad and
others (PLD 2010 SC 817), (2) Muhammad Rizwan Gill v.
Nadia Aziz and others (PLD 2010 SC 828) and (3) Syeda
CA.1083/2017, etc.
18
Waheeda Shah v. Election Commission of Pakistan
through Chief Election Commissioner and 4 others (PLD
2013 Sindh 117). However, the question of jurisdiction of
the ECP to pass such order de-notifying the Member of
the Parliament or the Provincial Assembly on account of
a pre-election disqualification or lack of qualification after
a lapse of 60 days from the original Notification is not
free from difficulty.
18.
Be that as it may, this Court when confronted
with the issue of jurisdiction, the ECP with regard to pre-
election disqualification or lack of qualification in its
judgment dated 23.02.2018 passed in Civil Petition
No.3131 of 2017, after examining various judgments of
this Court, including the judgments reported as (1)
Muhammad Jibran Nasir and others Vs. The State and
others (PLD 2018 SC 351), (2) Muhammad Hanif Abbasi
v. Jahangir Khan Tareen and others (PLD 2018 SC 114),
(3) Muhammad Hanif Abbasi v. Imran Khan Niazi and
others (PLD 2018 SC 189), (4) Imran Ahmad Khan Niazi
v. Mian Muhammad Nawaz Sharif, Prime Minister of
Pakistan/Member National Assembly, Prime Minister’s
House, Islamabad and 9 others (PLD 2017 SC 265), (5)
Khawaja Muhammad Asif v. Federation of Pakistan and
CA.1083/2017, etc.
19
others (PLD 2014 SC 206), (6) Mian Najeeb-ud-Din
Owaisi and another v. Amir Yar Waran and others (PLD
2013 SC 482), (7) Malik Iqbal Ahmad Langrial v.
Jamshed Alam and others (PLD 2013 SC 179), (8) Air
Marshal (Retd) Muhammad Asghar Khan v. General
(Retd) Mirza Aslam Baig, Former Chief of Army Staff and
others (PLD 2013 SC 1), (9) Syed Mehmood Akhtar Naqvi
v. Federation of Pakistan through Secretary Law and
others (PLD 2012 SC 1089), (10) Muhammad Azhar
Siddiqui v. Federation of Pakistan and others (PLD 2012
SC 774), (11) Muhammad Yasin v. Federation of Pakistan
through Secretary, Establishment Division, Islamabad
and others (PLD 2012 SC 132), (12) Shahid Orakzai v.
Pakistan through Secretary Law, Ministry of Law,
Islamabad (PLD 2011 SC 365), (13) Muhammad Rizwan
Gill v. Nadia Aziz and others (PLD 2010 SC 828), (14)
Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election
Commissioner Islamabad and others (PLD 2010 SC 817),
(15) Syed Fakhar Imam v. Chief Election Commission of
Pakistan and others (PLD 2008 SC 730), (16) Mian
Muhammad Nawaz Sharif v. President of Pakistan and
others (PLD 1993 SC 473), (17) Miss Benazir Bhutto v.
Federation of Pakistan and others (PLD 1988 SC 416),
CA.1083/2017, etc.
20
(18) Farzand Ali v. Province of West Pakistan (PLD 1970
SC 98), (19) Muhammad Akram v. DCO, Rahim Yar Khan
and others (2017 SCMR 56), (20) Ch. Muhammad Ashraf
Warraich and another v. Muhammad Nasir Cheema and
others (2016 SCMR 998), (21) Jamshoro Joint Venture
Ltd. and others v. Khawaja Muhammad Asif and others
(2014 SCMR 1858), (22) Allah Dino Khan Bhayo v.
Election Commission of Pakistan, Islamabad and others
(2013 SCMR 1655), (23) Muhammad Khan Junejo v.
Federation of Pakistan through Secretary, M/o Law
Justice and Parliamentary Affairs and others (2013
SCMR 1328), (24) Abdul Ghafoor Lehri v. Returning
Officer, PB-29, Naseerabad-II and others (2013 SCMR
1271), (25) Muddasar Qayyum Nahra v. Ch. Bilal Ijaz
(2011 SCMR 80), (26) Suo Motu Case No. 10 of 2009
(Complaint regarding establishment of Makro-Habib
Store on playground) (2010 SCMR 885), and (27) Bartha
Ram v. Lala Mehar Lal Bheel and another (1995 SCMR
684), concluded as follows:
“27. An
overview
of
the
afore-quoted
provisions of the Constitution, as interpreted
by this Court through its various juridical
pronouncements referred to and reproduced
herein above leads to an irresistible and
irrefutable
conclusion
that
our
Constitutional dispensation is erected upon
the democratic principle that the authority
vest with the people of Pakistan can only be
CA.1083/2017, etc.
21
exercised
through
their
chosen
representatives. Such authority, including
the power of law making and control over the
public exchequer is to be conferred upon the
chosen representatives by way of trust and
the trust can only be reposed upon those
who are worthy thereof.
28.
In the above context, the qualification
and disqualification of persons, entitled to
act as the chosen representatives of the
people and to act on their behalf as Members
of the Majlis-e-Shoora and the Provincial
Assemblies are set forth in the Constitution
itself, more particularly, in Articles 62 and
63
thereof
as
well
as
other
sub-
Constitutional
legislation.
An
elaborate
process and procedure has been prescribed
by law to filter out those who are disqualified
or not qualified to contest the elections to
the
Majlis-e-Shoora
and
the
Provincial
Assemblies as is apparent primarily from the
provisions of ROPA of 1976. With regard to
pre-election disqualification, such process
includes objections before the Returning
Officer at the time of filing of the Nomination
Papers, an application to the ECP under
Section 103-A of ROPA of 1976. And
subsequently, an Election Petition before the
Election Tribunal established under Article
225 of the Constitution. If no objection is
raised or challenge thrown or relevant
proceedings initiated before the appropriate
forum
at
the
appropriate
time,
the
disqualification of a candidate is not cured
nor an abscent qualification acquired.
29.
Consequently, where a disqualified or
unqualified person slips through the cracks
sneaks into the Majlis-e-Shoora or the
Provincial Assemblies, his presence in the
said
House
can
always
be
challenged
through
exercise
of
the
Constitutional
jurisdiction of this Court under Article
184(3) of the Constitution and before the
learned High Court under Article 199 of the
Constitution by way of a Writ in the nature
of quo warranto. Even where a matter comes
before this Court regarding the qualification
or disqualification of a Member of the Majlis-
e-Shoora
or
the
Provincial
Assemblies
otherwise by way of proceedings other than
under Article 184(3) of the Constitution, this
Court not only has the jurisdiction to convert
CA.1083/2017, etc.
22
such proceedings to proceedings under
Article 184(3) of the Constitution but is
bound to do so, as to permit an unqualified
or disqualified person to continue to defile
and desecrate the Majlis-e-Shoora or the
Provincial Assemblies and masqulate as a
chosen representative of the people would
amount to frustrating the Constitutional
provisions. In such an eventuality, if this
Court looks other way, it would perhaps
constitute a failure to protect and preserve
the Constitution.
Thus, we find ourselves unable to
decline the prayer of the Petitioner to
examine the merits of the case so as to
determine on the basis of the material
available on record whether Respondent
No.1 was qualified or disqualified from being
a Member of the Provincial Assembly, KPK.
Any refusal on our part to avoid or evade
such
an
exercise
would
constitutes
a
departure from the law as laid down by this
Court and perhaps would even amount to a
betrayal of the Constitution. Hence, we
convert these proceedings into Suo Motu
proceedings under Article 184(3) of the
Constitution.”
19.
In view of facts and circumstances narrated
above and as the settled law referred to above we cannot
abdicate our responsibility by brushing the issues
floating on the surface under the carpet. Hence, we have
no other option but to convert the instant proceedings
into suo moto proceedings under Article 184(3) of the
Constitution so as to examine the cases of the parties on
the basis of the material available on record so as to
examine the Order of the ECP dated 20.06.2017 by
determining as to whether the Appellant/Petitioner was
CA.1083/2017, etc.
23
disqualified or not qualified for being a Member of the
Provincial Assembly under the Constitution.
20.
It was perhaps being aware of its own original
Constitutional jurisdiction under Article 184(3) of the
Constitution, this Court during the course of hearing of
the instant cases vide its Order dated 17.08.2017 issue
the following directions to the HEC:
“3.
Appellant is directed to provide to HEC
all the original of testimonials, degree etc.
including
Diploma
in
Business
Administration from “Victoria College of
Technology and E-Commerce”, UK dated
30.05.2007,
statedly
annexed
with
his
nomination papers, within seven days from
today. HEC in turn shall examine the
authenticity and obtain verification of the
above
noted
testimonials,
degree
and
Diploma from the respective institutions and
noted college. Once the authenticity and
verification is made, HEC shall also provide
equivalence certificate/qualification status,
before next date.
4.
Let HEC produce the original letter,
which is allegedly issued by the appellant, as
reproduced in the order of this Court dated
10.07.2013. HEC shall also produce all the
documents in connection with any inquiry
conducted by it in relation to verification of
the testimonials/degrees/diplomas of the
appellant.
The
entire
record
of
ECP
pertaining to the inquiry, etc., of the
appellant’s
testimonials/degrees/diplomas
should also be requisitioned. The appellant
is also required to produce his original
testimonials/degrees/diplomas,
which
he
admittedly claims to be in his possession.”
21.
The Appellant/Petitioner contested the General
Elections held in 2008 for a seat of the Provincial
Assembly of the Province of the Punjab. At that point of
CA.1083/2017, etc.
24
time, it was the requirement of the law that a candidate
must be a graduate to be eligible to contest the elections.
The Appellant/Petitioner submitted his Nomination
Papers. Though, it is the case of the private Respondent
and the ECP that the Appellant/Petitioner claimed to
possess the requisite educational qualification on the
basis of a B.A. Degree issued by the University of the
Punjab and it was such Degree which was appended with
the Nomination Papers and pursuant to the orders of this
Court in the case reported as Muhammad Rizwan Gill
(supra) the copies of the said B.A. Degree allegedly
appended with the Nomination Papers were sent by the
ECP to the HEC for verification. It is common ground
between the parties that the said Degree sent to the HEC
in fact had been earned by and awarded to one Shaukat
Aziz Sheikh and not to the present Appellant/Petitioner.
Conveniently for the Appellant/Petitioner the original
record pertaining to his Nomination Papers of 2008 has
gone missing. The Officers of the ECP summoned at the
behest of the Appellant/Petitioner confirmed that the
said record has been lost and the proceedings initiated
against some employees of the ECP, in this behalf. The
aforesaid statement on behalf of the ECP stands reflected
CA.1083/2017, etc.
25
in the Order of the Court dated 13.03.2018. The claim of
the Appellant/Petitioner that the Nomination Papers of
the elections 2008, he had not relied on the B.A. Degree
issued by the University of the Punjab but Diploma
issued by the Victoria College of Technology and E-
Commerce, UK is not confidence inspiring.
22.
However, we cannot loose sight of the fact that
the criminal proceedings on the same allegations were
initiated against the present Appellant/Petitioner in
which he has been acquitted. The Orders of such
acquittal today’s holds the field. Thus, perhaps, it would
be unsafe to hold that the Appellant/Petitioner claimed
his educational qualification was B.A. while contesting
the elections of 2008 and in support of his contentions
he submitted a B.A. Degree from the University of the
Punjab, which was found to be earned by one Shaukat
Aziz Sheikh and not the Appellant/Petitioner.
23.
The Appellant/Petitioner vehemently has taken
up a plea before us that in the Nomination Papers
submitted
for
the
elections
in
2008
he
held
specifically stated that his educational qualification was
B.A. ﺮﺑاﺮﺑ ﮯﮐ and he had made available copies of the
Diplomas issued by the Victoria College of Technology
CA.1083/2017, etc.
26
and E-Commerce, UK. As note above, the original record
of
the
Nomination
Papers as
submitted
by
the
Appellant/Petitioner in the election of 2008 have
conveniently been lost.
24.
This Court has passed an Order dated
17.08.2017
and
the
relevant
portion
has
been
reproduced herein above seeking a Report from the HEC,
in this behalf. Such report has been received and filed
before this Court through Civil Misc. Application bearing
No.6369 of 2017. The said Report makes interesting
reading and is reproduced herein below in its entirety:
“Raja Shaukat Aziz wrote a letter to Mr.
Rashid Muhammad, Section Officer (Confd).
Election Commission of Pakistan (ECP)
which was reproduced in the Honorable
Supreme Court of Pakistan order dated July
10, 2013 passed in criminal petition number
111 of 2013. HEC did not possess the
original letter as it was addressed to the
Election Commission of Pakistan (ECP) by
the Appellant. However, photo copy of the
same letter is attached (Annex-I).
2.
The BA degree held by Raja Shoukat
Aziz Bhatti from Punjab University, Lahore
in 1992 under Registration No.89-RP-162
was forwarded by the ECP to HEC for its
verification from Punjab University (Annex-
II) the Punjab University verified vide letter
number 4111-CA dated August 27, 2010
that “Copy of degree provided by HEC was
verified for Shaukat Aziz s/o Abdul Aziz
caste Sheikh by the University of the
Punjab. The supporting documents/evidence
for the purpose (Admission Form) is attached
please” (Annex-III). This was conveyed by
HEC
vide
its
letter
No.Ref.5-
3/HEC/A&A/2010/680 dated September 2,
CA.1083/2017, etc.
27
2010 (Annex-IV) to Mr. M. Rashid Bhatti,
Section Officer, Election Commission of
Pakistan.
3.
Raja
Shoukat
Aziz
through
his
representative
Mr.
Tauseef
Mubarik
submitted
photocopies
of
following
documents
for
equivalence
of
foreign
diplomas obtained from Victoria College of
Technology and E-Commerce, U.K. along
with the following documents: (Annex-IV A)
Qualification
Year
Institution
Original
Documents
Matric
1982
BISE, Rawalpindi
Not
submitted
1-year
Diploma in
Commerce
1996
Sindh
Board
of
Technical
Education,
Karachi
Not
submitted
BBA
2000
Al-Khair
University
(AJK)
Not
submitted
Diploma in
Business
Administration
2005
Victoria
College
of
Technology
and
E-
Commerce, UK
Submitted
Advanced
Diploma in
Business
Administration
2006
Victoria
College
of
Technology
and
E-
Commerce, UK
Submitted
PGD in
Business
Administration
2007
Victoria
College
of
Technology
and
E-
Commerce, UK
Submitted
The original Degree of BA obtained from The
University of the Punjab which was sent by
Election Commission of Pakistan to HEC for
verification was not produced before this
Commission on August 24, 2017, while
submitting aforementioned documents for
equivalence.
4.
The ‘Victoria College of Technology and
E-Commerce’
is
not
accredited
degree
awarding
Institution
of
U.K.
Therefore,
Diploma, Advanced Diploma and PGD held
by the appellant obtained from this non-
accredited institution are Not recognized by
HEC. The HEC has also informed the same
to
appellant
vide
letter
No.8
(50)HEC/A&A/2017 dated September, 15,
2017, copy attached (Annex-V)
5.
As regard photocopy of BBA degree
obtained by the appellant from Al-Khair
University
in
the
session
1998-2000,
submitted along with above documents was
attested by HEC on 7th October, 2015 as the
credentials reflected place of study as
“Bhimber: AJ&K, on the BBA degree along
CA.1083/2017, etc.
28
with signatures of Controller of Examination
and Chancellor of the University.
6.
Due to the grave irregularities found in
the
academic
operations
of
Al-Khair
University, the admissions at all levels have
been stopped w.e.f Fall 2016 and the
verification of the degrees has also been
suspended. University was also asked to
provide the lists of all its graduates from the
date of inception. It was revealed during the
scrutiny of the lists of graduates provided
by the Al-Khair University that the appellant
has not obtained BBA degree through its
authorized main Campus i.e. from Bhimber
(AJK) as reflected on the Degree. The degree
was actually obtained through College of
Global
Technologies,
Rawalpindi
as
confirmed from the list provided by the
University of HEC (Annex-VI). As such this
college is not recognized by HEC. The matter
relating
to
the
attestation
of
degrees
obtained though unrecognized colleges of Al-
Khair University is under consideration of
the Commission for an appropriate decision.”
The above leaves no manner of doubt that the Diplomas
from the Victoria College of Technology and E-Commerce,
UK are not equivalent to B.A. Degree issued by any
University in Pakistan. In this view of the matter, even if,
the
contentions
raised
on
behalf
of
the
Appellant/Petitioner, in this behalf, are accepted as the
gospel truth, the Appellant/Petitioner did not possess the
requisite educational qualification of being graduate or
equivalent thereof to be elected as a Member of the
Provincial Assembly in accordance with the law as was
applicable at the time when he filed his Nomination
Papers for the elections held in 2008. The said
CA.1083/2017, etc.
29
Nomination Papers included his affidavit, as required by
law, that the Appellant/Petitioner was qualified to
contest the elections. In the absence of the requisite
educational qualification required at that point of time,
the affidavit of the Appellant/Petitioner with his
Nomination Papers submitted that he was qualified and
did suffer from any disqualification under the law was
false.
25.
A similar matter came up before this Court
where a candidate for the General Elections of 2008 filed
his Nomination Papers supported by an affidavit that he
possessed the requisite qualification and did not suffer
the disqualification as set forth in the Constitution and
the law and it was subsequently discovered that he did
not have the requisite educational qualification. In the
said case reported as Abdul Ghafoor Lehri (supra) this
Court held as follows:
“12. Since the Sanad produced by the
appellant while contesting election, 2002 has
been declared not equivalent to B.A. degree
for the reasons mentioned in the preceding
paragraphs, therefore, appellant was not at
all qualified to contest election. Now the
question arises as to whether the appellant
is disqualified to contest election, 2013 or
not. In this regard it is noticed that while
producing aforesaid Sanad, the appellant
sworn an affidavit to the effect that the
Sanad produced by him was issued to him
by a recognized institution and equivalent to
CA.1083/2017, etc.
30
a bachelor degree made false statement and
submitted false or incorrect declaration in
respect of his educational qualification, thus,
he was not righteous, sagacious, non-
profligate, honest and Ameen within the
meaning of Article 62(f) of the Constitution of
Islamic Republic of Pakistan, 1973, as such,
was not qualified to be elected or chosen as a
member of Majlis-e-Shoora.”
In view of the law laid down and reproduced herein above
which has been reiterated repeatedly by this Court it is
clear and obvious that the Appellant/Petitioner having
filed a false affidavit with his Nomination Papers for the
elections held in 2008 could not be deemed to be honest
and ameen, hence, was not qualified in terms of Article
62(1)(f) of the Constitution.
26.
Adverting now to the argument of the learned
counsel for the Appellant/Petitioner that lack of
educational qualification, if any, would be relevant only
for the General Elections 2008 and not to subsequent
elections including the elections held in May, 2013. Such
contention cannot be accepted as has been held by this
Court in the judgment reported as Malik Iqbal Ahmad
Langrial (supra) that as a consequence of the false
affidavit having been filed by a candidate with his
Nomination Papers in the elections of 2008 such person
would loose the qualification of being honest also for the
subsequent elections and would not be entitled to
CA.1083/2017, etc.
31
contest such elections or be a Member of the Parliament
or the Provincial Assembly. A similar view was also taken
by this Court in the case reported as Malik Umar Aslam
v. Mrs. Sumaira Malik and others (2014 SCMR 45).
27.
The upshot of the above discussion is that the
Appellant/Petitioner had given a false affidavit with his
Nomination Papers while contesting the elections held in
2008. Filing of an affidavit with the Nomination Papers
was the requirement of the law (RoPA) and the motive for
filing of false affidavit was to enter the Provincial
Assembly
by
unfair
means
by
making
false
representation
regarding
the
required
educational
qualification. Thus, the Appellant/Petitioner was not
honest and ameen in terms of Article 62(1)(f) of the
Constitution and such lack of qualification continuous,
so as to disentitle the Appellant/Petitioner from being a
candidate for or being a Member of the Parliament or the
Provincial Assembly.
28.
In this view of the matter, no exception can be
taken to the Order dated 20.06.2017 of the ECP de-
notifying the Appellant/Petitioner as a Member of the
Provincial Assembly and there is no occasion for
interference therewith.
CA.1083/2017, etc.
32
29.
Consequently,
the
titled
Civil
Appeal
is
dismissed as well as the Civil Petition for Leave to Appeal
is also dismissed and leave declined.
Judge
Judge
‘APPROVED FOR REPORTING’
Mahtab H. Sheikh
Judge
Announced on 22nd May 2018 at Islamabad.
Judge
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE IQBAL HAMEEDUR RAHMAN
MR. JUSTICE TARIQ PARVEZ
CIVIL APPEALS NO.1084 TO 1098/2008, 1481 TO 1529/2009, 254
AND 255/2011, 310/2012, 1235 TO 1270/2015 AND CIVIL
PETITIONS NO. 2595 AND 2596/2009
(Against the judgments dated 10.4.2008, 27.5.2009, 17.2.2009, 31.3.2010, 24.12.2014,
19.11.2014, 27.5.2009 of the Lahore High Court, Lahore passed in PTR Nos.12, 13, 14,
15 & 16/2004, ITA Nos. 242, 246 & 601/1999, 268 & 806/2000, 294, 295 & 296/1999,
49/2000, 82/2002, PTR Nos.402/2003, 117/2000, 403 & 404/2003, 216 & 217/2005,
59, 60, 153, 154, 155, 156, 187, 188, 246 & 588/2006, 589, 19, 20, 67, 86, 88, 87, 89,
90, 234, 277, 278, 295, 401, 515, 516 & 621/2007, W.P.No.1654/2009, PTR
No.7991/2002, W.P.Nos.8317, 10124 & 10125/2002, PTR Nos.91/2007, 103/2005,
194, 195, 236 & 247/2006, 373, 417, 319, 400, 326 & 327/2007, ITA No.357/1998,
PTR Nos.303/2014, 1947, 467, 468, 469, 470, 471, 152, 557, 558, 559, 560, 561, 372,
242, 448, 446, 447, 376, 377, 378, 379 & 380/2012, 202, 324 & 203/2013, 381, 382,
383, 384, 205, 213, 363, 364, 393 & 159/2012 and W.P.Nos.17139 & 17659/2008)
C.A.1084/2008:
Commissioner of Income Tax Legal Division Lahore Vs.
Khurshid Ahmad
C.A.1085/2008:
Commissioner of Income Tax Legal Division Lahore Vs.
Khurshid Ahmad
C.A.1086/2008:
Commissioner of Income Tax Legal Division Lahore Vs.
Khurshid Ahmad
C.A.1087/2008:
Commissioner of Income Tax Legal Division Lahore Vs.
Khurshid Ahmad
C.A.1088/2008:
Commissioner of Income Tax Legal Division Lahore Vs.
Khurshid Ahmad
C.A.1089/2008:
Commissioner of Income Tax Legal Division Tax Office
Lahore Vs. M/s Punjab Oil Products (Pvt.) Ltd. Faisalabad
C.A.1090/2008:
Commissioner of Income Tax Legal Division Lahore Vs. M/s
Madni Ghee Mills (Pvt.) Ltd.
C.A.1091/2008:
Commissioner of Income Tax Legal Division Lahore Vs. M/s
Tuff Tiles (Pvt.) Ltd.
C.A.1092/2008:
Commissioner of Income Tax Legal Division Lahore Vs. M/s
S. K. Spinning Mills (Pvt.) Ltd.
C.A.1093/2008:
Commissioner of Income Tax Lahore Vs. M/s Ravi Plastic
Industry (Pvt.) Ltd.
C.A.1094/2008:
Commissioner of Income Tax (Legal Division) Sialkot Vs. M/s
Dawn Sports (Pvt.) Ltd.
C.A.1095/2008:
Commissioner of Income Tax (Legal Division) Sialkot Vs. M/s
Anwar Khawaja Industries (Pvt.) Ltd.
C.A.1096/2008:
Commissioner of Income Tax (Legal Division) Sialkot Vs. M/s
Grays of Cambridge (Pvt.) Ltd.
Civil Appeals No.1084 to 1098/2008 etc.
-: 2 :-
C.A.1097/2008:
Commissioner of Income Tax (Legal Division) Lahore Vs. M/s
Star Mughal Industries (Pvt.) Ltd.
C.A.1098/2008:
Commissioner of Income Tax (Legal Division) Lahore Vs. M/s
Continental Banking Industries (Pvt.) Ltd.
C.A.1481/2009:
Commissioner of Income Tax Lahore Vs. M/s Crescent Sugar
Mills & Distillery Ltd. Lahore
C.A.1482/2009:
Commissioner of Income Tax/Wealth Tax, Lahore Vs. M/s
Transtel International (Pvt.) Ltd.
C.A.1483/2009:
Commissioner of Income Tax Lahore Vs. M/s Crescent Sugar
Mills Ltd.
C.A.1484/2009:
Commissioner of Income Tax Lahore Vs. M/s Crescent Sugar
Mills Ltd.
C.A.1485/2009:
Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s
Shazor Feed (Pvt.) Ltd.
C.A.1486/2009:
Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s
Shazor Feed (Pvt.) Ltd.
C.A.1487/2009:
Commissioner of Income Tax Lahore Vs. M/s Sutlaj Security
Services (Pvt.) Ltd.
C.A.1488/2009:
Commissioner of Income Tax Lahore Vs. M/s Sutlaj Security
Services (Pvt.) Ltd.
C.A.1489/2009:
Commissioner of Income Tax Lahore Vs. M/s Crescent Jute
Products (Pvt.) Ltd.
C.A.1490/2009:
Commissioner of Income Tax Lahore Vs. M/s Crescent Jute
Products (Pvt.) Ltd.
C.A.1491/2009:
Commissioner of Income Tax Lahore Vs. M/s Crescent Jute
Products (Pvt.) Ltd.
C.A.1492/2009:
Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s
Crescent Jute Products (Pvt.) Ltd.
C.A.1493/2009:
Commissioner of Income Tax Lahore Vs. M/s Olympia Textile
Mills Ltd.
C.A.1494/2009:
Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s
Olympia Textile Mills Ltd.
C.A.1495/2009:
Commissioner of Income Tax Lahore Vs. M/s Imran Spinning
Mills Ltd.
C.A.1496/2009:
Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s
Hira Textile Mills Ltd.
C.A.1497/2009:
Commissioner of Income Tax Lahore Vs. M/s Hira Textile
Mills Ltd.
C.A.1498/2009:
Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s
Suleman Spinning Mills Ltd.
C.A.1499/2009:
Commissioner of Income Tax/Wealth Tax Lahore Vs. M/s
Civil Appeals No.1084 to 1098/2008 etc.
-: 3 :-
Suleman Spinning Mills Ltd.
C.A.1500/2009:
Commissioner of Income Tax Lahore Vs. Pak Kuwait Textile
Mills Ltd.
C.A.1501/2009:
Commissioner of Income Tax Lahore Vs. Ramzan Buksh
Textile Mills Ltd.
C.A.1502/2009:
Commissioner of Income Tax Lahore Vs. Ramzan Buksh
Textile Mills Ltd.
C.A.1503/2009:
Commissioner of Income Tax Lahore Vs. Ramzan Buksh
Textile Mills Ltd.
C.A.1504/2009:
Commissioner of Income Tax Lahore Vs. Aruj Textile Mills
Ltd.
C.A.1505/2009:
Commissioner of Income Tax Lahore Vs. Aruj Textile Mills
Ltd.
C.A.1506/2009:
Commissioner of Income Tax Lahore Vs. Aruj Textile Mills
Ltd.
C.A.1507/2009:
Commissioner of Income Tax Lahore Vs. M/s Darson
Securities (Pvt.) Ltd.
C.A.1508/2009:
Commissioner of Income Tax Lahore Vs. Ali Akbar Spinning
Mills Ltd. etc.
C.A.1509/2009:
Commissioner of Income Tax Lahore Vs. Ali Akbar Spinning
Mills Ltd.
C.A.1510/2009:
Commissioner of Income Tax Lahore Vs. M/s Sargodha Mills
Ltd.
C.A.1511/2009:
Commissioner of Income Tax Lahore Vs. Haseeb Waqas
Sugar Mills Ltd.
C.A.1512/2009:
Commissioner of Income Tax Lahore Vs. M/s Arain Textile
Mills Ltd.
C.A.1513/2009:
Commissioner of Income Tax Lahore Vs. M/s Arain Textile
Mills Ltd.
C.A.1514/2009:
Commissioner of Income Tax Lahore Vs. M/s Crescent Ujala
Ltd.
C.A.1515/2009:
Commissioner of Income Tax Lahore Vs. M/s Yahya Textile
Mills Ltd.
C.A.1516/2009:
Commissioner of Income Tax Lahore Vs. M/s Azam Textile
Mills Ltd.
C.A.1517/2009:
Commissioner of Income Tax Lahore Vs. M/s Taj Textile Mills
Ltd.
C.A.1518/2009:
Commissioner of Income Tax Lahore Vs. M/s Fawad Textile
Mills Ltd.
C.A.1519/2009:
Commissioner of Income Tax Lahore Vs. M/s Fawad Textile
Mills Ltd.
Civil Appeals No.1084 to 1098/2008 etc.
-: 4 :-
C.A.1520/2009:
Commissioner of Income Tax Lahore Vs. M/s Kashmir Edible
Oils Ltd.
C.A.1521/2009:
Commissioner of Income Tax Lahore Vs. M/s Himont
Pharmaceutical (Pvt.) Ltd.
C.A.1522/2009:
Commissioner of Income Tax Lahore Vs. M/s Hilal Dyes (Pvt.)
Ltd.
C.A.1523/2009:
Commissioner of Income Tax Lahore Vs. M/s Hilal Dyes (Pvt.)
Ltd.
C.A.1524/2009:
Commissioner of Income Tax Lahore Vs. M/s Hira Textile
Mills Ltd.
C.A.1525/2009:
Commissioner of Income Tax Lahore Vs. M/s Imran Spinning
Mills Ltd.
C.A.1526/2009:
Commissioner of Income Tax Lahore Vs. M/s Arain Textile
Mills Ltd.
C.A.1527/2009:
Commissioner of Income Tax Lahore Vs. M/s Margalla
Textile Mills Ltd.
C.A.1528/2009:
Commissioner of Income Tax Lahore Vs. Haseeb Waqas
Sugar Mills Ltd.
C.A.1529/2009:
Commissioner of Income Tax Lahore Vs. Haseeb Waqas
Sugar Mills Ltd.
C.A.254/2011:
Commissioner of Income Tax Vs. M/s Crescent Sugar Mills
C.A.255/2011:
Commissioner of Income Tax Legal Taxpayer Unit Lahore Vs.
M/s Crescent Sugar Mills, Lahore
C.A.310/2012:
Commissioner of Income Tax Vs. M/s Babar Flour Mills
C.A.1235/2015:
Commissioner Inland Revenue, Zone, Lahore Vs. Resham
Textile Industries Limited, Lahore
C.A.1236/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Imperial Electric Company (Pvt.) Ltd, National
Tolwer, Egerton Road, Lahore
C.A.1237/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Total Parco Pakistan Limited
C.A.1238/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Total Parco Pakistan Limited
C.A.1239/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Total Parco Pakistan Limited
C.A.1240/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Total Parco Pakistan Limited
C.A.1241/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Total Parco Pakistan Limited
C.A.1242/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Taj Textile Mills Limited, Lahore
Civil Appeals No.1084 to 1098/2008 etc.
-: 5 :-
C.A.1243/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Lahore Textile & General Mills Ltd, Monno House,
3-Montgomery Road, Lahore
C.A.1244/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Lahore Textile & General Mills Ltd.
C.A.1245/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Lahore Textile & General Mills Ltd.
C.A.1246/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Lahore Textile & General Mills Ltd, Monno House,
3-Montgomery Road, Lahore
C.A.1247/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Lahore Textile & General Mills Ltd., Lahore
C.A.1248/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Crescent Sugar Mills Ltd., New Lahore Road,
Nishatabad, Faisalabad
C.A.1249/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. Lahore Textile & General Mills Ltd., Lahore
C.A.1250/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s Anmol Textile Mills Limited, 83-A/H, Race
View, Jail Road, Lahore NTN.1158022-4
C.A.1251/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s Anmol Textile Mills Limited, 83-A/H, Race
View, Jail Road, Lahore NTN.1158022-4
C.A.1252/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s Anmol Textile Mills Limited, 83-A/H, Race
View, Jail Road, Lahore NTN.1158022-4
C.A.1253/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A,
Anand Road, Upper Mall, Lahore NTN.0658194
C.A.1254/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A,
Anand Road, Upper Mall, Lahore NTN.0658194
C.A.1255/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A,
Anand Road, Upper Mall, Lahore NTN.0658194
C.A.1256/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A,
Anand Road, Upper Mall, Lahore NTN.0658194
C.A.1257/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s ICC Textile Company (Pvt.) Limited, 242-A,
Anand Road, Upper Mall, Lahore NTN.0658194
C.A.1258/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s Pak Electron Limited, 17-Aziz Avenue, Canal
Bank, Gulberg-V, Lahore
C.A.1259/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s Hashir Textile Mills Limited, Main Market,
Civil Appeals No.1084 to 1098/2008 etc.
-: 6 :-
Gulberg, Lahore
C.A.1260/2015:
Commissioner Inland Revenue, Zone-1, Regional Tax Office,
Lahore Vs. M/s Pak Electron Limited, 17-Aziz Avenue, Canal
Bank, Gulberg-V, Lahore
C.A.1261/2015:
Commissioner Inland Revenue, Zone-II, Large Taxpayers
Unit, Tax House, Syed Mauj-e-Darya Road, Lahore Vs. M/s
Kohinoor Mills Limited, 8-KM Manga Riwind Road, Lahore
C.A.1262/2015:
Commissioner Inland Revenue, Zone-II, Large Taxpayers
Unit, Tax House, Syed Mauj-e-Darya Road, Lahore Vs. M/s
Kohinoor Mills Limited, 8-KM Manga Riwind Road, Lahore
C.A.1263/2015:
Commissioner Inland Revenue, Zone-II, Large Taxpayers
Unit, Tax House, Syed Mauj-e-Darya Road, Lahore Vs. M/s
Kohinoor Mills Limited, 8-KM Manga Riwind Road, Lahore
C.A.1264/2015:
Commissioner Inland Revenue, Zone-II, Large Taxpayers
Unit, Tax House, Syed Mauj-e-Darya Road, Lahore Vs. M/s
Kohinoor Mills Limited, 8-KM Manga Riwind Road, Lahore
C.A.1265/2015:
Commissioner Inland Revenue Zone-I, Regional Tax Office,
Faisalabad Vs. M/s Chen One Stores Limited c/o Chenab
Ltd. Nishatabad Faisalabad
C.A.1266/2015:
Commissioner Inland Revenue Zone-I, Regional Tax Office,
Faisalabad Vs. M/s Aizad Corporation (Pvt.) Ltd. Universal
House, West Canal Road Farooqabad, Faisalabad
C.A.1267/2015:
Commissioner Inland Revenue Zone-I, Regional Tax Office,
Faisalabad Vs. M/s Hamid Textile Mills Limited, 97-N, Model
Town, Lahore
C.A.1268/2015:
Commissioner Inland Revenue Zone-I, Regional Tax Office,
Faisalabad Vs. M/s Hamid Textile Mills Limited, 97-N, Model
Town, Lahore
C.A.1269/2015:
Commissioner Inland Revenue Zone-I, Regional Tax Office,
Faisalabad Vs. M/s Hamid Textile Mills Limited, 97-N, Model
Town, Lahore
C.A.1270/2015:
Commissioner Inland Revenue, Zone-3, LTU, Tax House,
Lahore Vs. M/s Total Parco Pakistan Limited, Lahore etc.
C.P.2595/2009:
Commissioner of Income Tax (Audit Division) RTO Faisalabad
Vs. M/s Chen One Stores (Pvt.) Faisalabad & another
C.P.2596/2009:
Commissioner of Income Tax (Audit Division) RTO Faisalabad
Vs. M/s Best Exports (Pvt.) Ltd. & another
For the Appellant(s):
Mr. Sarfraz Ahmed Cheema, ASC
(in C.As.1485, 1486, 1489 to 1492, 1495, 1503, 1515 & 1525/2009)
Mr. Ibrar Ahmed, ASC
(in C.As.1235 to 1249, 1258, 1259 & 1270/15, 1488, 1507 & 1520/09)
Mr. Muhammad Nawaz Waseer, ASC
(in C.As.1250 to 1257/2015 & 1496 to 1499/2009)
Mr. Muhammad Aamir Malik, ASC
(in C.As.1501, 1502, 1493 to 1495 & 1527/2009 & 1084 & 1089/08)
Civil Appeals No.1084 to 1098/2008 etc.
-: 7 :-
Dr. Ishtiaq Ahmed, Commissioner Inland Revenue
Mr. Muhammad Iqbal Bhawana, Chief Legal, FBR
Mr. Habib Qureshi, ASC
For the Respondent(s):
Mr. Salman Akram Raja, ASC
(in C.A.1089/2008)
Mr. M. Iqbal Hashmi, ASC
(in C.As.1493, 1494/2009 & 1235/2015)
Mr. M. Ajmal Khan, ASC
(in C.As.1507, 1521 & 1527/2009)
On Court’s call:
Dr. Ikramul Haq, ASC
Date of hearing:
26.01.2016 & 27.01.2016
* * * * * * * * * *
JUDGMENT
MIAN SAQIB NISAR, J:- These appeals, by leave of the
Court, and petitions involve similar question(s) of law, hence are being
disposed of together. The key questions involved herein are:-
(i)
whether the minimum tax payable under Section 80D
of the Income Tax Ordinance, 1979 (Ordinance of 1979) is
leviable on the aggregate of declared turnover from all
sources including receipts covered by Sections 80C
and 80CC of the Ordinance of 1979;
(ii)
whether the minimum tax payable under Section 113
of the Income Tax Ordinance, 2001 (Ordinance of 2001), as it
existed prior to its omission by the Finance Act, 2008,
is leviable on the aggregate turnover from all sources
including receipts covered by the Presumptive Tax
Regime or upon which the tax payable/paid is a final
discharge of tax liability (note:- the subsequent Section 113 re-
inserted vide Finance Act, 2009 has no bearing on the present matters as no tax
year after re-insertion of the said section is involved thus all references to the
‘Ordinance of 2001’ are to as it existed prior to the amendments brought by the
Finance Act, 2008, unless stated otherwise);
Civil Appeals No.1084 to 1098/2008 etc.
-: 8 :-
(iii)
whether ‘services rendered’ pursuant to execution of a
contract would fall within the Presumptive Tax Regime
by virtue of Section 80C(2)(a)(i) of the Ordinance of
1979, whereas Section 50(4)(a) deals with ‘services
rendered’ and ‘execution of contracts’ as separate
categories alongwith ‘supply of goods’; and
(iv)
whether cash purchase and/or purchase of raw
material falls within the purview of ‘supply of goods’ as
envisaged by Section 50(4)(a) of the Ordinance of
1979?
Out of the total of 105 cases (103 civil appeals and 2 civil petitions), 53 cases (Civil
Appeals No.1481 to 1529/2009, 254 and 255/2011 and Civil Petitions No.2595 and 2596/2009)
pertain to question No.(i); 36 cases (Civil Appeals No.1235 to 1270/2015) relate to
question No.(ii); 5 cases (Civil Appeals No.1084/L to 1088/L/2008) pertain to
question No.(iii); and 10 cases (Civil Appeals No.1089 to 1098/2008) pertain to
question No.(iv). During the analysis portion of this opinion, questions
No.(i) and (ii) shall be dealt with together as they are interlinked.
2.
For the sake of convenience and brevity, one case for each of
the categories shall be taken to be the lead case for the purposes of
explaining the factual background. With respect to question No.(i), the
brief facts of Civil Appeal No.1482/2009 are that the Deputy
Commissioner of Income Tax assessed the total income and determined
the tax payable by the respondent-company under Section 80D without
taking into consideration Section 80C. The assessment order was
challenged by the respondent which (appeal) was accepted by the
Commissioner of Income/Wealth Tax (Appeal) holding that income even
though liable to tax under Section 80C should be taken into
consideration by the Income Tax Officer while calculating the turnover
for the purposes of Section 80D. Aggrieved, the appellants approached
the Income Tax Appellate Tribunal which vide order dated 18.11.1999
Civil Appeals No.1084 to 1098/2008 etc.
-: 9 :-
dismissed the appeal. Thereafter the appellants challenged such order
before the learned High Court in an Income Tax Appeal which was
dismissed vide order dated 27.5.2009 for the same reasons as
enunciated in the judgment reported as Commissioner of Income
Tax/Wealth Tax Companies Zone, Faisalabad Vs. Messrs Masood
Textile Mills Ltd., Faisalabad (2009 PTD 1707) after which they
approached this Court.
For the purposes of question No.(ii) the facts of Civil Appeal
No.1235/2015, are that the respondent-company filed its Income Tax
Return for the Tax Year 2006 which was treated to be an assessment in
terms of Section 120 of the Ordinance of 2001. The amended assessment
order passed under Section 122 of the said Ordinance and the
subsequent order dated 23.10.2012 passed by the Commissioner of
Inland Revenue, Appeals were successfully challenged by the respondent
before the Appellate Tribunal Inland Revenue which vide order dated
15.9.2014 held that the minimum tax under Section 113 of the
Ordinance of 2001 was to be calculated and charged on the basis of the
aggregate turnover from all sources, including export receipts. Aggrieved,
the appellants filed a reference petition under Section 133 of the said
Ordinance before the Lahore High Court which upheld the decision of the
Appellate Tribunal Inland Revenue vide order dated 24.12.2014 and
decided it in the same terms as the judgment reported as Commissioner
Inland Revenue Vs. Imperial Electric Company (Pvt.) Ltd. (2015 PTD
884). The order dated 24.12.2014 has been impugned before this Court.
In respect of question No.(iii), the concise facts of Civil Appeal
No.1084/L/2008 are that the respondent was a sanitation contractor of
the Capital Development Authority, Islamabad (CDA) who filed a return
under Section 55 of the Ordinance of 1979 which though initially
assessed under Section 59A, was subsequently revised and an order was
Civil Appeals No.1084 to 1098/2008 etc.
-: 10 :-
passed by the Additional Commissioner under Section 66A to the effect
that the payments received by the respondent from CDA were to be
governed by the Presumptive Tax Regime of Section 80C which would be
full and final discharge of tax liability. The order was successfully
challenged by the respondent before the Income Tax Appellate Tribunal,
subsequently the appellant filed applications under Section 136(1) of the
said Ordinance before the Income Tax Appellate Tribunal which
(applications) were dismissed. Thereafter, the appellant’s tax reference
before the learned High Court was also dismissed while holding, inter
alia, that income derived from ‘services rendered’ was not subject to the
Presumptive Tax Regime of Section 80C which stands specifically
excluded from such section, hence the instant appeal.
Finally with regard to question No.(iv), the facts of Civil Appeal
No.1089/2008 are that the respondent was deriving income from the
manufacturing and sale of vegetable oil and ghee items. The Assessing
Officer found the respondent to be in default under Section 52 of the
Ordinance of 1979 on the basis that the respondent failed to deduct tax
under Section 50(4) on account of certain purchases. The respondent’s
appeal before the Commissioner Income Tax (Appeals) was accepted after
which the appellant’s appeal before the Income Tax Appellate Tribunal
and their reference before the learned High Court were both dismissed
primarily on the ground that on-the-spot cash purchases did not fall
within the term ‘supply of goods’ as used in Section 50(4)(a) of the said
Ordinance, thus the respondent was not in default in terms of Section
52, thus the appellants approached this Court.
3.
Dr.
Ishtiaq
Ahmed,
Commissioner
Inland
Revenue,
appearing on behalf of the appellants/petitioners argued against the
impugned judgments. With respect to questions No.(i) and (ii), he
submitted that the phrases ‘turnover from all sources’ and ‘aggregate of
Civil Appeals No.1084 to 1098/2008 etc.
-: 11 :-
declared turnover’ provided in Section 80D encompass income from all
sources. He bifurcated the tax law regimes into the Presumptive Tax
Regime and the Normal Tax Regime. The crux of his argument was that
tax under the Presumptive Tax Regime is a final discharge of the tax
liability of the taxpayer and thus should not be included for the purposes
of calculation of ‘turnover’ in terms of Section 80D of the Ordinance of
1979. To bolster the above submission, he drew our attention to the fact
that a statement under Section 143B is to be filed regarding income
chargeable inter alia under Sections 80C and 80CC, i.e. the Presumptive
Tax Regime, as opposed to a return under Section 55 which is for the
Normal Tax Regime. He also made reference to Sections 168 and 169 of
the Ordinance of 2001 to support his arguments. He referred to and read
out extensively the relevant provisions of the Ordinance of 1979 and
quoted numerous practical examples as illustrations of tax calculation.
4.
On the other hand, the crux of the submissions of the
learned counsel for the respondents was that the income taxable under
Sections 80C and 80CC should not be excluded from ‘turnover’ under
Section 80D which (word) has been specifically defined in the explanation
to Section 80D(2) to mean gross receipts derived from the sale of goods,
or from rendering, giving or supplying services or benefits or from
execution of contract; and that there is nothing in Section 80D which
allows for tax on income under Sections 80C and 80CC to be adjusted or
for such income to be excluded from the ‘aggregate of declared turnover’,
so far as it falls within the definition of ‘turnover’.
Learned amicus curiae, Dr. Ikramul Haq, provided written
submissions upon the Court’s request and his arguments shall reflect in
the course of this opinion. However, it may be briefly mentioned at this
stage that he argued to the same effect as the respondents with respect
to the interpretation of Sections 80C, 80CC and 80D. He further
Civil Appeals No.1084 to 1098/2008 etc.
-: 12 :-
submitted that it was not the intention of the Legislature to include sales
made to walk-in customers within the purview of ‘supply of goods’ as
contemplated by Section 50(4)(a) of the Ordinance of 1979, as evidenced
by Section 153(1)(a) of the Ordinance of 2001.
5.
Heard. We intend to address questions No.(i) and (ii) (together)
first. Under tax law, there are various taxation methods, including the
two involved in the instant matters, i.e. presumptive and minimum tax.
The nature, scope and raison d’être of the said two types of tax find apt
and elaborate mention in the judgment reported as Messrs Elahi Cotton
Mills Ltd and others Vs. Federation of Pakistan through Secretary
M/o Finance, Islamabad and 6 others (PLD 1997 SC 582) a relevant
extract from which is reproduced herein below, in order to appreciate the
analysis in the later part of this opinion:-
“34. ……………In our view, sections 80-C and 80-CC
of the Ordinance fall within the category of
presumptive tax as under the same the persons
covered by them pay a pre-determined amount of
presumptive tax in full and final discharge of their
liability in respect of the transactions on which
the above tax is levied. Whereas section 80-D of
the Ordinance is founded on the theory of
minimum tax which has been elaborately dealt with
in the treatises, the relevant portions of which have
been quoted in extenso hereinabove.
40. Adverting to the impugned newly-added section 80-
D, it may be stated that we have already pointed out
hereinabove that sections 80-C and 80-CC cannot be
equated with section 80-D as the same is founded on
different basis. It may again be observed that section
80-D is based on the theory of minimum tax. It
Civil Appeals No.1084 to 1098/2008 etc.
-: 13 :-
envisages that every individual should pay a minimum
tax towards the cost of the Government………………”
(Emphasis added)
The above quoted passage makes it clear that the taxes under Section
80D on the one hand and Sections 80C and 80CC on the other are
distinct from each other. In order to answer questions No.(i) and (ii), the
meaning and scope of the term ‘turnover’ needs to be examined.
‘Turnover’ as mentioned in the provisions of Section 80D of the
Ordinance of 1979 and Section 113 of the Ordinance of 2001 has not
been defined in the definition clause of the Ordinances. However, in the
Ordinance of 1979, ‘turnover’ has been assigned a meaning in the
explanation to Section 80D itself. Section 80D of the Ordinance of 1979
reads as follows:-
“80D. Minimum tax on income of certain persons. (1)
Notwithstanding anything contained in this Ordinance or
any other law for the time being in force, where no tax is
payable or paid by a company or a registered firm, an
individual, an association of persons, an unregistered
firm or a Hindu undivided family which, not being a
company, does not qualify for assessment under the self
assessment scheme under sub-section (1) of section 59
resident in Pakistan or the tax payable or paid is less
than one-half per cent of the amount representing its
turnover from all sources, the aggregate of the
declared turnover shall be deemed to be the income of
the said company or a registered firm, an individual, an
association of persons, an unregistered firm or a Hindu
undivided family which, not being a company, does not
qualify for assessment under the self assessment scheme
under sub-section (1) of section 59 and tax thereon shall
be charged in the manner specified in sub-section (2).
Civil Appeals No.1084 to 1098/2008 etc.
-: 14 :-
Explanation.- For the removal of doubt, it is declared
that the expression "where no tax is payable or paid"
and "or the tax payable or paid" apply to all cases where
tax is not payable or paid for any reason whatsoever
including any loss of income, profits or gains or set off of
loss of earlier years, exemption from tax, credits or
rebates in tax, and allowances and deductions (including
depreciation) admissible under any provision of this
Ordinance or any other law for the time being in force.
(2) The company or a registered firm, an individual, an
association of persons, an unregistered firm or a Hindu
undivided family which, not being a company, does not
qualify for assessment under the self assessment scheme
under sub-section (1) of section 59 referred to in sub-
section (1) shall pay as income tax-
(a)
an amount, where no tax is payable or paid equal
to one-half per cent of the said turnover; and
(b)
an amount, where the tax payable or paid is less
than one-half per cent of the said turnover, equal
to the difference between the tax payable or paid
and the amount calculated in accordance with
clause (a).
Explanation: For the removal of doubt it is declared
that "turnover" means the gross receipts, exclusive
of trade discount shown on invoices or bills,
derived from the sale of goods or from rendering,
giving or supplying services or benefits or from
execution of contracts.
(3) ……………………………………………………………”
(Emphasis supplied)
Civil Appeals No.1084 to 1098/2008 etc.
-: 15 :-
What is the worth of an explanation to a section in a statute and how is it
to be interpreted? An explanation is appended to a section of an
enactment to stipulate the meaning of a word, term, or phrase, and
becomes part and parcel of the enactment. Its function is to clear the
ambiguity and explain the meanings of the words used in the section to
which it is appended.1 It is an intrinsic aid available to the reader to
understand and appreciate the statute and particularly the section to
which such explanation has been affixed. A plain reading of the meaning
assigned to ‘turnover’ in the explanation to Section 80D of the Ordinance
of 1979 clearly indicates that it (turnover) means gross receipts derived
from: (i) the sale of goods; or (ii) rendering, giving or supplying services or
benefits; or (iii) execution of contracts, and nothing more. That the
meaning assigned to ‘turnover’ is comprehensive and does not include
anything beyond what has been specified therein is bolstered by the fact
that the explanation begins with the phrase “For the removal of doubt it is
declared…” rendering the explanation a declaratory provision, and it is
well-established that the very purpose of declaratory provisions or
declaratory statutes is to remove doubts which exist, or may exist, in the
meaning or effect of a provision or statute, as the case may be. Thus the
phrases ‘turnover from all sources’ and ‘aggregate of declared turnover’ in
Section 80D are to be necessarily read in conjunction with the
explanation to Section 80D(2) of the Ordinance of 1979 for the purposes
of determination of minimum tax liability.
We find it relevant at this juncture to refer to the judgment
reported as Nazir Hussain Shah Vs. The State (PLD 1965 SC 139)
wherein, dilating upon the explanation appended to Section 6(5) of the
Pakistan Criminal Law (Amendment) Act (XL of 1958), a five member
1 Naveed Textile Mills Ltd. Vs. Assistant Collector (Appraising) Custom House, Karachi and others (PLD
1984 SC 92), Chief Administrator of Auqaf, Punjab, Lahore Vs. Koura alias Karam Ilahi and another (PLD
1991 SC 596).
Civil Appeals No.1084 to 1098/2008 etc.
-: 16 :-
bench of this Court held that it was not open to the Court to read into
the said section a limitation which was not there by reference to
extraneous circumstances. In similar vein, we are of the view that the
word ‘turnover’ specifically defined in Section 80D cannot be interpreted
in a way so as to widen or enlarge the scope of the said section by
interpreting ‘turnover’ to include income from all sources as has been
argued by the appellants/petitioners.
6.
Now adverting to the meaning of ‘turnover’ in Section 113 of
the Ordinance of 2001, which (meaning) has neither been provided in the
definition clause of the said Ordinance or by way of explanation to the
said section, instead a separate and exclusive sub-section, i.e. (3) of
Section 113 has been dedicated to it, which (section) reads as under:-
“113. Minimum tax on the income of certain persons.-
(1) This section shall apply to a resident company where,
for any reason whatsoever, including the sustaining of a
loss, the setting off of a loss of an earlier year, exemption
from tax, the application of credits or rebates, or the
claiming
of
allowances
or
deductions
(including
depreciation and amortisation deductions) allowed under
this Ordinance or any other law for the time being in
force, no tax is payable or paid by the person for a tax
year or the tax payable or paid by the person for a tax
year is less than one-half per cent of the amount
representing the person’s turnover from all sources for
that year.
(2) Where this section applies–
(a)
the aggregate of the person’s turnover for the
tax year shall be treated as the income of the
person for the year chargeable to tax;
Civil Appeals No.1084 to 1098/2008 etc.
-: 17 :-
(b)
……………………………………………………
……….
(c)
……………………………………………………
……….
Provided
that……………………………………………
(3) In this section, “turnover” means–
(a)
the gross receipts, exclusive of sales tax and
Federal excise duty or any trade discounts
shown on invoices or bills, derived from the
sale of goods;
(b)
the gross fees for the rendering of services or
giving benefits, including commissions;
(c)
the gross receipts from the execution of
contracts; and
(d)
the company’s share of the amounts stated
above of any association of persons of which
the company is a member.”
(Emphasis supplied)
Where the legislature defines, in the same statute, the meaning of a word
used therein, such definition most authoritatively expresses its intent
which definition and construction is binding on the courts.2 When a
word has been defined to mean such and such, the definition is prima
facie restrictive and exhaustive.3 Upon a plain reading of the definition of
‘turnover’ provided in Section 113(3) of the Ordinance of 2001 it is
manifest that it (turnover) means: (i) gross receipts derived from the sale of
goods; (ii) gross fees for the rendering of services or giving benefits,
2 Interpretation of Statutes (11th Ed.) by N. S. Bindra.
3 Vanguard Fire & General Insurance Co. Ltd., Madras Vs. Fraser & Ross (AIR 1960 SC 971).
Civil Appeals No.1084 to 1098/2008 etc.
-: 18 :-
including commissions; (iii) gross receipts from the execution of
contracts; and (iv) the company’s share of the amounts stated above of
any association of persons of which the company is a member. The
meaning in the said sub-section has been assigned to the word ‘turnover’
used in Section 113 and therefore the phrase ‘turnover from all sources’
in sub-section (1) is to be read in conjunction with such definition which
is exhaustive in nature and nothing further can be added thereto, thus
the argument of the appellants/petitioners’ that ‘turnover’ covers all
sources under various heads of income is not tenable in law.
7.
In light of the above discussion, the aggregate of the declared
turnover as defined in Section 80D of the Ordinance of 1979 from the
sale of goods, rendering, giving or supplying of services or benefits or
execution of contracts has to be taken into account for determining the
minimum tax liability of 0.5% of the turnover. If no tax, for whatever
reason, is payable/paid, then the amount worked out at the rate of 0.5%
of the turnover will be the minimum tax payable. If the tax payable/paid
is less than 0.5% of the turnover, then the minimum tax payable will be
the difference/balance between the tax payable/paid and 0.5% of the
turnover. A similar analysis will apply to Section 113 of the Ordinance of
2001, where the aggregate of the taxpayer’s turnover from the sale of
goods, rendering of services or giving of benefits including commissions
and the execution of contracts has to be taken into account in order to
determine the minimum liability of 0.5% of the turnover for each tax year
(or 1% of the turnover for each tax year, depending on the tax year involved; as Section 113 was
subsequently amended vide Finance Act, 2013 and the percentage of minimum liability
prescribed therein was increased to 1%).
8.
We now move on to consider the argument of the
appellants/petitioners that tax payable/paid upon income under the
Presumptive Tax Regime is a final discharge of tax liability and thus such
Civil Appeals No.1084 to 1098/2008 etc.
-: 19 :-
income is liable to be excluded from the aggregate turnover under
Sections 80D and 113 of the Ordinance of 1979 and 2001 respectively
(collectively referred to as the Ordinances). As mentioned in the earlier portion of
this opinion, ‘turnover’ has been clearly and comprehensively defined
in the explanations to Section 80D(2) and Section 113(3) ibid. It is well
settled that a strict and literal approach is to be adopted while
interpreting fiscal or taxing statutes, and that the Court cannot read into
or impute something when the provisions of a taxing statute are clear.
These principle(s) have been reiterated by this Court in a number of
judgments reported as Pearl Continental Hotel and another Vs.
Government of N.W.F.P. and others (PLD 2010 SC 1004), Star Textile
Ltd. and 5 others Vs. Government of Sindh through Secretary Excise
and Taxation Department, Sindh Secretariat, Karachi and 3 others
(2002 SCMR 356), Aslam Industries Ltd., Khanpur Vs. Pakistan
Edible Corporation of Pakistan and others (1993 SCMR 683), Messrs
Mehran Associates Limited Vs. The Commissioner of Income-Tax,
Karachi (1993 SCMR 274), A & B Food Industries Limited Vs.
Commissioner of Income-Tax/Sales, Karachi (1992 SCMR 663),
Collector of Customs (Preventative) and 2 others Vs. Muhammad
Mahfooz (PLD 1991 SC 630) and Messrs Hirjina & Co. (Pakistan) Ltd.,
Karachi Vs. Commissioner of Sales Tax Central, Karachi (1971 PTD
200). A five member bench of this Court in Hirjina & Co. (supra) while
interpreting the definition of ‘Provincial Excise Duty’ held:-
“Apart from this, we are unable to read the earlier
definition in the manner suggested by the Department. It
was said in the course of argument that notwithstanding
the amendment it must be assumed that the previous
definition of ‘sale price’ included Provincial Excise
Duty. The previous definition however, does not
Civil Appeals No.1084 to 1098/2008 etc.
-: 20 :-
expressly say so. We may here observe that
interpreting the taxing statute the Courts must
look to the words of the statute and interpret it in
the light of what is clearly expressed. It cannot
imply anything which is not expressed, it cannot
import provisions in the statute so as to support
assumed deficiency. On the other hand the fact that the
Legislature made an express provision for including the
excise duty indicates that the unamended definition of
the ‘sale price’ did not include the provincial excise
duty.”
(Emphasis supplied)
At the cost of repetition, Section 80D of the Ordinance of 1979 includes
within its ambit receipts, exclusive of trade discount shown on invoices
or bills, derived from the sale of goods or from rendering, giving or
supplying services or benefits or from execution of contracts, whether or
not such receipts fall under the Presumptive Tax Regime or Normal Tax
Regime. In similar vein, Section 113 of the Ordinance of 2001 includes
within its ambit receipts, exclusive of sales tax and Federal excise duty or
any trade discounts shown on invoices or bills, derived from the sale of
goods, rendering of services or giving of benefits including commissions,
or from the execution of contracts, whether or not such receipts fall
under the Presumptive Tax Regime or Normal Tax Regime. There is
nothing in the wording of Sections 80D and 113 of the respective
Ordinances to suggest that for the purposes of calculating the turnover
for the said sections receipts of income subject to the Presumptive Tax
Regime are excluded. Furthermore, Section 153(1)(c) of the Ordinance of
2001 provides that receipts from the execution of contracts would be
subject to presumptive tax which would be final, and at the same time
Section 113(3)(c) of the said Ordinance clearly includes gross receipts
from the execution of contracts within ‘turnover’ for the purposes of
Civil Appeals No.1084 to 1098/2008 etc.
-: 21 :-
determination of minimum tax under Section 113. Thus it certainly
cannot be said that receipts of income subject to presumptive tax would
automatically fall outside the scope of Section 113 (for the tax years up to 2009,
prior to re-insertion of Section 113 by the Finance Act, 2009).
9.
In furtherance of the above analysis, there was nothing to
prevent the Legislature from expressly providing that such receipts (under
the Presumptive Tax Regime) would be excluded while calculating the aggregate
turnover under the said sections. This interpretation is augmented by
the fact that the new Section 113 of the Ordinance of 2001, as re-
inserted by the Finance Act, 2009 (new Section 113)4, specifically excluded
from its domain the amounts subjected to the Presumptive Tax Regime,
which (section) reads as below:-
“113. Minimum tax on the income of certain persons.-
(1) This section shall apply to a resident company where,
for any reason whatsoever allowed under this Ordinance,
including any other law or for the time being in force–
(a) loss for the year;
(b) the setting off of a loss of an earlier year;
(c) exemption from tax;
(d) the application of credits or rebates; or
(e) the claiming of allowances or deductions (including
depreciation and amortization deductions) no tax is
payable or paid by the person for a tax year or the tax
payable or paid by the person for a tax year is less
than one-half per cent of the amount representing the
person’s turnover from all sources for that year:
Provided
that……………………………………………
(2) Where this section applies:
4 The new Section 113 reproduced in this opinion is as it was originally re-inserted by the Finance Act,
2009.
Civil Appeals No.1084 to 1098/2008 etc.
-: 22 :-
(a) ……………………………………………………………
(b)
……………………………………………………………
(c)
……………………………………………………………
Provided that……………………………………………
(3) “turnover” means,-
(a) the gross receipts, exclusive of Sales Tax and
Federal Excise duty or any trade discounts shown
on invoices, or bills, derived from the sale of goods,
and also excluding any amount taken as
deemed income and is assessed as final
discharge of the tax liability for which tax is
already paid or payable;
(b) the gross fees for the rendering of services for giving
benefits including commissions; except covered by
final discharge of tax liability for which tax is
separately paid or payable;
(c) the gross receipts from the execution of contracts;
except covered by final discharge of tax
liability for which tax is separately paid or
payable; and
(d) the company’s share of the amounts stated above of
any association of persons of which the company is
a member.”
(Emphasis supplied)
The underlined portions in the new Section 113(3) show the additions
made to the said sub-section specifically excluding from its purview the
amounts treated as deemed income and assessed as final discharge of
tax liability for which tax is paid/payable, i.e. those falling under the
Presumptive Tax Regime. These additional phrases inserted into the new
Section 113 (underlined above) are missing from the earlier Sections 80D and
Civil Appeals No.1084 to 1098/2008 etc.
-: 23 :-
113 of the respective Ordinances which patently suggests that the
minimum tax payable under Section 80D is leviable on the aggregate of
declared turnover from all sources including receipts covered by Sections
80C and 80CC of the Ordinance of 1979, and that the minimum tax
payable under Section 113 is leviable on the aggregate turnover from all
sources including receipts and tax under the Presumptive Tax Regime of
the Ordinance of 2001. The above analysis also draws support from the
insertion of the explanation to the new Section 113(1) of the Ordinance of
2001 by the Finance Act, 2012 which reads as follows:-
“Explanation.- For the purpose of this sub-section, the
expression “tax payable or paid” does not include tax
already paid or payable in respect of deemed income
which is assessed as final discharge of the tax liability
under section 169 or under any other provision of this
Ordinance.”
The absence of this explanation from the old Section 113 (prior to its omission
by the Finance Act, 2008) clearly suggests that the Legislature did not intend
that tax already paid/payable in respect of deemed income which was
assessed as final discharge of the tax liability under section 169 or under
any other provision of the Ordinance of 2001 would be excluded from the
purview of ‘tax payable or paid’, because the Legislature did not expressly
provide so and as mentioned above, fiscal statutes are generally to be
interpreted strictly, without imputing anything that is not manifest from
the express wording of such statute.
Thus in light of the ratio decidendi of Hirjina & Co. (supra) it is clear
that the exclusion of amounts treated as deemed income and assessed as
or covered by final discharge of tax liability for which tax is separately
paid/payable from the term ‘turnover’ cannot be implied in the
Civil Appeals No.1084 to 1098/2008 etc.
-: 24 :-
provisions of Sections 80D and 113 of the respective Ordinances, as the
same has not been so expressed. The appellants/petitioners’ argument
that failure to exclude amounts which are covered by final discharge of
tax liability from the ‘turnover’ results in numerous taxpayers essentially
crossing the threshold provided in the said sections thereby rendering
them not liable to payment of minimum tax as envisaged by the said
sections, and thus depriving the appellants/petitioners of well-deserved
revenue, is not a justification to read into the provisions of Sections 80D
and 113 something which is not there “so as to support assumed deficiency”5,
as there can be no equitable construction of taxing statutes.6
10.
With regard to the appellants/petitioners’ reference to the
statement under Section 143B of the Ordinance of 1979, suffice it to say
that mere filing of a statement under the said section (as opposed to a return
under Section 55 which is for the Normal Tax Regime) for income falling under the
Presumptive Tax Regime (i.e. Sections 80C, 80CC etc.) is not a reason to bring
them out of the definition of ‘turnover’ when the law, i.e. the explanation
to Section 80D(2), expressly provides otherwise. The same applies to the
corresponding provisions of the Ordinance of 2001, in that mere filing of
a statement under Section 115(4) of the Ordinance of 2001, which (section)
is pari materia to Section 143B of the Ordinance of 1979, does not mean
that the income contained in such statement would automatically fall
outside the scope of ‘turnover’ provided by Section 113. If such income
falling under the Presumptive Tax Regimes of both the Ordinances was to
be excluded from the ambit of ‘turnover’ as provided in Sections 80D and
113 of the respective Ordinances, the Legislature would have explicitly
mentioned it, as it had done by excluding amounts/receipts which are
5 Hirjina & Co. (supra) and Bindra (supra note 2).
6 Understanding Statutes (2008 Ed.) by S. M. Zafar; see also the case of Star Textile Ltd. And 5 others Vs.
Government of Sindh through Secretary Excise and Taxation Department, Sindh Secretariat, Karachi and 3
others (2002 SCMR 356).
Civil Appeals No.1084 to 1098/2008 etc.
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final discharge of tax liability in the new Section 113 re-inserted into the
Ordinance of 2001 by the Finance Act, 2009.
11.
The appellants/petitioners have relied upon Section 168(3) of
the Ordinance of 2001 to contend that income subject to the Presumptive
Tax Regime falls outside the scope of Section 113 of the said Ordinance.
Section 168(3) opens with the phrase “no tax credit shall be allowed for any tax
collected or deducted that is a final tax…”; suffice it to say that tax credit has
no role whatsoever to play in determining the minimum tax liability with
respect to the term ‘turnover’ as defined in Section 113 of the Ordinance
of 2001. We fail to understand how Section 168(3) supra can be
construed to mean that the receipts of income falling under the
Presumptive Tax Regime are to be excluded from the purview of
‘turnover’ for the purposes of determination of minimum tax under
Section 113.
12.
In light of the foregoing, we are of the view that given the
definition of ‘turnover’ provided in Sections 80D and 113 of the
Ordinances, the minimum tax payable is leviable on the aggregate of
turnover from all sources including receipts covered by Sections 80C and
80CC of the Ordinance of 1979, and by the Presumptive Tax Regime
under the Ordinance of 2001, respectively. We do not find any infirmity
in the impugned judgments relating to this issue calling for interference
by this Court, and therefore, these appeals and petitions are accordingly
dismissed.
13.
Now adverting to question No.(iii), the relevant provisions
(parts) of Sections 50(4) and 80C of the Ordinance of 1979 read as
follows:-
“50. Deduction of tax at source.- (4) Notwithstanding
anything contained in this Ordinance,-
Civil Appeals No.1084 to 1098/2008 etc.
-: 26 :-
(a) any person responsible for making any payment in
full or in part (including a payment by way of an
advance) to any person, being resident, (hereinafter
referred to respectively as "payer" and "recipient"),
on account of the supply of goods or for service
rendered to, or the execution of a contract with
the Government, or a local authority, or a company
or a registered firm, or any foreign contractor or
consultant or consortium shall, deduct advance tax,
at the time of making such payment, at the rate
specified in the First Schedule............
80C.
Tax on income of certain contractors and
importers.- (1) Notwithstanding anything contained in
this Ordinance or any other law for the time being in
force, where any amount referred to in sub-section (2) is
received by or accrues or arises or is deemed to accrue
or arise to any person, the whole of such amount shall be
deemed to be income of the said person and tax thereon
shall be charged at the rates specified in the First
Schedule.
(2) The amount referred to in sub-section (1) shall be the
following namely:-
(a) Where the person is a resident,-
(i) the amount representing payments on which tax
is deductible under sub-section (4) of section 50,
other than payments on account of services
rendered;”
(Emphasis supplied)
A plain reading of Section 50(4)(a) of the Ordinance of 1979 clearly
provides for deduction of tax at source in three situations: (i) supply of
goods; (ii) for service rendered; and (iii) execution of a contract.
Whereas Section 80C(2)(a)(i) provides that the income of a person for the
Civil Appeals No.1084 to 1098/2008 etc.
-: 27 :-
purposes of tax under the said section, shall include payments on which
tax is deductible under Section 50(4) excluding payments on account of
services rendered. Logic suggests that all services rendered would
necessarily be pursuant to execution of a contract, i.e. as long as there is
a meeting of the minds or consensus ad idem. Thus to say (as is the
appellants’ stance) that though services are being rendered, since it is
pursuant to execution of a contract, it would not fall within the exception
contained in Section 80C(2)(a)(i) and instead the income derived from
such execution of contract would be liable to be charged with
presumptive tax under Section 80C would, in our opinion, render the
exception in Section 80C(2)(a)(i) completely superfluous and redundant.
Such intention cannot be attributed to the Legislature and neither can
we, while following the salutary and well-established principles of
statutory interpretation, construe the said section in such a way. In fact,
the very selection of words, i.e. ‘supply of goods’, ‘service rendered’ and
‘execution of contract’ suggests that the wide phraseology of ‘execution of
contract’ pertains to residual contracts, other than those (contracts)
involving
supply
of
goods
and/or
rendering
of
services.
This
interpretation is strengthened by clause (i) of Section E of Part I of the
First Schedule to the Ordinance of 1979 which reads follows:
“E.
Rate for collection of income tax under sub-section
(4) of section 50,-
(i)
Where the payment is made to a resident assessee
holding a National Tax Number, on account of-
(a)
execution of contracts, other than those
mentioned in sub-clauses (b), (c) and (d) …
(i)
where the value of the contract
five per cent of
Does not exceed thirty million
such income.
Civil Appeals No.1084 to 1098/2008 etc.
-: 28 :-
rupees,
(ii)
Where the value of contract
six per cent of
exceeds thirty million rupees,
such income.
(b)
supply of rice, cotton,
one and one-
cotton seed or edible oils;
half per
cent of the
amount of
payment.
(c)
supply of goods other than
three and one
those referred to in sub-
half per cent of
paragraph (b); and
the amount of
payment.
(d)
services rendered.
five per cent of
the amount of
payment.”
(Emphasis supplied)
We would like to point out here that a schedule to a statute can be used
as an intrinsic aid to interpret its (statute’s) provisions, which (schedule) is as
much a part of the statute, and is as much an enactment as any other
part.7 Thus the above extract of the said schedule also indicates that
services rendered necessarily flow from execution of a contract, but
execution of a contract would not necessarily result in rendering of
services. In other words, where services are being rendered, prior
execution of a contract would not per se attract the presumptive tax
under Section 80C, rather it would be excluded by virtue of the exception
in Section 80C(2)(a)(i). Thus there can be no question of taxing the same
under the Presumptive Tax Regime. Hence, we are inclined to answer
question No.(iii) in the negative, thereby affirming the view point of the
learned High Court in the impugned judgments in this regard.
7 Zafar (supra note 6).
Civil Appeals No.1084 to 1098/2008 etc.
-: 29 :-
14.
Finally, with respect to question No.(iv), in which the issue
relates to the meaning and connotation of the word ‘supply’, and whether
or not it encompasses on-the-spot cash purchases. The learned High
Court in the impugned judgments in this regard has held that ‘supply of
goods’ as used in the said Ordinance does not include on-the-spot cash
purchases which fall within ‘sale’ as opposed to ‘supply’, the latter being
associated with a continuing relationship existing over a certain period of
time. In order to resolve the fourth proposition, the term ‘supply of goods’
as provided for in Section 50(4)(a) needs elucidation. Since the said term
has not been specifically defined in the Ordinance of 1979, as per the
settled canons of statutory interpretation, the ordinary and natural
meaning of the phrase needs to be examined. However, ‘supply of goods’
also qualifies as a technical term as it is part of a statute falling within
the special technical subject of taxation which is associated with
business, economics and accounts, therefore its contextual parlance and
phraseology needs to be examined. Before embarking upon such
examination, we would like to expound certain rules of statutory
interpretation in this regard. First, where an enactment uses a term
which has both an ordinary and a technical meaning, the question as to
which meaning the term is intended to have is determined by the
context. If the context is technical, the presumption is that the technical
meaning of the term is intended to be used; otherwise the ordinary
meaning is taken as meant.8 Secondly, words used in a statute relating
to a particular trade, business or transaction are to be construed as
having the meaning which everybody conversant with that trade,
business or transaction knows and understands.9 This is particularly so
in construing the meaning of words in taxing statutes, as has been held
8 Statutory Interpretation (4th Ed.) by F. Bennion.
9 Messrs Asbestos Cement Industries Ltd Vs. Lahore Municipal Corporation and others (1994 SCMR 262).
Civil Appeals No.1084 to 1098/2008 etc.
-: 30 :-
by the Indian Supreme Court,10 which (view) we have no hesitation in
subscribing to:-
“…in determining the meaning or connotation of words
and expressions describing an article in a tariff
Schedule, one principle which is fairly well-settled is that
those words and expressions should be construed in the
sense in which they are understood in the trade by the
dealer and the consumer. The reason is that it is they
who are concerned with it, and, it is the sense in which
they understand it which constitutes the definitive index
of the legislative intention.”
In ordinary parlance, ‘supply’ means to “make (something needed) available to
someone; provide with something needed; the act of supplying”,11 “to provide or furnish
(something believed to be necessary)”12 and “to provide something that is wanted or
needed, often in large quantities and over a long period of time”13, whereas ‘sale’
has been defined as “the act or practice of selling; the exchange of anything for a
specified amount of money”14 and “the exchange of a commodity for money; the
process of selling something”.15 Applying the contextual approach to meaning,
‘supply’ is associated with a ‘supplier’ and ‘sale’ with ‘seller/vendor’. A
supplier is one who supplies goods (or services) to another, the latter often
is not the end-consumer. The consumer is directly associated with the
seller/vendor who sells/vends goods to customers. In the supply chain,
the supplier more often than not appears somewhere in the beginning or
middle, whereas the seller/vendor is often the last person involved and is
therefore at the end of the supply chain who obtains goods from a
supplier and sells/vends them to consumers/clients. Every supply
10 Indian Aluminium Cables Ltd. Vs. Union of India and others (AIR 1985 SC 1201).
11 Concise Oxford English Dictionary (11th Ed.).
12 Chambers 21st Century Dictionary (1999 Ed.).
13 Cambridge Dictionaries Online.
14 Chambers (supra note 12).
15 Oxford (supra note 11).
Civil Appeals No.1084 to 1098/2008 etc.
-: 31 :-
involves a sale (as there is provision of goods in exchange for consideration), however
every
sale
does
not
necessarily
involve
supply,
for
e.g.
a
shopkeeper/seller/vendor selling goods at his shop to walk-in customers
cannot be described as the equivalent of ‘supplying’. Thus in technical
terms, ‘supply’ as understood in its proper milieu would not encompass
on-the-spot cash purchases.
15.
The above interpretation is supported by the fact that the
term ‘supply of goods’ was dispensed with in Section 153(1)(a) of the
Ordinance of 2001 which is pari materia to Section 50(4) of the
Ordinance of 1979, and instead the phrase ‘sale of goods’ was used. The
relevant provisions of Section 153 read as follows:-
“153. Payment for goods, services and contracts.– (1)
Every prescribed person making a payment in full or
part including a payment by way of advance to a
resident person or –
(a) for the sale of goods;
(b) for the rendering of or providing of services;
(c) on the execution of a contract, including contract
signed by a sportsperson but not including a
contract for the sale of goods or the rendering of or
providing services,
shall, at the time of making the payment, deduct tax from
the gross amount payable (including sales tax, if any) at
the rate specified in Division III of Part III of the First
Schedule.
(Emphasis added)
The departure in the wording of Section 153(1) from that of Section 50(4)
is significant, as established above, the words ‘sale’ and ‘supply’ are
neither synonymous nor interchangeable. This divergence speaks
volumes to the intent of the Legislature, which was that sales by
Civil Appeals No.1084 to 1098/2008 etc.
-: 32 :-
sellers/vendors to their walk-in customers or on-the-spot cash
purchases were not to be included within the purview of ‘supply of
goods’, thereby subjecting such walk-in/on-the-spot cash purchases to
the withholding provisions. This intention is also manifest from a bare
reading of Section 50(4)(a) of the Ordinance of 1979 (reproduced in the earlier
part of this opinion) which can in no way be said to be designed to levy such a
tax on consumers for payments made on the spot or window purchases.
However, an explanation was inserted into Section 50(4)(a) of the
Ordinance of 1979 through the Finance Act, 1998 which reads as
under:-
“Explanation.- For the purposes of clause (a) the
expression “supply of goods” includes both cash and
credit purchases of goods by the payer, whether under a
contract or not, on credit or in cash;”
The Peshawar High Court in Al-Khair Gadoon Ltd Vs. Commissioner of
Income-Tax [2004 PTD 2467] and the High Court of Sindh in
Commissioner of Income-Tax, Karachi Vs. Messrs Nazir Ahmed and
Sons (Pvt.) Ltd., Karachi (2004 PTD 921) have interpreted the
explanation to Section 50(4)(a) to determine whether or not it (explanation)
would have retrospective effect. However, the controversy involved in
those cases was not related to sales to walk-in customers or on-the-spot
cash purchases, nevertheless their ratio may effectively mean that any
purchase, be it on-the-spot, would fall within the purview of ‘supply of
goods’. As established above, ‘supply’ necessarily includes a purchase,
and in our opinion, the said explanation was included to clarify that
such purchase would not only be those made in cash, but also by way of
credit payment. As highlighted in the earlier part of this opinion, an
explanation cannot be read so as to extend the scope of the provision to
Civil Appeals No.1084 to 1098/2008 etc.
-: 33 :-
which it is appended, thus we are not inclined to extend ‘supply of goods’
in Section 50(4) to include ‘sale of goods’ by sellers/vendors at their
retail outlets to walk-in customers merely by virtue of the use of the
word ‘purchase’ in the said explanation. In this respect, we find it
expedient to reproduce an extract from a judgment of the Lahore High
Court reported as Commissioner of Income Tax/Wealth Tax Vs.
Messrs Ellcot Spinning Mills Ltd. (2008 PTD 1401) which reads as
follows:-
“For all practical purpose it is the definition of ‘supply
of goods’ which would decide or clinch the issue. The
term supply has not been defined in Income Tax
Ordinance at all. However, it has already been
considered as a part of sale but every sale is not a
supply. Supply presupposes the existence of a regular
arrangement based upon some permanence involving
order identification and determination of the items, its
quality and the considerations. It can obviously be cash
as well as a credit and this did not require any further
explanation as has been added in section 50(4) above.
The fear of the respondents and the claim of the
department that the explanation after proviso in
subsection (a) of section 50(4) which defines supply of
goods has not brought anything new, is baseless. The
explanation in fact has confused the situation as it says
that the purchase of goods by the payer whether under a
contract or not, on credit or in cash shall be a part of the
supply. However, the same does not add anything new
except that it can be either under a contract or not under
a contract. The draftsman is totally ignorant that once a
transaction is done the existence of a contract is obvious.
However, the term supply even after the above
explanation would not cover a window purchase of
casual sale purchase transactions like of daily goods in
open market.”
Civil Appeals No.1084 to 1098/2008 etc.
-: 34 :-
The judgment reported as Messrs Bilz (Pvt.) Ltd Vs. Deputy
Commissioner of Income-Tax, Multan and another (2002 PTD 1)
relied upon by the appellants has no relevance to the precise question of
law at hand, thus needs no further discussion.
In light of the above, question No.(iv) is answered in the negative,
in that, on-the-spot cash purchases do not fall within the purview of
‘supply of goods’ as envisaged by Section 50(4)(a) of the Ordinance of
1979. In light of the above discussion, the appeals of the department in
this regard are dismissed and the impugned judgment(s) of the learned
High Court are sustained.
16.
To recapitulate, in light of the above, all the appeals (excluding
Civil Appeal No.310/2012) and petitions are dismissed. As far as Civil Appeal
No.310/2012 is concerned, the same involves the question regarding
lease and buyback, and since the related matters were dismissed as
withdrawn by the department vide order dated 27.1.2016, therefore we
have refrained from commenting on the merits of the said case which is
accordingly dismissed. Before valediction, we would like to express our
gratitude towards the invaluable assistance rendered by the learned
amicus curiae, Dr. Ikramul Haq.
JUDGE
JUDGE
JUDGE
Announced in open Court
on 5.4.2016 at Islamabad
Approved For Reporting
Ghulam Raza/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE DOST MUHAMMAD KHAN
MR. JUSTICE SAJJAD ALI SHAH
Civil Appeal No.1085 of 2017
(On appeal from the order dated 18.4.2017
passed by the Peshawar High Court, Peshawar
in W.P. No.1230-P/2017)
Chairman NAB
…Appellant
VERSUS
Muhammad Usman and others
….Respondents
For the appellant(s):
Mr. Arshad Qayyum, Special Prosecutor
For respondents No.1 & 2:
Mr. Shumail Butt, ASC
Date of hearing:
21.9.2017
JUDGMENT
Dost Muhammad Khan, J:-
This appeal with the leave of the Court is against the
judgment
of
the
Peshawar
High
Court
dated
18.4.2017.
The
Accountability Court, Peshawar vide order dated 9.3.2017 declined
request of the respondents for summoning 33 prosecution witnesses,
who were already examined and cross-examined, however, it was set
aside through the impugned judgment.
C.A No.1085/17
2
We have heard the learned ASC for the appellant and the
learned ASC for the respondents-accused and have gone through the
relevant provisions of law and also the case-laws cited at the bar.
2.
The respondents were charged for collecting huge money
from several persons, wanted to perform “Hajj”, however, they allegedly
misappropriated the same and did not perform their promise.
3.
Initially, cognizance of the case was taken by the FIA,
Peshawar but then it was transferred to the NAB. The latter after
conducting inquiry, converted it into investigation and at the conclusion
thereof, Reference No.2 was filed in the Accountability Court, Peshawar.
At the conclusion of the prosecution evidence, the respondents accused
submitted a long list of defence witnesses including 33 witnesses of the
prosecution, they wanted to examine as defence witnesses, albeit these
witnesses were earlier examined by the Prosecution and were cross-
examined, however, no reason much less plausible was shown for such a
venture.
4.
The learned Division Bench of the High Court in paras 6 & 7
of the impugned judgment has held as under:-
“Under the provisions of sections 265-F and 540 Cr.P.C
the trial Court has wide powers and the respondent
accused/defence has a right to produce any witness
already examined by the Prosecution and this right
cannot be denied to the accused-respondent.”
To know the true meaning and import of the two provisions
of law, same are reproduced as follows: -
“S.265-F. Evidence for prosecution:
(1)…………………………………(not relevant)
(2)…………………………………(not relevant)
C.A No.1085/17
3
(3)…………………………………(not relevant)
(4)…………………………………(not relevant)
(5)…………………………………(not relevant)
(6)
If the accused, or any one of several accused, says
that he means to adduce evidence, the Court shall call on the
accused to enter on his defence and produce his evidence;
(7)
If the accused or any one or several accused, after
entering on his defence, applies to the Court to issue any
process for compelling the attendance of any witness for
examination or the production of any document or other
thing, the Court shall issue such process unless it considers
that the application is made for the purpose of vexation or
delay or defeating the ends of justice such ground shall be
recorded by the Court in writing.”
“S.540. Power to summon material witness or examine
persons present. Any Court may, at any stage of any
inquiry, trial or other proceeding under this Code, summon
any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall
and re-examine any person already examined; and the Court
shall summon and examine or recall and re-examine any
such person if his evidence appears to it essential to the just
decision of the case.”
6.
Under the former provision of Cr.P.C, it is the Prosecution to
produce and examine its witnesses, who are necessary to place before
the Court the true version of a case, while the accused/defence has a
right to cross-examine them, which opportunity on all the 33 witnesses
was fully availed by the accused-respondents.
7.
The latter provision i.e. section 540 Cr.P.C. empowers the
Court to examine any witness, present in Court or to produce any
document in his possession or to summon and re-examine any
person/witness already examined and it shall summon and examine any
such witness, if it is of the view that its evidence or further evidence is
C.A No.1085/17
4
necessarily required to reach at a just conclusion by securing the ends of
justice.
8.
The production and examination of witnesses has also been
explained by various provisions contained in Chapter 10 of the Qanun-e-
Shahadat Order, 1984. This provision in unequivocal terms prescribes
the mode and manner of examination of witnesses. The prosecution
witnesses or any party calling and examining the witnesses is called,
‘examination-in-chief’ while examination of the same witnesses by the
opposite party is called, ‘cross-examination’. Subsequent examination
of the same witnesses by the party calling it, is called ‘re-examination’.
The latter exercise is conducted with the permission of the Court
whenever any ambiguity or vacuum is created in the testimony of
witness/witnesses during the course of cross-examination to explain the
same and not for dishonest improvement.
9.
The Courts are required to guard and protect the witnesses
against undue harassment and undesirable cross-examination, not
relevant to the fact in issue but directed against the witnesses by way of
bush-beating, putting them to unnecessary strain and stress so that
something is brought about from their mouth after they are exhausted
through such undue process.
10.
The famous Jurist on the law of evidence, “Wigmore” has
placed the status of the witnesses on high pedestal and has described
them ‘engines and machines/essential tools’, without whose assistance
and evidence the Courts would be unable to do justice or to reach at a
correct conclusion therefore, he suggests that it is the primary duty of
the Court to safeguard the interest of the witnesses in a reasonable
manner and they are to be protected from undue harassment.
C.A No.1085/17
5
11.
The 3rd category of witnesses is called ‘Court witnesses’,
who are examined or re-examined by the Court, when at trial, the Court
is of the view that their evidence is essential for the just and fair decision
of the case in discovering the truth. These powers have been conferred on
the Court with the only object that justice is not slipped out of the hands
of the Court nor it get out of its domain because doing justice in each
case is the primary obligation of every Court and not the party in an
adversarial system of justice. The role of the Court under the provision
of S.540 Cr.P.C is inquisitorial where it endeavours to discover the
truth, suppressed by both or one party to the case to incapacitate the
Court to reach at a just conclusion. The role of the Judge does not
undergo change because in exercising inquisitorial powers, the law has
imposed obligation on it to discover the truth and to secure the ends of
justice.
12.
From the entire scheme of above provisions of Cr.P.C. and of
the provisions of the Qanun-e-Shahadat Order, 1984, it becomes clearer
than crystal that the two categories of witnesses i.e. the prosecution
witnesses and the defence witnesses are distinctly placed pole apart and
both cannot and shall not be intermingled.
13.
The words used, Vexation, causing delay in the trial or
defeating the ends of justice are of vital connotation and discretion is
vested in the Trial Court to refuse the summoning or examining any
witness by the Defence if the purpose is to defeat such ends.
14.
There may be very rare and exceptional cases, where, the
prosecution has dropped any material witness whose evidence, if given,
may have a direct bearing on the end result of the case, in that event, the
Court is blessed with unfettered powers to summon and examine such
C.A No.1085/17
6
witness only for the purpose of discovery of truth, for the purpose of
doing complete justice however, such powers are not to be exercised at
random and without application of proper judicial mind with reasonable
depth to the facts of each case. Unmistakenly, in view of the provision of
S.540 Cr.P.C. the witnesses are examined as ‘court witnesss’ and not for
prosecution or defence, therefore, none of the parties to a case can claim
such a right. These powers shall only be exercised to put justice into
correct channels.
15.
The discretion so vested in the Trial Court ordinarily cannot
be questioned and that too in extraordinary constitutional jurisdiction
unless it is shown and established that exercise of such powers by the
Trial Court or by not exercising the same, has resulted into a grave
miscarriage of justice, therefore, calling the witness of the other party as
its own witness, even in criminal trials, already examined, is not
acknowledged by the law on the subject, therefore, it is neither desirable
nor such a practice can be approved. In exceptional cases, where
material witness has been dropped by the prosecution in the
circumstances discussed above, the Court may exercise powers with due
care and caution. However, in that case too, the prosecution
witness/witnesses cannot be examined as defence witnesses but court
witness/witnesses and for that, a written request is made to the Court
showing cogent and convincing reasons for calling and examining any
witness of the prosecution, not examined or has already been examined
to be re-examined as court witness.
16.
If the witnesses of the prosecution already examined in bulk
like in this case, are called as defence witnesses u/s 265-F Cr.P.C. this
would defeat the ends of justice besides corrupting the system of justice
C.A No.1085/17
7
through intrigues. In case they make improvement in favour of the
defence, making radical departure from their earlier statements, they
would compromise their integrity and would also expose themselves to
criminal prosecution on the charge of perjury therefore, such a course
shall be avoided in all circumstances to streamline the process and to
ensure that trials are not delayed and course of justice is not thwarted by
such tactics and tricks.
17.
It is the bedrock principle of law that discretion once
exercised by the Court vested in it by law, shall in no manner be
disturbed or set aside by the courts superior in rank. This principle shall
apply more vigorously in constitutional jurisdiction of the High Court
under Article 199 thereof, which shall be exercised sparingly and
considerable restraints should be exercised in this regard.
18.
As held time and again that the powers of judicial review
vested in High Court under Article 199 of the Constitution is no doubt a
great weapon in the Judge’s hands however, the same shall not be
exercised in a case where discretion is exercised by the subordinate
court/Tribunal in a fair and just manner without violating or
disregarding statutory provision of law, likely to occasion the failure of
justice. Ordinarily such extraordinary jurisdiction shall not be exercised
at random and in routine manner. The following case law is reproduced
for the guidance of the learned Judges of the High Court for future
course of action:-
(i)
Brig.(Rtd.) Imtiaz Ahmed v. Government of Pakistan, through
Secretary, Interior Division, Islamabad (1994 SCMR 2142)
(ii)
Shahnaz Begum v. The Hon’ble Judges of the High Court of Sindh
and Baluchistan (PLD 1971 SC 677)
(iii)
Malik Shauktat Ali Dogar v. Ghulam Qasim Khan Khakwani
C.A No.1085/17
8
(PLD 1994 SC 281)
19.
In our considered view, the learned Division Bench of the
Peshawar High Court through the impugned judgment has certainly
overstepped its jurisdiction vested in it under Article 199, probably due
to lack of proper assistance at the bar, however, one cannot ignore the
fundamental principle relating to administration of justice that law is
written on the sleeves of the Judges and it is the primary duty of a Judge
to apply the correct law to a case before it and even the party is not
bound to engage a counsel for telling the Court how a particular law is to
be applied and how the jurisdiction is to be exercised thus, the impugned
judgment being not sustainable in law, is set at naught.
According, this appeal is allowed and the impugned judgment of
the Peshawar High Court dated 18.4.2017 is set aside while that of the
Accountability Court is restored.
Judge
Judge
Judge
Islamabad, the
21st September, 2017
Nisar /-
‘Approved for reporting.
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE EJAZ AFZAL KHAN
MR. JUSTICE SARDAR TARIQ MASOOD
MR. JUSTICE FAISAL ARAB
CIVIL APPEAL NO. 1086 OF 2009
(On appeal against the order dated 29.1.2009
passed by the Peshawar High Court, Peshawar
in T.R. No. 48/2007)
Commissioner of Income Tax, Peshawar
… Appellant
VERSUS
M/s Islamic Investment Bank Ltd
… Respondent
For the Appellant:
Mr. Ghulam Shoaib Jalley, ASC
For the Respondent:
Syed Mudassar Ameen, ASC
Date of Hearing:
16.12.2015
JUDGMENT
FAISAL ARAB, J.- The controversy in this appeal relates to the
income tax return that was filed by the respondent for the income
year that ended on 30.6.2001. Corresponding to such income year,
the assessment year was 2001-02. The assessment on the tax
return was finalized by the taxation officer on 14.05.2003 under the
provisions of Section 62 of the repealed Income Tax Ordinance,
1979, on the strength of Section 239(1) of the Income Tax
Ordinance, 2001, which states “in making any assessment in
respect of any income year ending on or before the 30th day of June,
2002, the provisions of the repealed Ordinance ….shall apply as if
this Ordinance had not come into force.” We may mention here that
the Income Tax Ordinance, 1979 was repealed with effect from
30.06.2002 and replaced by Income Tax Ordinance, 2001 which
came into operation on 01.07.2002.
CIVIL APPEAL NO. 1086 OF 2009
2
2.
When the Additional Commissioner, Income Tax, Range
II, Companies Zone, Peshawar considered the assessment order in
question to be prejudicial to the interest of the revenue, so he, in
order to amend it, served a notice dated 23.08.2004 on the
respondent under Section 122(5A) of the Income Tax Ordinance,
2001. After hearing the respondent, the original assessment order
was amended vide order dated 08.04.2005 whereby the income
earned by the respondent from the sale of membership card of
Islamabad Stock Exchange was enhanced by two million rupees.
The respondent preferred appeal against such order which was
dismissed on 30.10.2006 by the Commissioner, Income Tax
(Appeals), Peshawar. He held that notice under Section 122(5A) of
the Income Tax Ordinance, 2001, was illegal and vacated the same
on the ground that the original assessment was finalized on
14.05.2003 i.e. at a time when Section 122 (5A) had not been
inserted in the Income Tax Ordinance, 2001, therefore, it cannot be
applied retrospectively. While reaching at such decision, the
Commissioner (Appeals) placed reliance on the case of Honda
Shahrah-e-Faisal Association of Persons, Karachi Vs. Regional
Commissioner of Income Tax, Karachi (2005 PTD 1316). In the said
case, the Division bench of the Sindh High Court had held as
follows:-
“the provisions contained in sub section (5-A) of Section
122 of the Income Tax Ordinance, 2001, inserted with
effect from 1.7.2003, is not retrospective in operation.
Consequently,
the
assessments
finalized
before
CIVIL APPEAL NO. 1086 OF 2009
3
1.7.2003 cannot be reopened/revised/amended in
exercise of jurisdiction under the above provisions.
Admittedly, all the notices impugned in these petitions
are in respect of the assessments finalized before
1.7.2003, and consequently all the impugned notices are
without jurisdiction, illegal, therefore, hereby quashed
along with proceedings in pursuance thereof. The
petitions are allowed accordingly.”
3.
The order of the Commissioner Income Tax (Appeals)
was challenged by the department through the Commissioner
Income Tax before the Income Tax Appellate Tribunal, Peshawar.
The tribunal also concurred with the decision of the Commissioner
Income Tax (Appeals) and dismissed the appeal vide order dated
08.02.2007. In doing so it also placed reliance on the case of Honda
Shahrah-e-Faisal. The concerned Commissioner, Income Tax then
filed Tax Reference No. 48 of 2007 before the Peshawar High Court,
which too was dismissed vide impugned order dated 29.01.2009.
The Peshawar High Court also placed reliance on the case of Honda
Shahrah-e-Faisal apart from placing reliance on judgments of the
Lahore High Court reported in PTD 2008 Lahore 1420 and of the
Peshawar High Court rendered on 22.10.2008 in Tax Reference No.
61/2007. The tax department being aggrieved by the impugned
decision of the Peshawar High Court dated 29.01.2009 filed CPLA
No. 432/2009 before this Court, following which leave was granted
on 05.01.2009 and the petition was converted into present appeal.
While granting leave, this Court observed that where the
Commissioner has been given the power to amend an assessment
order, in case he considers the same to be erroneous to the extent
CIVIL APPEAL NO. 1086 OF 2009
4
that it was prejudicial to the interest of the revenue, then how could
such a provision be held to be only prospective in nature?
4.
Learned counsel for the appellant argued that the
assessment
order was
rightly
amended
by the
Additional
Commissioner Income Tax Range-II, Company Zone, Peshawar, on
the basis of Section 239 (1) of the Ordinance of 2001, however on
appeal filed by the respondent, the very notice issued under the
provisions of Section 122(5A) of the Income Tax Ordinance, 2001,
was considered to be unlawful and this decision was maintained up
to the Peshawar High Court. He contended that the main reason for
rejection of appellant’s notice was the decision of the Sindh High
Court rendered in Honda Shahrah-e-Faisal’s case, a decision which
has also been affirmed by this Court in the case of Commissioner of
Income Tax Vs. Eli Lilly Pakistan (Pvt) Ltd (2009 SCMR 1279).
Appellant’s counsel next contended that as Section 239(1) of the
Income Tax Ordinance, 2001, provides that for the purpose of
assessing any income year ending on or before the 30.6.2002, the
provisions of the repealed Income Tax Ordinance, 1979, shall apply
as if the Income Tax Ordinance, 2001, had not come into force,
therefore, even if the issuance of notice dated 23.8.2004 under the
provisions of Section 122(5A) of the Income Tax Ordinance, 2001, is
regarded as not maintainable, such notice, on the strength of
Section 239(1) of Income Tax Ordinance, 2001, ought to have been
treated as notice under Section 66A of the repealed Income Tax
Ordinance, 1979, instead of its outright rejection. Based on this
argument, he submitted that this Court may treat the notice in
question as notice under Section 66A of the Income Tax Ordinance,
CIVIL APPEAL NO. 1086 OF 2009
5
1979, and remand the matter back to the Commissioner (Appeal) for
his decision on merits.
5.
In rebuttal, learned counsel for the respondent
contended that the issuance of notice under Section 122(5A) of the
Income Tax Ordinance, 2001, was rightly declared as illegal as
Section 122(5A) was incorporated in the Income Tax Ordinance,
2001 on 01.07.2003 whereas the assessment of the tax return of
the respondent was finalized on 14.05.2003, hence the provisions of
Section 122(5A) were not even part of the Statute at the relevant
time and thus could not have been invoked for any matter relating
to a date prior to 01.07.2003. In addition to this argument, counsel
for the respondent also contended that the respondent Company
has gone into liquidation and in terms of Section 316 of the
Companies Ordinance, 1984, before initiating any legal proceedings,
permission ought to have been obtained from the Company Judge
that is seized of the winding up proceedings. He submitted that this
appeal may be dismissed.
6.
When a Statute repeals an earlier Statute and it is an
unqualified repeal, then the effect of such repeal is that the earlier
Statue gets repealed in its entirety. However, where the Legislature
intends to preserve any power or inchoate right in relation to the
repealed Statute, then a saving clause is incorporated in the
repealing Statute whereby certain provisions are preserved from
getting repealed to the extent and with regard to the subject
mentioned in the saving clause. The provisions of the repealed law
that are so preserved are to be regarded as if the repealed Statute
CIVIL APPEAL NO. 1086 OF 2009
6
was still in operation. Now the Income Tax Ordinance, 1979, stood
repealed with effect from 30.06.2002 and was replaced by the
Income Tax Ordinance, 2001, which came into operation
immediately thereafter i.e. with effect from 01.07.2002. Section 239
(1) of the Income Tax Ordinance, 2001, provides that any
assessment that was to be made for the income years ending on or
before 30.06.2002, the same had to be made under the provisions of
the repealed Income Tax Ordinance, 1979, as if Income Tax
Ordinance, 2001, has not come into force. The question that arose
before the forum below was whether the Commission Income Tax
was justified in revising an assessment order relating the period
covered under the repealed Income Tax Ordinance, 1979, by
invoking the provisions of Section 122 (5A) of the Income Tax
Ordinance, 2001, that was inserted on 01.07.2003 i.e. one year
after the Income Tax Ordinance, 2001, came into operation. As per
the interpretation put on Section 122 (5A) by the Sindh High Court
in the case of Honda Shahrah-e-Faisal, the department could not
have revised the assessment order in question by invoking Section
122 (5A) of Income Tax Ordinance, 2001, that was inserted on
01.07.2003 and being prospective in nature cannot be given
retrospective application. In Honda Shahrah-e-Faisal case it was
further held that as the provisions of Section 66A of the repealed
Income Tax Ordinance, 1979, were also not saved under the Saving
Clause i.e. Section 239 of the Income Tax Ordinance, 2001, the
same also could not be applied to reopen the assessment order in
question.
CIVIL APPEAL NO. 1086 OF 2009
7
7.
When the Income Tax Ordinance, 2001, came into
operation on 01.07.2002, Section 239(1) read as “239. Savings- (1)
The repealed Ordinance shall continue to apply to the assessment
year ending on the 30th day of June 2003”. On 01.07.2003, Section
239 (1) was substituted by the Finance Act of 2002. It then onwards
read “239. Savings- (1) Subject to sub-section (2), in making any
assessment in respect of any income year ending on or before the
30th day of June, 2002, the provisions of the repealed Ordinance, in
so far as these relate to computation of total income and tax
payable thereon shall apply as if this Ordinance had not come into
force. A bare reading of the original provisions of Section 239(1)
would show that it was confined to only one assessment year that
ended on 30.6.2003, which corresponds to the income year that
ended on 30.6.2002. On the other hand the expression “any income
year” in the amended Section 239(1) covers more than one income
year that had ended on or before 30.06.2002. In other words, the
amended Section 239(1) covered all assessment years ending on or
before 30.6.2003 instead of just one assessment year ending on
30.6.2003 as provided in the original provisions of Section 239 (1).
The expression “any income year” in the amended Section 239(1)
clearly covers all assessment years that fall within the ambit of the
repealed Income Tax Ordinance, 1979, which was not the case
under the original provisions of Section 239(1) as under the original
provisions the income tax department was not empowered to reopen
any income year for scrutiny that fell prior to the income year that
ended on 30.06.2002. As the lawmakers were not satisfied with this
limited application of the original provision of Section 239 (1), hence
they took corrective measure and altered it to the extent mentioned
in the amended Section 239(1) whereby its scope, as discussed
CIVIL APPEAL NO. 1086 OF 2009
8
above, was made much larger than the original provisions of Section
239(1). We shall now proceed to examine whether Section 239(1) as
amended on 01.07.2003 on the basis of which notice under Section
122 (5A) was issued is prospective in its application or has
retrospective application.
8.
Section 239 of the Income Tax Ordinance, 2001, by its
very nature, being a saving clause, was intended to preserve certain
powers and procedures contained in the repealed Income Tax
Ordinance, 1979. Several procedures for the correct assessment of
income and determination of tax liability were devised in the
repealed Income Tax Ordinance, 1979. These procedures are
applied at various stages so that no income may escape from
taxation on account of non-disclosure or miscalculation. When the
amended Section 239 (1) of the Income Tax Ordinance, 2001, states
“the provisions of the repealed Ordinance, in so far as these relates to
computation of total income and tax payable thereon shall apply as if
this Ordinance had not come into force”, it in fact saves the entire set
of procedures prescribed under the repealed law through which the
exercise of reaching at the correct calculation of total income and
the tax payable thereon can be undertaken with regard to the
periods covered under the repealed Income Tax Ordinance, 1979.
Section 2(7) of the Income Tax Ordinance, 1979, describes the term
assessment
thus
“assessment"
includes
re-assessment
and
additional assessment and the cognate expressions shall be
construed accordingly”. Thus Section 239 (1) encompasses within its
ambit all types of assessments that can be made to a tax return. In
simple terms, assessment is relatable to all stages of assessments
CIVIL APPEAL NO. 1086 OF 2009
9
that could be made to a tax return under the provisions of the
repealed Income Tax Ordinance, 1979. The replacement of old law
with a new one was never intended to affect the right of the
department to revise an assessment order that had been made
under the provisions of the repealed Income Tax Ordinance, 1979,
but was intended only to devise a new method and mechanism to
determine income and the tax payable for the post repeal era.
Hence, the whole purpose of incorporating Section 239 was to
preserve certain powers and procedures laid down in the repealed
Income Tax Ordinance, 1979, so that it can be subsequently
enforced in the post repeal era only in matters that relate to the
period covered under the repealed Income Tax Ordinance, 1979.
Thus the provisions of Section 239 are purely procedural in nature.
When a provision is incorporated in any statute through an
amendment that is procedural in nature then the retrospective rule
of construction is to be applied to such provision. Such a provision
has to be construed as if it was incorporated on the date when the
main enactment reached the statute book. Merely because the
amended Section 239(1) was inserted in the Income Tax Ordinance,
2001, on 01.07.2003 instead of 01.07.2002 when the parent statute
came in operation, it cannot be said that a vacuum was created in
giving effect to it from the date when the main enactment came into
operation. By virtue of the amended Section 239(1), the powers or
inchoate rights relating to income years covered under repealed
Income Tax Ordinance, 1979, to the extent mentioned in Section
239 of the Income Tax Ordinance, 2001, were to continue to be
exercised/enforced on the basis of the procedures prescribed in the
repealed law as if the repealed Ordinance, 1979 is still in operation.
CIVIL APPEAL NO. 1086 OF 2009
10
We are, therefore, of the opinion that the provisions of Income Tax
Ordinance, 2001, cannot be interpreted in a manner so as to take
away the powers of the Taxing Authority to revise, within the
prescribed period of time, any assessment order that was passed
under the provisions of the repealed Income Tax Ordinance, 1979.
This intention of the legislature was not given primacy by the Sindh
High Court while deciding the case of Honda Shahrah-e-Faisal. The
learned Judges were simply swayed by the reasoning contained in
CBR’s Circular No.1 (48) IT-I/79, dated 17.02.1981 and thus failed
to apply the provisions of amended Section 239(1) retrospectively.
9.
In the case of Commissioner of Income Tax vs. Asbestos
Cement Industries Ltd (1993 SCMR 1276) which was delivered in a
tax matter almost in similar circumstances, this Court in paragraph
8 stated as follows:-
“8. A further aid to interpretation is available in the form of
Explanation to section 136(1) of the Ordinance. That was
added on 1-7-1985 by Finance Act I of 1985. It (the
Explanation) reads as hereunder:----
"The period of ninety days within which an application is
to be made shall apply notwithstanding that the
application relates to an assessment year prior to the
assessment year beginning on the first day of July,
1979, if such application is made on or after the first day
of July, 1979."
This Explanation is not a substantive enactment but
declaratory.
A
declaratory
legislation
has
always
a
retrospective effect. In Balaji Singh v. Chakka Gangamma and
another AIR 1927 Mad. 85 the following principle was,
enunciated on good authority for construing such Acts:---
"In Attorney-General v. Bugett (2 Price 381 = 146 Eng.
Rep. 130), it was held that an Act of Parliament made to
correct an error by omission in a former statute of the
same session, has relation back to the time when the
first Act was passed. Even when mistakes in legislative
CIVIL APPEAL NO. 1086 OF 2009
11
enactments are corrected by a later amending Act, the
amending Act should be read as part of the Act which it
was intended to correct. Though the Act is not called a
declaratory or explanatory Act, if from the words used in
the Act the Court can come to the conclusion that it is a
declaratory or an explanatory Act, retrospective effect
will be given to such Act."
This Court in the case of Commissioner of Income Tax vs. Asbestos
Cement Industries Ltd (1993 SCMR 1276) has also held that the
provisions of law which are procedural in nature are retrospective in
their application. A passage from the said judgment of this Court is
reproduced as under:-
“4. The first legal proposition not open to question is that the
law of limitation is by and large and substantially a procedural
law. It was so held in S.M. Junaid v. President of Pakistan PLD
1981 SC 12. The other principle equally well established is that
a procedural law has a retrospective application and is
attracted forthwith to the pending proceedings.
The Supreme Court of Azad Jammu & Kashmir also in the case of
Fazal dad Vs. Mst. Sakina Bibi and another (1997 MLD 2861)
retrospectively applied procedural law after holding as follows:-
“5.
We have given our due consideration to the arguments
raised at the Bar. There is no quarrel with the proposition that
the law of limitation is a procedural law and generally it is
given retrospective effect even if it is not so provided by the
statute itself. However, there is one exception to it; if such
retrospectively takes away, destroys or nullifies the vested
rights of a litigant, the old law of limitation would govern the
matter and new statute or provision of law introduced by an
amendment or otherwise, would not affect the vested rights of
a litigant. Even, the authorities relied upon by the learned
counsel for the appellant support the aforesaid view. A
CIVIL APPEAL NO. 1086 OF 2009
12
reference may also be made to a case reported as Joshi
Maganlal Kunverji v. Thacker Mulji Budha (AIR 1951 Kutch 15).
While dealing with the proposition, it has been observed as
under:--
"(4) ………………………… In the present case the plaintiff
had a vested right under the repealed Limitation Act to
bring his suit when the new Limitation Act was applied.
The effect of the new Limitation Act was to destroy it
outright. In such circumstances unless the Legislature
has stated in unequivocal terms that
the new
enhancement should destroy the vested right it cannot
be applied retrospectively so as to prevent the plaintiff
from exercising his right to bring a suit which he had
under the repealed Act. "
10.
There is no denying the fact that had the Income Tax
Ordinance, 2001, not come into existence, the assessment in
question could have been revised under the repealed Income Tax
Ordinance, 1979, within five years of its finalisation i.e. within five
years from 14.5.2003, when the initial assessment order in the
present case was passed. This right to revise the assessment in
question could be exercised under the provisions of the repealed
Income Tax Ordinance, 1979, uptill 13.05.2008 which right was
never given up under any provision of the Income Tax Ordinance,
2001. It does not appeal to reason that the Legislature would intend
to let go persons whose incomes for any reason have escaped
taxation under the repealed Income Tax Ordinance, 1979, but
would still pursue the persons who are liable to file tax returns
under the Income Tax Ordinance, 2001, so that they may not
escape the correct tax liability. As already discussed, the Income
Tax Ordinance, 2001, has preserved the powers of the tax
authorities to revise assessments orders pertaining to the period
falling under the repealed Income Tax Ordinance, 1979, and for
CIVIL APPEAL NO. 1086 OF 2009
13
such purpose Section 239(1) was incorporated in the Income Tax
Ordinance, 2001. In the present case, on the strength of Section
239(1), the machinery provided under Section 122 (5A) the Income
Tax Ordinance, 2001, was brought into play for the assessment year
in question. This, in our view, was only a technical mistake because
in terms of Section 239 (1) of the Income Tax Ordinance, 2001,
notice for reopening the assessment in question could have been
issued under Section 66A of the repealed Income Tax Ordinance,
1979.
11.
From the above discussion it thus appears that the
decision in the case of Honda Shahrah-e-Faisal was erroneous as it
proceeded on the assumption that the right to revise an assessment
made under the repealed law stands extinguished merely for the
reason that the provisions of Section 122 (5A) of Income Tax
Ordinance, 2001, were inserted with effect from 01.07.2003 and
being prospective in nature cannot be applied retrospectively. This
resulted in destroying the department’s right to revise, or amend or
reopen an assessment order made under the repealed Income Tax
Ordinance, 1979, irrespective of the fact that the time to revise such
assessment under the repealed law had not even expired.
12.
At the time of seeking leave before this Court, the
appellant’s counsel had referred to the case of Commissioner of
Income Tax Vs. Eli Lilly Pakistan (Pvt) Ltd (2009 SCMR 1279) in order
to point out that it has upheld the decision given in the case of
Honda Shahra-e-Faisal. We therefore feel inclined to discuss the Eli
CIVIL APPEAL NO. 1086 OF 2009
14
Lilly case in some detail. This Court in paragraph 57 of the Eli Lilly
case had held as follows:-
“57. In the light of the above discussion, we uphold view of
the Sindh High Court taken in Honda Shahra-e-Faisal and
followed by the other High Courts as also the Income Tax
authorities that the provisions of section 122 of the Ordinance
are prospective in their application and do not apply to the
assessment of a year ending on or before 30th June, 2002. On
that account the appeals are bound to fail and the impugned
judgments would be upheld. However, the learned High Courts
have not adverted to the question of treatment of assessments
of the period preceding the enforcement of the Ordinance. As
already noted, section 65 of the repealed Ordinance provided a
period of five years for additional assessment and such
assessments were to be dealt with under the said provision in
accordance with original section 239(1) of the Ordinance. The
learned High Courts failed to take into consideration this
aspect of the matter and did not direct that the assessments
completed under the repealed Ordinance would be subject to
the provisions of the said Ordinance, as originally provided in
un-amended section 239(1), but not clearly and properly
provided in the Ordinance at the amendment stage. We fill this
lacuna in the impugned judgments and direct that the
assessment of any year ending on or before 30th June, 2002
would be governed by the repealed Ordinance and shall be
dealt with as if the Ordinance had not come into force. In taking
this view, we are fortified by a passage from the Maxwell on
Interpretation of Statutes, 10th Edition (1953), p. 228, which
reads as under:-
"Where rights and procedure are dealt with together, the
intention of the legislature may well be that the old rights
are to be determined by the old procedure, and that only
the new rights under the substituted section are to be
dealt with by the new procedure."
CIVIL APPEAL NO. 1086 OF 2009
15
13.
In Eli Lilly case referred to above this Court held that
the assessment order under the repealed Income Tax Ordinance,
1979, could have been reopened only under the provisions of
Section 239(1) which were originally incorporated but as the same
were substituted through amendment on 01.07.2003, the amended
provision being prospective in its application cannot be applied to
income years ending on or before 30.06.2002 thus concurred with
the decision of the Sindh High Court in the case of Honda Shahra-e-
Faisal. In Honda Shahra-e-Faisal case, procedural provisions of
Section 122(5A) of Income Tax Ordinance, 2001, were interpreted to
be prospective in their application, such determination is contrary
to the plethora of decisions of this Court wherein it has been held
that where procedural provisions are incorporated through
amendment then the same have retrospective application. We
therefore treat such finding as per incuriam. In the case of
Application by Abdul Rehman Farooq Pirzada and Begum Nusrat Ali
Gonda Vs. Federation of Pakistan (PLD 2013 SC 829) the legal term
per incuriam was extensively discussed in its paragraph 4 and
applied to an earlier decision of this Court in the case of Accountant
General Sindh Vs. Ahmed Ali U. Qureshi (PLD 2008 SC 522).
14.
We may also point out here that it was also observed in
Eli Lilly case that Honda Shahrah-e-Faisal case has failed to address
the question as to how the assessments relating to periods prior to
Income Tax Ordinance, 2001, can be enforced. After observing so, it
took the view that there was a lacuna which needed to be filled and
this was done by holding that all assessments relating to the
CIVIL APPEAL NO. 1086 OF 2009
16
periods prior to Income Tax Ordinance, 2001, coming into force are
to be undertaken in accordance with original provision of Section
239(1) of the Income Tax Ordinance, 2001. Thus this Court in Eli
Lilly case reached at the same conclusion, which we have reached in
this case, albeit on a different set of reasoning.
15.
Apart from holding that provisions of Section 239(1) of
the Income Tax Ordinance, 2001, have retrospective application, the
controversy in the present case can also be looked at from distinct
prospective. The tax laws are a body of rules and regulations under
which the State has a claim on the taxpayers so that they may pay
to the State a part of their incomes at the specified rates. This
liability to pay income tax accrues on the taxpayer on the last day of
the income year/accounting year, though the tax becomes payable
after it is quantified in accordance with the procedures laid down in
the Income Tax law. Thus a charge in favour of the State is created
at the end of each accounting year, though the exercise of (i) making
an assessment on the basis of ascertainable data of income and
expenditure, or (ii) revising an assessment order where it is found
that there is sufficient material to hold that the original assessment
was prejudicial to the interest of the revenue, takes place at some
later stage. These procedural exercises are undertaken only with the
object of reaching at the correct calculation of yearly income but the
real liability to pay tax had already accrued on the last day of the
income year i.e. on the last day of the accounting year thereby
creating a charge in favour of the State. It may be understood as an
expense that has already accrued but is payable later. Reference
can also be made to Section 9 of the Income Tax Ordinance, 1979,
CIVIL APPEAL NO. 1086 OF 2009
17
with regard to the creation of the charge on the basis of income
year. Thus seeking revision of a tax return at any subsequent stage
has nothing to so with the creation of charge on the tax-payer that
has become absolute on completion of the income year/accounting
year.
16.
In this regard reference can also be made to cases from
Indian jurisdiction. In the case of Chatturam Vs. Commissioner of
Income Tax (AIR 1947 FC 32) and in the case of Williams Vs Henry
Williams Ltd it was held that the liability of Income Tax was
definitely and finally created by the charging section and the
provisions of assessment etc. were machinery provisions only for the
purpose of quantifying the liability. In the case of Wallace Brothers
& Co. Ltd. Vs Commissioner of Income Tax (AIR 1948 PC 118) also it
was held ".... the rate of tax for the year of assessment may be fixed
after the close of the previous year and the assessment will
necessarily be made after the close of that year. But the liability to
tax arises by virtue of the charging section alone, and it arises not
later than the close of the previous year, though quantification of the
amount payable is postponed." The Indian Supreme Court in the
case of Kalwa Devadattam v. Union of India (AIR 1964 SC 880) also
held the same in these words- “Under the Indian Income-tax Act
liability to pay income-tax arises on the accrual of the income, and not
from the computation made by the taxing authorities in the course of
assessment proceedings; it arises at a point of time not later than the
close of the year of account."
CIVIL APPEAL NO. 1086 OF 2009
18
17.
In light of the discussion undertaken in the preceding
paragraph, it is clear that charge is created on the last date of
accounting year which under the repealed Income Tax Ordinance,
1979, was created up till 30.06.2002. The power to recover tax
cannot be taken away, even if there had been no saving clause in
the Income Tax Ordinance, 2001. Such power gets automatically
protected under the provisions of the general law i.e. Section 6 of
the General Clauses Act, 1897. This claim on the basis of the charge
already created could have been taken away if a specific provision to
that effect had been incorporated in the Ordinance, 2001 but that is
not the case in the present matter. Thus irrespective of any
accounting discrepancy that is sorted out on the basis of the
procedural provisions of the income tax law at any subsequent
stage, the charge of income tax on the taxpayer stands established
on the last day of the income year/accounting year. In the present
case, the last day of the last income year covered under the repealed
Income Tax Ordinance, 1979, was 30.6.2002, therefore, on all
income years that ended on or before 30.6.2002 the charge to
recover tax had already been created on or before such date. In the
case of Muhammad Arif Vs. State (1993 SCMR 1589) it was held as
follows:-
“From the above cited cases, it is evident that there is judicial
consensus that where a law is repealed, it will not inter alia
affect any investigations, legal proceedings or remedy in
respect of any right, privilege, obligation, liability, penalty,
forfeiture or punishment, and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment may be
CIVIL APPEAL NO. 1086 OF 2009
19
imposed as if the law had not been repealed. This is so, inter
alia, because of section 6 of the General Clauses Act, 1897
(which corresponds to section 4 of the West Pakistan General
Clauses Act, 1956), in the absence of any contrary intention
manifested in the relevant statute.”
18.
Following passages from Indian jurisdiction in the case
of State of Punjab Vs. Mohar Singh Pratap Singh (AIR 1955 Supreme
Court 84) can also be referred with considerable advantage:-
“Whenever there is a repeal of an enactment, the consequences
laid down in section 6 of the General Clauses Act will follow
unless, as the section itself says, a different intention appears.
In the case of a simple repeal there is scarcely any room for
expression of a contrary opinion. But when the repeal is
followed by fresh legislation on the same subject we would
undoubtedly have to look to the provisions of the new Act, but
only for the purpose of determining whether they indicate a
different intention.
The line of enquiry would be, not whether the new Act
expressly keeps alive old rights and liabilities but whether it
manifests an intention to destroy them. We cannot therefore
subscribe to the broad proposition that section 6 of the General
Clauses Act is ruled out when there is repeal of an enactment
followed by a fresh legislation. Section 6 would be applicable in
such cases also unless the new legislation manifests an
intention incompatible with or contrary to the provisions of the
section. Such incompatibility would have to be ascertained from
a consideration of all the relevant provisions of the new law
and the mere absence of a saving clause is by itself not
material.”
CIVIL APPEAL NO. 1086 OF 2009
20
19.
Thus the charge on the income of an assessee that
accrues on the last date of an income year is also protected
independently under the provisions of general law i.e. Section 6 of
the General Clauses Act and no dependence on saving clause was
required.
20.
In so far as the contention of the counsel for the
respondent that leave was not obtained from the Court which is
seized of the winding up proceedings, suffice is to state that Section
316 of the Companies Ordinance, 1984, is attracted when winding
up order is passed or provisional manager is appointed. In the
present case, it has not been demonstrated that such an order has
been passed. Mere filing of winding up proceedings does not attract
the provision of Section 316. Even otherwise, we have decided the
question of jurisdiction and propose to remand the case back to the
Commissioner Income Tax (Appeals), Peshawar, for adjudication of
the respondent’s appeal on merits. Hence, at this stage no useful
purpose would be served to go into the question of whether the leave
of the court that is seized of the winding up proceedings was to be
sought first before proceeding further in the matter.
21.
In view of what has been discussed above, we are of the
considered opinion that it was never intended by the lawmakers,
even at the time of promulgating the Income Tax Ordinance, 2001,
to destroy the charge on incomes that accrued under the provisions
of repealed Income Tax Ordinance, 1979, in so far as such charge
related to correct computation of total income and the tax payable
CIVIL APPEAL NO. 1086 OF 2009
21
thereon. Such a claim arising under the repealed law, which had
not extinguished by afflux of time, was specifically made
enforceable through legal fiction created in Section 239(1) as if the
Income Tax Ordinance, 1979, had not been repealed. This was the
sole object of incorporating Saving Clause in the form of Section
239(1) in the Income Tax Ordinance, 2001. Therefore, it cannot
be said that the income years which relate to the period covered
under the repealed Income Tax Ordinance, 1979, cannot be
brought under scrutiny under its provisions after 30.06.2002 on
the strength of Section 239 (1) of the Income Tax Ordinance,
2001. Additionally, this could be done even on the strength of
the provisions of Section 6 of the General Clauses Act as the
charge of tax stood created on or before 30.06.2002. As to the
validity of the notice sent to the respondent under the label
Section 122 (5A) of the Income Tax Ordinance, 2001, suffice is to
state that merely because the notice was so labelled instead of
Section 66A of the Income Tax Ordinance, 1979, it does not
follow that it was invalid under the law. By virtue of Section 6 of
the General Clauses Act as well as under Section 239(1) of the
Income Tax Ordinance, 2001, powers under Section 66A could
have been exercised to take same action as was contemplated in
the notice in question. We therefore, treat the notice dated
23.8.2004 issued under Section 122(5A) to be notice issued
under Section 66A of the Income Tax Ordinance, 1979. For the
foregoing reasons, the impugned order is set-aside. Resultantly,
the appeal of the respondent filed before the Commissioner,
Income Tax (Appeals), Peshawar stands revived. Let the
Commissioner, Income Tax (Appeals), Peshawar after issuing due
CIVIL APPEAL NO. 1086 OF 2009
22
notice of hearing to the parties decide respondent’s appeal afresh on
merits. Needless to mention that his decision shall be governed by
this decision with regard to the retrospective application of Section
239(1) of the Income Tax Ordinance, 2001. Let a copy of this
judgment also be dispatched to the Chairman, Federal Board of
Revenue for its implementation in cases involving similar
controversy.
22.
The above are the detailed reasons of our short order
dated 16.12.2015.
JUDGE
JUDGE
Islamabad, the JUDGE
16th of December, 2015
Approved For Reporting
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE IQBAL HAMEEDUR RAHMAN
MR. JUSTICE MAQBOOL BAQAR
CIVIL APPEAL NO.1086 OF 2014
(Against the judgment dated 7.8.2014 of
the Election Tribunal, Karachi passed in
Election Petition No.7/2013)
Syed Hafeezuddin
…Appellant(s)
VERSUS
Abdul Razzaq etc.
…Respondent(s)
For the appellant(s):
Mr. Afzaal Ahmed Siddiqui, ASC
For respondent No.1:
Mr. Tariq Mehmood, Sr. ASC
Mr. M. S. Khattak, AOR
Date of hearing:
19.11.2015
…
ORDER
MIAN SAQIB NISAR, J.- This appeal under Section 67(3) of the
Representation of People Act, 1976 (the Act) is directed against the judgment
of the learned Election Tribunal, Karachi dated 7.8.2014 whereby the
election of the appellant (returned candidate) was set aside and the respondent
No.1/election petitioner (runner up) was declared to be the returned
candidate.
2.
The brief facts of the case are:- elections in PS-93 Karachi were
held on 11.5.2013 for which twenty-nine candidates contested, including
the appellant and respondent No.1 (respondent). The appellant, who was
declared a returned candidate by the Election Commission of Pakistan (ECP)
vide notification dated 22.5.2013, obtained 15,432 votes, while the
respondent, securing 10,960 votes, was the runner up, and another
candidate, namely, Bashir Jan (at third position) scored 9,664 votes. The
difference between the number of votes obtained by the appellant and the
Civil Appeal No.1086 of 2014
-: 2 :-
respondent is 4,472. The respondent filed an election petition on the
ground that massive rigging had taken place in the elections and that
illegal and corrupt practices were resorted to on account of which the
election of the appellant be declared as void and the respondent be
accordingly declared as the returned candidate. It may be pertinent to
mention here that according to the contents of the election petition, this
massive rigging etc. has been alleged and restricted to nine polling stations,
i.e. 2, 18, 23, 29, 32, 55, 68, 71 and 77, but subsequently the respondent
confined himself to only seven polling stations, i.e. 2, 18, 23, 29, 32, 55 and
68. It may also be added that the case of the respondent was that the
Returning Officer and the Presiding Officer of these polling stations
manipulated the results. After obtaining a reply from the appellant, the
learned Tribunal framed the following issues:-
“1.
Whether the petition is maintainable in accordance
with the law.
2.
Whether the petitioner had obtained the votes as
mentioned by him in his petition in paragraphs
no.15(c) and 15(d)?
3.
Whether the Presiding Officers of polling stations
no.29, 32, 68, 71 and 77 of the constituency had
issued statements of count (Form-XIV) to the
petitioner showing his votes as mentioned in
paragraph 15(c) of the Petition?
4.
Whether the respondent no.1 didn’t obtain the votes
at polling station no.2, 18, 23, 29, 32, 55 and 68 of
the constituency and consolidated statement of
count (Form XVI) issued by the Returning officer in
respect of these polling stations is not in
accordance with the statements of count (Form
XIV) issued by the Presiding Officers of these
polling stations?
5.
Whether the returning officer had failed to issue
notices to the contesting candidates before the
consolidation of the result in form XVI in
accordance with the law?
Civil Appeal No.1086 of 2014
-: 3 :-
6.
Whether the Respondent No.1 or his agents have
committed any act of illegal practice during the
polling?
7.
Whether the Presiding Officers of the above
mentioned polling stations and the Returning
Officer in connivance with each other committed
illegal act or illegal practice to support the
Respondent no.1 if yes, its effect?
8.
Whether the election of the Respondent no.1 (The
Returned Candidate) is fit to be declared as void
and the petitioner to have been duly elected?
9.
What should the order be?”
Upon giving its findings on various issues, the learned Tribunal came to the
conclusion that the respondent was not able to prove any illegal and
corrupt practice vis-à-vis the noted seven polling stations except polling
station No.29. In this context, it may be mentioned that though the case of
the respondent is that there was rampant rigging in connection with polling
station No.32, this plea of the respondent has been discarded and the
respondent has not challenged the finding of the learned Tribunal before
this Court (either by cross-objections or even orally). With regard to polling station
No.29, suffice it to say that in the said polling station a total of 1,600 votes
were cast out of which the appellant procured 1,400 votes while the
respondent procured zero votes. The learned Tribunal, on account of the
evidence, particularly the statement of Ms. Safia Sultana Malik and Ms.
Saeeda Sagheer, the Presiding Officer and the Assistant Presiding Officer
respectively of the said polling station, came to the conclusion that Ms.
Malik had not counted the votes and committed grave illegalities in
preparation of Form-XIV.
3.
It has been argued by the learned counsel for the appellant
that the difference of votes between the appellant and the respondent is
Civil Appeal No.1086 of 2014
-: 4 :-
4,472 and even if 1,400 votes are excluded from the count, which were
allegedly not properly and validly counted vis-à-vis polling station No.29,
yet the appellant is a winning candidate with a margin of 3,072 votes. It is
also argued that there was no evidence produced by the respondent vis-à-
vis corrupt and illegal practices falling within the provisions of Sections 78
and 83 of the Act. Therefore, on account of lack of such evidence the
appellant cannot be prejudiced by declaring him as having procured his
election through massive rigging and corrupt and illegal practices.
4.
On the contrary, learned counsel for the respondent has at the
very outset drawn a distinction between Sections 68 and 69 on the one
hand and Section 70 on the other, stating that the question of an election
being “materially affected” only relates to the latter section, when considering
declaration of an election as a whole void, whereas the former sections
pertain to declaration of the election of the returned candidate as void on
certain grounds enumerated therein, and in this respect he particularly
relied upon Section 68(c) read with Section 68(2)(a), and Section 68(d).
Furthermore, he justified and defended the judgment of the learned
Tribunal by submitting that from the beginning of election till the counting
of votes, there have been violations of law. In this context, it is argued that
it was the duty of the Presiding Officer to have counted the votes and
prepared the statement of count (Form-XIV) personally which, as per the
statement of the Presiding Officer herself as also the Assistant Presiding
Officer, was not so done, rather the form was filled up by the Assistant
Presiding Officer and this is a glaring illegality which is apparent on the
face of the record. It is also stated that the Presiding Officer of polling
station No.29 signed the hand-written result and provided it to the polling
agents of the respondent, which result is different from that reflected in
Form-XIV, which plea is also supported by the Assistant Presiding Officer.
Further, that the name of the respondent was not even contained in Form-
Civil Appeal No.1086 of 2014
-: 5 :-
XIV of polling station No.29. It is also submitted that the statement of
count pertaining to the votes cast in favour of the candidate of the National
Assembly is absolutely different from the votes of the Provincial Assembly
which reflects that Ms. Malik had committed an illegality vis-à-vis the
proper count and preparation of Form-XIV. Above all, it is argued that Ms.
Malik had connived and colluded with the appellant because she, in
ordinary course, should have been summoned through the learned
Tribunal as an official witness, but in this case she not only appeared as a
witness on behalf of the appellant rather it is a fact apparent on the record
that she had provided him with her affidavit and that affidavit was
produced before the learned Tribunal by the appellant himself meaning
thereby that she had colluded with the appellant and such inference can be
safely drawn. In support of his submissions, learned counsel for the
respondent relied upon the case reported as Sardar Abdul Hafeez Khan v
Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284).
5.
Heard. The key questions involved in this matter are:- first,
whether the election of the appellant, on account of the amiss which is
pointed out by the learned counsel for the respondent and the proof of
committing illegal and corrupt practices by the appellant in connivance
with the Presiding Officer, can be declared to be void; and secondly,
whether such illegality if committed falls within the purview of Section 70(a)
of the Act and thus the election could be declared void as a whole but
because the findings of the learned Tribunal vis-à-vis all other polling
stations is in favour of the appellant and the only grouse is regarding one
polling station, the difference of votes whereof is only 1,400, thus even if
these votes are excluded, in that eventuality the election of the appellant
would not be materially affected. In order to appreciate the above, the
relevant provisions (parts) of Sections 68, 69, 70 and 83 are reproduced as
below:-
Civil Appeal No.1086 of 2014
-: 6 :-
“68. Ground for declaring election of returned candidate
void.–(1) The Tribunal shall declare the election of the
returned candidate to be void if it is satisfied that–
(a)
……………………………………………… or
(b)
……………………………………………… or
(c)
the election of the returned candidate has
been procured or induced by any corrupt or illegal
practice; or
(d)
a corrupt or illegal practice has been
committed by the returned candidate or his election
agent or by any other person with the connivance of
the candidate or his election agent.
(2)
The election of a returned candidate shall not be
declared void on the ground–
(a)
that any corrupt or illegal practice has been
committed, if the Tribunal is satisfied that it was not
committed by, or with the consent or connivance of
that candidate or his election agent and that the
candidate and the election agent took all
reasonable precaution to prevent its commission; or
(b)
that any of the other contesting candidates
was, on the nomination day not qualified for or was
disqualified from, being elected as a member.
69.
Ground for declaring a person other than a
returned candidate elected.–The Tribunal shall declare the
election of the returned candidate to be void and the
petitioner or any other contesting candidate to have been
duly elected, if it is so claimed by the petitioner or any of
the respondents and the Tribunal is satisfied that the
petitioner or such other contesting candidate was entitled
to be declared elected.
70.
Ground for declaring election as a whole void.–
The Tribunal shall declare the election as a whole to be
void if it is satisfied that the result of the election has been
materially affected by reason of–
(a)
the failure of any person to comply with the
provisions of the Act or the rules; or
(b)
the prevalence of extensive corrupt or illegal
practice at the election.
Civil Appeal No.1086 of 2014
-: 7 :-
83. Illegal practice.–(1) A person is guilty of illegal
practice if he–
(a)
……………………………………………………
(b)
obtains or procures or attempts to obtain or
procure, the assistance of any person in the service
of Pakistan to further or hinder the election of a
candidate;
(c)
……………………………………………………
(d)
……………………………………………………
(e)
……………………………………………………
(f)
……………………………………………… or
(g)
knowingly induces or procures any person
to do any of the aforesaid acts.
(2)
Any person guilty of illegal practice shall be
punishable with imprisonment for a term which may extend
to six months and fine which may extend to five thousand
rupees.”
6.
Before answering the two aforementioned questions, we find it
expedient to understand the legal framework of Sections 68, 69 and 70 of
the Act. These sections can be broadly divided into two parts:- (i) Sections
68 and 69 stipulate the grounds for declaring the election of a returned
candidate void and declaring a person other than the returned candidate as
elected, respectively; and (ii) Section 70 governs the grounds for declaring
the election as a whole void. Once any of the grounds enumerated in
Section 68 have been established through such quality evidence which has
been prescribed by various dicta of the apex Court in this behalf; the
obvious consequence as per the law shall thus be to declare the election of
such returned candidate as void. While passing such order the Tribunal
under Section 69 ibid though is duly empowered to declare the election
petitioner or any of the contesting respondents as the returned candidate, it
Civil Appeal No.1086 of 2014
-: 8 :-
may make such declaration only if a claim in this regard has been set out
by them. Furthermore, such declaration shall not be made as a matter of
course or a right or ipso facto rather only in the circumstances of the case
where the election petitioner or the respondent of the election petition is
able to substantiate and make out a case qua his entitlement to the
satisfaction of the Tribunal. This entitlement shall be dependant on the
facts and circumstances of each case; the reasons set out and proof for the
entitlement thereof; in this context the guiding principles have been
propounded in the case reported as Syed Saeed Hassan v Pyar Ali and 7
others (PLD 1976 SC 6). Thus the grant of relief to the election petitioner
or any other respondent in the election petition under the provisions of
Section 69 of the Act must be proved on the strength of their own
entitlement to get elected in place of the returned candidate, as has been
laid down by this Court in Dr. Sheela B. Charles v Qaisar Ifraeem Soraya
and another (1996 SCMR 1455).
While considering the parameters of Section 69, particularly with
respect to a runner up (and not any of the other candidates) and where the returned
candidate has been found to be disqualified and his election has been
declared as void, as has been consistently held by this Court in a line of
cases reported as Rashid Ahmad Rahmani v (1) Mirza Barkat Ali, (2)
Master Fazal Elahi and (3) The Additional Commissioner, Lahore (PLD
1968 SC 301); Lal Muhammad v Muhammad Usman and others (1975
SCMR 409); Pyar Ali; Muhammad Ilyas v The Returning Officer etc.
(1981 SCMR 233); Junaid Ahmad Soomro v Haji Mehboob Ali Bhayo
and others (PLD 1986 SC 698); Sahibzada Tariqullah v Haji Amanullah
Khan and others (PLD 1996 SC 717); Engr. Iqbal Zafar Jhagra and
others v Khalilur Rehman and 4 others (2000 SCMR 250); Ellahi
Bakhsh v District and Sessions Judge, Rajanpur/Election Tribunal,
Dera Ghazi Khan and others (PLD 2003 SC 268); Mian Ahmed Saeed
Civil Appeal No.1086 of 2014
-: 9 :-
and others v Election Tribunal for Kasur at Okara and 7 others (2003
SCMR 1611); Sh. Amjad Aziz v Haroon Akhtar Khan and 10 others
(2004 SCMR 1484); Bashir Ahmed Bhanban and another v Shaukat Ali
Rajpur and others (PLD 2004 SC 570); Shaukat Ali and another v
District Returning Officer and another (PLD 2006 SC 78); Imtiaz
Ahmed Lali v Ghulam Muhammad Lali (PLD 2007 SC 369); and
Chaudhry Muhammad Munir and others v Election Tribunal, Mandi
Bahauddin and others (2009 SCMR 1368), it is not the case that the
votes of the returned candidate (who has been disqualified and whose election as a
returned candidate has been declared to be void under Section 68) are to be simply
disregarded or discarded on the doctrine of throw away votes and the
runner up is to be automatically declared as the duly elected returned
candidate by virtue of having secured the next highest number of votes;
rather the notoriety of the disqualification amongst the voters at the time of
polling has to be examined and if the disqualification is found to be
notorious (apparent or known to the public), only then can the votes of a winner of
an election be thrown away, and the runner up be declared to be the duly
elected returned candidate. If the disqualification is not notorious and
depends on legal argument or upon complicated facts and inferences, then
the runner up cannot be declared to be the duly elected returned
candidate, as the possibility cannot be ruled out that any of the other
candidates could have won the elections, hence the election must be
declared to be void as a whole and fresh elections must take place (as per
the law enunciated in the cases of Rashid Ahmed, Pyar Ali, Lal
Muhammad, Muhammad Ilyas and Ahmed Saeed). It may be pertinent to
mention here that a runner up is required to prove the notoriety of
disqualification of the successful candidate at the time of polling through
positive evidence. It is also worthy to point out that though notoriety is with
respect to disqualification, the test is essentially that of the validity (or otherwise)
Civil Appeal No.1086 of 2014
-: 10 :-
of the votes in question, which exercise was taken by this Court in the case
of Pyar Ali, where there were allegations of illegal and corrupt practices as
opposed to disqualification. Whether or not the principle of ‘throw away
votes’ can be invoked in cases other than that of disqualification would
ultimately depend upon the facts and circumstances of each case, the
nature of the allegations leveled in the election petition and the quality of
evidence produced before the election tribunal.
The upshot of the above discussion is that Sections 68 and 69 of the
Act constitute a two-prong test, both limbs of which must be satisfied by
any election petitioner or respondent to a petition challenging the election
of the returned candidate, if any of them wish to be declared duly elected in
place of such returned candidate.
Now coming to Section 70 of the Act, the provisions of which pertain
to declaration of the election as a whole void (as opposed to the election of the
returned candidate only), such a declaration can only be so made if there is a
failure of any person to comply with the provisions of the Act or Rules or
there is prevalence of extensive corrupt or illegal practice at the election,
either of which must materially affect the result of the election.
7.
The first question which requires deliberation is whether the
lapses in the election pointed out by the learned counsel for the respondent
constitute illegal practices within the purview of the law and consequently
the election of the appellant can be declared to be void. It may be pertinent
to mention here that the evidence led by the respondent, the findings of the
learned Tribunal and the submissions of the learned counsel for the
respondent do not fall within the realm of “corrupt practices” (defined in Section
78), thus we do not find it necessary to refer to the same, rather we have
confined ourselves to the relevant issue of “illegal practices” (defined in Section
83). A perusal of the election petition indicates that the thrust of the
respondent’s allegations is that the appellant colluded and connived with
Civil Appeal No.1086 of 2014
-: 11 :-
the election staff, particularly the Presiding Officers of polling stations No.2,
18, 23, 29, 32, 55 and 68 (the respondent discarded his allegations vis-à-vis polling
stations No.71 and 77 during the trial of the election petition), who have fabricated, forged
and manipulated the count in a manner which has illegally increased the
votes of the appellant and decreased that of the respondent. The learned
Tribunal held that the respondent could not prove his allegations vis-à-vis
polling stations No.2, 18, 23, 55 and 68. With respect to polling station
No.32, the minor discrepancy in the votes was admitted by the Presiding
Officer of the said polling station to be a bona fide mistake on his part, thus
in essence the respondent’s allegations of collusion and connivance and
illegal practice also did not stand to be proved vis-à-vis polling station
No.32. The only contentious polling station that remained was that of
No.29, with respect to which learned counsel for the respondent confined
his arguments to before us. We find it beneficial to reproduce the relevant
portions of the learned Tribunal’s findings vis-à-vis polling station No.29:
“Issues No.2,3 and 4.
Now coming to the count in respect of Polling Station No
29 which is the most controversial count from the
petitioner’s point of view. Its Presiding Officer, Mst. Safia
Sultana Malik was examined as exhibit O-5 and was cross
examined by both the learned advocates for the parties. As
per her evidence the returned candidate had obtained 1400
votes which were mentioned in her official statement of
count, Form XIV, exhibit O-5/3. However, admittedly in this
statement of count even the name of the petitioner was not
mentioned as she was completely ignorant of the fact that
he too had contested the election from the said
constituency. This statement of count does not provide the
other required details as far as the names of all the
contesting candidates and the votes polled by them are
concerned. Section 38(9) of the Act directs the Presiding
Officer of polling station that immediately after the count
he shall prepare statement of count in such form as may be
prescribed (Form-XIV) showing therein the numbers of
valid votes polled by each contesting candidate and the
Civil Appeal No.1086 of 2014
-: 12 :-
ballot papers excluded from the count. There are other
unexplained discrepancies also in the same including
corrections, overwriting and miscalculation in counting.
The violation of the above provision of law has made the
statement highly doubtful and requires further objective
scrutiny before reaching to any firm conclusion as far its
legal effects are concerned. For this the conduct and
neutrality of the Presiding Officer will be the most
important factor. In this regard the act of filing of her own
affidavit in evidence, exhibit O-5/1, voluntarily in support
of he returned candidate show her bias in favour and is
sufficient to hold that she did not act fairly and
independently while performing her duties as polling
official for whom it was incumbent under the Act to
discharge her duties honestly within the contemplation of
its provisions. This finding gets full support from the
consideration of the total votes cast at the corresponding
Polling Station No 159 of National Assembly constituency,
NA-241 in comparison with the total votes cast at polling
station no. 29. The total votes cast at polling station no. 159
were 148 (as per exhibit P-5/17, consolidated result which
is an admitted document) whereas the total votes cast at
polling station no. 29 of this constituency were 1440 and
there is no logical reason of such a huge difference when
each voter is required to cast his vote to the contesting
candidate of his choice for the National Assembly and
Provincial Assembly. The Presiding Officer during her
cross avoided to reply the questions in this regard showing
her ignorance. The total votes polled at the polling station
no. 149 of NA-241 corroborates the evidence of the polling
agent of the Petitioner, Mst. Sajida, exhibit P-11, in which
she has deposed that as per official count, the votes polled
by the Petitioner and the returned candidate as furnished
by the Presiding Officer were 117 and 83 respectively and
the total votes cast at these two polling stations for both the
constituencies were 117 and 111, exhibit P-11/1, This
statement is bearing the purposed signature of the
Presiding Officer, Ms. Safia Malik. Without going into the
genuineness of this signature by comparing with her
admitted signatures on exhibit, O-5/2 to O-5/5 but on the
basis of quality evidence produced by the petitioner which
is fully corroborated with the circumstantial evidence it is
held at polling station no 29 the petitioner polled 117 votes
and the returned candidate 83 votes.
…
To sum up the above discussion it is suffice to say that
except for the polling station no. 29 and 32 the petitioner
has failed to prove the statements of count relied upon by
Civil Appeal No.1086 of 2014
-: 13 :-
him showing the figures of votes polled by him or by the
returned candidate. The issue is decided accordingly.
…
Issue Nos 6 and 7
…
Since it has been admitted that the returned candidate has
obtained the assistance of the Presiding Officer to further
his own election as a candidate, but for this it is to be
examined whether the said presiding officer is in the service
of Pakistan.
…
Applying the above principle the Presiding Officer Ms.
Safia Sultana Malik was admittedly employed as school
teacher in Sindh Welfare Board, Govt. of Sindh, as admitted
by her in her evidence therefore she is in the service of
Pakistan. The returned candidate has therefore committed
an act of illegal practice within the ambit of Sec. 83(b) of
the Act on account of obtaining her illegal assistance to
further his election as a candidate.
…
In this case the connivance between Mst. Safia Malik, the
Presiding Officer and the returned candidate is also
floating on the surface of the record as discussed in detail
in the relevant issues and there cannot be any doubt that
the act of mentioning 1400 votes polled by the returned
candidate illegally was nothing but to procure her
assistance to further his election as candidate. Hence he
has committed an act of illegal practice within the
contemplation of the section 83(b) of the Act.”
Before we embark upon an analysis of the evidence and a determination
about the correctness or otherwise of the findings of the learned Tribunal, it
is pertinent to mention that the rules of proof for the grounds challenging
the election which are founded on corrupt and illegal practices are quite
strict and stringent and the allegations in this regard must be absolutely
proved through positive evidence without accepting any inferences and if
there is any doubt, the benefit must go to the person against whom corrupt
or illegal practices are being alleged, as held been held by this Court in the
cases reported as Muhammad Saeed and 4 others v (1) Election
Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3)
Civil Appeal No.1086 of 2014
-: 14 :-
Ghulam Haider and (4) West Pakistan Government and others (PLD
1957 SC (Pak.) 91); Mian Jamal Shah v (1) The Member Election
Commission, Government of Pakistan, Lahore, (2) The Returning
Officer, Constituency of the National Assembly of Pakistan No. NW-II,
Peshawar II, and (3) Khan Nasrullah Khan (PLD 1966 SC 1); Khan
Muhammad Yusuf Khan Khattak v S. M. Ayub and 2 others (PLD 1973
SC 160) and Pyar Ali. Therefore let us examine whether in this case there
is evidence to the effect that illegal practices in terms of the law as provided
for in Section 83 of the Act have been committed and so proved. Learned
counsel for the respondent submitted that the Presiding Officer of polling
station No.29, Ms. Malik, did not fill up the statement of count, that the
respondent’s name was not mentioned in the statement of count and that
she signed hand-written results and provided them to the polling agents of
the respondent in which the count is different from that in Form-XIV.
However, a perusal of Ms. Malik’s evidence suggests that she admits to
overwriting on figures in Form-XIV to make corrections; admits to writing
the figure 1,600 on one page of Form-XIV of polling station No.29 and the
figure 1,700 on the other page; admits to the errors in calculation while
attributing it to absence of a calculator and lack of sufficient light due to a
power breakdown; admits that the Form-XIV was not entirely prepared by
her, in that the candidates’ names were written by the Assistant Presiding
Officer, but the rest including her name and signature are in her own
handwriting; and that she attributed the absence of the respondent’s name
from the Form-XIV to the fact that she was not aware that he was
contesting from the said constituency. Be that as it may, we are of the
candid view that even if such lapses occurred, they certainly do not fall
within the definition of “illegal practice” contained in Section 83(b) (the other
sub-clauses are not relevant in the instant matter) as they do not constitute “obtaining or
procuring or attempting to obtain or procure the assistance of any person in the service of
Civil Appeal No.1086 of 2014
-: 15 :-
Pakistan to further or hinder the election of candidate”. With regard to the argument
that she had prepared her affidavit in the appellant’s office and did not
appear as an official witness which fact indicates connivance and collusion
with the appellant, we are of the view that these are mere inferences, which
are neither positive nor conclusive evidence of the fact that she colluded
and connived with the appellant, and that the appellant “obtained” or
“procured” the assistance of the Presiding Officer to secure his election as a
returned candidate. The learned Tribunal has erred gravely in drawing such
inference and concluding that this suggests that Ms. Malik was biased in
favour of the appellant. The argument regarding the difference between the
statements of count of the National and Provincial constituencies which,
according to the learned counsel for the respondent, also suggests illegal
practice by Ms. Malik also fails on the count of being a plain inference, not
backed by sufficient evidence of the same. Furthermore, the record,
particularly her evidence, does not suggest that Ms. Malik was ever
confronted with the document relied upon by the learned Tribunal in this
regard, i.e. P-11/1. In fact, the learned Tribunal has itself stated “without
going into the genuineness of this signature by comparing with her admitted signatures on
exhibit…” indicating that it undertook a handwriting comparison analysis
which we find, anyone other than a handwriting expert, is not competent to
carry out.
Learned counsel for the respondent has conceded that there is no
evidence to directly prove that there was connivance between the appellant
and the Presiding Officer but on account of inferences which should be
necessarily drawn in this case because of the conduct of the Presiding
Officer identified above, it should be held that the Presiding Officer acted in
collusion with the appellant and thus the latter’s election should be
declared to be void. Reliance placed upon Abdul Hafeez Khan’s case by the
learned counsel for the respondent in this regard is misconceived (the said
Civil Appeal No.1086 of 2014
-: 16 :-
case may be more relevant to Section 70 of the Act and shall be discussed below). Even if an
inference is to be drawn, it can only be so done where there is only one
possible conclusion that can be reached, warranting proof through
circumstantial as opposed to direct evidence. The fact that certain
lapses/anomalies were committed by the Presiding Officer of polling station
No.29 will not automatically lead to the conclusion that such was done in
connivance or collusion with or on the instructions of the returned
candidate/appellant. There is the possibility that the lapses committed by
the Presiding Officer Ms. Malik were bona fide mistakes or due to lack of
proper skill and adequate knowledge or expertise as to how to do the
needful, or as a result of miscalculation of votes or lack of sufficient light
due to a power breakdown. The possibility cannot be ruled out that any one
of the candidates in an election colluded with the election staff at one
polling station and had certain violations of the election law committed
such as the wrong filling up of Form-XIV and by taking premium and
advantage of their own fraud ultimately used this as a tool for having the
election of the returned candidate declared as void. Since there is more
than one possibility as to what could have happened on the day of election
vis-à-vis counting of votes and preparation of statement of count, we
cannot draw such inferences as suggested by the learned counsel for the
respondent. A bare perusal of the findings of the learned Tribunal vis-à-vis
polling station No.29 as reproduced above clearly suggests that it has
concluded that the evidence indicates committal of illegal practices in
connivance and collusion with the appellant based on pure inference and
conjecture, without ruling out all the possibilities in light of the
circumstantial evidence and without correctly appreciating the evidence
and properly applying the law on the matter. The learned Tribunal appears
to have acted upon the assumption that the respondent’s case stood
sufficiently proved on mere probability, as opposed to the strict positive
Civil Appeal No.1086 of 2014
-: 17 :-
evidence that the respondent was required to produce in order to prove its
serious allegations of illegal practice against the appellant. The evidence
clearly suggests that there was doubt with respect to proof of the
allegations of illegal practice and connivance and collusion, the benefit of
which should have been given to the appellant. To hold, in the
circumstances, that the appellant had “obtained” or “procured” the
assistance of the Presiding Officer would be against the spirit of the law and
against the settled norms of justice.
Since we have found that the lapses pointed out by the learned
counsel for the respondent do not constitute illegal practices as
contemplated by the provisions of Section 83 of the Act, the election of the
appellant as a returned candidate is not liable to be declared as void under
Section 68 of the Act. Consequently, the question as to whether the
respondent was able to prove, on the strength of his own evidence, that he
should have been declared as the duly elected returned candidate in place
of the appellant in terms of the provisions of Section 69, does not arise and
thus needs no consideration.
8.
Now coming to the second question involved in this matter, i.e.
whether in this case the election can be declared to be void as a whole as
per the provisions of Section 70 of the Act. Since we have established above
that no illegal practices took place within the contemplation of Section 83 of
the Act (and the question of “corrupt practices” is not relevant in this matter), hence Section
70(b) would not be relevant here, rather Section 70(a) which provides for
declaration of the election as a whole void if there is a failure of any person
to comply with the provisions of the Act or the Rules, provided that the
election has been materially affected by such failure. The lapses/anomalies
identified hereinabove may at best indicate a failure on behalf of the
election staff, particularly the Presiding Officer of polling station No.29, to
comply with the provisions of the Act, particularly Section 38(9) which
Civil Appeal No.1086 of 2014
-: 18 :-
provides for preparation of statement of count by the Presiding Officer, thus
the test that there must be a failure of any person to comply with the
provisions of the Act/Rules, may be satisfied. It is then to be seen whether
the second part of the test, that such non-compliance must have materially
affected the election, is satisfied. Since the findings of the learned Tribunal
vis-à-vis all polling stations other than polling station No.29 is in favour of
the appellant and the only grouse is vis-à-vis the said polling station, the
difference of votes whereof is only 1,400, thus even if these votes are
excluded from the total count of the appellant’s votes of 15,432, reducing it
to 14,032, the appellant would still win by a margin of 3,072 votes.
Therefore, as the election would not be materially affected, there is no
occasion to declare the election as a whole to be void under Section 70(a) of
the Act. It is here where Abdul Hafeez Khan’s case may be discussed, in
which due to certain lapses committed by the election staff, the whole of the
election was declared to be void under Section 70(a). However, the instant
matter is distinguishable on the ground that the election has not been
materially affected. Furthermore, in Abdul Hafeez Khan, there was found
to be a general failure of the election machinery as there was widespread
disregard of the law by the election staff, which is certainly not the case in
the instant matter.
9.
In view of the foregoing, we find that the respondent was
unable to prove through positive evidence, the committal of illegal practices
within the contemplation of Section 83 of the Act, and therefore declaration
of the appellant’s election as the returned candidate as void under Section
68 of the Act was not warranted. The learned Tribunal had erroneously
declared the election of the appellant as the returned candidate to be void
and thereby wrongly declared the respondent as the duly elected returned
candidate.
Civil Appeal No.1086 of 2014
-: 19 :-
10.
The above are the detailed reasons for the short order of even
date whereby the appellant’s civil appeal was allowed, which reads as:-
“For the reasons to be recorded later, this appeal is
allowed and the impugned judgment dated 7.8.2014 passed
by the learned Election Tribunal, Karachi is set aside.”
JUDGE
JUDGE
JUDGE
Islamabad, the
19th November, 2015
Approved For Reporting
Waqas Naseer/*
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
CIVIL APPEAL NO. 108 OF 2015
Against the judgment dated
22.4.2014 passed by High Court
of Sindh Circuit Court, Hyderabad
in 2nd Appeal No. 02 of 1990
Mst. Rehmat & others
.Appellant(s)
I
VERSUS
Mst, Zubaida Begum & others
... Respondent(s)
For the Appellant(s):
Mr. Muhammad Munir Paracha, ASC
Syed Rifaqat Hussain Shah, AOR
Syed Tahir Hussain, Husband of
Appellant No.3
For Respondent No. l.(LRs) Mr. M. Ishtiaq Ahmad Raja, ASC
Date of Hearing: 25.8.2020
JUDGMENT
MUSHIR ALAM, J. Admitted facts giving rise to the instant Civil
Appeal, arising out of leave granting order dated 9.2.2015, are that
one, Mst. Ashfaq Jehan' being owner of the suit property, through her
attorney Hamid Hussain Khan, entered into sale agreement dated2
April 1973 (Ex.91) with Mst. Zubaida Begum3 for a total sale
consideration of Rs.45,000/, out of which Rs.500/- was paid as
earnest money at the time of execution of the agreement. Balance
1 since decease (through her LRs) Appellant No.2 herein /Defendant No.1
2 Pages No. 127 to 129 of the paper book CA No. 0812015
since deceased through LR5/ Respondent No.1 herein! Plaintiff
CML APPEAL NO, j080F2015
2
consideration was agreed to be paid before the registrar at the time of
execution of sale deed. In terms of clause 4 of the sale agreement the
vendor took upon herself, responsibility to obtain: i) Income Tax
certificate; ii). NOC from Excise and Taxation Authority, Hyderabad,
Certificate/ receipts showing payment of electricity and Water charges;
and iv) Mutation in the City survey record kept in the city survey Office,
Hyderabad, required to execute the sale deed.
2.
It was admitted by Shaikh Muhammad .ShanffDW-1 4 on behalf of
the Ashfaq Jehan that at her request, further sum of Rs.25,500/- and
another sum of Rs.10,000/- were paid to the vendor, through her
daughter in law, Mrs. Salma Waris, on 31.5.1973 and 11.12.1973
respectively through Cheques 5 being part payment towards balance
sale consideration and, on payment of last-mentioned amount through
cheque, Mst. Zahida Begum the vendee was put in possession of the
subject property thereof.
3.
From the record, it appears that instead of coming forward to
execute sale deed, Shaikh Muhammad Sharif, despite being aware of
the sale transaction, executed sale deed in respect of suit property in
favour of his wife Ms. Rehmat (since deceased) 7. On coming to know
such facts, the Plaintiff/ Respondent No.1 filed a FC suit No.144 of
1977 for specific performance of an agreement to sell dated April 1973,
and for cancellation of a registered sale deed dated 24 th February
19778 executed by the attorney of said Ashfaq Jahan the Appellant
No.2 in favour of his wife Appellant No.1 with respect to the suit
property.
Cross examination of DW-I paper book in CA No. 108/2015 page 123
Bank Certificate Ex.92 and 93 respectively ibid.
the attorney of legal heirs of Mst, Ashfaq Jahan (since deceased)
Trough LRs Appellant 1 (i) to (v) herein
Pages No. 144 to 147 ibid
i
CIVIL APPEAL NO. 108 OF 2015
3
4. The said FC Suit No. 144 of 1977 was partially decreed by the
learned trial court on 21st July 1988 by observing that Mst. Ashfaque
Jehan (defendant No.1 of the suit) was liable to pay the sum of
Rs.36.000/- received from respondent No.1 as part of sale
consideration9. The judgment of the learned trial court dated 21st July
1988 was assailed by respondent No.1 before the Court of Additional
District Judge Hyderabad, who vide his judgment dated 22nd
November 1989 1 0 set aside the judgment and decree of the learned
Trial Court and decreed the suit in favour of respondent No.1. The
decision of the learned Additional District Judge was impugned by the
appellant No.1 before the learned High Court in Second Appeal No.2 of
1990, which vide its short order dated 11 th December, 2000 and
detailed judgment dated 26 th January, 2001 11 , set aside the judgment
dated 22nd November, 1989 of the 1 81 Appellate Court. The said
judgment was assailed by respondent No.1 in Civil Appeal No.2111 of
2001 before this Court and vide Order dated 02.04.2007 12, with the
consent of parties, the judgment dated 26th January, 2001 was set
aside and the case was remanded back to the learned High Court for
re-consideration of the controversial questions of law and facts in the
light of evidence on record. The learned bench of the High Court of
Sindh, Circuit Court, Hyderabad vide its judgment dated 22.4.201413
impugned before us in this Civil Appeal No.108 of 2015 upheld the
judgment dated 22.11.1989 passed by the 1st Appellate Court
dismissing the Appeal No.2 of 1990.
Pages No. 67 to 82 of CA No. 108/15
10 Pages No. 57 to 66 of CA No. 108/15.
Pages No. 93 to 116 of CA No. 108/15
Pages 51 ofCMA 2694
13 Pages 20-46 of CA No. 108/is.
CEVILAPPEAI. NO. 108 OF 2015
4
5.
We have heard counsels for both the parties before us and
A
perused the record with their able assistance. The learned counsel for
the Mst. Rehmat, Appellant No.1 argued that time was the essence of
the contract to sell, executed between Mst. Ashfaq Jahan the Appellant
No.1 and Mst. Zubaida Begum respondent No.1 was rightly rescinded
and revoked as the respondent No.1 failed to perform her part of
contract within time. He emphasized that the appellant No.1
purchased the suit property worth Rs.60,000/- after serving legal
notice through registered post dated 02.12.1975 as well as publicized
the notice through newspaper dated 11. 12.1975 upon the respondent
No. 1. He further argued that before purchasing the suit property, the
appellant No. 1 procured the clearance certificate through her son from
the Sub-Registrar Hyderabad on 18.12.1976; and thereafter, the sale
deed was duly registered through Sheikh Muhammad Sharif as
0
Attorney of the vendor on 24.02.1977. He contended that the appellant
No.1 being the bona fide purchaser of the suit property rightly got the
sale deed registered in her name after fulfilling all the legal formalities
as such the impugned judgment of the learned bench of the High
Court suffers from legal infirmities and liable to be set aside.
6. Conversely, the learned counsel for the respondents vehemently
argued that the respondent No.1 purchased the suit property vide
agreement executed in the year, 1973 and paid a sum of Rs. 36,000/-
of the total sale consideration of Rs.45,000/-. He further argued that
the remaining sum of Rs.9,000/- was payable on fulfilling the
contractual obligations as mentioned in clause 4 of the agreement to
sell dated April 1973, which Mst.Ashfaq Jahan failed to perform till
date. He highlighted that the respondent No.1 was handed over the
piWsical possession of the suit property on payment of further
.1
CIVIL APPEAL NO. 108 OF 2015
5
-
consideration of Rs.35,000/- as noted above and in part performance
thereof on 11. 12.1973 by her attorney. He contended that the learned
1t Appellate Court had taken care of all the factual and legal aspects
of the case in its judgment dated 22nd November, 1989 and the same
was rightly upheld by the learned bench of the High Court vide the
impugned judgment.
7. It transpires from the record that the litigation with respect to
the suit property arose between the parties when Mst. Zubaida Begum
respondent No.1 14, Mst. Rehmat l3ibi appellant No.1 15 and appellant
No.2 Hamid Hussain, son of appellant No.2 and attorney of Mst.
Ashfaq Jahan in agreement dated April, 1973 and Mohammad Sharif
Sheikh husband and attorney of Mst. Rehmat Bibi appellant No.1 in
registered sale dated 24111 February, 1977 were all alive. The seller as
well as the original and subsequent purchasers of the suit property
appeared through their respective attorneys before the Trail Court.
One Muhammad Idrees the attorney and husband of Mst. Zubaida
Begum, appeared as PW-1 16 and exhibited the agreement dated April,
1973 and other documents as Ex-91 to 103 in the Trial Court. Sheikh
Muhammad Sharif, duly constituted attorney of Mst. Ashfaq Begum,
Appellant No.2, appearing as DW-1 17 in the Trial Court specifically
admitted the factum of sale transaction between the respondent No.1
and Mst. Ashfaq Jehan by deposing in cross examination that:
£rMst Zubeida plaintiff had given cheques of Rs.
25,500 on 25.05.1973 and cheque of Rs. 10,000
on 11.12.1973. It is a fact that these cheques
were given towards the part payment of
consideration of sale." (Page No. 123 of paper
book No. CA 108 of 2015).
14 Plaintiff in FC Suit No. 144 of 1977
Is Defendant No.2 in PC Suit No. 144 of 1977
16 ages 117-120 of CA No.108/15
122 -123 of CA No. 108/ 15
CIVIL APPEAL NO. 108 OF 2015
C
8.
As to the possession, he admitted in his examination in chief
that 'As Muhammad Idrees was my friend, therefore, I allowed him for
temporary shelter but after two days; they backed out from their
promises and have not yet vacated the house18'. He further admitted in
his cross-examination as DW- 1 that 'It is a fact that since 1973 till
today Mst. Zubeida is in possession, voluntarily says that possession is
illegal19'. These admissions of DW-.l who is the attorney as well as the
husband of appellant No.1 are sufficient enough to establish that the
sale transaction was entered between Mst. Ashfaq Jehan and the
Respondent No.1 in the year 1973 and the vendee paid a sum of Rs,
36,000/- in part performance of sale consideration while the
possession was also delivered to her. It is an established principle of
law that facts admitted need not be proved, reference can be made to
Article 30 of the Qanoon-e-Shahadat Order 1984 and the case of Nazir
Ahmed versus M. Muzaffar Hussain 20, wherein Paragraph No.8 of the
judgment this Court observed that:
8. So far as the execution of agreement is concerned,
the appellant Nazir Ahmad who appeared as D. IV 1
admitted the execution of the agreement for sale of
the property in dispute for consideration of Rs. 50,000
and the execution of the agreement was further
testified by Allah Ditta Scribe of the document who
appeared as D. IV 4. The said wil ness appeared twice
in the Court; firstly as P. IV .1 and secondly as D. IV 4
and admitted the thumb impression of Nazir Ahmad
and signatures of Rashid Ahmad appellants on the
agreement to sell 'ExkP. 1). It means that the
execution of agreement is admitted not disputed and
it is well settled proposition of law that the admitted
facts need not to be proved. The admission has been
defined in Article 30 of the Qanun-e-Shahadat Order,
1984 which reads as under:-
"30. Admission defined. An admission
is a statement, oral or documentary,
which suggests any inference as to any
18 Page No. 123 of CA No. 108/ 15
19 Page No. 123 of of CA No. 108/15
2-2flDSCMR 1639
4
4
CIVIL APPEAL NO. 108 OF 2015
7
fact in issue or relevant fact, and which
is made by any of the persons, and
under the circumstances, hereinafter
mentioned."
9.
The Appellant, under facts and circumstances of the case, can
neither claim nor could substantiate, that she is bona fide purchaser
without notice to the earlier transaction. In a case Jaiwanti Bai v.
Amir Corporation 21 in paragraph 19 and 20 it was held 'that the right
of a person having established that they were equipped with
unregistered instrument, which were prior in time, and were in
possession of property in part performance of such instrument, would
rank superior even against the subsequent registered instrument'.
Therefore, in the instant case, the position of respondent No.1 being in
possession of the suit house since 1973, having paid 80 % of the total
sale consideration, much before time fixed in the sale agreement and
much before performance of reciprocal obligations set out under
clause 4 of the agreement, on the part of the Respondent No.2, is
much stronger than that of the appellant No.1; more particularly the
possession is specifically admitted by DW-1 in his statement in view of
the Nazir Ahmed's case supra.
10. The crucial question that now requires consideration of this
Court is as to whether the time is essence of the agreement dated
April, 1973. Perusal of the said agreement reveals that the vendor
Mst. Ashfaq Jahan sold the suit property as an absolute owner to the
respondent No.1 Mst. Begum in lieu of Rs.45,000/-(Rupees Forty-Five
Thousand Only), whereof as sum of Rs.500/- was paid as earnest
money as mentioned in clause (1) of the said agreement. Clause 2 of
the said agreement mentioned that 'The balance of the said sale price
21 PLD 2021 SC 434
CIVIL APPEAL NO. 108 OF 2015
that is, Ra44,5001- (Rupees Forty Four Thousand and Five Hundred)
only shall be paid by the SECOND PARTY to the FIRST PARTY in cash
before the Registrar Hyderabad, at the time of registration of sale deed
in respect of the said property or if the parties agree, at any time before
registration22.' It is pertinent to mention here that no cut-off date was
given in the sale agreement for the payment of remaining sale
consideration as it was settled between the parties that the remaining
sum could be paid at the time of registration of sale deed or at any
time before registration. Clause 4 of the said agreement made it
mandatory for the 'First Party' that is the vendor Mst. Ashfaq Jahan to
obtain all documents necessary for registration of the suit property in
the following terms:
"4) That the FIRST PARTY shall obtain all
documents necessary for registration of the said
property in the name of the SECOND PARTY ,
namely:-
i)
Income Tax clearance certificate.
No objection certificate from the Excise &
Taxation Authority, Hyderabad.
Certificate/Receipt showing payment of
electricity and water charges.
iv)
Mutation in the Cit!J survey record kept in
the City Survey office, Hyderabad. -----"
11. Clause 4, of the agreement as reproduced above, reveals that the
appellant No.2 while acting as an attorney of his mother Mst. Ashfaq
Jahan was required to procure all the documents noted therein, before
the execution of sale deed. These conditions manifest that the
agreement dated April 1973 contained reciprocal promises on the part
of vendor as well vendee and both the parties were required to perform
their respective part of the contract in order to accomplish the sale
geNo.127ofCANo.1O3/15
CIVIL APPEAL NO. 108 OF 2015
9
transaction; however, the vendor failed to perform her part of
reciprocal obligations and did not procured requisite documents,
except the Income Tax Clearance Certificate; which is also apparent
from the perusal of notices Ex.9 1, Ex. 116, Ex. 11823. As the vendor
Mst. Ashfaq Jahan herself failed to perform her part of contract,
therefore, she Could not rescind and revoke the agreement dated April
1973, after the delivery of possession of the suit property to the
respondent No.1 and the receipt of a sum of Rs. 36000/= i.e 80% of the
total sale consideration in part performance of performance of sale
transaction. It can safely be concluded that the time was never the
essence of the agreement dated April 1973 and the failure on the part
of the promisor/vendor to perform her part of contract could not put
her into a position of rescinding or revoking the contract in terms of
Section 51 of the Contract Act, 1872. Moreover Section 54 of the
Contract Act, 1872 even makes the promisor liable to make
compensation to the promisee for any loss suffered by him due to non-
performance of a reciprocal promise on the part of promisor. Section
54 reads as follows:
"54 Effect of default as to that promise which
should be first performed. - In contract
consisting of reciprocal promises. When a
contract Consists of reciprocal promises, such
that one of them cannot be performed, or that
its performance cannot be claimed till the other
has been performed, and the promisor of the
promise last-mentioned fails to perform it, such
Promisor cannot claim the performance of the
reciprocal promise, and must make
compensation to the other party to the contract
for any loss which such other party may
sustain by the non-performance of the
contract"
23 Pages No. 130 to 137 of the paper book No. CA108/2015
CIVIL APPEAL NO. 108 OF 2015
10
12. We fully agree with the findings of the learned bench of the High
Court given in paragraphs No 29 W 31 of the impugned judgment to
this effect and the case laws mentioned therein. It may be observed
that while granting leave on 9.2.2015, it was noted that the appellant
on execution of sale deed dated 24.4.1977 in her favour by the
attorney of the appellant No.2 had filed a suit for possession under
section 8 of the Specific Relief Act, and question that required
resolution was, which of the party was entitled to equitable relief
under sections 8 and 27 of the Specific Relief Act, 1877, if any. It is
noted that this Court on 15.4.2020 also directed the parties to file
concise statement to show whether respondent No.1 had deposited
balance sale consideration or otherwise.
13. CMA Nos.2694 of 2015 and 4737 of 2020 was filed by the
learned counsel for the Appellant No.1 and Respondent No-1
respectively, which show that suit No.99 of 1997 24 was filed by the
Appellant No.1, Mst. Rehmat Bihi, for possession under section 8 of
Specific Relief Act, 1877 on the strength of sale deed dated 24.2. 1977,
which suit remained pending for over seven years and eight months
and, on failure of the plaintiff in suit to lead any evidence, it was
dismissed under Order 9 Rule 8 CPC vide reasoned order dated
16 .4. 1986.25 It was pointed out by the learned counsel for the
Respondent No.1 that after dismissal of her suit and during pendency
of proceedings in the instant matter, Appellant No.1 dishonestly
executed sale deed dated 20.12.2000 in favour of appellant No.3 Mst.
Khurshid Jehan, who was later added as a party and being proceeded
ex-parte. The earlier sale deed was executed by her husband (Sheikh
U
24 Page 11 of CMA 4737/2020
Pages 14-15 of CMA 4737/20.
CIVIL APPEAL NO. 108 OF 2015
11
1
Muhammad Sharif) as an attorney of the Vendor (Mst. Ashfaq Jahan).
The appellant No.1 was fully aware of earlier transaction and delivery
of possession to the Respondent No.1 in part performance of the
agreement to sell. The Conduct of the Appellant No. 1, since deceased,
smack foul, as during pendency of instant proceedings, she further
executed sale deed dated 22 . 12 .200026 in favour of Appellant No.3
Khursheed Jehan, more so when there is nothing on record to show
that appellant No.3-Khurshid Jahan had paid sale consideration to
the Vendor at the time of obtaining sale deed in her favour. Said
Respondent No.3 also filed a suit for possession under Section 8 of
the Specific Relief Act, fate of which is not known. It may be observed
that suit No. 99/197727 filed by the Appellant No.1 under Section 8 of
the specific Relief Act was dismissed under Order 9 Rule 8 CPC on
16 .4 . 198628, to which no exception was taken by the Appellant,
Respondent No.3 having stepped into shoes of the Appellant No.1
cannot claim better right and title than what was possessed by the
Appellant No.1 and cannot be allowed to circumvent the consequence
of dismissal of earlier suit by her predecessor as provided for under
Order 9 Rule 9 CPC, which bars fresh suit in respect of same cause of
action.
14. Since the Plaintiff was put in possession on 11 . 12 . 197329 on
payment of 80% of the sale consideration in part performance of the
sale agreement dated April 1973, Specific Performance is an equitable
relief, Respondent No. 1, since represented by LRs, cannot be absolved
of their obligations to pay the remaining balance sale consideration of
26 Pages 17-22 of CMA 4737/20
27 Page 11-13 of CMA No. 4737/2020
28 Page 14-15 ibid
hen Rs. 10,000/ was paid through Cheque dated 11.12. 1973 (making total
nsideration of 36000/- out of 45,000/-)
CIVIL APPEAL NO. 108 OF 2015
12
.1
Rs.9000/,(being 20% of the total sale Consideration) which they
were obliged to pay within reasDnable time from the date of sale
agreement or at the latest on filing suit for specific performance.
Contention of learned counsel for respondent No.1 that neither the
appellate Court nor the High Court made any direction to deposit
balance sale consideration. It may be observed that, a vendee seeking
specific performance of an agreement to sell is essentially required to
demonstrate that he is and was always ready and willing to perform
his reciprocal obligation to pay balance sale consideration. If balance
consideration is not offered or paid earlier, best time to demonstrate
such "readiness and willingness to perfonn"30 is offering balance sale
consideration at the time of filing suit for specific performance. In
cases where contract consist of reciprocal promise such that one of
them cannot be performed or that its performance cannot be claimed
till the other has been performed 31 . Indeed in this case obligation to
pay balance sale consideration was dependent and would occur on
discharge of the obligation on the part of the Mst. Ashfaq Jahan/
vendor to procure documents as mentioned in clause 4 of the
agreement, noted in paragraph 10 above, which apparently were not
performed till filing of the suit. Since the respondent had paid 80% of
the sale consideration before contingency agreed in the agreement to
sell and was put in possession in part performance may not be
entitled to claim compensation in terms of section 19 of Specific Relief
Act read with section 54 of the Contract Act, Property subject matter
of Sale Agreement Ex 91, being (Eastern Portion) of House No, 08, C.S
No. A-34/27-28, Amil Colony, Hyderabad is now in the heart of City,
30 ee_eection 51 of the Contract Act
1 Section 54 Contract Act and implication for non performance of reciprocal
obligation, in a sequence required to be performed
I
-
--
CIVIL APPEAL NO. 108 OF 2015
t
falls within category 132 Respondent/ Plaintiff is enjoying possession
since on 11.12-1973,33withholding 20% of the balance sale
consideration cannot be justified, it would just and equitable to direct
the Respondent No.1 to deposit 20% of the balance sale consideration
as per value of the suit properly in accordance with the prevalent
valuation table in respect of suit property issued by the Federal
Board of Revenue and or Authority, within a period of 30 days from
the date of such determination by the learned Executing Court, on
deposit of the amount and, which may be disbursed to the LRs of Mst.
1
Ashfaq Jahan/ vendor/ defendant No.1 in suit(since deceased) on
determination and deposit of such amount, sale deed be executed in
favoaur of legal heirs of respondent No.1 in accordance with Order 21
Rule 32 CPC.
I
15. For what has been discussed above, the instant Civil Appeal No.
108 of 2015 stands dismissed with no order as to costs. The findings
given by the learned bench of the High Court in the impugned
judgment, subject to above are upheld with the observation that any
sale transaction with respect to the suit property after the agreement
in April, 1973 stands annulled and any subsequent transaction in
respect of suit property from appellant No.1 is also hit by the principle
of Us pendens and has to sink and swim with the appellant No.1 Mst.
Rehmat Bibi; needless to observe that the Appellant No-1 and or
32 S.R.O. 0"3(1)/2019.- In exercise of the powers conferred by sub-section (4) of
section 68 of the Income Tax Ordinance, 2001 (XLIX of 2001) and in supersession of
its Notification No. S.R.O. 116(1)/2019 dated the 1st February, 2019 and or any
other current valuation table in vogue on the date of this judgement,
33 When Rs. 10,000/ was paid through cheque dated 11. 12.1973 (making total
consideration of 36000/- out of 45,000/-)
13
V
.. -
Judge
I
--
CIVIL APPEAL NO. 108 OF 2015
14
V
S
Appellant No.3 may well be within their right to claim damages for
1:
wrongful transaction from their respective vendors.
Announced at Islamabad. on
_________
"Approved for Repo fling"
| {
"id": "S.M.C.108_2015.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE ASIF SAEED KHAN KHOSA, CJ
MR. JUSTICE FAISAL ARAB
MR. JUSTICE IJAZ UL AHSAN
CIVIL APPEALS NO. 1095-1097, 134-L, 1021-
1026, 1138, 1154-1158, 1486 AND 1487 OF 2018
AND
CIVIL PETITIONS NO. 4475 AND 4476 OF 2018
AND 1362 OF 2019
AND
CRIMINAL ORIGINAL PETITIONS NO. 14, 18, 25
AND 26 OF 2019
AND
CIVIL REVIEW PETITIONS NO. 16, 17, 20, 37-49,
77, 127-133 OF 2019
AND
CIVIL MISCELLANEOUS APPLICATIONS NO. 462,
465, 508, 686, 1085, 1970, 1974, 1976, 1982,
2050, 2619, 2623, 2659, 2660, 2664, 2875 AND
2880 OF 2019, AND 8466 AND 8806 OF 2018
Mohammad Imran
(in C.A. No.1095/18)
Rehan Ahmed
(in C.A. No.1096/18)
Kiran Nadeem
(in C.A. No.1097/18)
Govt. of the Punjab through its Minister
of Education, Lahore, etc.
(in C.A.No.134-L/18)
BPS (Pvt) Ltd. and others
(in C.A. No.1021/18)
Bay View Academy (Pvt) Ltd, Karachi and others
(in C.A. No.1022/18)
Education Systems (Pvt) Ltd, Karachi and others
(in C.A. No.1023/18)
City Schools (Pvt) Ltd, Karachi
(in C.A. No.1024/18)
City Schools (Pvt) Ltd, Karachi
(in C.A. No.1025/18)
Shahrukh Shakeel Khan and others
(in C.A. No.1026/18)
All Private Schools Management and others
(in C.M.A. No.8466/18)
Civilizations (Pvt) Ltd, Karachi and others
(in C.A. No.1138/18)
City Schools (Pvt) Ltd., Karachi
(in C.A. No.1154/18)
City Schools (Pvt) Ltd., Karachi
(in C.A. No.1155/18)
Beacon house School System, Karachi
(in C.A. No.1156/18)
Civil Appeals No. 1095 of 2018, etc.
-: 2 :-
Beacon house School System, Karachi
(in C.A. No.1157/18)
Beacon house School System, Karachi
(in C.A. No.1058/18)
City Schools (Pvt) Ltd. through its Regional
Director, Karachi
(in C.P. No.4475/18)
Asim Iftikhar Yakub and another
(in C.P. No.4476/18)
Foundation Public School (Pvt) Ltd Karachi
and another
(in C.A. No.1486/18)
Origins School through its Partner Nahid
Japanwala,Karachi and others
(in C.A. No.1487/18)
Muhammad Umeran Khokhar and others
(in Crl.O.P. No.14/19)
Ali Abbas
(in Crl.O.P. No.18/19)
Muhammad Imran
(in Crl.O.P. No.25/19)
Muhammad Imran
(in Crl.O.P. No.26/19)
Lahore Grammar School (Pvt) Ltd. and others
(in C.R.P. No.16/19)
LACAS (Pvt) Ltd and another
(in C.R.P. No.17/19)
Bay View Academy (Pvt) Ltd. and others
(in C.R.P. No.20/19)
Educational Systems (Pvt) Ltd. Karachi
(in C.R.P. No.37/19)
City Schools (Private) Ltd.
(in C.R.P. No.38/19)
City Schools (Private) Ltd.
(in C.R.P. No.39/19)
City Schools (Private) Ltd.
(in C.R.P. No.40/19)
City Schools (Private) Ltd.
(in C.R.P. No.41/19)
Beacon house School System, Karachi
(in C.R.P. No.42/19)
Beacon house School System, Karachi
(in C.R.P. No.43/19)
Beacon house School System, Karachi
(in C.R.P. No.44/19)
Foundation Public School (Pvt) Ltd Karachi
and another
(in C.R.P. No.45/19)
City Schools (Private) Ltd.
(in C.R.P. No.46/19)
Mr. Asim Iftikhar Yakub and another
(in C.R.P. No.47/19)
City Schools (Private) Ltd.
(in C.R.P. No.48/19)
Education Services (Pvt) Ltd, Lahore and others
(in C.R.P. No.49/19)
Origins School thr. its Partner and others
(in C.R.P. No.77/19)
Lahore Grammer School (Pvt) Ltd and others
(in C.M.A. No.462/19)
LACAS (Pvt) Ltd and others
(in C.M.A. No.465/19)
Alliance Resource (Pvt) Ltd.
(in C.M.A. No.508/19)
Salamat School System (Pvt) Ltd, Lahore
(in C.M.A. No.686/19)
Lahore Grammer School (Pvt) Ltd and others
(in C.M.A. No.1085/19)
All Private Schools Management and others
(in C.M.A. No.8806/19)
City Schools (Private) Ltd.
(in C.R.P. No.127/19)
City Schools (Private) Ltd.
(in C.R.P. No.128/19)
Educational Systems (Pvt) Ltd.
(in C.R.P. No.129/19)
City Schools (Private) Ltd.
(in C.R.P. No.130/19)
City Schools (Private) Ltd.
(in C.R.P. No.131/19)
City Schools (Private) Ltd.
(in C.R.P. No.132/19)
City Schools (Private) Ltd.
(in C.R.P. No.133/19)
Alliance Resources (Pvt) Ltd.
(in C.M.A. No.1970/19)
Headstart School (Pvt) Ltd.
(in C.M.A. No.1974/19)
Al-Huda International Welfare Foundation
(in C.M.A. No.1976/19)
EPIC Islamic School and others
(in C.M.A. No.1982/19)
Salamat School System (Pvt) Ltd.
(in C.M.A. No.2050/19)
Origins School and others
(in C.M.A. No.2623/19)
Foundation Public School (Pvt) Ltd and another
(in C.M.A. No.2619/19)
Froebel’s (Pvt) Ltd. and another
(in C.P. No.1362/19)
…Appellant(s)/Applicant(s)/Petitioner(s)
Civil Appeals No. 1095 of 2018, etc.
-: 3 :-
versus
Province of Sindh through Chief Secretary
and others
(in C.A. No.1095/18, etc.)
The City School (Pvt) Ltd. etc.
(in C.A. No.134-L/18)
The Province of Sindh through Secretary
Education/Law and Parliamentary Affairs, Sindh
(in C.A. No.1021/18)
The Province of Sindh through the Secretary,
Education and Literacy, Karachi and others
(in C.A. No.1022/18, etc.)
Taymur Mirza
(in Crl.O.P. No.14/19)
Major Noman Khan
(in Crl.O.P. No.18/19)
Dr. Farzana Feroz
(in Crl.O.P. No.25/19)
Kasim Kasuri
(in Crl.O.P. No.26/19)
Govt. of the Punjab thr. its Minister of Education,
Lahore and others
(in C.R.P. No.16/19, etc.)
Muhammad Imran and others
(in C.M.As. No.1974 &
1976/19)
…Respondent(s)
In attendance:
Mr. Shahid Hamid, Sr. ASC
Mr. Makhdoom Ali Khan, Sr. ASC
Mr. Faisal Siddiqui, ASC
Mr. Aftab Alam Yasir, ASC
Mr. Hassan Nawaz Makhdoom, ASC
Mr. Hamid Ali Shah, ASC
Mr. Muhammad Ali Raza, ASC
Ms. Ayesha Hamid, ASC
Ms. Shireen Imran, ASC
Mr. Rashid Mehmood Sindhu, ASC
Syed Faisal Hussain Naqvi, ASC
Mr. Shahzad Ata Elahi, ASC
Mr. Salim-ur-Rehman, ASC
Mr. Muhammad Ikram Ch., ASC
Mr. Fauzi Zafar, ASC
Mr. Taffazul Haider Rizvi, ASC
Mr. Khurram Mumtaz, ASC
Sardar Muhammad Ajaz Khan, ASC
Mr. Zaheer Bashir Ansari, ASC
Mr. Sharjeel Adnan Sheikh, ASC
Mr. Abid Hussain Chatta, ASC
Barrister Haroon Mumtaz, ASC
Mr. Mudassar Khalid Abbasi, ASC
Khawaja Ahmad Hosain, ASC
Mr. Rashid Hanif, ASC
Mr. Muhammad Imtiaz Khan, ASC
Mr. Ejaz Mehmood Ch. ASC
Mr. Maqbool Ahmed Sheikh, ASC
Mr. Iqbal Javed Dhallon, ASC
Mr. Riasat Ali Gondal, ASC
Barrister Suleman Akram Raja, ASC
Mr. Muhammad Azhar Siddique, ASC
Ch. Hafeez Ullah Yaqoob, ASC
Mr. Mehr Khan Malik, AOR
Mr. Muhammad Sharif Janjua, AOR
Mr. Muhammad Kassim Mirjat, AOR
Civil Appeals No. 1095 of 2018, etc.
-: 4 :-
Mr. Ahmed Nawaz Ch., AOR
Mr. Aman Naseer, Advocate
Rana Shamshad Khan, Additional Advocate-
General, Punjab
Abdul Latif Khan Yousafzai, Advocate-General,
Khyber Pakhtunkhwa
Barrister Qasim Wadud, Additional Advocate-
General, Khyber Pakhtunkhwa
Mr. Salman Talib-ud-Din, Advocate-General,
Sindh
Barrister Shabbir Shah, Additional Advocate-
General, Sindh
Mr. Sajid Ilyas Bhatti, Deputy Attorney-General
for Pakistan
Mr.
Arbab
Tahir
Kasi,
Advocate-General,
Balochistan
Mr. Muhammad Ayaz Khan Swati, Additional
Advocate-General, Balochistan
Mr.
Tariq
Mehmood
Jehangiri,
Advocate-
General, Islamabad
Barrister Qasim Chohan, Additional Advocate-
General, Punjab
Mr. Zahid Yousaf Qureshi, Additional Advocate-
General, Khyber Pakhtunkhwa
Mr. Ahmed Hussain Rana, in person
Mr. Jessam Ubaid, in person.
Mr. Muhammad Javed Chohan, Law Officer
(ED), Government of Punjab
Qazi Shahid Pervez, Secretary Schools, Sindh
Mr. Humayun Akhtar Sahi, Law Officer, Punjab
Mr. Imtiaz Ali Qureshi, Chairman PEIRA
Mr. Zubair Khan Shahid, D.S. Education,
Lahore
Mr. Muhammad Ikram Abbasi, L.O.
Dr. Mansoob Hussain Siddiqui, D.G. Private
Schools, Government of Sindh
M/s Muhammad Tajasib Minhas and Umair
Ahmed, representative of parents of the students
from Lahore
Mr.
Athar
Hussain,
father
of
a student,
Islamabad
Date of Hearing: 09.05.2019
ORDER
IJAZ UL AHSAN, J.- For the reasons to be recorded
later, the instant matters are decided as follows:-
i.
Civil Appeal No. 134-L/2018 is allowed and the
judgment of the learned Division Bench of the Lahore
High Court, Lahore in Writ Petition No. 29724/2015
delivered on 05.04.2018 titled City School Private
Civil Appeals No. 1095 of 2018, etc.
-: 5 :-
Limited v Government of the Punjab and others (PLD
2018 Lahore 509) is set aside;
ii.
Civil Appeals No.1021 to 1026 and 1095 to 1097/2018
are allowed and the judgment of the learned Division
Bench of the High Court of Sindh, Karachi in
Constitution Petition No. D-5812/2015, etc. delivered
on 05.03.2018 titled Shahrukh Shakeel Khan and 2
others v Province of Sindh through Chief Secretary,
Government of Sindh and 4 others (PLD 2018 Sindh
498) to the extent of declaring Rule 7-A of the Sindh
Private
Educational
Institutions
(Regulation
and
Control) Rules, 2005 (“Rules of 2005”) is set aside. The
said judgment in so far as it declares Rule 10 of the
Rules of 2005 as intra vires is upheld;
iii.
Civil Miscellaneous Application No. 8466/2018 and
Civil Appeals No. 1138, 1154 to 1158, 1486 and
1487/2018 are dismissed and the judgment of the
learned Full Bench of the High Court of Sindh, Karachi
in
Constitution
Petition
No.
D-6274/2017
etc.,
delivered on 03.09.2018 titled Bushra Jabeen and 367
others v Province of Sindh through Chief Secretary and
others (2018 MLD 2007) is affirmed and upheld; and
iv.
Civil Petitions No. 4475 and 4476/2018 filed against
the
order
dated
19.11.2018
passed
in
Civil
Miscellaneous
Application
No.
33322/2018
in
Constitution Petition No. D-6274/2017, etc. are
dismissed as having been rendered infructuous.
2.
It is unanimously held and declared that Section 7-A
of the Punjab Private Educational Institutions (Promotion and
Regulation) Ordinance, 1984, as amended by the Punjab Private
Educational Institutions (Promotion and Regulation) (Amendment)
Act, 2017 is intra vires the Constitution of the Islamic Republic of
Civil Appeals No. 1095 of 2018, etc.
-: 6 :-
Pakistan, 1973 (“the Constitution”) and does not violate Articles
18, 23, 24 or 25-A thereof.
3.
It is unanimously held and declared that Rule 10 of
the Rules of 2005 is intra vires the statute, i.e. Sindh Private
Education Institutions (Regulation and Control) Ordinance, 2001,
and the Constitution.
4.
With a majority of two against one, we are not
persuaded to interfere with Rule 7(3) of the Rules of 2005, with
Faisal Arab, J. expressing the view that the restriction imposed by
Rule 7(3) ibid is unreasonable and hence invalid.
5.
Upon decision of the main appeals in the terms noted
above, all interim orders passed during the pendency of the
appeals (including the order dated 13.12.2018 passed in Civil
Appeal No. 1095/2018 regarding reduction of fees by 20% as an
interim measure) have ceased to be effective, subject to
recalculation of fee by using the fee prevailing in 2017 as the base
fee, in accordance with the provision(s) of the Punjab Private
Educational Institutions (Promotion and Regulation) (Amendment)
Act, 2017 and onwards, for the Province of Punjab. For the
Province of Sindh, fees may be recalculated using the fee prevailing
on 29.06.2017 as the base fee and onwards, in accordance with
the Rules of 2005 (gazetted on 29.06.2017). Provided that the
schools shall not recover any arrears on account of the reduction
in fee by reason of the interim order of this Court dated
13.12.2018 till the date of this judgment. Therefore, all the review
petitions filed against the said interim order are disposed of in
these terms. In view of the fact that these appeals/petitions are
being finally decided, all criminal original petitions and civil
miscellaneous applications are disposed of.
6.
It is further directed that all schools shall collect
the
fee,
strictly
in
accordance
with
the
procedure
and
timeframe provided by the law, the rules and regulations
including, but not limited to the Punjab Private Educational
Civil Appeals No. 1095 of 2018, etc.
-: 7 :-
Institutions (Promotion and Regulation) Ordinance, 1984, as
amended by the Punjab Private Educational Institutions
(Promotion and Regulation) (Amendment) Act, 2017 and the
Rules of 2005.
CHIEF JUSTICE
(I consider Rule 7(3) of Rules of 2005 to be an
unreasonable restriction and in this regard have
appended my separate note herewith.)
JUDGE
JUDGE
Announced in open Court
On 12.06.2019 at Islamabad
JUDGE
APPROVED FOR REPORTING
Civil Appeals No. 1095 of 2018, etc.
-: 8 :-
Faisal Arab, J.- After agreeing with Hon’ble Chief
Justice and Ijaz ul Ahsan, J on the validity of Section 7A of Punjab
Private Educational Institutions (Promotion and Regulation)
Ordinance, 1984, which allows 8% increase in tuition fee in an
academic year, I respectfully differ on the reasonableness of Rule
7(3) of Sindh Private Educational Institutions (Regulations and
Control) Rules, 2005 and wish to record my own opinion.
2.
The parents of students coming from the whole range
of middle class families approached the Courts, not because they
wanted to challenge the tuition fee which the schools charged at
the time of taking admissions but what agitated them was the
periodical increases made in the tuition fees which proved to be an
enormous burden on their purses. Hence a substantial raise in
fees in comparison to the existing fees stirred agitation amongst
the parents who invoked Rule 7(3) of the Sindh Private Educational
Institutions (Regulations and Control) Rules, 2005 in Sindh and
Section 7A of the Punjab Private Educational Institutions
(Promotion and Regulation) Ordinance, 1984 in Punjab in order to
seek reduction.
3.
Section
15
of
the
Sindh
Private
Educational
Institutions (Regulations and Control) Ordinance, 2001 gives rule
making power to the provincial government, which inter alia states
that rules shall provide for fixation of tuition fees and other sums
to be realized from the students. Pursuant to this rule making
power, the Sindh Private Educational Institutions (Regulations and
Control) Rules, 2005 were framed. Rule 7 (2) and (3) provides that
fee in an academic year can be increased only upto 5% subject to
establishing proper justification before the Registering Authority.
Hence while providing room for periodical increases, a cap of 5%
was imposed which was given primacy over any reason that may
justify raise in the tuition fees beyond such limit. It is because of
this primacy that the private schools felt that this rule imposes
unreasonable restriction as schools with such limited room for
seeking increase in fees would not be able to cope with the
corresponding increase in the cost of running of the schools which
in turn would eventually put them out of business. Thus the case
Civil Appeals No. 1095 of 2018, etc.
-: 9 :-
of the Schools is that the cap of 5% was arbitrarily determined by
the functionaries of the government which militates against the
freedom of doing business guaranteed under Article 18 of the
Constitution.
4.
In the last thirty years or so we have witnessed
mushroom growth of educational institutions in the private sector
as dependence of parents for educating their children in such
institutions has grown phenomenally. This dependence is on
account of pathetic quality of education in the government
education system. Many government schools do not have proper
buildings. Where there was once a proper running school building
now it is in shambles. Most of the schools are without teachers
and where there are any, they don’t take classes, remain mostly
absent yet get paid from the exchequer. Most of the teachers do not
even have requisite skills in the subjects which they teach though
they on paper can demonstrate to be qualified teachers. Even
where these teachers attend schools there is either no or little
furniture and that too appears to be falling apart what to speak of
other necessary facilities which the government has prescribed in
the rules for private educational institutions. Thus on account of
lack of capable and efficient teachers as well as lack of necessary
facilities, many middle and lower middle class families, who a few
decades ago used to send their children only to government
schools, have utterly lost faith in the public education system.
These families in their desire for better education for their children,
have started seeking admissions in private schools where not very
long ago only upper middle and rich class families used to send
their children. This has resulted in prenominal growth of private
schools. Now more than 50% of students as per some statistics
study in private schools where the level of education as compared
to government schools is quite high. The students qualified from
private schools have qualitative edge over the students who pass
out from government schools. An overwhelming number of
teachers who teach in private school have themselves studied in
private schools. They by far excel in their teaching skills than most
of the teachers of government schools. Today one can notice the
difference between those students who have studied in private
Civil Appeals No. 1095 of 2018, etc.
-: 10 :-
schools and those in the government schools. That is the reason
the students who complete their education from private education
institutions get admissions in renowned universities abroad and
capture a very big chunk of the job market and easily secure
higher executive positions than those who are being churned out
from government schools. It is for this reason that regardless of the
cost, parents from the middle and lower middle class families are
sending their children to private schools even though it has
impacted their budget severely. Much of the blame for such burden
is attributable to the government which has failed in running
public education system successfully. This is also one of the
reasons that the literacy rate of the country, which was 60% a few
years ago, has now declined to 58% and is likely to decline further
thanks to the government’s education policies which have proved
to be worthless.
5.
In the past few decades, we have seen that quite a few
private school systems have earned a name, goodwill and
reputation of imparting good quality education. The only
alternative to such schools is to send children abroad for
education, which costs much more than what these schools
charge. Some of these schools with the quality of teaching faculty
and facilities at their campuses charge handsome fees which only
the affluent class can afford. These private schools can be
classified as first tier schools. Application of Rule 7(3) on such
schools would certainly have the effect of subsidizing the rich of
the society. As for the children of upper middle and middle class
families there are private schools which can be classified as second
tier schools. Many of these schools also impart good quality
education. Their tuition fees are comparatively affordable, however,
for middle class families who send their children to these schools,
their budget gets affected when the tuition fee is raised
phenomenally in an academic year. Then there are private schools
that can be classified as third tier schools where only lower middle
class families send their children. The education level of these
schools is much better than most of the present day government
schools. Hence private schools can be classified in three tiers that
Civil Appeals No. 1095 of 2018, etc.
-: 11 :-
charge tuition fee ranging from Rs.1,000 to Rs.60,000 per month
or thereabouts.
6.
The value of professional service in a particular field
cannot be measured and priced in the same manner as the value
of an essential edible item such as milk and flour are measured
while fixing their prices under price control laws. The worth and
value of any essential food item remains the same regardless of the
fact as to who is selling or buying it. In contrast to this, there is a
whole spectrum in which worth of professional service in a
particular field can be evaluated and priced. It varies from person
to person or institution to institution which dispenses it. It would
be very harsh to evaluate professional services through a
mechanism that does not fully take into consideration ground
realities. The only object of the laws in question should be to check
profiteering after students are admitted in schools. But when the
fee of any particular service is regulated in a manner that has the
potential of gradually eating-up legitimate margin of profit, it
makes businesses compromise on their quality lest they would run
into losses which in turn lead to layoffs or their eventual closure.
For businesses such a regulation can prove to be worse than
imposing heavy tax on income as atleast in that eventuality the
burden of tax would be conditional upon making profits not
otherwise. In the past we have experienced the negative impact of
regulating the industrial sector of our country as the Board of
Investment retained unbridled power to decide which industrial
unit in private sector should be allowed to be set-up and which
not. Such strict regulation had proved to be a discouragement to
investment that retarded the industrial growth of the country. Any
regulation that acts as a discouragement in making investment in
any trade, business or industry, which is otherwise permissible in
law, violates the freedom guaranteed under Article 18 of the
Constitution.
7.
The justification to raise school fee mainly depends
upon two key factors i.e. rise in the cost of running a school on
account of diminution in the value of Rupee and additional
facilities made available by schools to the students as compared to
Civil Appeals No. 1095 of 2018, etc.
-: 12 :-
the last academic year. There is a strong possibility that on
account of 5% cap arbitrarily determined, many of the private
schools in Sindh at a certain point in time may not be able to fully
absorb the increase in the cost of running a school or the cost of
the facilities provided to the students. As a consequence thereof
the much needed growth of private schools is certainly going to be
retarded. If that happens then it is very likely that private sector
would be discouraged to fill the vacuum in Sindh left by
government educational institutions. The existing private schools
may start closing down or the number of their branches may
dwindle which in turn would make it very difficult to cope with the
ever increasing demand for good quality educational institutions,
the only alternative to government’s dismal education system in
the present times. Encouragement of investment in private sector
has its own positive effects as it induces competition that in turn
reduces margin of profit. Through growth of private schools,
quality education has become more accessible. In the present case
no one has argued that any cartel exists that does not leave much
choice with the parents but to admit their children in a particular
set of school systems only. So there exists no monopoly in the
fixation of tuition fees, except that based on reputation and
goodwill some of the schools charge hefty fees.
8.
On one of the dates of hearing of this case Mr.
Muhammad Tajassir Minhas and Mr. Umair Ahmad who sent their
children to private schools of Punjab were present in court. At their
request this court allowed them to place their point of view in their
capacity as representatives of parents. They expressed their full
satisfaction on the increase in the tuition fee in an academic year
to the extent of 8% as provided in Section 7A of Punjab Private
Educational Institutions (Promotion and Regulation) Ordinance,
1984. So let’s apply the 8% increase formula as an example in a
given case. When tuition fee of a student is taken to be
Rs.15,000/- per month at the time of admission, the total increase
at a compound rate 8% for a five year period would result in an
overall increase of Rs.5,308/- only i.e. from Rs.15,000/- per month
fee payable in the first year the increase in the fifth year would
Civil Appeals No. 1095 of 2018, etc.
-: 13 :-
take the fee to Rs.20,308/- per month. This 8% raise in every
academic year is atleast much closer to setting-off the diminution
in the purchasing power of Rupee that normally takes place in a
span of five year period. Limiting the raise to 5% only under Rule
7(3) would be too harsh a financial restriction as it does not fully
take care of the cost of running a school in comparison to the cost
of its previous academic year. This is evident from the value which
the Rupee has consistently been shedding in any five year period.
Looking from that angle too, the arbitrarily determined cap of 5%
imposed under Rule 7 (3) would certainly act as an unreasonable
restriction on carrying on a lawful business.
9.
The negative impact of Rule 7(3) does not stop here as
it further requires that no raise in fee can be made unless
Registering Authority first grants its approval. In this context it is
important to note that there are said to be 17,000 private schools
in Sindh and in order to seek any increase in tuition fee, each
school has to apply to the Registering Authority which may take
considerable period of time to process thousands of applications,
that may leave a huge number of applications pending to be
processed in the next academic year. Notwithstanding such
pendency thousands of fresh applications in the next academic
year are bound to pour in making it further difficult to timely
process all applications. This inbuilt cumbersome process to seek
increase in tuition fee under Rule 7(3) also amounts to
unreasonable restriction.
10.
No one can claim any right in any concession or
exemption that is often granted in a statute like tax laws. But to
allow increase in tuition fee is not something that is to be equated
with some concession or benefit granted by the state as it is mainly
intended to compensate for the diminution in the purchasing
power of Rupee. In other words, revision in tuition fee should be
solely intended to meet the ever increasing cost of running of a
school and at the same time persevering reasonable margin of
profit. Parents send their children to a particular school with the
intention that they would complete their studies in a period which
Civil Appeals No. 1095 of 2018, etc.
-: 14 :-
span over a number of years and it is neither convenient nor good
for the student to change schools after every year or two. So once a
student after his admission is committed to study for several years
in a particular school, the only consideration for incorporating
Rule 7(3) in Sindh Private Educational Institutions (Regulations
and Control) Rules, 2005 ought to have been to compensate for
diminution in the value of Rupee, provision of additional facilities
for the students and to prevent profiteering while preserving
reasonable margin of profit. However, where this rule, which is a
product of delegated legislation, fails in fully taking into account
these factors and is also cumbersome in its application, as it
requires processing of thousands of applications each year by the
Registering Authority in order to allow any increase in tuition fee in
any academic year, no matter how insignificant it may be then it
can be termed as unreasonable restriction being a discouragement
to run a lawful business. In connected cases coming from the
Province of Punjab, 8% increase in an academic year has already
been validated. In my view that limit too should be made
enforceable without recourse to Registering Authority. Raising the
cap under Rule 7(3) to 8% would also create uniformity in its
application in the provinces of Sindh and Punjab where
overwhelming majority of children of this country get education.
This uniformity is also a necessity as the private schools, whether
in Punjab or Sindh, are subject to income tax on their profits at
the same rate and the diminution in the value of Rupee affects the
entire country equally being the common legal tender. Keeping all
these considerations in mind, arbitrary cap of 5% can be raised to
the level of 8% which looks much closer to ground reality i.e.
having the effect of offsetting the depreciation in the value of Rupee
to a greater extent which was also acceptable to the parents of the
children of Punjab. In this regard reliance is placed on the case of
Ahmed Hassan Vs. Government of Punjab (PLD 2004 SC 694)
where it has been held that where a Rule has the effect of being an
unreasonable restriction, it can be struck down. Raising the cap of
5% provided in Rule 7(3) to an automatic increase upto 8% in an
academic year would bring it within the limits of reasonableness
Civil Appeals No. 1095 of 2018, etc.
-: 15 :-
and should be so read with effect from the year in which the
controversy in the present proceedings first started.
11.
In view of what has been discussed above the
arbitrarily determined cap of 5% imposed under Rule 7 (3) and the
manner by which it is to be enforced is an unreasonable restriction
on carrying on a lawful business. Increase upto 8% in an academic
year without recourse to Registering Authority would be closer to
the ground realities and at the same time save the department and
the schools much of the inconvenience in the periodical revision of
tuition fees. The Government of Sindh is directed to amend Rule
7(3) accordingly within a period of two months.
12.
Civil Appeal Nos. 1095 to 1097, 1021 to 1026, 1138,
1154 to 1158, 1486, 1487 of 2018, Civil Petition Nos. 4475 & 4476
of 2018 stand disposed of in the above terms along with all
pending Review Petitions/CMAs.
(JUDGE)
Announced on 12.06.2019 at Islamabad.
Approved For Reporting
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Javed Iqbal
Mr. Justice Nasir-ul-Mulk
Mr. Justice Tariq Parvez
Mr. Justice Amir Hani Muslim
SUO MOTU CASE NO. 10 OF 2011
(Suo Motu action regarding brutal killing
of a young man by Rangers in Karachi)
On Court notice
:
Maulvi Anwar-ul-Haq,
Attorney General for Pakistan.
Mr. Shafi Ahmed Memon,
Additional Adv. General Sindh.
Mr. Qamar Zaman Chaudhry,
Secretary Interior.
Mr. Abdul Subhan Memon,
Chief Secretary, Govt. of Sindh
Mr. Fayyaz Ahmed Leghari,
Provincial Police Officer Sindh.
Mr. Muhammad Ejaz Chaudhry,
Director General, Pak. Rangers.
Mr. Muhammad Riaz-ud-Din,
Acting Home Secretary Sindh
Mr. Anwar Subhani,
Acting AIG (Legal).
Date of hearing
:
10.06.2011.
O R D E R
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – Pursuant to
incident of murder of one Sarfraz Ahmed at the hands of Sindh
Rangers in the vicinity of Benazir Park, Block-VI, Gate-II,
SMC.10/2011
2
Karachi, video clips were shown by most of the prominent TV
Channels, same have been watched in Court today, which prima
facie establish that about 5/6 persons in uniform initially caught
hold of Sarfraz Ahmed (deceased) from his hairs and thereafter
one of them opened fire, due to which Sarfraz Ahmed sustained
injuries and fell down, crying for his life, begging them that he
should be removed to hospital.
2.
Unfortunately, none of the police and Rangers
officials present on the spot helped the deceased Sarfraz Ahmed
(then injured) as a result whereof he succumbed to injuries in
their presence. The manner, in which the death of Sarfraz Ahmed
deceased has occurred, clearly indicates barbarism because once
he had been overpowered, as it is evident from the video clips, he
was not to be fired upon in any case and at the best the Rangers
personnel could have handed him over to the police, if there was
an allegation of his being involved in the commission of some
offence.
3.
In order to conceal/smokescreen the highhandedness
of both i.e. Rangers and Police, with the connivance of each
other, they registered FIR No. 225 of 2011, on 08.06.2011 at
Police Station Boat Bason, District Town Clifton at 7.30 pm,
against the incident that took place at 5.15 pm on the complaint
of one Afsar Khan son of Gul Mohiuddin under Sections
SMC.10/2011
3
393/353/324 PPC. As per the version of the complainant, a
person armed with a pistol threatened one Alam Zeb and his wife,
statedly in front of the complainant, to hand over whatever
valuable they have got with them and during this, the Rangers
posted at the place reached there; on seeing the Rangers the
dacoit ( ) /deceased, opened fire with intention to commit their
murder; therefore, the Rangers also opened fire in their self
defence due to which the dacoit sustained injuries on his body
and the pistol in his hand also fell down; his name was learnt to
be Sarfraz. The complainant further stated that the injured dacoit
was shifted to Jinnah Hospital in the CHEEPA Ambulance. His
claim was that as the said Sarfraz had demanded money on
gunpoint and had intervened in the official duty of the Rangers
and had also extended threat to their life, as such case may be
registered.
4.
The above FIR was followed by another FIR No.226
of 2011 of same Police Station dated 08.06.2011 at 7.45 pm.
under Section 13D of the Arms Ordinance, with regard to pistol,
allegedly recovered from the deceased with magazine with three
rounds and as the same was without licence, therefore, a separate
case was registered against him.
5.
After registration of these FIRs, on 09.06.2011 at
00.30 (midnight) FIR No.227 of 2011 was registered under
SMC.10/2011
4
Section 302/34 PPC at the same Police Station on the complaint
of Syed Salik Shah son of Khameen Shah, wherein he deposed
that on coming to know that his brother Sarfraz Ahmed had a
quarrel at Benazir Park, where the Police and Rangers were
present, he went to Boat Bason Police Station and met Zulfiqar,
SI, who informed him that his brother has been injured, therefore,
he had been shifted to Jinnah Hospital; when he (the
complainant) reached Jinnah Hospital, he found his brother’s
dead body lying in the Emergency. According to the contents of
this FIR, he named two persons i.e. Muhammad Afzal and
Shahid Zafar alongwith their other colleagues and two unknown
persons to have committed the murder of his brother; therefore,
action according to law may be taken.
6.
The narration of above facts regarding FIR are
entirely contrary to the video clips played in Court, as it is
evident therein that one person had got hold of Sarfraz who was
empty handed; that person pushed Sarfraz towards the Rangers
present near a vehicle parked over there; the Rangers present
overpowered him and they directed him to face upward; during
this course he was caught hold from his hairs and collar of the
shirt, there was a commotion that “he is the same person” and he
was then moved by pushing him towards the Rangers; in the
meantime, one of the Rangers personnel fired upon him as a
SMC.10/2011
5
result, he got injured and fell down and started crying, begging
Rangers personnel that he should be shifted to the hospital but all
the Rangers officials present over there had been watching him;
meanwhile the blood started oozing out from his injuries and he
succumbed to the injuries while lying in the pool of blood.
7.
The Police although had registered the FIR No. 225
and FIR No. 226 of 2011 but have not stated a single word about
the death of Sarfraz and in a clandestine manner stated that he
had been shifted to Jinnah Hospital as injured. Even subsequent
thereto, no case was registered about this murder by the police
officials, until his brother Syed Salik Shah came to Police Station
and got registered the case at 00:30 (midnight) on 09.06.2011 till
such time the complainant had limited information about the
occurrence as mentioned hereinabove.
We may mention here that it was not only the duty of the
police concerned but of the Provincial Police Officer as well as
Director General Rangers, to take notice of the matter, as they
must have learnt about the incident which was widely aired by
the electronic media and there was a lot of hue and cry regarding
this incident; furthermore the family of the deceased alongwith
other
citizens
had
also
started
raising
voice
against
highhandedness of these law enforcing agencies. Surprisingly,
when the case vide FIR No.227 of 2011 was registered, even then
SMC.10/2011
6
except two persons, whose names were mentioned in the FIR
lodged by the complainant, the custody of remaining persons,
who were very much visible at the scene of crime, were not
handed over nor the police demanded them for the purpose of
investigation. As far as the awareness of the incident is
concerned, it was very much available on all TV Channels.
When we enquired from the DG Rangers, he admitted that
because only two persons were nominated in the FIR, therefore,
their custody was handed over; as far as the other Rangers
personnel present on the spot are concerned, according to him,
they are in the custody of the Rangers. This conduct on the part
of the Police as well as Rangers does not seem to be above board.
When such a heinous crime has been reported by the electronic
media/TV Channels, they should have come forward with all
fairness and should have got arrested all the persons, who were
involved in the case.
8.
We do not know about the status of investigation
because the things have been mixed up deliberately by the Police
while registering the FIRs in the manner as it has been discussed
hereinabove and this is nothing but a device to save the persons,
who are apparently seems to be involved in the commission of
the offence. We do believe that under the Constitution of the
Islamic Republic of Pakistan, it is the State who is responsible to
SMC.10/2011
7
provide protection and safety to the life of all its citizens, but in
the instant incident facts are other way round i.e. negation of
Article 9 of the Constitution.
9.
Accepting for the sake of argument that the deceased
was involved in some criminal case, which apparently seems to
be incorrect, the Rangers had no authority to open fire upon him.
Reference in this behalf can be made to Mehram Ali v.
Federation of Pakistan (PLD 1998 SC 1445), wherein this
aspect of the case has been discussed by this Court by clearly
stating that under Section 5(2)(i) of the Anti Terrorism Act, 1997,
the Rangers have no authority to open fire.
10.
Be that as it may, when we enquired from the Chief
Secretary, Government of Sindh about the powers, which are to
be exercised by the Rangers, conferred upon them by the
Provincial Government for the purpose of acting in aid of the
Police and civil administration, he produced a copy of the
notification, which is not the original one but it seems to deal
with extension, etc. of the tenure for which Rangers shall stay in
aid of civil administration. In the meantime, the Chief Secretary
had left for the meeting with the Prime Minister in some other
matter. Before leaving for the meeting with the Prime Minister,
the Chief Secretary stated that he admits that the present incident
is a case of utter violation on the part of these law enforcing
SMC.10/2011
8
agencies to enforce law and he surrenders before this Court for
the incompetency of these law enforcing agencies in this regard.
He assured that protection to the life and property of the
cameraman of a private TV Channel “AWAZ”, who had prepared
the original video of the incident, shall be provided. In view of
his statement, we direct him to do the needful. Mr. Riazuddin,
Acting Home Secretary, Government of Sindh, present in Court,
had placed on record a copy of the notification dated 3rd
February, 2010; however, this notification is silent about powers
that have been conferred upon the Rangers and the manner in
which the same has to be exercised.
11.
When we enquire from the Provincial Police Officer
about the progress of the case, surprisingly he gave reply that
today remand of the two accused persons shall be taken and then
the investigation will start; whereas the DG Rangers pointed out
that two empties shell, fired from the service rifle by an accused,
have been handed over to the police today at about 9.00 am
alongwith his service rifle. Similarly, the custody of the two
accused has been given yesterday at night whereas the custody of
the remaining officials as well as the persons, who were Incharge
of the Company has not so far been handed over.
12.
From the above noted facts and circumstances, it is
not difficult to visualize that how this incident had taken place
and the manner in which both the high-ups i.e. of the Police and
SMC.10/2011
9
the Rangers, had dealt with the same. It is a classical case of
highhandedness of the law enforcing agencies and instead of
feeling sense of responsibility and showing uprightness and
honesty, they are, even today, concealing the facts while
appearing
before
this
Court.
Therefore,
under
these
circumstances, we apprehend that the investigation of the case
would not be conducted properly and impartially, in presence of
both these senior officers i.e. Mr. Fayyaz Ahmed Leghari, PPO
Sindh and Mr. Muhammad Ejaz Chaudhry, DG Rangers (Sindh),
as such through Attorney General for Pakistan, we direct that
they should be posted out within a period of three days and in the
meantime some alternate arrangements should be made.
However, if after three days, the notifications in this regard are
not issued, it is directed to withhold the salaries of above two
officers as they would not be entitled for the same till the
notification of their posting out is not issued. This part of our
order shall be enforced/implemented by the Secretary Interior by
proceeding according to relevant rules. Meanwhile, Mr. Sultan
Khawaja, DIG Karachi, who is statedly a reputable officer, is
directed to take over the charge of the investigation against all the
culprits and complete the same within a period of seven days, by
applying all appropriate provisions of law as the matter seems to
attract prima facie Section 7 of the ATA, 1997, and shall send up
challan before the Court of competent jurisdiction. He shall also
submit progress report of his investigation to the Registrar of this
Court for our perusal in Chambers.
SMC.10/2011
10
13.
The Court seized of the matter shall decide the same
by conducing trial on day to day basis, by not taking more than
30 days, without being influenced in any manner from the instant
proceedings. Ultimate result of the trial shall be communicated to
the Registrar of this Court for our perusal in Chambers.
This Suo Moto Case stands disposed of accordingly.
CJ.
J(1).
J(3).
J(10).
J(14).
Islamabad,
10.06.2011
Irshad Hussain /*
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE IJAZ UL AHSAN
SUO MOTO CASE NO.10 OF 2018
Suo Moto Action regarding order passed by the Lahore
High Court temporarily barring TV Channels from
Broadcasting Anti-Judiciary Speeches.
In Attendance:
Mr. Ashtar Ausaf Ali, AGP.
Mr. M. Waqar Rana, Addl. AGP.
Mr. Salman Akram Raja, ASC for PEMRA
Sardar Ahmed Nawaz Sukhera,
Secy. M/o Information & Broadcasting.
Mr. Ashfaq Jummani, Sr. Member, PEMRA.
Date of Hearing:
17.04.2018
ORDER
MIAN SAQIB NISAR, CJ-. We took Suo Motu Notice
in this matter on account of media reports and panel
discussions on various media channels based on an order dated
16.04.2018 passed by a Full Bench of the Lahore High Court,
Lahore. A false impression was intentionally sought to be
created amongst the general public by such news reports as
well as panel discussions that Muhammad Nawaz Sharif (ex
Prime Minister of Pakistan) and his daughter Ms. Maryam Safdar
had been directed to be taken off air and Pakistan Electronic
Media Regulatory Authority (PEMRA) had been directed to stop
broadcasting of speeches made by the said persons. Further, it
was categorically stated that the learned High Court had
banned airing of anti judiciary speeches by a large number of
persons including Muhammad Nawaz Sharif and Ms. Maryam
Safdar.
2.
A false impression was also sought to be created that
the fundamental right to freedom of speech enjoyed by all
citizens and guaranteed by the Constitution has been curtailed,
restricted or diminished through the said order.
SUO MOTO CASE NO.10 OF 2018
-: 2 :-
3.
We have summoned the order of the learned High
Court and carefully gone through the same. Perusal of the said
order indicates that PEMRA which is a regulatory authority of
broadcasters has been directed to implement the law in terms of
Article 19 of the Constitution of the Islamic Republic of
Pakistan, 1973 read with Section 27 of the Pakistan Electronic
Media Regulatory Authority Ordinance, 2002 and Section 2(j) of
the Electronic Media (Programmes and Advertisements) Code of
Conduct, 2015. Further, PEMRA has been directed to decide
various applications moved by a number of applicants for
enforcement of law against hate speech within a period of 15
days.
4.
There is nothing in the order which even remotely
directs or obligates PEMRA to ban Muhammad Nawaz Sharif
and Ms. Maryam Safdar or any body else. The media
speculation, panel discussions and press reports appearing on
various channels and media outlets and in various newspapers
today are incorrect, baseless and unsubstantiated. The
opinions, verbal or in writing have clearly and obviously been
expressed without even reading the contents of the order of the
High Court.
5.
We have confronted the learned Attorney General for
Pakistan as well as the learned counsel appearing on behalf of
PEMRA if the order in question in any manner imposes a ban,
embargo or restriction on Muhammad Nawaz Sharif and Ms.
Maryam Safdar or any body else. They have frankly conceded
that this is not the case and the contents of the order do not
support any such conclusion. They agree and acknowledge
without any reservation whatsoever that as guardians of the
Constitution and custodians of fundamental rights the superior
Courts of the country are mandated and obligated to ensure
that fundamental rights are protected and enforced with full
force and vigor with all their manifestations and strictly in
accordance with the letter and spirit of the Constitution and the
law.
SUO MOTO CASE NO.10 OF 2018
-: 3 :-
6.
We had also issued notices to Muhammad Nawaz
Sharif and Ms. Maryam Safdar and had directed the learned
Attorney General for Pakistan to convey the same to the said
persons to enable them to arrange their representation. None
has appeared on their behalf. However, learned counsel
appearing on behalf of other Respondents and the Attorney
General for Pakistan, after going through the order, agree that
there is nothing in the order that can even remotely be
interpreted to mean or imply that a ban has been imposed on
the said persons or taking them off-air. All learned counsel
unanimously agree that as the regulator for electronic media, it
is the duty of PEMRA to enforce the law as provided in Section
27 of the Ordinance, 2002 read with Section 2(j) of the Code of
Conduct ibid and the order in question merely reiterates the
said position.
7.
Having satisfied ourselves that the order of the
learned High Court, referred to above, does not in any way curb,
restrict, curtail or diminish the fundamental right of freedom of
speech as enshrined in Article 19 of the Constitution and
merely directs PEMRA to enforce the law which it is obliged to
do and decide the applications pending before it relating to hate
speech against any and all organs of the State, we are inclined
to dispose of this Suo Motu Notice. Disposed of accordingly.
CHIEF JUSTICE
JUDGE
JUDGE
ISLAMABAD, THE
17th April, 2018
ZR/*
NOT APPROVED FOR REPORTING
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tsuPBMt COURT 0LPAKISTAN
(APPELLATE JURISDICTION)
MR. JUSTICE GULZAR AHMED, CJ
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR AU AKBAR NAQV1
Civil A eats to 17-K of 2019
Against judgment dated 28.(n -2018 of Sindh Service
Tribunal at Karachi, passed in Appeals No.1015, 1063,
1156 to 1159, 1161 81 1164 o12015.
Sindh Irrigation & Drainage Authority,
Appellant(s)
Versus
Government of Sindh & others
Respondent(s)
For the Appellant(s):
Malik Naeem Iqbal, ASC
Sh. Khurratfl Aziz, Secy, SIDA
Altaf Hussain, Law Officer ,(V1 0 V•L.
For the Respondent(s):
Date of Hearing:
Mr. Mukesh Kumar G. Karara, ASC
Mr. Mansoor ul Haq Solangi, ASC
Muhammad Ali Zardari, AWB, Ghotki
Mr. Sibtain MehmoOd, Addl.AG, Sindh
Sikandar Hassan, DS Irrigation Sindh
Khaditn Hussain, DS Irrigation Sindh
Abdul Hafeez Memon, SO Irrigation Sindh
(alt UtD. V.1.
24.03.202 1
JUD.
GMENT
IjAz UL AHSAN, j-. Through this single
judgment we intend to decide Civil Appeal Nos. 10-K to 17-K
of 2019 (hereinafter referred to as "CA") as they involve a
common question of law.
2. By way of the instant appeals,the Appellants have
challenged the consolidated judgment of the Sindh Service
Tribunal, Karachi dated 2808-2018 passed in Service Appeal
Nos. 1015 of 2015, 1063 of 2015, 1156 to 1159 of 2015, 1161
of 2015 and 1164 of 2015 (hereinafter referred to as the
ChitI Appeals No.10-K to Il-K at 2019
2
"Impugned Judgment"). Through their Service Appeals, the
Appellants had filed an application under Section 12(2) of the
Code of Civil Procedure, 1908 (hereinafter referred to as
"CPC")contending that the litigation Respondents were
engaged in before the Service Tribunal claiming to be
employees of the Irrigation Department of the Government of
Sindh was fraudulent and erroneous since they were not Civil
servants but Public servants and employees of the Sindh
Irrigation and Drainage Authority (hereinafter referred to as
"SIDA"). The Service Tribunal dismissed the application of the
Appellants vide the Impugned Judgment. Aggrieved, the
Appellants have approached this Court.
3. The brief facts giving rise to this Us are that the
Respondents were employed against different posts in the
Tube Well Division(s) of SIDA by the Executive Engineer(s).
The Respondents filed a Writ Petition before the High Court
for release of their salaries. The said Writ Petition was
remitted to the Service Tribunal. The Service Appeal of the
Respondents was disposed of vide orders dated 14.05.2015
with directions to the Department to process the case of the
Respondents' salaries in view of different letters issued by the
Finance Department. The directions of the Service Tribunal
were allegedly not complied with, prompting the Respondents
to file execution applications. During pendency of the
execution proceedings, the Appellants filed an application
under Section 12(2) of the CPC before the Service Tribunal for
setting aside the order dated 14.05.20 15 claiming therein
(Api! Appeals NO, 20-K to 17-K of 2019
3
that the Service Tribunal did lacked jurisdiction to adjudicate
the matter since the Respondents were public servants and
not civil servants. The application of the Appellants was
dismissed vide the Impugned Judgment. Aggrieved thereof,
the Appellants filed Civil Petitions for leave to appeal before
this Court against the Impugned Judgment.
4. Leave to appeal was granted by this Court vide
order dated 03.04.2019 in the following terms: -
"Mr. Malik Naeem Iqbal learned Sr. ASC for the petitioner
submits that the impugned judgment has been rendered by
the Sindh Service Tribunal under a grave misconception that
the private respondents herein were civil servants employed
by the Government of Sindh. Such was held for the purported
reason that the appointments of the respondents were made
by the Executive Engineer of the Irrigation Department.
Learned Counsel submits that indeed, it is true that the
appointments were made by the Executive Engineer however
at the relevant time the said Engineers were not working for
the Irrigation Department but were discharging their duties
for the Water Management Board on deputation. Learned
counsel refers to Section 29 of the Sindh Water Management
Ordinance, 2002, to show the Water Management Board is a
corporate body independent of the Government of Sindh and
in order to show the functions prescribed for the Board the
learned Counsel refers to Section 32 and also to Section 16 of
the Ordinance which provide that in order to carry out the
Purpose of the Ordinance, SIDA may from time to time,
employ officers, staff and experts etc with such qualification
and expertise, and on such terms and conditions as may be
prescribed by S1DA. The learned Counsel further submits
that in terms of Section 39 certain provisions of SIDA,
including Section 16 are to apply mutatis mutandis to the
Board as well. He submits that the tern-is and conditions of
the persons employed or sought to be employed were/ are, in
terms of Section 16, to be determined by SIDA, its employees
cannot be termed as Civil servants for which it is essentially
required that their terms and conditions be settled through
the relevant statute."
5. Arguments of the learned counsel for the
Appellants have been elaborately spelt out in the leave
granting order of this Court noted above and need not be
repeated.
Oiml A ppeals Pin. ?Q-J( to 17-K 0, i01 9
4
6. The learned Counsel for the Respondents has
supported the Impugned Judgment. He has argued that the
Service Tribunal rightly non-suited the Appellants since
Respondents were Civil servants and were employed by the
Irrigation Department of the Government of Sindh. He has
further argued that the Respondents were employed by the
Executive Engineer who was an official of the Government of
Sindh, hence, the Respondents for all intents and purposes
were Civil servants. In this respect, the learned Counsel for
the Respondents has relied upon the appointment letters of
the Respondents.
7. We have heard the arguments of the learned
Counsel for the parties and have perused the record. The
questions which fall before this Court for determination are
as follows: -
(i)
Were the Respondents "Public servants" or "Civil
servants" and, the consequences thereof?
(ii)
What was the legal significance of the appointments
made by the then Executive Engineer(s)?
(iii)
Did the Service Tribunal have jurisdiction to
entertain an application under Section 12(2) of the
CPC?
WERE THE RESPONDENTS "PUBLIC SERVANTS" OR
"CIVIL SERVANTS" AND, THE CONSEQUENCES
THEREOF?
8. The learned Counsel for the Appellants has argued
that, since the Respondents were employees of SIDA, they
were deemed to be public servants and not as civil servants
because they were employees of an authority, which was a
body corporate. In this respect, he has relied upon Section
4( 1)(a) of the Sindh Water Management Ordinance,
Civil Appeals go.] U-A to if-A 012UIY
5
2002 (hereinafter referred to as "Ordinance, 2002"). As such,
he has argued that the Government of Sindh, Irrigation
Department was a separate entity from the Appellant-
Authority. We have before us Section 4(l)(a) of the Ordinance,
2002which reads as under: -
"1) The SIDA
a. Shall be a body corporate, having perpetual succession
and a common seal and shall by the same name, sue
and be sued"
The term "Authority" is defined in Section 3
Ordinance, 2002 which reads as follows: -
"As soon as may be, after the commencement of this
Ordinance, there shall be established an Authority known as
the SIDA, provided that the SIDA existing immediately before
the commencement of this Ordinance shall continue to
function until the SIDA reconstituted under this
Ordinance. "(Underlining is ours)
A bare perusal of the alorenoted provisions of the
Ordinance, 2002 makes is clear that the SIDA is a separate
legal entity which, as per the provisions of the Ordinance,
2002, is different from the Irrigation Department of the
Government of Sindh. The Sindh Irrigation Department on
the other hand is a department of the Government of Sindh,
which is governed by a separate legal regime. The fact that
the legislature has in its wisdom sought to incorporate SIDA
as a body corporate Authority in the Ordinance, 2002 shows
its clear intention of not merely making it a department of the
Government of Sindh. A Department of the Government
generally operates under the control of the Government. This
essentially means that the autonomy of a department is
limited insofar as its operations and management are
concerned. An Authority on the other hand is generally
Ov,( Appeals No.JU-K to il-K 012W 9
6
autonomous. It can regulate its internal affairs and formulate
policies after seeking approval from the governing body of the
Authority in question. This is evidenced by the fact that there
is a separate Board of Management of SIDA provided inter a/ia
in Section 12(1) of the Ordinance, 2002 which reads as
follows: -
"1) Subject to the overall control and guidance of the SIDA,
the affairs of the SIDA shall be managed by the Board of
Management consisting of the Managing Director and such
number of General Managers, as may be appointed by the
SIDA on the advice of a committee comprising of four
members of the SIDA, provided that at least one of them shall
be an elected member.
The aforenoted provision makes it clear that SIDA
is an autonomous body, which operates as an Authority,
managed by a Board of Management. The use of the word
"shall" in Section 12(1) makes it evident that SIDA is to
govern its own affairs as an autonomous body.
9. The learned Service Tribunal has conceded that,
as per Section 106 of the Ordinance, 2002, the Respondents
are public servants. It has further been held that since the
appointment orders of the Respondents were issued by the
Executive Engineer of the Irrigation Department; as such, it
cannot be said that the Respondents were not Civil servants
since the appointment orders of the Respondents were issued
by a representative of the Irrigation Department. We are
unable to agree with the findings of the learned Service
Tribunal. Section 106 of the Ordinance, 2002 specifically
provides that employees of SIDA shall be public servants
which reads as follows: -
"The Chairman, Members of the Board, Officers and
employees of the Regulating Authority, SIDA, AWB, Pt? and
Quit A ppeals N0.10-K to 27-K ot 2019
7
other bodies constituted under this Ordinance shall, when
acting or purporting to act in pursuance of any of the
provisions of this Ordinance, be deemed to be public servants
within the meaning of Section 21 of the Pakistan Penal
Code."
The aforenoted provision of the Ordinance, 2009
clearly establishes that the Respondents shall be public
servants for a limited purpose spelt out in Section 106 itself.
The fact that this has been mentioned categorically within the
Ordinance, 2009 itself leaves no room for the Service Tribunal
to read into the Ordinance, 2009 something which is not
provided therein. Such an interpretation is ultra vires not only
to the Ordinance but also, the powers of the Tribunal. A civil
servant is someone who has been employed by the competent
authority i.e., either the Provincial or Federal Public Service
Commission, in the prescribed manner after following due
process of law and having gone through the process of
competition. Reliance in this regard is placed on Muhammad
Mubeen us Salam and others i.,. Federation of Pakistan
(PLD 2006 Supreme Court 602) the relevant portion of
which reads as under: -
"In the above definition of the civil servant, the expression
'All Pakistan Service or of a civil service of Federation" has
been included, therefore, section 5 of CSA, 1973 defines the
competent authority for appointment. According to which
Appointments to an All-Pakistan Service or to a civil service of
the Federation or to a civil post in connection with the affairs
of the Federation, including any civil post connected with
defence, shall be made in the prescribed manner by the
President or by a person authorized by the President in that
behalf" To meet the requirements of this provision of law,
Federal Public Service Commission Ordinance, 1977 was
promulgated in pursuance whereof the Commission was
authorized to conduct tests and examinations for recruitment
of persons other than officers of the Armed Forces of
Pakistan, etc."
There is nothing on the record to suggest that the
Respondents were ever declared civil servants by the
Giant A ppeals No. lu-K to li-ft ot 4019
8
competent authority or, that they were appointed by the
Public Service Commission of Sindh. Rather, it has been
alleged that they were appointed by the Executive Engineer,
therefore, they were civil servants. We are unable to agree
with this conclusion or the reasons given by the Tribunal for
such a conclusion, for reasons discussed above.
10. The relevant definition of a Civil servant for the
purposes of this controversy is provided in the Sindh Civil
servants Act, 1973, Section 2(1)(b) of which reads as follows: -
""civil servant" means a person who is a member of a civil
service of the Province or holds a civil post in connection with
the affairs of the Province, but does not include -
(I) a person who is on deputation to the Province from
the Federation or any other Province or authority;
or
(H) a person who is employed on contract, or on work
charged basis, or who is paid from contingencies;
or
(iii) a person who is "worker" or "workman" as
defined in the Factories Act, 1934 (XXV of 1934),
or the Workmen's Compensation Act, 1923 (VIII of
1923)"
The aforenoted provision defines a civil servant. It
is clear from the record placed before us that the
Respondents do not fall within the aforenoted definition. They
were not employed by the Provincial or Federal Public Service
Commission neither is there any notification or any other
document on the record that confers on them the status of
I
civil servants. A public servant may be a person who is
employed in the public sector. However, not all public
servants are civil servants unless they are appointed in the
prescribed manner discussed above.
Civil A ppeals No.20-K to 17-K of 2029
9
WHAT WAS THE LEGAL SIGNIFICANCE OF THE
APPOINTMENTS MADE BY THE THEN EXECUTIVE
ENGINEER(S)?
11. The learned ASC for the Appellant-Authority has
argued that the Executive Engineer(s) at the time in question
was not working for the Irrigation department. Rather, he was
working for SIDA on deputation. It has further been argued
that the Executive Engineer did not have authority to employ
the Respondents under the provisions of the Ordinance,
2002.In support of his arguments, the learned ASC for the
Appellant-Authority has drawn our attention to the
notifications dated 14.09,2012, 30.05.2012 and 29.07.2011
wherein it has been mentioned that various Executive
Engineers were transferred and posted as Executive
Engineers on OPS basis to the Tube Well Division(s) where
the Respondents were employed. It is to be noted that the
Tube Well Division(s) fell under the jurisdiction of the Area
Water Board, Gothki, the control of which stood transferred
from the Government of Sindh to the SIDA. In this respect we
have on record a notification dated 28.11.2001 which reads
as follows: -
"1. The Government of Sindh is pleased to designate under
Section 23(1) of the Sindh Irrigation and Drainage Authority
Act, (IV of 1997), the entire Gothki Feeder Canal Circle and
Left Bank Canal Circle from Head to Tail as Gothki Feeder
Canal Area Water Board and Left Bank Area Water Board.
2. All the Canals, Drains, Public Tube Wells, Appurtenant
structures, assets and liabilities falling within the jurisdiction
of both canals command stand transferred to Gothki Feeder
Canal Area Water Board and Left Bank Canal Area Water
Board.
3. The Gothki Feeder Canal and Left Bank Canal Area Water
Boards shall be governed by the Rules and Regulations
framed by the Authority.'
Civil Aooeals No. 10-K to 17-K of 2019
10
12. All appointments made in SIDA were supposed to
be made pursuant to Section 16 of the Ordinance, 2002. It
has been argued that in terms of Section 39 of the Ordinance,
2002, certain provisions inter alia, Section 16 of the
Ordinance, 2002 shall apply mutatis mutandis to the Area
Water Board. Section 39 of the Ordinance, 2002 reads as
follows: -
"The provisions of sections 6, 7, 8, 9, 16, 17, 18, 19, 20, 21,
22, 23, 24 and 27 shall mutatis mutandis, apply to an AWB"
The aforenoted provision of the Ordinance, 2002
clearly mentions that Section 16 of the Ordinance, 2002 shall
apply mutatis mutandis, i.e., without any substantial
changes, to the Area Water Board. Section 16 of the
Ordinance, 2002 reads as follows:
"16. Staff 1) In order to carry out the purpose of this
Ordinance, the SIDA mazi, from time to time, employ officers,
staff experts, advisers and other employees with such
qualifications and expertise and on such terms and
conditions as mat,' be prescribed bu SIDA.
2k). The Staff transferred from the Irrigation and Power
Department to SIDA shall serve on such terms and conditions
as prescribed by SIDA; provided that such terms and
conditions shall not be less favourable than the terms and
conditions admissible to them immediately before their
transfer to SIDA.
3). The staff transferred from the Irrigation and Power
Department shall continue to be governed by the provisions
of the Civil Service Pension Scheme, unless they opt not to be
so.
4)
The Managing Director shall be responsible for the
personnel management for all the SIDA staff in accordance
with regulations framed by the SIDA.
5) In cases of dismissal, promotion, demotion, removal,
termination, punishment(s) and all other matters connected
with the terms and conditions of service, staff in the SIDA
shall have a right of appeal, in accordance with the
regulations framed by the SIDA. (Underlining is ours)
GM Appea(s 90. 1 U-A toil-A OT 2W
11
A bare perusal of the aforenoted provision makes
it abundantly clear that the powers to inter alia appoint the
staff of SIDA vested with the Board of Management of SIDA
since the Board has powers as per Section 12(1) of the
Ordinance, 2002 to administer all matters of SIDA including
employment of its staff. Section 12(1) read with Section 16
clearly indicates that any and all appointments shall be made
by the Board of Management of SIDA. As such, no other
authority/ person could have exercised such powers without
express authorization given by the Board. As such, any and
all powers exercised by the Executive Engineer could only
have been exercised if the same were delegated by the Board
of Management of SIDA under Section 12(4) which reads as
under: -
"4) The Board of Management of may, by general or special
order, delegate to the Managing Director or any other member
of the Board, or to any officer of the SIDA, any of its powers
under this Ordinance, subject to such conditions or
limitations as it may impose."
There is nothing on the record to suggest that
such powers were ever delegated to the Executive Engineer(s)
in question. Even if it is assumed that the Executive Engineer
had the authority to appoint staff, the said appointments
could not have been made in contravention of Section 16 of
the Ordinance, 2002 or, any other provision of the Ordinance,
2002. It is settled law that legislation must be given a
harmonious reading where possible. As such, all those
lawfully employed under Section 16 of the Ordinance, 2002
would be public servants (for limited purposes) when Section
16 is read with Section 106 of the Ordinance, 2002, noted
crv,t Appeals No. 10-K to 17-K of 2019
12
above. Hence, the appointments made the Executive
Engineer(s) (if legal) could have only conferred the status of
public servants onto the Respondents and under no
circumstances, that of Civil Servants.
13. A similar provision within the Ordinance, 2002
with regards to the Area Water Board is Section 34 which
reads as under: -
"34. Board of Management. 1) Subject to the overall control
and guidance of the A WE Board of an A wg the affairs of
that AWE shall be managed by a Board of Management
formed by the Director and as many Managers as that A WE
may reasonably require for the purpose.
2) Sub-section 2) to 4) of Sub-section 12 shrill mutatis
mutandis apply to the Board."
Section 34 of the Ordinance, 2002 read with the
notification dated 28.11.2001 clearly establishes that in any
case, it was either the Board of Management of the Area
Water Board or, the SIDA, which was to employ the
Respondents and not the Executive Engineer. The
Respondents have been unable to show us anything from the
record to the effect that the Executive Engineer(s) had been
delegated with the authority to appoint any staff in the Tube
Well Division(s) under the control of the Area Water Board as
per Section 32 of the Ordinance, 2002. Even in the best case
scenario, the Executive Engineer could only be empowered to
employ the Respondents as public servants within the
meaning of Section 106 and not as Civil Servants. It is settled
law that an official can only exercise as much power as is
granted to them by law. The Executive Engineer could not
have gone beyond the powers he had or acted in violation of
Gun! A ppeals No. 10-K to 1/-K of 2019
13
the provisions of the Ordinance, 2002. Public functionaries
owe a fiduciary duty to act in good faith and discharge their
duties with honesty and in accordance with law. If a public
functionary does not exercise such power in good faith and
with honesty, the principle of merit gets compromised which
damages the superstructure of merit, competence and good
governance. There is no advertisement on the record to show
that the posts in question were available to the general public
and that the Respondents were appointed after having gone
through open competition. This raises doubts over the entire
appointment and recruitment process carried out by the
Executive Engineer(s). There is nothing on the record to show
that the recruitment process was carried out in accordance
with the provisions of the Ordinance, 2002. As such, the
findings of the learned Service Tribunal that the Respondents
were employees of the Irrigation Department are clearly
against the record which has totally been misread and
misinterpreted. The Respondents were employees of SIDA and
not the Irrigation Department because they were appointed by
Executive Engineer(s) serving on deputation in SIDA. The
learned Service Tribunal's findings in this regard are
unsustainable in law and in fact.
DID THE SERVICE TRIBUNAL HAVE JURISDICTION TO
ENTERTAIN AN APPLICATION UNDER SECTION 12(21 OF
THE CPC?
14.
After obtaining an order from the High Court for
release of their salaries, the Respondents approached the
Service Tribunal for implementation of the same, claiming to
be civil servants. They filed their respective implementation
Ciufi A ppeals No. 10-K to 17-K of2019
14
applications/ petitions. As a response to the same, the
Counsel for the Appellant-Authority filed an application under
Section 12(2) of the CPC averring therein that the
Respondents misrepresented the fact that they were
employees of the Irrigation Department and claimed to be
Civil Servants whereas, they were in fact Public Servants and
governed by the principle of Master and Servant. The learned
Service Tribunal dismissed the application of the Appellant-
Authority as not maintainable vide the Impugned Judgment,
holding that the Service Tribunal did not have powers to
decide an application under Section 12(2) of the CPC. We are
unable to agree with this finding of the learned Service
Tribunal. Section 5 of the Sindh Service Tribunals Act, 1973
categorically provides that the Service Tribunal shall have all
powers available to a Civil Court. Section 5 of the Sindh
Service Tribunals Act, 1973 reads as under: -
"5. Powers of Tribunals.-(1) A Tribunal may, on appeal,
confirm, set aside, vary or modify the order appealed
against. (2)A Tribunal shall, for the purpose of decidin g any
appeal be deemed to be a Civil Court shall have the same
powers as are vested in such Court under the Code of Civil
Procedure, 1908 (Act V of 1908), including the powers of- (a)
enforcing the attendance of any person and examining him
on oath, (b) compelling the production of documents; (c)
issuing commission for the examination of witnesses and
documents; and (d) execution of its decisions. (3) No court-fee
shall be payable for preferring an appeal to, or filling,
exhibiting or recording any documents in, or obtaining any
document from, a Tribunal." (underlining is ours)
15. The aforenoted provision makes it clear that the
Service Tribunal has all the powers which are available to the
Civil Court. This is further evidenced by the fact that the word
"including" is in Section 5(2) which shows that the Tribunal's
powers are broad and have not been limited by the Act. It has
the same powers as available to a Civil Court. Deciding an
CiuüArn,eals No. 10-K to 17-Ko12019
15
application under Section 12(2) is a power vested with the
Civil Court. Reliance in this regard is placed on Rahat
Naseem Malik v. President of Pakistan and others (2003
PLC (CS) 759 which held as under: -
"Now turning towards the next contention of the learned
counsel namely that Federal Service Tribunal under section 5
of the Service Tribunals Act, 1973 exercises jurisdiction of a
Civil court, therefore, it was its duty to have thoroughly
examined the case of the petitioner. As far as the powers of
the Tribunal to confirm, set aside, vary or modify an order
operating against petitioner as well as to exercise powers of
a Civil Court under the Code of Civil Procedure, 1908 is
concerned there is no cavil with it. However, such power
would be exercised by the Tribunal judiciously keeping in
view the recognized principle of law."
16. As such, the learned Tribunal could not have held
that the application of the Appellant-Authority was not
maintainable in law. When the law categorically provides the
Service Tribunal with powers to adjudicate a matter, it cannot
restrict itself from doing what it is required by law to do. The
Service Tribunal was required to decide the application under
Section 12(2) of the Appellant-Interveners on merits, based on
the material before it. This is so because the Appellant-
Authority alleged that the Respondents misrepresented
themselves as Civil Servants and tried to get relief from the
Service Tribunal, which, according to Article 212 of the
Constitution is empowered to deal with matters pertaining
only to persons employed in the Service of Pakistan. It is
settled law that fraud vitiates the most solemn of proceedings.
Reliance in this regard is placed on the case of Sued
Mehmood All Shah v. Zulfigar All and 5 others (PLD 2013
Supreme Court 364). In presence of a plea of
misrepresentation and fraud, the learned Service Tribunal
could not have summarily dismissed the application of the
Ovtl Appeals ho. 10-K to 1/-K of 2019
16
Appellant-Authority as being not maintainable and, was duty
bound to examine the same on the basis of the record. The
findings of the learned Tribunal in this respect are held to be
unsustainable in law and in fact.
17.
The fact that there was a clear term in the
appointment order(s) of the Respondents stating that their
post was purely temporary and that their services could be
terminated simpliciter also means that the Respondents were
governed by the principle of "Master and Servant". As such,
the learned Tribunal could not have interfered in this matter
especially when it has been established from the record that
the Respondents were not Civil Servants.
18.
The learned counsel has agued that the
superstructure of the execution is built upon a void order.
The learned Service Tribunal has dismissed this argument
and has held that the jurisdiction of the Service Tribunal did
not suffer from any inherent defects. We are unable to agree
with this conclusion. Section 4 of the Sindh Service Tribunals
Act, 1973 clearly provides that, for an appeal to be competent
before the Service Tribunal, the appellant must be a civil
servant. Section 4 of the ibid Act reads as under: -
"Appeals to Tribunals.-Any civil servant aggrieved by any
final order, whether original or appellate, made by a
departmental authority in respect of any of the terms and
conditions of his service may, within thirty days of the
communication of such order to him or within twelve months
of the establishment of a tribunal whichever is latter prefer
an appeal to the Tribunal having jurisdiction in the matter.
(Underlining is ours)
A bare reading of the aforenoted provision makes
it abundantly clear that the appeal of the Respondents before
cw,l A ppeals No.] U-K to U--t( 0(2019
17
the Service Tribunal was incompetent. As such, the Execution
proceedings which were pursued to implement the order
passed in the Appeal in question were also incompetent
because the Respondents were not Civil Servants. Contrarily,
anyone aggrieved of an order of SIDA or, the Area Water
Board is required as per the Ordinance, 2002 to appeal to the
Regulatory Authority defined in Section 2(m) of the
Ordinance, 2002 as the Regulatory Authority of Irrigation,
Drainage and Flood Protection established under the
Ordinance, 2002. The relevant section under which an appeal
may be filed is Section 82 which reads as under: -
"An appeal against the order of the SIDA, an AWE of a PD
shall lie to the Regulatory Authority within such period and
in such manner as may be prescribed by Regulations framed
by the Regulatory Authority"
There is nothing on the record which shows that
the Respondents approached the said Regulatory Authority or
complained before the said Regulatory Authority. Even
otherwise, in absence of a final order, their appeals were
incompetent before the Service Tribunal in view of Section 4
of the Act of 1973. It is specifically provided in Section 83 of
the Ordinance, 2002 that the Regulatory Authority is
empowered to establish Tribunals for the resolution of
contractual disputes between SIDA's staff and SIDA. There is
nothing on the record to show that the said Regulatory
Authority was ever approached by the Respondents. Rather,
the Respondents filed a Service Appeal being Public Servants,
which was incompetent and therefore not maintainable.
Section 83 of the Ordinance, 2002 reads as under:
Civü A ppeals N0.10.Kto 17-K of 2019
18
"83. Tribunals.. 1) The Regulatory Authority, from amongst
its professional staff may establish Tribunals for resolving
contractual disputes between the authorities and institutions
managing the irrigation and drainage network as listed in
this Chapter or such other matters as the Regulatory
Authority may assign 2) The Regulatory Authority shall
frame regulations for the operation of such Tribunals."
19.
The learned Service Tribunal has proceeded on the
incorrect interpretation of the law and has applied the
incorrect principles of the law to the facts and circumstances
of the case warranting interference of this Court. The reasons
recorded and the conclusions drawn are patently erroneous,
incorrect and give a mistaken interpretation of law. As such,
the Impugned Judgment is unsustainable.
20.
In view of the above, these appeals are allowed.
The Impugned Judgment of the Sindh Service Tribunal at
Karachi dated 28.08.2018 passed in Service Appeal Nos. 1015
of 2015, 1063 of 2015, 1156 to 1159 of 2015, 1161 of 2015
and 1164 of 2015 is set aside.
ISLAMABAD, THE
24th of March 2021
Hans Ishtiaq Lc/'
Approved For Reporting
| {
"id": "S.M.C.10_2019.pdf",
"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MRS. JUSTICE AYESHA A. MALIK
(Ac/t)
Civil Appeals No.10-0 and 1273 of 2021, CMA No. 0780
of 2021 and Criminal Appeal No.4-0 of 2021.
(On appeal against the judgment dated 30.06.2021 passed by the High Court of
Balochiston, Quetia in RFA Na41 of 2014 and Contempt Application No.62 of 2018)
Zakia Begum and another.
fiq CA. 10 & CrI.A.4.Q12021)
Shams-ui-Islam Khan and others.
(in CA. 1273/2021 & CMA.10780/21)
Appellant(s)
Versus
1.
S
Nash--ui-Islam Khan and others.
fin CA.JO-Q/21)
Shams-ui-Islam Khan and others.
(in CrLA.4-Q1202 I)
Zakia Begum and another.
(in CA. 727312021 & CMA. 70780/21)
For the Appellant(s):
For the Respondent(s)
Respondent(s)
Mr. Azhar Ahmed Khan, Attorney.
(in CA. 1O-Q/21, CrLA.4-Q/21 & respdts.#1-
2 in CA. 1273121)
Mr. Naeem Bukhari, ASC.
([orrespdts. in CA. 1273121 for respdts.#1(a-
e, g, h), 2 in CA. I O-Q/21 & 2-3 in CrLA.04-
Q121).
Date of Hearing:
Mr. M. Qasim Khan, ASC.
(for respdts.i9-14 in CA. 10-Q121 & 10-15 in
CA. 7273121)
Mr. Gui Hassan Tareen, ASC.
(for respdt.# 15 in CA.) 0-Q121)
Mr. M. Munir Paracha, ASC.
(for respdL#5 in CA. 1273121)
31.03.2022. (Judgment Reserved)
JUDGMENT
IJAZ UL AESAN, J-. Through this common
judgment, we intend to decide Civil Appeal No. 10-Q of 2021
It • CfltMLJ4 .(fl% 27/2I f)cnALMwAL fl 2GflI MDCk N 7O7T)f2I
2
and Criminal Appeal No.4-Q of 2021 (filed by Zakia Begurn,
etc) and Civil Appeal No. 1273 of 2021 (filed by Shams-ui-Islam
Khan and others) as they arise out of the same impugned
judgment of the High Court.
2.
Through these Appeals, the respective Appellants
have challenged the judgment of the High Court of
Balochistan at Quetta dated 30.06.202 1 (hereinafter referred
to as "impugned judgment") passed in RFA No.41 of 2014
and Contempt Application No.62 of 2018. By the impugned
judgment, an Appeal filed by Zakia Begum, etc was accepted
and the judgment and decree of the Senior Civil Judge-II,
Quetta dated 21.03.2014 was set aside and the suit of the
Appellants was decreed. She is however aggrieved of certain
portions of the impugned judgment as well as the fact that
her Contempt Application filed against the Respondents was
dismissed. On the other hand, Shams-uI-Islam and others are
aggrieved of the impugned judgment on the basis that by
setting aside the judgment and decree of the Senior Civil
Judge-11, Quetta, the suit of Zakia Begum, etc has been
decreed by the High Court.
3.
The necessary facts giving rise to this Us are that
on 13.12.2005, Zakia Begum and the legal heirs of
Mehmooda Begum filed a Suit for Declaration, Possession,
Partition, Rendition of Accounts & Permanent Injunction
against the Respondents with respect to suit properties and
businesses fully described in the plaint (hereinafter referred
to as the Suit Properties'). In the fourth and final plaint of
cflM'JzNQS.4oa 1273121
y'LAPPELm nI DCA4f2flYL4A
the Appellants, it was averred that the Appellants as well as
Respondents No.1 & 2 were the legal heirs of the late Abdul
Salam Khan. On 02.06.1977, Abdul Salam Khan died and left
behind an estate which included various agricultural,
residential and revenue-generating properties/ businesses. At
the time of Abdul Salam Khan's death, his legal heirs were:
his widow Jameela Begum; his two Sons Saif-ul-Islam Khan
and Shams-ul-Islam Khan; and his four daughters
Mehmooda Begum, Razia Begum, Zakia Begum, and Samina
Saeed. Jameela Begum passed away on 24.08. 1982 and as a
result, a bungalow as well as some agricultural land were
added to the pool of inheritable properties between the two
brothers and four sisters. It was further averred that despite
multiple requests, the brothers refused to partition the estate
between the brothers and sisters according to their Quranic
shares. The suit was contested by the Respondents and after
pro and contra evidence was led, the suit of Zalcia Begum was
dismissed by the Senior Civil Judge-11, Quetta (hereinafter
referred to as the "Trial Court") vide his judgement & decree
dated 21.03.2014. An appeal was filed by Zakia Begum
against the judgement & decree dated 21.03.2014 before the
Balochistan High Court. The High Court, vide its judgement
dated 17.08.2020, allowed the appeal of Zakia Begum,
remanded the matter back to the Trial Court and permitted
Zakia Begum to file an amended plaint before the Trial Court.
Aggrieved of the judgement of the High Court dated
17.08.2020, Zakia Begum filed C.P. No.202-Q/2020 before
this Court which was allowed, vide order dated 06.01.2021.
---
Cfr&AEE&kS40a 22fl'211,. 1APcwAL
on2mI4w,, tá IC?21
4
The matter was remanded to the High Court with a direction
to decide the matter itself. The High Court, vide the impugned
judgement dated 30.06.2021, allowed the appeal of Zakia
Begum, reversed the judgement & decree of the Trial Court
dated 21.03.2014 and decreed the suit of Zakia Begum. The
Court while decreeing the suit, also preserved the rights of
Respondents No. 9 to 15 who claimed to be bona fide
purchasers without notice qua the suit properties. The High
Court held that the Appellants were entitled to recover their
Quranic shares from the sale consideration received for the
properties sold to Respondents No.9 to 15. It is against this
factual backdrop that Appellants filed C.A.s No. 10-Q & 1273
of 2021 respectively before this Court. Zakia Begum has also
filed Crl.A No.4-Q against the same impugned judgement
passed by the High Court in Contempt Application
No.62/20 18.
4. The main argument advanced by the Attorney for
the Appellants in C.A.No.10-Q & Crl.ANo.4-Q of 2021 is that
the High Court had erred in Jaw by not decreeing the suit of
Zakia Begum as prayed for when passing judgement in the
Appellants favour. He also argued that the bona fide
purchasers had, in fact, been aware of the litigation pending
between the parties with respect to the suit properties. This
knowledge had, as a result, disentitled them from the
protection of Section 41 of the Transfer of Property Act, 1882.
He has relied on judgements passed by this Court in Zohra
Bibi us. Hali Sultan Mahmood (2018 SCMR 762), Sahib Jan
cjVTLAptt4L)OsI-O& 27S/21 /sCRoEv4LAPnAL.'fl Io2Ern MDcMAdflO/21
vs. Mst. At,'esha Bthi (2013 SCMR 1540), Municipal Committee
of Chakwal vs. Ch. Fateh Khan (2006 SCMR 688), 2002
SCMR 1345 and Mst. Raj Bibi vs. Province of Punjab thr.
District Collector, Okara (2001 SCMR 1591).
5.
The Learned counsel for the Appellants in C.P.
No.1273 of 2021/Respondents No.1 & 2 in C.P. No.10-Q
(hereinafter referred to as the Brothers) has argued that the
suit of Zakia Begum ceased to be maintainable for lack of
necessary parties when she failed to implead all the legal
heirs of the late Abdul Salam Khan and Jameela Begum as
either plaintiffs or defendants in her subsequently amended
plaints. He contends that the estate had already been
distributed by the late Abdul Salam Khan and Jameela
Begum during their life times through two registered wills
dated 24.12.1970 (hereinafter referred to as "The Wills'). The
High Court, while passing the impugned judgement, had
omitted to consider the fact that none of the legal heirs of the
late Abdul Salam Khan and Jameela Begum had denied the
two registered wills dated 24.12.1970 nor had they denied
their signatures on the registered wills which were duly-
signed in the presence of witnesses. He further argues that
the two wills were in complete harmony with the Injunctions
of Islam and were not violative of any of the legal heirs'
Quranic shares.
6.
The Learned Counsel for Respondent No.5 in C.A.
No.10-Q/2021 has argued that the wills dated 24.12.1970
were invalid in light of the fact that they were made in favour
•
OWL AnEAL X 9-0 271122
CRThCWAL tfl4L !) GO r A D cp4 b& !Q7V
6
of the legal heirs as well as the fact that they were wills in
excess of one-third of the total estate that constituted the
legacy/estate of the late Abdul Salam Khan and Jameela
Begum. Therefore, the wills, prima-facie, went against the
principles of Sharia. He has relied on Sections 117 and 118
of Mullahs Muhammadan Law as well as Section 189 and
190 of B.J. Vermas Commentaries of Muhammadan Law.
7.
The learned Counsel for Respondents No.9 to 14
in C.A. No. 1O-Q/2021 (hereinafter referred to as the
"Purchasers") on the other hand has defended the impugned
judgement of the High Court. The Learned Counsel has also
relied on an unreported judgement of this Court passed in
C .A. No. 2688/2006 titled Mst. Alokzai and others vs. Allah
Dad and others,
8.
We have heard the learned counsels for the parties
at length and gone through the case record with their
assistance.
9.
The issues that need to be determined by this
Court are:-
i.
Whether the registered will dated 24.12.1970
was in consonance with Sharia/injunctions
of Islam?
ii.
If the registered will dated 24.12. 1970 went
against the injunctions of Islam, what
bearing would it have on the rights of the
Quranic legal heirs inter se?
iii.
Whether Sharia-ordained inheritance rights
will take precedence over the protection
provided in Section 41 of the Transfer of
Property Act (hereinafter referred to as the
"TPA 1882)?
-
£..U.Zq S4&&
4
10. Before we discuss the merits of the appeals in
hand, it may be prudent to first define what a will is. Wills are
defined in the Succession Act of 1925 under Section 2(h). It is
reproduced below for reference:-
"will" means the legal declaration of the intention
of a testator with respect to his property which he
desires to be carried into effect after his death.
A will can therefore be considered as a formal document
drawn up by a natural person wherein he expresses his wish
as to how he would want his estate to be distributed after
their death. By virtue of the fact that wills operate after the
death of the donor, they are considered testamentary
instruments i.e. instruments that come into effect after the
death of the donor/testator. A will, therefore, ceases to be a
will if it is executed and acted upon during the lifetime of the
testator. Instead, a will executed in the lifetime of a donor
takes on the guise of an inter-vivos instrument i.e. an
instrument which is executed within the lifetime of a person
which can take the form of a gift which has its own
requirements and different standards of proof. It is not the
case of any of the parties that the instruments in question
were gift deeds. It is admitted in the pleadings of the brothers
that the wills were executed and acted upon during the
lifetimes of the late Abdul Salam Khan and Jameela Begum.
This facturn alone brings into question the validity of the wills
in light of Section 2(h) of the Succession Act, 1925. However,
the veracity of the wills have not been questioned in the light
of their legality per se but have instead been challenged with
respect to their incongruity in light of Sharia.
C&rAF4L\4-O& 3m'?: &CLW AL4LWI 16-O2I AvDcMAsJ97221
8
11. In order to ascertain whether the wills in this case
are compliant with Sharia, it is necessary to discuss the
sections of various treatises relied on by the learned counsel
for parties. Section 117 of Mullahs Mohammadan Law is
reproduced as follows:-
'A bequest to an heir is not valid unless the other
heirs consent to the bequest after the death of the
testator. Any single heir may consent so as to bind
his own share.
Explanation - In determining whether a person is or
is not an heir, regard is to be had, not to the time of
the execution of the wilt, but to the time of the
testator's death. (Underlining is ours)
Section 118 of Mullahs Mohammadan Law is reproduced as
follows:-
"A Mahomedan cannot by will dispose of more than
a third of the surplus of his estate after payment of
funeral expenses and debts. Bequests in excess of
the legal third cannot take effect, unless the heirs
consent thereto after the death of the testator."
(Underlining is ours)
Section 188 of B.J. Vermas Commentaries of Muhammadan
Law is reproduced as follows:-
"A bequest to an heir is not valid except to the
extent to which the persons who are the heirs of the
testator at the time of his death, expressly or
impliedly consent to the bequest after his death."
Section 190 of B.J. Vermas Commentaries of Muhammadan
Law is reproduced as follows:-
"A Mohammedan is not entitled to dispose of his
property (which would otherwise devolve on his
heirs under Mohammedan Law) btj wilt in favour of
a person who is not a heir, in excess of one third
except in the following cases:-
(1) Where, subject to the provisions of any law for
the time being in force, such excess is permitted by
a valid custom;
(2) where there are no heirs of the testator;
cM1t4L Ic4n& 127312! /flauVALAflLXfl U.4122 MY JCM4 IO'12I
(3) where the heirs existin g at the time of the
testator's death, consent to such bequest after his
death;
(4) where the only heir is the husband or the wife
and the bequest of such excess does not effect his
or her share.' (Underlining supplied is ours)
The Rule behind Section 190 is reproduced as follows:-
"The limit of one third is prescribed in respect of
property, except in the cases given in Section 190.
This is based on a tradition of the Prophet and the
object is to prevent a person from so disposing of
his property as to leave the heirs destitute.
The second restriction with respect to person is
limited to heirs. The policy of Mohammedan Law is
to prevent a testator from interfering by will with
the course of devolution of property among his heirs
according to law although he may give a specified
portion, as much as a third, to a stranger. It
safeguards against a breach of the ties of the
kindred. It is intended to prevent the showing of
favouritism to any heir to the prejudice of the others
and thus defeating the policy of the Quranic
injunctions as to the division of heritage according
to fixed principles."
12. We have gone over the wills keeping in
consideration the aforementioned expositions of law which
have long been accepted as the correct meaning scope and
interpretation of the relevant principles of Sharia relating to
wills made by Muslims. We have noticed that the will of the
late Abdul Salam Khan has been drawn up with an obvious
bias in favour of the sons. The sons have been given the lion's
share in the inheritable pool of properties especially with
respect to lucrative revenue-generating properties/ businesses
to the complete exclusion of the daughters. A sharia-
compliant will would not act as an ex-ante instrument which
regulates the inheritable shares of any and all legal heirs
before the actual opening of the testator's estate. This would
2fl
in.cv n p c.t &?p7Mw2J
10
be the case even where the ultimate value received by all the
legal heirs is equivalent to what would have been their
receivable Quranic share at the time of the opening of the
estate. The daughters were just as entitled as their brothers
to a share in their fathers businesses and other properties at
the time the estate would have opened up. They were denied
that opportunity to become shareholders by virtue of their
Quranic rights of inheritance in the suit properties by virtue
of the wills in question. The wills had, in essence, ex-ante
deprived Quranic inheritors of their shares in properties
which they would have received at the time of the opening of
the estate for inheritance. The will of the late Abdul Salam
Khan therefore, to our minds, is an unconscionable
instrument that is not in consonance with Sharia since it
favours some legal heirs (the Sons) to the detriment of other
legal heirs' (the daughters) Quranic-ordained rights of
inheritance. With respect to the will of Jameela Begun, we
have noticed that one of the properties was to be transferred
to her nephew i.e. one Kaleem Khan whereas the other
property was to be divided amongst her sons equally. The
same will goes on to state that the will is to operate after the
death of Jameela Begum. Adverting to our reasoning above,
we cannot come to the conclusion that the will of Jameela
Begum is inconsonance with Sharia either since it was drawn
up to benefit the Sons. The nephew, Kaleem Khan, could not
benefit from Jameela Begum's will since the property
bequeathed to him was in excess of one-third of the total
inheritable amount. Even if the will was found to have been
CI APflflkL N 4.0 & 272La(w CWIA4L APPf,' ,
11
compliant with Sharia, his right to inheritance under the will
would not have taken precedence over the inheritance rights
of the Quranic inheritors of Jameela Begum's estate at the
time of Jameela Begum's death. We therefore find that the
wills drawn up by the late Abdul Salam Khan and Jameela
Begum are contrary to the principles of Sharia and are, as a
result, null and void.
13. The contention of the Learned Counsel for
Respondents 9 to 1.5 that they are bona fide purchasers of a
property without notice and having acquired title in a lawful
manner on payment of consideration cannot be annulled or
extinguished if the right of the sellers at the time of the
purchase emanated from unchallenged wills can only be
appreciated after we have gone through Section 41 of the TPA
1882. The same reproduced below for ready reference:
'Transfer by ostensible owner. Where, with the
consent, express or implied, of the persons
interested in immovable property, a person is the
ostensible owner of such property and transfers
the same for consideration, the transfer shall not
be voidable on the ground that the transferor was
not authorised to make it:
Provided that the transferee, after taking
reasonable care to ascertain that the transferor
had power to make the transfer, has acted in good
faith.'
13. The essential ingredients that need to be present
before the equitable protection under Section 41 can be
claimed has already been elaborately laid down by this Court
in case of Mst. Alokzai and others vs. Allah Dad and others.
The relevant paragraph of the case is reproduced below:-
OV7L 4FZ S2 44) A 1272/21 I.. (flWNAJ O Ian 2 I MI) CM4 . IO7'.2L
12
"5. Heard. In the instant case, the dispute inter
se the parties primarily revolves around the
rule/principle of 'bona fide purchasers", as this
equitable doctrine has been incorporated and
codified in Section 41 of the TPA. On the plain
reading of the provision, it postulates four essential
ingredients/ components for a litigant to seek
protection thereof i.e. (a) that transferor was
ostensible owner; (b)the transferis made bu the
express or implied consent of real owner (emphasis
supplied); (c) the transfer was made for
consideration; and (d) the transferee while acting in
good faith had taken reasonable care before
entering into the transaction. In our considered
view, all these four elements which are the obvious
mandate of law must co-exist, for enabling a
transferee to set up such a defence, to prove and
secure the protection of the section.'
It can be seen from the paragraph reproduced above that
there are four ingredients that need to be present before the
benefit of the equitable doctrine of bona fide purchaser
without notice can be claimed. In the present case, the
question whether the sons were ostensible owners is
answered in the affirmative for the reason that the mutations
in their name had been sanctioned pursuant to unchallenged
wills. Since the wills had not been challenged by Zakia Begum
or the other legal heirs at the time of the purchase, the wills
could reasonably have been construed as valid and title-
conferring documents. Since the wills were not challenged
and the Sons were the only ostensible owner(s) of the
purchased suit properties, it was not required of the
Purchasers to inquire into whether all the legal heirs of the
suit properties had consented to the purchase between
purchasers and the sons. Only the express consent and/or
acquiescence of the sons was required at the time of sale. The
transfers were made for consideration, satisfying the third
rna&.fl4L4flA W72/22 Jw!L4I 4fl&4LM2 0C202 Afi1LlA '
13
ingredient. The final ingredient i.e. acting in good faith and
taking reasonable care before entering into a transaction
would have required the purchasers to do due diligence when
purchasing properties from the Sons. No doubt when the
Purchasers exercised due diligence by approaching the
revenue records for ascertaining title of the properties being
the record would have shown that the sons were the owners
of the properties and had become owners by virtue of the
unchallenged wills. We therefore have no hesitation in coming
to the conclusion that Section 41 of the TPA 1882 applies to
case of the Purchasers and that they were entitled to the
equitable protection available to them under Section 41 of the
TPA 1882 as has correctly been held by the High Court.
14. There is another aspect of the matter insofar as it
relates to the property that was sold in favour of Respondents
No.9 to 15 for valuable consideration. In view of the fact that
we have held that the daughters of Abdul Salam Khan and
Jamila Begum being their legal heirs were entitled to their
respective shares in the entire estate of the said persons, they
were also held entitled to their respective shares in the
property that was sold by the sons in favour of Respondents
No.9 to 15. Having held that despite the fact that sale by the
sons was unauthorized and voidable, the sale per se could not
be set aside or annulled in view of the fact that Respondents
No.9 to 15 were bona fide purchasers without notice and for
valuable consideration. Therefore, the question arises how
would the daughters be compensated for their respective
rJvaAn,1,, W4-O& 22732I a/wcvmVMLA4LP*i OCI Anrw N W7/2I
14
shares in such sold property. The only viable solution appears
to be that the sons be directed to pay for the equivalent of
respective shares of the daughters in the said property in
monetary terms. The sale price of the property when it was
sold is duly documented and none of the parties has argued
or alleged that the property in question was sold for a value
less than its market at the relevant time. However, the fact
remains that the sons received the entire sale consideration
and have since then used the same for their own benefit. We
therefore direct as follows:
i)
The respective shares of the daughters in the
total sale consideration shall be determined;
ii)
The sons will pay mark up from the date of
sale at the Bank rate to the daughters on
their respective shares till the time of
payment; and
iii)
We further declare and reiterate that all
other transactions relating to the properties
that constituted a part of the estate of late
Abdul Salam Khan and his widow Jamila
Begum shall devolve upon all their sons and
daughters in accordance with their
respective shares as provided in Sharia Law.
15. At the very end of his arguments, the learned
counsel for the Appellants in Civil Appeal No.1273 of 2021
argued that some of the properties were purchased by the
sons from their own resources. The Attorney for the
Appellants in Civil Appeal No.10-Q of 2021 has vehemently
contested the said assertion and submitted that all other
properties purchased by the sons were acquired by utilizing
272/2 &,cpALAnLMa O-o2IMnr1A tjO7121
15
funds from joint family business and sale of joint properties.
Therefore, they constituted a part of divisible assets/estates
of their deceased parents. Further, despite our query, the
learned counsel for the Appellants in Civil Appeal No. 1273 of
2021 has not been able to place on record any documentation
indicating any independent source of income of the Sons
which they could have utilized for acquiring the additional
assets in their own respective names. Even otherwise, this
question was not raised before the lower fora therefore it is
unnecessary to rule on this issue which has so belatedly been
raised.
16. We find that the High Court has come to the
correct conclusions in decreeing the suit of the daughters of
Abdul Salam Khan and Jamila Begum. Further, we find
ourselves in agreement with the reasoning adopted by the
High Court in preserving the rights of Respondents N0.9 to 15
who were bona fide purchasers without notice and for
valuable consideration and giving them the benefit of Section
41 of the Transfer of Property Act, 1882. The learned counsel
for the Appellants in Civil Appeal No. 1273 of 2021 has not
been able to persuade us to hold that there is any illegality,
jurisdictional defect or perversity and misreading or non-
reading of evidence that may furnish lawful basis to interfere
in the well reasoned judgment of the High Court. We note that
the High Court has elaborately gone through all material
aspects of the case and assigned cogent, valid and legally
sustainable reasons in decreeing the suit of Zakia Begum, etc.
r
-
-
I I
r,va v?4L fII) p 271/2; II:)Dd??V 4Pf&4L t '00 2ft21 kYOCUA fT 07s0J21
16
I.
17.
On hearing the learned counsel for the Appellants
as well as the Respondents, we have reached the same
conclusions as the High Court and have no lawful reason,
basis or justification to take a different view. We therefore
affirm and uphold the judgment and decree passed by the
High Court dated 30.06.2021 subject to the aforenoted
modification to which extent the judgment and decree shall
stand modified.
18.
For reasons recorded above, Civil Appeal No. 10-Q
of 2021 is partly allowed to the extent noted above, Civil
Appeal No. 1273 of 2021 is dismissed and Criminal Appeal
No.4-Q of 2021 is also dismissed.
19.
Since the main appeals have been finally decided,
all miscellaneous applications filed fr(9 time to ti e
a1onith the appeals are also dismissed.
Announced in open Court on 0 .
at Islamabad.
ot approved for Reporting'
Khalil Sahibzada, LC*/
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|
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J
MR. JUSTICE IJAZ AHMED CHAUDHRY
MR. JUSTICE GULZAR AHMED
SUO MOTO CASE NO. 11 OF 2011
(Action taken on the news clippings
regarding scandal of billions of rupees of
National Police Foundation Land)
Voluntarily appeared:
Mr. Rauf Kalasra, Editor (Inv.), Daily Dunya
For the Applicants :
Raja M. Ibrahim Satti, Sr. ASC and
(aggrieved by NPF):
Mr. M. Munir Peracha, Sr. ASC
(in CMA 2895/13)
Sh. M. Suleman, ASC (in CMA 3274/13)
Ms. Shahida Kausar, SP (in CMA 3273/13)
Mr. Liaqat Ali (in HRC No.18269-P/2011)
Mst. Zahida Bibi (in CMA 2755/2011)
Dr. Aslam Khaki, ASC (CMA 4038/13)
Mr. Ishtiaq Ahmad Raja, ASC (CMA 3030/13)
Ch. Khalid Rasheed, SP Traffic (CMA 2913/13)
On Court Notice:
For Ex. Officials :
Mr. Hamid Khan, Sr. ASC
of NPF
Mr. Waqar Rana, ASC
Mr. M. S. Khattak, AOR with
Mr. Iftikhar Ahmad Khan, Ex. MD
Mr. Laeeq Ahmad Khan, Ex. Director
Mr. Khuda Bakhsh, Ex. Dy. Director
For NPF
:
Syed Asghar Hussain Sabzwari, Sr. ASC
Mr. Muhammad Ilyas Siddiqui, ASC
Syed Safdar Hussain, AOR
Mr. Tariq Hanif Joiya, Secretary/Dir.(Housing)
Mr. Zahid Mehmood, Ex.M.D.
Kh. Siddique Akbar, Ex-Secy. Interior
Mr. Bani Amin Khan, IGP, Islamabad
Mr. Zafar Ahmad Qureshi, Former MD NPF
For FIA
Mr. Muhammad Azam Khan, Addl. DG (Law)
SMC No. 11/2011
2
For M/s. Land Linkers
Mr. Makhdoom Ali Khan, Sr. ASC
Mr. Faisal Naqvi, ASC with
Mr. Anjum Aqeel Khan, Ex-MNA
On behalf of Allottees
Syed Ali Zafar, ASC
of more than one plot
Mr. Zahir Nawaz Cheema, ASC
(CMA Nos. 3686, 3689-3692 & 3706-3716/13)
Mr. Sana Ullah Zahid, ASC
Syed Rafaqat Hussain Shah, AOR
(CMA Nos. 3741/2013
Mr. M. Ashraf Shah, DSP
(CMA No. 3328/2013)
Syed Rafaqat Mustafa,
(CMA No. 3684/2013)
Syed Pervaiz Kandhari
(CMA No. 3740/2013)
Mr. Muhammad Zaman, Ex. Site Engr.
(CMA 4030/2013)
M/s. Afzal Shigri, Sultan Azam Temori,
Sikandar Hayat and Abdul Hannan (in person)
Dates of hearings
22.5.2013, 30.5.2013, 11.06.2013,
12.06.2013, 13.06.2013, 14.06.2013,
25.6.2013 & 02.07.2013
JUDGMENT
IJAZ AHMED CHAUDHRY, J.- A confidential
inquiry report was submitted to the Secretary Interior, Islamabad
by National Police Foundation (NPF) against Anjum Aqeel Khan,
MNA/Proprietor of M/s. Land Linkers. It was alleged in the said
report that Anjum Aqeel Khan, in connivance with four former NPF
officers, namely, Iftikhar Ahmed Khan (Managing Director), Abdul
Hannan, Khuda Bakhsh (Additional Directors) and Laeeq Ahmed
Khan as Director Land had committed a fraud of rupees six billion
with NPF during the procurement of the land for NPF Housing
Society in E-11, Islamabad as a ‘broker’. This story was published
by Mr. Rauf Kalasra, a journalist, in “Express Tribune” dated
SMC No. 11/2011
3
30.1.2011 under the heading “Secret probe implicates MNA in
Rs. 6 billion scam”. The matter was registered initially as HRC
No.2888-G of 2011 and report was called from the Secretary
Ministry of Interior, Government of Pakistan. It was, inter-alia,
stated in the report that during the course of enquiry, the relevant
record of the NPF had been perused. Statements of different
officers of NPF and other witnesses were recorded. Mr. Anjum
Aqeel Khan was also confronted with the allegations. During
inquiry proceedings on 22.2.2011 everything was discussed in
detail and Anjum Aqeel Khan finally gave undertaking which was
countersigned by the Director Housing, for final settlement of the
accounts. As per undertaking Anjum Aqeel Khan was ready to
surrender crystal courts and was ready to pay the price of 126
kanals land. However, further enquiry to determine the act of
omission/commission on the part of the former officers of NPF and
Anjum Aqeel Khan was going on and the officers involved were
called to join inquiry on 28.2.2011 at Lahore. After perusal of the
said report a comprehensive report was called from the Secretary
Interior and Chairman NPF. Accordingly, Mr. Zafar Ahmad
Qureshi, the then Managing Director, National Police Foundation,
submitted a comprehensive report on 4.6.2011.
2.
In the above said report the gist of allegations was
stated as under:-
“Gist of Allegations
SMC No. 11/2011
4
During the procurement of land for the
development of housing scheme in section E-11
Islamabad, the company of Anjum Aqeel Khan,
(presently MNA) namely M/s Land Linkers was
chosen. The officers/officials of NPF had
extended undue favours to Anjum Aqeel Khan in
the process of the procurement of land. He had
been paid millions of rupees by NPF without
getting equivalent land at the relevant time.
Resultantly NPF had to face huge losses.”
The
report
further
shows
that
during
the
enquiry
proceedings, the relevant record of the NPF as well as NPF Housing
Scheme, E-11, Islamabad was consulted. The concerned officers
were also interviewed and their version was also obtained. After
discussing the working of National Police Foundation, the
introduction of NPF Housing Scheme E-11, Islamabad, the
introduction of M/s. Land Linkers, the charter of duties of the
officers responsible for the procurement of land, etc., the mode of
procurement of Lands, etc., the irregularities committed in the
process of procurement, etc. and the terms of settlement between
Anjum Aqeel Khan and the National Police Foundation, the inquiry
officer Mr. Zafar Qureshi, the then M.D. concluded as under:-
1.
“The mandate of the undersigned was confined to hold a
fact
finding
enquiry
to
unearth
the
irregularities
committed in the process of procurement and to quantify
the loss faced by NPF as a result of these irregularities.
2.
During the course of enquiry, a number of serious
irregularities have been found committed by senior
position holders of NPF showing their gross negligence
SMC No. 11/2011
5
and in-competency in the process of procurement at
different times. The detail of which has been discussed at
length in the preceding paras.
3.
All these officers of NPF who had committed irregularities
in the procurement of land had either been retired from the
service or left the organization.
4.
All the agreements made for the procurement of land at all
times were vague in nature and they did not contain any
final cut off date for the supply of land and settlement of
accounts by NPF with M/s Land Linkers.
5.
The land procured through M/s Land Linkers was neither
finally quantified by the previous administration of NPF
till 2010 nor any effort was made to resolve the issues of
shortage of land/rendition of accounts with M/s Land
Linkers.
6.
Anjum Aqeel Khan had entered into an agreement through
which he has made good all the shortfall of land.
7.
Anjum Aqeel Khan arranged an agreement between Tahir
Mehmood Khan etc. and NPF to pay off the liability of
Rs.353.00 million approximately to 59 affecttees after a
period of eleven years.
8.
The present outstanding liability of Anjum Aqeel Khan is
126 kanals. Anjum Aqeel Khan had submitted undertaking
to pay off the price of this land after determination of its
worth by the Committee of Administration of NPF.
9.
Audits were held every year, the affiliation transactions
were never audited for stated reasons that nothing was
paid to Anjum Aqeel Khan.
10.
During the course of this enquiry, long outstanding
issues/disputes of NPF has been resolved and NPF has
been benefited with the colossal amount of Rs.6.00 billion
approximately in shape of land. The undersigned has no
hesitation to admit that the notice taken by Honourable
Chief Justice of Pakistan facilitated the recovery of huge
amount after lapse of eleven years”.
SMC No. 11/2011
6
The said report came up before one of us (Iftikhar Muhammad
Chaudhry, C.J.) in Chamber when the following order was passed.
“A perusal of report indicates that a
considerable amount belonging to allottees of the
plots, National Police Foundation and employees of
the Police has not been counted for completely.
Even now matter is being postponed on the basis of
undertaking etc. by the owners of M/s Land Linkers
from whom property was purchased. Thus, it is a
case where protection to the property of NPF and
allottees has not been provided, therefore, case may
be
registered
under
Article
184(3)
of
the
Constitution and notices be issued to:
(i)
Chairman, NPF, holding the charge presently
and during the period when the property was
purchased from M/s Land Linkers.
(ii)
Owner of M/s Land Linkers, through
Secretary Interior.
They should appear and file comprehensive
statements about the allegations made against
them. However, those who have retired from NPF
but otherwise were responsible for the illegalities,
should also be served upon through official
agencies. Put up in Court on 15.06.2011.”
3.
The matter was accordingly registered as SMC No. 11 of
2011 and was heard in Court on 21.6.2011. Relevant portion from
the order dated 21.6.2011 reads as follows:
“Capt.
(R)
Zafar
Ahmed
Qureshi,
Managing
Director, National Police Foundation has appeared
and stated that he has conducted a preliminary
inquiry, pointing out the illegalities/ irregularities in
SMC No. 11/2011
7
the affairs of purchase of land in National Police
Foundation and on the basis of the same he is
approaching the Secretary, Ministry of Interior to
convene
a
meeting
of
the
Committee
of
Administration, to ensure that matter should be
dealt with strictly in accordance with law, without
causing any prejudice to either of the parties.
However, he requests that in order to do the needful,
he needs some time.
2.
It is made clear that no one is above the
law, whosoever he may be. If there is any violation
of rules/regulations or illegalities/ irregularities or
there is any element of corruption or corrupt
practices, in purchase of land by the persons who
were at the relevant time in the helm of affairs, the
law shall take its own course against them.”
4.
The matter was accordingly registered as SMC No. 11 of
2011 and was heard in Court on 21.6.2011. During pendency of the
matter newspaper Daily Duniya, Rawalpindi published a news item
with the following captions:-
ﯽﺿارا ﯽﮐ ںﻮﺑرا ﻮﮐ ﻞﯿﻘﻋ ﻢﺠﻧا ﮯﺳ هﺪﮨﺎﻌﻣ ہﯿﻔﺧ ﮯﻧ ہﻠﺧاد یﺮﭨﺮﮑﯿﺳ"
ید ﺮﮐ ﺲﭘاو-
ﺖﻣﻮﮑﺣﻞﺒﻗ زور سد ﮯﺳ ﮯﻧﻮﮨ ﻢﺘﺧ ﯽﺟ ﯽﺋآ ﮟﯿﻣ ےﺪﮨﺎﻌﻣ ہﯿﻔﺧ ﮯﻟاوﮯﻧﻮﮨ
ﮟﯿﮨ ﻞﻣﺎﺷ ﯽﮭﺑ یڈ ﻢﯾا ﮯﮐ ﻒﯾا ﯽﭘ ﻦﯾا روا ﻦﯿﻣﺎﯿﻨﺑ
ﻖﺑﺎﺳ دﻮﺟوﺎﺑ ﮯﮐ ﻮﭨﻮﻣ وﻮﺳﮯﯿﺌﻟ ﺎﻤﮐ ںﻮﺑرا ﮯﻧ ﯽﻠﺒﻤﺳا ﻦﮐر- 2011 ﮟﯿﻣ
آ ﺮﭘ مﺎﻋ ﺮﻈﻨﻣﭘ ﻮﮐ مﺎﺠﻧا لﮉﻨﯿﮑﺳ ﻻاو ﮯﻧ"۔ﺎﯿﮔ ﭻﻨﮩ
5.
As the matter was pending, the same was again taken
up and notices were issued. On 26.4.2013 Mr. Tariq Haneef Joiya,
Director Housing-cum-Secretary, National Police Foundation
appeared and stated that Mr. Zahid Mahmood DG, who had retired
on 29.3.2013, had entered into an agreement with Anjum Aqeel
SMC No. 11/2011
8
Khan, MNA, which has retained in safe custody. He was required
to place the same on record along with comments on the news
caption. In pursuance of order dated 21.6.2011 a list of the allottees
was also placed on record which indicated that the statement made
by Mr. Zafar Ahmed Qureshi, MD was correct that the plots were
allotted more than their entitlement to the police officers and even
plots were allotted to some civilians. A report was also called from
him as to what action was taken against them.
6.
The matter was again taken up by this Court on
29.4.2013 when the following order was passed:
“Mr. Tariq Hanif Joiya, Secretary, Committee
of Administration, NPF, has filed reply (CMA
No.2456/13), which we have gone through in a
cursory manner and we consider it appropriate to
issue notice to Mr. Zahid Mahmood, Former
Managing Director, National Police Foundation.
2.
Mr. K.M. Siddiq Akbar, Chairman, ex-officio,
Mr. Bani Amin Khan, Inspector General of Police,
Islamabad and Mr. Tariq Hanif Joiya, Secretary,
Committee of Administration, NPF Islamabad, are
present. Mr. Makhdoom Ali Khan, Sr. ASC has
entered appearance on behalf of Mr. Anjum Aqeel
Khan, Ex-MNA, who himself is also present.
3.
Raja
Muhammad
Ayub,
former
S.P.,
appeared and stated that a plot had been allotted on
which a boundary wall has already been constructed
but he is being dispossessed by the Foundation.
4.
Mr.
Tariq
Hanif
Joiya,
the
Secretary,
Committee of Administration, NPF informed that as
far as the Foundation is concerned, it has nothing to
SMC No. 11/2011
9
do with it, because there is a litigation going on
between him and one Nisar Ahmed, who is the owner
of the property, in the Civil Court.
5.
Issue notice to Nisar Ahmad for the next date
of hearing. In the meanwhile, the incumbent M.D. is
directed to effect the service upon the allottees to
whom more than one plot has been allowed despite of
terms and conditions that one person was allowed
one plot only. It is informed by Mr. Tariq Hanif Joiya
that in pursuance of earlier proceedings, a case was
registered and now proceedings have been started
for withdrawal of the same. The D.G., FIA is directed
not to take any action till the pendency of this case.
6.
Mr. Anjum Aqeel Khan and others noted
hereinabove except the allottees, are required to
furnish their reply of the news clipping appeared in
the daily “Dunya” on the next date of hearing.
7.
Mst. Zahida Durrani, appeared and stated
that she has already been impleaded party but so far
no plot has been given to her. The National Police
Foundation is directed to furnish the list of the
affectees along with their grievances against the
Foundation because of non-allotment of the plot.
Notice shall also be issued to all of them.
8.
Mr. Rauf Kalasra, Editor Investigation, the
daily “Dunya” appeared and stated that in the year
2011, he had disclosed the news of fraudulent
transactions and few days before again when a new
agreement, which according to him is a bogus one, he
on having coming to know about the same disclosed
this news again. Today during the hearing, he has
stated that important facts are being concealed from
this Court, therefore, permission be accorded to him
to place on record the relevant documents to provide
assistance to this Court. Order accordingly.
SMC No. 11/2011
10
7.
On 30.5.2013 this Court issued notice to Mr. Zafar
Ahmad Qureshi, Ex-MD who had prepared the inquiry report, and
also made the following direction:
“2.
Prima facie it appears that a good
number of allotments have been made in
favour of various allottees contrary to the
provisions of scheme of the Administration for
the
National
Police
Foundation
dated
14.03.1975, therefore, the Secretary, NPF is
directed to furnish the list of all those allottees
in both the schemes to ascertain as to whether
the allotments have been made in their favour
according to the scheme noted hereinbefore or
otherwise.”
8.
After issuing of notices, we have heard Mr. Rauf
Kalasara, Auditor (Investigation) Daily Duniya, Mr. Zafar Ahmad
Qureshi, former MD, NPF, Mr. Muhammad Azam Khan, Addl. DG
FIA, learned counsel for the NPF, Ex-officials of NPF, M/s. Land
Linkers, and other necessary parties and have gone through the
reports/record made available before us.
9.
Mr. Rauf Kalasara, Auditor (Investigation) Daily
Duniya, who has published a news item in the Express Tribune,
entered his voluntary appearance and while supporting his report
published in the aforesaid newspaper submitted that Anjum Aqeel
Khan acted as a broker for the National Police Foundation through
his firm, namely, Land Linkers and his job was only to find out land
for the Foundation’s Residential Colony; that said Anjum Aqeel
SMC No. 11/2011
11
Khan got allotted hundreds of plots to his nominees without any
formal agreement and the Foundation allotted these plots in
accordance with the formula prepared by the Capital Development
Authority i.e. 54:46 governing the affiliation of the private land
with Government Housing Scheme, according to which, a private
land owner has to surrender and provide 46% of his land for roads
and streets; that Anjum Aqeel Khan was allotted 162 kanals of
developed land and as per this ratio he had to provide 300 kanals
land to the Foundation but he had provided only 70 kanals of land
and 229 kanals land has yet to be provided by him on account of
affiliation of land and an additional 100 kanals land on account of
double purchase; that said Anjum Aqeel Khan had not transferred
329 kanals of land to the National Police Foundation and that said
Anjum Aqeel Khan has not only defrauded the National Police
Foundation by usurping its funds of billions of rupees but also
cheated the general public.
10.
Mr. Hamid Khan, learned Senior ASC appearing on
behalf of Iftikhar Ahmad Khan, Laeeq Ahmad Khan, Abdul
Hannan, Khuda Bakhsh and four others, ex-officials of the National
Police Foundation, submitted that the aforesaid ex-officials of the
National Police Foundation had acted in good faith for the benefit
and interest of the Foundation; made the housing scheme
successful when nobody was prepared to purchase a plot in the said
scheme and the alleged irregularities or lapses are not at all
SMC No. 11/2011
12
attributable to any mala fide or deliberate intend on their part; that
the allegations or adverse statements made against them in the
inquiry report are categorically denied; that the conclusions drawn
by the inquiry officer are not supported by the facts and record and
suffer from inconsistencies, contradictions, misinterpretation and
misreading of available record and that in such circumstances the
aforesaid ex-officials of the National Police Foundation are not
responsible for the acts of omission and commission as highlighted
in the inquiry report.
11.
Mr. Makhdoom Ali Khan, learned Senior ASC has
appeared on behalf of Anjum Aqeel Khan and contended that the
matter was investigated, FIR was also registered, civil agreement
was executed, as such no action is required to be taken by this
Court since the interest of the Foundation has been safeguarded by
executing agreement by Anjum Aqeel Khan in favour of the
Foundation; that National Police Foundation is neither a
Government department nor a corporate body and instead it is a
self-financing organization originally established in the year 1975
so as to generate funds for the benefits of both retired and serving
members of the police forces and in such an eventuality National
Police Foundation established a housing scheme, namely, National
Police Foundation Housing Society in sector E-11 in Islamabad
which has chequered history as the Federal Government in the year
1968 decided to acquire 15000 acres of land for Islamabad city
SMC No. 11/2011
13
excluding the area falling within the Golra Revenue Estate; that the
said land was acquired by the CDA in the year 1968 but the CDA
failed to pay full compensation for the built up area with the result
that the affectees refused to vacate the land; that in the year 1980
CDA decided to acquire portions of Golra Revenue Estate falling
within sectors E-12, F-11 & F-12 and the affectees of the said land
were allotted plots in sector E-11 in compensation of acquisition of
their land; that when the NPF decided to establish the society in
sector E-11 in the year 1989 presuming that the purchase of rights
from the allottees would be sufficient but it became evident that
mere purchase of rights was insufficient since possession of the
land invariably lay with other parties who had no intention to
vacate the possession and in such circumstances NPF to have local
assistance in acquiring possession of land and made a contact with
Anjum Aqeel Khan who was operating through an unregistered
firm, namely, M/s Land linkers and was a notable of Golra village
and that NPF had acquired approximately 540 of land prior to
engaging M/s Land Linkers but could not take possession thereof
and today if society is owner in possession of 1325 kanals of land, it
is due to the efforts of Anjum Aqeel Khan; that NPF sought
assistance of Anjum Aqeel Khan in two different ways i.e. getting
possession of the land of which title was already with NPF and
obtained additional land for the NPF both through the purchase of
allottee’s and affectee’s rights regarding which series of agreements
were entered into between the parties; that Anjum Aqeel Khan
SMC No. 11/2011
14
arranged possessory rights for all the land which NPF had
purchased from allottees and arranged purchase and possession of
approximately 608 kanals of land; that Mr. Anjum Aqeel Khan also
arranged two other types of land which form part of the NPF i.e.
the property which fell within the boundaries of the Golra Revenue
Estate in E-11 i.e. exempted land, part of exempted land adjacent to
NPF land was purchased by Anjum Aqeel Khan in his personal
capacity and subsequently offered to for affiliation, i.e. for inclusion
within the formal bodies of the NPF, in exchange for plots within
the NPF and the property, title of which was disputed; that Anjum
Aqeel Khan had made payment over and above the agreed rates
with the Foundation to the persons from whom the land was
purchased which approximately comes to Rs.200 million; that
Anjum Aqeel Khan of M/s Land Linkers did not act as seller to the
society but instead
acted as intermediary who arranged
transactions in favour of NPF which entered into agreements
directly or indirectly with the sellers and if there is any shortfall,
Anjum Aqeel Khan is not responsible for that and cannot be
pressed upon to make good all the alleged losses suffered by NPF;
that according to the record NPF has fully been compensated for all
the losses suffered by it as the people, who took payment for land
which was not ultimately transferred to NPF, have now repaid to
the NPF all amounts received by them, as such, NPF has suffered
no loss; that after the decision of this Court regarding shortage of
21 kanals of land option was available with the NPF for filing of suit
SMC No. 11/2011
15
of damages against original sellers but having failed to do so NPF
cannot demand said land due to its own neglect; that so far as
shortage of 21 kanals 19 marlas of duplicate land is concerned, it
was on the basis of inadvertence and that the said shortcoming had
never been agitated by the NPF and had only raised general
allegation of a shortfall in land to which Anjum Aqeel Khan has
responded that if any shortfall was shown he would make it good;
that as far as the allegation regarding affiliation of land against
Anjum Aqeel Khan is concerned, the plots were allotted to the
nominees of Anjum Aqeel Khan without any formal agreement and
it was incumbent upon the society to adopt a more formal
arrangement in relation to the affiliation of land and the
subsequent allotment of plots then that obligations was on the
society and not on Anjum Aqeel Khan; that the allegations
regarding Crystal Court are misleading and unsustainable and that
the inquiry report submitted by Mr. Qureshi misrepresents certain
facts and thus fails to paint full picture of the matter as is evident
from the progress report prepared by the FIA. Learned counsel for
Anjum Aqeel Khan finally contended that Anjum Aqeel Khan is
ready and willing to abide by the terms of the settlement
agreements signed by him with the NPF and he would have no
objection if these agreements are set aside by this court and the
entire matter is re-examined by a professional firm of auditors and
in such an eventuality Anjum Aqeel Khan is fully confident that
such re-examination would only substantiate his stance.
SMC No. 11/2011
16
12.
Mr. Tariq Hanif Joiya, Secretary, Committee of
Administration, NPF, filed reply (CMA No. 2456/2013). He has
stated in his application that the then Director Housing Mr. Shahid
Iqbal calculated the loss of six billion of NPF, but during
investigation he failed to satisfy the investigation team regarding
his calculation of six billions loss. However, as per record the
transaction of business was only for Rs.520,284,375/- and that the
calculation made by the then Director Housing as six billion loss of
NPF is not correct as per available record of the housing
directorate. He further stated that as per direction of this
Honourable Court the list of high ups who had allotted more than
one plot up to ten plots was submitted before the Committee of
Administration and also consulted the legal expert, a request was
also sent to a prominent Advocate of Supreme Court Mr.
Muhammad Akram Sheikh for the guidance so that action be taken
against them but despite all out efforts no one endorsed the NPF
for action against them as per law; that presently, the plots which
were allotted to the High ups and civilians (more than one plot up
to 10) have been disposed off in two, three and more hands and the
purchasers have constructed the houses over there and are living
with their families. However, efforts are under way to address the
issue as directed by the Apex Court as early as possible and action
will be taken against those high ups and civilians as per law; that
after action was initially taken by MD NPF, namely, Mr. Zafar
SMC No. 11/2011
17
Ahmad Qureshi, numerous Managing Directors successively
appointed, dealt with the letter for the withdrawal of the criminal
case FIR No.17 dated 5.7.2011 under sections 406, 409, 468, 471,
420, 109 and 5(2) 47 PCA registered with P.S FIA, Islamabad and
their views and those of the COA comprising well known and well
reputed Inspectors General of Police, culminated in the settlement
and resettlement of the issue; that none of the officers had even
remote connection with the procurement of land, etc. illegally. In
the end he has stated that the Suo Moto action by this Honourable
Court, subsequent investigation by the FIA team and thorough
inquiries have resulted in the resettlement and the problem is
resolved in the interest of the Foundation.
13.
Syed Asghar Hussain Sabzwari, Senior Advocate
Supreme Court, learned counsel for the National Police Foundation
contended that the Housing scheme was established on commercial
basis for the beneficiaries/Government servants and general
public, terms and conditions were prepared at the time of
establishment of the housing schemes wherein it is clearly
mentioned at serial No. 2 that an applicant can apply for only one
plot but it is not clear that the other family members of the said
applicant are not entitled to get the membership for allotment of
plot; that as per definition of Article 1 of the Constitution of NPF,
dependants means wife / wives, dependant parents, dependant
sons and unmarried daughters of beneficiaries and other relatives
SMC No. 11/2011
18
who are so prescribed by the Committee of Administration; that the
Foundation, as per clause 1 of Article 2 of the Constitution of NPF,
was responsible to provide all basic facilities to the serving and
retired beneficiaries and their dependants, as defined in the
definition such as advance loan or stipend grants to the dependants
and provide loan for the construction of low cost houses of various
categories; that in the year 2001 as the Foundation was facing acute
problems of funds for the development of housing schemes, a
meeting was convened under the chairmanship of the then M.D
National Police Foundation wherein after detailed discussions it
was resolved that in order to generate funds the membership be
opened for general public so as to develop E-11 Housing Scheme
and that in order to safeguard the interest of the Foundation the
properties of Anjum Aqeel Khan have been mortgaged in favour of
the National Police Foundation till successful completion of the
agreement executed in between him and the Police Foundation.
14.
Mr. Bani Amin, Inspector General of Police, Islamabad
also
appeared
and
submitted
concise
statement
(CMA
No.2353/2013) in which he has tried to explain the validity/legality
of settlement agreement dated 4.3.2013. He submitted that on the
direction of this Court through order dated 3.6.2011 matter was
placed before the Committee of Administration of NPF and the
meeting of the Committee was held on 28.6.2011 and after detailed
discussion of the issues regarding purchase of land, the Committee
SMC No. 11/2011
19
of Administration constituted a Sub-Committee of three IGs,
namely, Syed Shabbir Ahmad, Hassain Asghar and Dr. Tariq
Ahmad Khokhar. The Sub-Committee submitted a report to the
Committee of Administration which was objected to by Anjum
Aqeel Khan, therefore, another Sub-Committee comprising the
Secretary Interior, M.D. National Police Foundation, Inspector
General of Police, Islamabad and Director Housing NPF was
constituted. The said Sub-Committee discussed all the issues with
Anjum Aqeel Khan at length and solution proposed was placed
before the Committee of Administration. In the end he submitted
that he being nominated member of the Sub-Committee by the
Committee of Administration took part in the negotiations of
outstanding issues with Anjum Aqeel Khan and proposed viable
solution in good faith and in the best interest of National Police
Foundation.
15.
Secretary Interior, Khawaja Siddique Akbar was also
given notice but he has not submitted his reply. Though he made
his appearance before the Court on some dates of hearing but when
he was called for his arguments, he was found absent.
16.
Syed Ali Zafar, learned Counsel for the allottees of more
than one plot in the Housing Scheme, who have also filed
miscellaneous applications in the instant proceedings, contended
that none of the ingredients for the exercise of jurisdiction by this
Court under Article 184(3) of the Constitution of Islamic Republic
SMC No. 11/2011
20
of Pakistan, 1973 are available in the facts and circumstances of the
case; that the applicants are bona fide purchasers of the plots and
no allegation has either been made against the applicants or proved
during the inquiry or investigation that they had obtained more
than one plots unlawfully and that the only allegation made
regarding purchase of plot was against the management of National
Police Foundation; that as the applicants never remained part of
the National Police Foundation or a member of the Board of
Directors or Committee of Administration thereof, as such, the
allegations are not relatable to the applicants and that in such
circumstances, he has prayed that since the applicants are bona
fide purchasers of the plots for consideration, therefore, any
observation made against the applicants will damage their
reputation and the notice against the applicants may be withdrawn
in the interest of justice.
17.
From the above facts and arguments the following
issues have cropped up for determination:
1)
Whether the National Police Foundation (NPF) is a
charitable
Organization,
if
yes,
who
are
its
beneficiaries?
2)
Whether the NPF is authorised to launch private
Housing Schemes, etc. for the general public?
3)
Whether the Housing Scheme of E-11 was launched in a
transparent manner?
SMC No. 11/2011
21
4)
Whether all the agreements/settlement entered into
between the NPF and M/s. Land Linkers were lawful
and transparent?
5)
Whether the beneficiaries and the private members of
the housing scheme or their dependants were entitled
to have more than one plot in any housing scheme
launched by the NPF?
6)
Whether the rights of beneficiaries of NPF were fully
protected?
18.
Before discussing the aforesaid questions/issues, we
would first like to determine the question of jurisdiction of this
Court in such like cases, as urged by Syed Ali Zafar learned counsel
for the allottees of more than one plot. Article 184(3) of the
constitution of Islamic Republic of Pakistan, 1973, confers
jurisdiction upon this Court to examine such like matters, under
the principle of judicial review, where the Government bodies
exercise their powers in an arbitrary and partisan manner. In this
respect we are fortified by the judgment of this Court in Suo Motu
Case No.13 of 2009 (PLD 2011 Supreme Court 619) wherein it
has been held as under:-
“24.
It is well-settled that in matters in which the
Government bodies exercise their contractual powers,
the principle of judicial review cannot be denied.
However, in such matters, judicial review is intended
to prevent arbitrariness or favouritism and it must be
exercised in larger public interest. It has also been held
by the Courts that in matters of judicial review the
basic test is to see whether there is any infirmity in the
decision making process. It is also a well-settled
principle of law that since the power of judicial review
is not an appeal from the decision, the Court cannot
substitute its decision for that of the decision maker.
The interference with the decision making process is
SMC No. 11/2011
22
warranted where it is vitiated on account of
arbitrariness, illegality, irrationality and procedural
impropriety or where it is actuated by mala fides.
Reference may be made to (1) Ramana Dayaram
Shetty v. International Airport Authority of India
(1979) 3 SCC 489; (2) Tata Cellular v. Union of India
(1994) 6 SCC 651 = AIR 1996 SC 11; (3) Raunaq
International Ltd. v. I.V.R. Construction Ltd. (1999) 1
SCC 492; (4) Air India Ltd. v, Cochin International
Airport Ltd. (2000) 2 SCC 617; (5) Reliance Energy
Ltd. v. Maharashtra State Road Development Corpn.
Ltd. (2007) 8 SCC 1 and (6) judgment dated 24-8-2009
of the Andhra High Court in Nokia Siemens Networks
(Pvt.) Ltd. v. Union of India. In Air India Ltd. v. Cochin
Int., Airport Ltd. (AIR 2000 SC 801), it was held as
under:
"7. The law relating to award of a contract by
the State, its corporations and bodies acting as
instrumentalities
and
agencies
of
the
Government has been settled by the decision of
this Court in R.D. Shetty v. International Airport
Authority;
Fertilizer
Corporation
Kamgar
Union v, Union of India; Asstt. Collector, Central
Excise v. Dunlop India Ltd.; Tata Cellular v.
Union of India; Ramniklal N. Bhutta v: State of
Maharashtra and Raunaq International Ltd. v.
I.V.R. Construction Ltd. The award of contract,
whether it is by a private party or by a public
body or the State, is essentially a commercial
transaction. In arriving at a commercial
decision considerations which are of paramount
are commercial considerations. The State can
choose its own method to arrive at a decision. It
can fix its own terms of invitation to tender and
that is not open to judicial scrutiny. It can enter
into negotiations before finally deciding to
accept one of the offers made to it. Price need not
always be the sole criterion for awarding a
contract. It is free to grant any relaxation, for
bona fide reasons, if the tender conditions
permit such a relaxation. It may not accept the
offer even though it happens to be the highest or
the lowest. But the State, its corporations,
instrumentalities and agencies are bound to
adhere to the norms, standards and procedures
laid down by them and cannot depart from them
arbitrarily.
Though
that
decision
is
not
amenable to judicial review, the Court can
examine the decision making process and
interfere if, it is found vitiated by mala fides,
unreasonableness and arbitrariness. The State,
its corporations, instrumentalities and agencies
have the public duty to be fair to all concerned.
Even when some defect is found in the decision
making process the Court must exercise its
discretionary, power under Article 226 with
SMC No. 11/2011
23
great caution and should exercise it only in
furtherance of public interest and not merely on
the making out of a legal point. The Court should
always keep the larger public interest in mind in
order to decide whether its intervention is called
for or not. Only when it comes to a conclusion
that overwhelming public interest requires
interference, the Court should intervene.”
In Tata Cellular v. Union of India (AIR 1996 SC 11) =
[(1994) 6 SCC 651], it was held as under:--
"85. It cannot be denied that the principles of judicial
review would apply to the exercise of contractual
powers by Government bodies in order to prevent
arbitrariness or favoritism. However, it must be
clearly stated that there are inherent limitations in
exercise of that power of judicial review. Government
is the guardian of the finances of the State. It is
expected to protect the financial interest of the State.
The right to refuse the lowest or any other tender is
always available to the Government. But, the principles
laid down in Article 14 of the Constitution have to be
kept in view while accepting or refusing a tender.
There can be no question of infringement of Article 14 if
the Government tries to get the best person or the best
quotation. The right to choose cannot be considered to
be an arbitrary power. Of course, if the said power is
exercised for any collateral purpose the exercise of that
power will be struck down.
86. Judicial quest in administrative matters has been
to find the right balance between the administrative
discretion to decide matters whether contractual or
political in nature or issues of social policy; thus they
are not essentially justifiable and the need to remedy
any unfairness. Such an unfairness is set right by
judicial review.
89. Observance of judicial restraint is currently the
mood in England. The judicial power of review is
exercised
to
rein
in
any
unbridled
executive
functioning. The restraint has two contemporary
manifestations.
One
is
the
ambit
of
judicial
intervention; the other covers the scope of the court's
ability to quash an administrative decision on its
merits. These restraints bear the hallmarks of judicial
control over administrative action.
90. Judicial review is concerned with reviewing not the
merits of the decision in support of which the
application for judicial review is made, but the
decision-making process itself."
In Sterling Computers Ltd. v. Messrs, M. and N. Publications
Ltd, (AIR 1996 SC 51), it was held as under:-
SMC No. 11/2011
24
“19. While exercising the power of judicial review, in
respect of contracts entered into on behalf of the State,
the Court is concerned primarily as to whether there
has been any infirmity in the "decision making
process". In this connection reference may be made to
the case of Chief Constable of the North Wales Police v.
Evans, [1982] 3 All ER 141, where it was said that "The
purpose of judicial review."
"... is to ensure that the individual receives fair
treatment, and not to ensure that the authority, after
according fair treatment, reaches on a matter which it
is authorized or enjoined by law to decide for itself a
conclusion which is correct in the eyes of the court."
By way of judicial review the court cannot examine the
details of the terms of the contract which have been
entered into by the public bodies or the state. Courts
have inherent limitations on the scope of any such
enquiry. But at the same time as was said by the House
of Lords in the aforesaid case, Chief Constable of the
North Wales Police v. Evans (supra), the Courts can
certainly examine whether 'decision making process'
was reasonable, rational not arbitrary and violative of
Article 14 of the Constitution.
20. If the contract has been entered into without
ignoring the procedure which can be said to be basic in
nature and after an objective consideration of different
options available taking into account the interest of the
State and the public, then Court cannot act as an
appellate authority by substituting its opinion in
respect of selection made for entering into such
'contract. But, once the procedure adopted by an
authority for purpose of entering into a contract is held
to be against the mandate of Article 14 of the
Constitution, the Courts cannot ignore such action
saying that the authorities concerned must have some
latitude or liberty in contractual matters and any
interference by court amounts to encroachment on the
exclusive right of the executive to take such decision.
26. The cases aforesaid on which reliance was placed
on behalf of the appellants, have also reiterated that
once the State decides to grant any right or privilege to
others, then there is no escape from the rigour of
Article 14; the executive does not have an absolute
discretion, certain precepts and principles have to be
followed, the public interest being the paramount
consideration. It has also been' pointed out that for
securing the public interest one of the methods
recognised is to invite tenders affording opportunity to
submit offers for consideration in an objective manner.
However, there may be cases where in the special facts
and circumstances and due to compelling reasons
which must stand the test of Article 14 of the
Constitution, departure of the aforesaid rule can be
SMC No. 11/2011
25
made. This Court while upholding the contracts by
negotiation in the cases referred to above has
impressed as to how in the facts and circumstances of
those cases the decisions taken by the State and the
authorities concerned were reasonable, rational and in
the public interest. The decisions taken in those cases
by the authorities concerned, on judicial scrutiny were
held to be free from bias, discrimination and under the
exigencies of the situation then existing to be just and
proper. On the basis of those judgments it cannot be
urged that this court has left to the option of the
authorities concerned whether to invite tenders or not
according to their own discretion and to award
contracts ignoring the procedures which are basic in
nature, taking into account factors which are not only
irrelevant but detrimental to the public interest."
25. A part of the argument vehemently canvassed at
the bar was that the main purpose of awarding
contract to this party was to get the CDA land cleared
off from the illegal occupants, which the CDA was
unable to do. In this behalf, reference was made to
agreements containing recitals of payment of different
sums of money made to certain persons in lieu of their
vacating such land. According to the aforesaid
agreements, huge sums of money running into millions
of rupees were allegedly paid. But, surprisingly, no
details of payment, such as bank drafts, pay orders,
cheques, etc. were given in the said agreements. It is
not believable that such large sums of money were paid
in cash. Besides, the agreements in question were
documents not registered in accordance with law.
There was, so to say, no valid proof of payment
furnished to our satisfaction. Further, no details of the
land allegedly in the illegal possession of the land
grabbers along with the names/number of encroachers
were provided. Thus, looked at from any angle,
the transaction appears to be a sham deal. The
whole exercise appears to be an eyewash. This also
negates the claim
26. The cases aforesaid on which reliance was placed
on behalf of the appellants, have also reiterated that
once the State decides to grant any right or privilege to
others, then there is no escape from the rigour of
Article 14; the executive does not have an absolute
discretion, certain precepts and principles have to be
followed, the public interest being the paramount
consideration. It has also been' pointed out that for
securing the public interest one of the methods
recognised is to invite tenders affording opportunity to
submit offers for consideration in an objective manner.
However, there may be cases where in the special facts
and circumstances and due to compelling reasons
which must stand the test of Article 14 of the
SMC No. 11/2011
26
Constitution, departure of the aforesaid rule can be
made. This Court while upholding the contracts by
negotiation in the cases referred to above has
impressed as to how in the facts and circumstances of
those cases the decisions taken by the State and the
authorities concerned were reasonable, rational and in
the public interest. The decisions taken in those cases
by the authorities concerned, on judicial scrutiny were
held to be free from bias, discrimination and under the
exigencies of the situation then existing to be just and
proper. On the basis of those judgments it cannot be
urged that this court has left to the option of the
authorities concerned whether to invite tenders or not
according to their own discretion and to award
contracts ignoring the procedures which are basic in
nature, taking into account factors which are not only
irrelevant but detrimental to the public interest."
The aforesaid findings in the case referred supra is complete
answer to the argument raised by Syed Ali Zafar Advocate
regarding jurisdiction of this case to enter into the arena of scrutiny
of such like cases wherein the Government Bodies exercise their
contractual powers in an arbitrariness or favouritism manner, thus,
the exercise of principal of judicial review in the larger public
interest cannot be denied.
19.
The first question to be answered in the sequence is
whether National Police Foundation is a charitable organization
and if the answer is in yes, who are its beneficiaries?. If we see the
origin of the Foundation and efforts made in this behalf from time
to time we have no doubt in our mind that it is a charitable
organization from whatever angle it is looked at. This perception is
further invigorated by the SRO 334(1)/75 National Police
Foundation was established under section 5 of the Charitable
SMC No. 11/2011
27
Endowments Act, 1890 (VI of 1890). The said SRO reads as
follows:
“S.R.O. 334 (I)/75.—Whereas the Secretary to the
Government of Pakistan, Ministry of Interior, States
and Frontier Regions (Interior Division), Islamabad
has applied for settlement by the Federal Government
of a scheme for administration of the amount of two
crores of rupees which is to be applied in trust for a
charitable purpose to be known as the “National Police
Foundation” and which is to be vested in the Treasurer
of Charitable Endowment for Pakistan:
Now, THEREFORE, in exercise of the powers conferred
by Sub-section (I) of section 5 of the Charitable
Endowments Act, 1980 (VI of 1980) the Federal
Government is pleased to settle the scheme set out in
the schedule below for administration of the said
National Police Foundation.”
The word “Charitable Purpose” has been defined in the Charitable
Endowments Act, 1980 as under:
2. Definition: In this Act, “charitable purpose”
includes relief of the poor, education, medical relief
and the advancement of any other object of general
public utility, but does not include a purpose which
relates exclusively to religious teaching or worship.
The word “beneficiary” has been defined in “The Essential Law
Dictionary by Amy Hackney Blackwell, as under:-
“Beneficiary. N. Someone who benefits from someone else’s
act, such as a person for whom property is held in trust, the
recipient of the proceeds of an insurance policy, or someone
named in a will as a recipient of property.”
In the Black’s Law Dictionary, the word “beneficiary” has been
defined as under:
“BENEFICIARY. One for whose benefit a trust is
created; a cestui que trust. 195 N.E. 557, 564, 97 A.L.R.
1170. A person having the enjoyment of property of
which a trustee, executor, etc., has the legal possession.
The person to whom a policy of insurance is payable.
SMC No. 11/2011
28
Parrott Estate Co. v. Mc- Laughlin. D.C.Cal., 12 F.Supp.
23, 25; Odom v. Prudential Ins. Co. of America, 173 Or.
435, 145 P.2d 480, 482. One receiving benefit or
advantage, or one who is in receipt of benefits, profits,
or advantage. Bauer v. Myers, C.C.A.Kan., 244 F. 902,
908. For "Favored Beneficiary,".
AIMS AND OBJECTS:
Aims and Objects of the National Police Foundation have
been mentioned in its Constitution which read as under:
i)
To extend and improve medical facilities for serving and
retired beneficiaries and their dependents as defined in the
definitions.
ii)
To advance, whether as a loan or stipend, grants to the
dependents of retired or serving beneficiaries for the
purpose of education at approved Institutions:
iii)
To provide for construction of low-cost houses of various
categories and their sale on terms and conditions to be
decided
by
the
Committee
of
Administration
to
beneficiaries whether retired or serving.
iv)
To provide for Rest Houses/Centres which the beneficiaries
and their dependents may use for rest and recreation, at
such terms and conditions as the Committee may decide.
v)
To provide any other facility or help which the Committee of
Administration may decide from time to time and which
comes under the broad terms of “welfare” of the
beneficiaries.
vi)
To provide lump-sum grants at a rate to be decided by the
Committee of Administration in case of death or injury to
any of the beneficiaries in the line of active duty.
The word “Beneficiaries” has been defined as under:-
a)
“Beneficiaries” mean persons of Pakistan domicile subjects of
States acceded to Pakistan;
SMC No. 11/2011
29
i.
Who have served or are serving in the Police Force of the
Province of Punjab, Sindh, N.W.F.P., Balochistan,
National Police Academy, Pakistan Railway Police,
Islamabad Police, Azad Jammu & Kashmir and Northern
Area Police as Police officer.
ii.
Who have served or are serving in the Federal Police
Organisation under the control of Director General
Federal Security Force in the Ministry of Interior, States
and Frontier regions (Interior Division), Islamabad.
iii.
Who have served or are serving the Federal Investigation
Agency, under the control of I.G./S.P.E. Director General
Federal Investigation Agency in the Ministry of Interior,
States
and
Frontier
Regions
(Interior
Division),
Islamabad.
iv.
Who have served or are serving with executive police
ranks on the Ministerial Cadre and other Ministerial
staff of any other offices controlled by the Inspectors
General of Provinces mentioned in (i) above, or under
the
Inspector
General,
Special
Police
Establishment/Director General, Federal Investigation
Agency.
v.
Who are or have been on deputation to any other
departments from the police department wherein they
have retained their permanent lien of service.
vi.
Dependents of persons indicated in clause (i) to (v) and;
b)
“Dependents” means the wife/wives, dependent parents,
dependant sons and unmarried daughters of beneficiaries and
other relatives who are so prescribed by the Committee of
Administration.
Committee of Administration:
SMC No. 11/2011
30
Committee of Administration is constituted under Article 3 -1
(a) of the Constitution of the NPF which consists of fifteen
members including the Chairman, by virtue of their offices, namely,
1.
Secretary, Ministry of Interior, Government of
Pakistan, Chairman Ex-Officio
2.
D.G. FIA, Member/Vice Chairman
3.
Inspectors General of Police of all the four
provinces, Members
4.
Commandant
National
Police
Academy,
Islamabad, Member
5.
M.D. National Police Foundation, Member
6.
Representative of the M/o Finance not below the
rank of Additional Secretary, Member.
7.
Representative of the M/o Industries not below
the rank of Additional Secretary, Member.
8.
Inspector General of Police, Pakistan Railways,
Member.
9.
Inspector General of Police, Azad Jammu &
Kashmir, Member.
10.
Inspector General of Police, Northern Areas,
Gilgit, Member.
11.
Inspector General of Police, Pakistan Motorway
Police, Member (Approved by COA in the meeting
held on 26.6.2000.
Functions of the Committee of Administration
SMC No. 11/2011
31
Clause II of the Constitution deals with the functions of
Committee of Administration which read as under:
a)
To receive and administer funds for the foregoing,
health, educational and charitable objects and to
that end, take and hold, by request, device, gift,
purchase or lease, either absolutely, or in trust,
any property, real, personal or mixed, without
limitation as to amount or value, except such
limitation, if any, as may be imposed by laws to
sell convey, dispose of any such property and to
invest and reinvest the principal and income
thereof, to deal with and expand the principal and
income of the Foundation for any of the
aforementioned object and as may be contained
in the instruments under which property is
received or the other limitation imposed by law;
b)
To receive any property, real, personal or mixed
in trust under the terms of any will, deed of trust
or other trust instrument for the foregoing objects
or any of them (but for no other purpose) and in
administering the same to carry out the directions
and exercise the powers contained in the trust
instrument under which the property is received
including the expenditure of the principal as well
as the income for or more objects, or such
subjects as authorised or directed in the
instrument under which it is received.
c)
To receive take title to hold and use the proceeds
and income of stocks, bonds, obligations, or other
securities of any government or Corporations,
domestic, or foreign but only for the foregoing
purposes of some of them;
SMC No. 11/2011
32
d)
And generally to undertake, do and perform all
such acts, matters or things as may be desirable
or necessary in the opinion of the committee of
Administration
for
the
accomplishment
of
foregoing purposes or any of them and in
particular but without prejudice to generally of
the foregoing to enter into contracts, to undertake
financial and commercial obligations to borrow or
raise or secure the payment of money to sell
exchange mortgage, let or lease the property and
accounts of the Foundation, to purchase, take on
lease or tenancy or in exchange, hire take over
options, or otherwise require any estate interest
or property and to hold develop, deal with turn to
account any property assets, or rights, real or
personal or any kind and in the directions of the
Committee of Administration to, apply the assets
of
the
Foundation
in
or
towards
the
establishment of any association and institution
the objects or purposes of which are in
accordance with the objects of the Foundation.”
20.
From the narration of the aforesaid facts and the
picture depicted from the documents, it is crystal clear that the
National Police Foundation was established on 18.3.1975 under sub
section (1) of Section 5 of the Charitable Endowment Act 1890 by
the Ministry of Health and Social Welfare for the welfare of
employees of Federal and Provincial Police Organizations and
serving and retired employees of the said Police Organizations,
thus it is charitable organization within the meaning of section 2 of
SMC No. 11/2011
33
the Charitable Endowment Act, 1980 for the benefits of the
following:
i)
Who have served or are serving in the Police Force of
the Province of Punjab, Sindh, N.W.F.P., Balochistan,
National Police Academy, Pakistan Railway Police,
Islamabad Police, Azad Jammu & Kashmir and
Northern Area Police as Police officer.
ii)
Who have served or are serving in the Federal Police
Organisation under the control of Director General
Federal Security Force in the Ministry of Interior,
States
and
Frontier
regions
(Interior
Division),
Islamabad.
iii)
Who
have
served
or
are
serving
the
Federal
Investigation Agency, under the control of I.G./S.P.E.
Director General Federal Investigation Agency in the
Ministry of Interior, States and Frontier Regions
(Interior Division), Islamabad.
iv)
Who have served or are serving with executive police
ranks on the Ministerial Cadre and other Ministerial
staff of any other offices controlled by the Inspectors
General of Provinces mentioned in (i) above, or under
the
Inspector
General,
Special
Police
Establishment/director General, Federal Investigation
Agency.
v)
Who are or have been on deputation to any other
departments from the police department wherein they
have retained their permanent lien of service.
vi)
Dependents of persons indicated in clause (i) to (v).
21.
From the definition of charitable purpose as per section
2 of Charitable Endowments Act, 1890 it is crystal clear that it is for
SMC No. 11/2011
34
the relief of the poor, education, medical relief and the
advancement of any other object of general public utility but does
not include a purpose which relates exclusively to religious
teaching or worship. In such circumstances, the benefit could be
given only to those who are poor and entitled to have share from
charity. It is apparent from the constitution of the Foundation that
the Foundation was established in March 1975 as a Trust for the
benefit of all police forces in the country, the main object of which
was to provide help in the shape of medical, education, one time
grants, artificial limbs, scholarships, dowry, vocational training
centres etc. It is a self-financing agency and generates funds from
its own projects such as industrial units, housing schemes, security
services etc. The very purpose of the establishment of the
Foundation was to help poor objects of the police organizations.
The purpose of Administration Committee or the Board of
Directors and the Authority under the Endowment Act is to
generate funds for the persons who come within the definition of
beneficiaries under the aforesaid Act. They could only generate
funds for the welfare of the beneficiaries, while framing aims and
objects of the NPF they have inserted all the provisions therein
which could benefit to them and other such like officers of the
police organization and not to the benefit of the actual
beneficiaries.
Even otherwise, the aims and objects of the Foundation
should have been framed in accordance with the substantive law
SMC No. 11/2011
35
and framing of rules in conflict with or derogating from the
substantive provisions of law or statute under which the Rules are
framed are normally declared invalid due to certain reasons. This
Court on an earlier occasion while dealing with such like case in
Suo Motu Case No.13 of 2009 (PLD 2011 SC 619) held as under:-
“16. The first question, which requires to be determined
by this Court in the instant case is whether it was
permissible for the CDA, to have framed a Regulation,
which was inconsistent with the parent statute, i.e. the
Ordinance. It may be seen that subsection (1) of section 12
of the Ordinance provides that the CDA may, pursuant to
the master plan and the master programme, call upon
any local body or agency operating in the Specified Areas
to prepare, in consultation with it, a scheme or schemes
in respect of matters ordinarily dealt with by such local
body or agency, and thereupon the local body or agency
shall be responsible for the preparation of the scheme or
schemes, whereas, subsection (5) provides that no
planning or development scheme shall be prepared by
any person or by any local body or agency except with
the concurrence of the Authority. Under subsection (2),
the schemes may relate to land use, zoning and land
reservation, public buildings, industry, etc. Subsection (3)
empowers the Federal Government to add to, alter or
amend the list of subjects (schemes). Under subsection
(4), the expenditure on the preparation of such schemes is
to be borne as agreed to between the CDA and the local
body or agency while under subsection (5), no planning
or development shall be prepared by any person or by
any local body or agency except with the concurrence of
the CDA. The term "agency", as defined in section 2(a)
means any department or organization of the Federal or
Provincial Government and includes a corporation, or
other autonomous or semiautonomous body set up by the
Federal or Provincial Government. The term "local body"
SMC No. 11/2011
36
as defined in clause (j) ibid means the local body, the local
council or the municipal body as defined in clauses (23)
(24) and (27) of Article 3 of Basic Democracies Order,
1959 (P.O. 18 of 1959), or the Cantonment Board, having
jurisdiction in the area concerned, and includes an
Improvement Trust within such area.
17. The word 'regulation' as defined in Advanced Law
Lexicon referred to by the learned Amicus Curiae means
a rule or order prescribed by superior for the
management of some business or for the government or a
company or society. It is a rule, Ordinance or law by
which conduct etc., is regulated. It implies a rule for a
general course of action, but does not apply to a case in
which specific instructions are to be given applicable to
that case alone. According to Black's Law Dictionary, the
term 'regulation' means a rule or order having legal force
issued by an administrative agency or a local
government. In Khawaja Ahmad Hassan (supra), it was
held as under: -
"25. It must be kept in view that "when the legislature
confers power on Government to frame rules it is
expected that such powers will be used only bona fide,
in a responsible spirit and in the true interest of the
public and in furtherance of the object for the
attainment of which such powers, were conferred".
(Land Realization Co. Ltd. v. Postmaster-General
(1950) 66 TLR (Pt. 1) 985, 991, per Romer, J. (1950) Ch.
435. It is to be noted that rule-making authority which
falls within the ambit of subordinate legislation as
conferred upon the Government by virtue of section 191
of the Ordinance is neither unlimited nor unbridled and
the limitations as mentioned in section 191 of the
Ordinance must be adhered to in letter and spirit.
29. It is a well-recognized principle of interpretation of
statutes that if the rules framed under the statute are in
excess of the provisions of the statute or are in
contravention of or inconsistent with such provisions
then those provisions must be regarded as ultra vires
of the statute and cannot be given effect to. (Barisal
Cooperative Central Bank v. Benoy Bhusan AIR 1934
Cal.537; Municipal Corporation v. Saw Willie, AIR
1942 Rang 70, 74)".
30. In the case of statutory rules the Court can always
SMC No. 11/2011
37
examine the question as to whether the same are
inconsistent with the statute under which they are
made. In this regard we are fortified by the dictum laid
down in Hazrat Syed Shah Mustarshid Ali Al-Quadari
v. Commissioner of Wakfs AIR 1954 Cal. 436.
31. A rule-making body cannot frame rules in conflict
with or derogating from the substantive provisions of
the law or statute, under which the rules are framed.
No doubt that the rules-making authority has been
conferred upon the Government but "a rule, which the
rule-making authority has power to make will
normally be declared invalid only on the following,
grounds:
(1)
Bad faith, that is to say, that powers
entrusted for one purpose are deliberately
used with the design of achieving another,
itself unauthorized or actually forbidden;
(2)
that it shows on its face a misconstruction of
the enabling Act or a failure to comply with
the conditions prescribed under the Act for
the exercise of the powers; and
(3)
that it is not capable of being related to any
of the purposes mentioned in the Act.
(Shankar. Lal Laxmi Narayan Rathi v.
Authority under Minimum Wages Act, 1979
MPLJ 15 (DB).
Rules cannot go beyond the scope of the Act M.P.
Kumaraswami Raja AIR 1955 Mad. 326 nor can they,
by
themselves, enlarge
the
scope
of
statutory
provisions. K. Mathuvadivelu v. RT Officer, AIR 1956
Mad. 143. They cannot also militate against the
provision under which they were made. (Kashi Prasad
Saksena ro. State of U. P. AIR 1967 All. 173.
32. There is no cavil with the proposition that "the
power of rule making is an incidental power "that must
follow and not run parallel to the present Act. These
are meant to deal with details and can neither be a
substitute for the fundamentals of the Act nor can add
to them. PLD 1975 Azad J&K 81. There are two main
checks in this country on the power of the Legislature
to delegate, these being its good sense and the principle
that it should not cross the line beyond which
delegation amounts to abdication and self-effacement.
The only requirement of law in such situations is to
insist that the subordinate body charged with the duty
of making rules must strictly confine itself within the
sphere of its authority for the exercise of its
subordinate legislative power and in each case it is the
duty of the Courts in appropriate proceedings to be
satisfied that the rules and regulations so made are:--
SMC No. 11/2011
38
(a) by the authority mentioned in the Act, and
(b) that they are within the scope of the power
delegated therein. (PLD 1966 Lah. 287).
"36. It is a well-recognized principle of interpretation of
statutes that if the rules framed under the statutes, or
bye-laws framed under the rules, are in excess of the
provisions of the statute or are in contravention of or
inconsistent with such provisions then these provisions
must be regarded as ultra vires of the statute and
cannot be given effect to. (Barisal Cooperative Central
Bank v. Benoy Bhusan, AIR 1934 Ca1.537, 540)."
In Nur Ahmad's case (supra), it was held that reading
the rule in the above manner would be tantamount to
enlarging its scope by depriving the aggrieved party of
the right of being heard which he has. The Basic
Democracies Order does not deprive him of that right.
The rule-making Authority therefore, cannot clothe itself
with power which the Statute itself does not give. In
Mian Ziauddin's case (supra), it was held that the rules
framed under the Ordinance could not go beyond and
over-reach the Ordinance itself. In Ummatullah's case
(supra), it was held that Strong presumption as to
constitutionality,
legislative
competence,
legality,
reasonableness and intra vires attached to a statute is
also attached with full force to subordinate legislative
instruments
as
well,
such
presumption
though
refutable, onerous burden is cast on person challenging
validity or vires of legislative instrument, on any count.
In order to strike down a subordinate legislative
instrument, challenger has to show that any of the
disqualification exist namely (a) it impinges upon
fundamental rights guaranteed under the Constitution
(b) it is in conflict with any Constitutional provision (c)
it is beyond the legislative competence of the delegatee
making it and or (d) it is violative or beyond the scope of
the parent or enabling statute. (see KBCA v. Hashwani
Sales and Services Ltd. PLD 1993 SC 210 @ 228 C,
Maharashtra State Board of Secondary Education and
Higher Secondary Education and another v. Paritosh
Bhupesh Kurmarsheth AIR 1984 SC 1543. It was further
held that when the parent law i.e. Sindh Buildings
Control Ordinance, 1979 does not provide for matter
relating to change in land use classification, or
conversion of one category of land into another it
cannot through delegated legislative instrument confer,
bestow or delegate any power and duties on "Concerned
Authorities", which powers and performance of duty are
not within its own domain or scope of authority. It is
settled principle of law that what cannot be done
directly cannot be done or allowed to be done indirectly.
It is also trite principle of law; what is not possessed can
neither
be
conferred
nor
delegated.
In
Kerala
Samsthana Chethu's case (supra), it was held that the
power of the Government was to make rules only for the
SMC No. 11/2011
39
purpose of carrying out the purposes of the Act and not
dehors the same. In other words, rules cannot be framed
in matters that are not contemplated under the Act.
Reference in the above case was made to Bombay
Dyeing and Mfg. C. Ltd. v. Bombay Environmental
Action Group 2006 (3) SCALE 1, wherein it was held
that a policy decision, as is well known, should not be
lightly interfered with but it is difficult to accept the
submissions made on behalf of the learned counsel
appearing on behalf of the Appellants that the courts
cannot exercise their power of judicial review at all. By
reason of any legislation whether enacted by the
legislature or by way of subordinate legislation, the
State gives effect to its legislative policy. Such
legislation, however, must not be ultra vires the
Constitution. A subordinate legislation apart from being
intra vires the Constitution should not also be ultra vires
the parent Act under which it has been made. A
subordinate legislation, it is trite, must be reasonable
and in consonance with the legislative policy as also
give effect to the purport and object of the Act and in
good faith. In the case of Vikramaditya Pandey v.
Industrial Tribunal, Lucknow [(2001) 2 SCC 423] the
Indian Supreme Court has held that the provisions of the
regulations
in
question
to
the
extent
of
their
inconsistency with any of the provisions of the.
Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya
Adhishthan Adhiniyam, 1962, Workmen Compensation
Act, 1923 and any other Labour Laws for the time being
in force, if applicable to any cooperative society or class
of cooperative societies shall be deemed to be
inoperative. By plain reading of the said Regulation it is
clear that in case of inconsistency between the
Regulations and the provisions of the Industrial
Disputes Act, 1947, the State Act, the Workmen
Compensation Act, 1923 and any other labour laws for
the time being in force, if applicable to any cooperative
society or class of cooperative societies to that extent
Regulations shall be deemed to be inoperative. In other
words, the inconsistent provisions contained in the
Regulations shall be inoperative, not the provisions of
the other statutes mentioned in the Regulation.
22.
From an examination of the above case law it is clear
that a rulemaking body cannot frame rules in conflict with, or in
derogation of, the substantive provisions of the law or statute,
under which the rules are framed. Rules cannot go beyond the
scope of the Act. Thus, we are inclined to hold that no rule can be
made which is inconsistent with the parent statute, whereas, no
SMC No. 11/2011
40
regulation can be framed which is inconsistent with the parent
statute or the rules made thereunder and the provisions of these
rules or regulations, as the case may be, to the extent of such
inconsistency with the parent statute or the rules shall be void and
inoperative.
In the instant case the Committee of Administration of the
National Police Foundation has framed rules according to their
own choice irrespective of the scope of the Charitable Endowments
Act under which the charitable institution was formed aiming at
welfare and benefit of poor and needy officials of the Police
Departments all over the country.
23.
So far as the question/issue, whether National Police
Foundation is authorized to launch private housing schemes etc.
for the general public, is concerned, according to item No. 1 & 2 of
the agenda of the meeting of Board of Directors of the National
Police Foundation held on 26.2.1989, the housing schemes at E/11
and Loi Bher were launched by the Foundation on commercial
basis. Since the very object of the Foundation was to help
beneficiaries of the foundation, therefore, as per aims and objects
No. (v), the foundation in order to provide any facility or help
which the committee of administration may decide from time to
time comes under the broad terms of “Welfare” of the Beneficiaries.
In such circumstances, National Police Foundation was authorized
to launch housing schemes for the help of beneficiaries but not for
private persons or officers/officials of other departments. Since the
SMC No. 11/2011
41
National Police Foundation came into being under sub section (1)
of Section 5 of the Charitable Endowments Act, 1890, thus, it was a
charitable institution formed for the help of poor and needy
officials of the Police Departments all over the country and one of
the projects of the said Foundation was establishment of Housing
Schemes for those who really need shelter of house. As is evident
from the Constitution of the National Police Foundation its aim
and object was to help the poor servants of the Police Organizations
all over the country and those who had lost their lives while being
in service or on duty.
24.
For the above reasons the National Police Foundation,
keeping in view its objects and for providing maximum benefits to
the beneficiaries for whom this charitable organization was
established, was authorized to launch a private housing scheme for
the help and welfare of the beneficiaries but the plots could have
been sold in the private market at higher rate for generating funds
and could not be allotted to the higher police officers and their
dependants under the garb of beneficiaries. In such circumstances,
it is held that National Police foundation has deviated from the
basic purpose of charitable for which this Foundation was
established. Thus it is a clear cut case of mismanagement and the
charitable organization has been used for loot-sale of plots to the
higher influential police officers including the private and
influential persons of other departments/organizations.
SMC No. 11/2011
42
25.
Since all the remaining issues are related to the housing
schemes and are interlinked, therefore, the same are being
discussed/determined together.
Housing Scheme of E-11, Islamabad and Lohi Bher
26.
The Board of Directors of the National Police
Foundation in its meeting held on 26.2.1989 decided to set up two
housing schemes in Rawalpindi and Islamabad areas to cater for
the housing needs of the beneficiaries of the NPF and Government
servants in Lohi Bher Area (0-9) and Sector E-11 Islamabad. In
Sector E-11, there were a number of villages including Dharmian,
Bara Dari, Maira Bheri, Bhekar Akku and Golra etc. The
establishment of Housing Schemes at E/11 and Lohi Bher,
Islamabad was discussed in the meeting of the Baord of Directors
held on 26.2.1989 as agenda item No. 1 & 2 which reads as under:-
“Item No. 1 & 2
LAUNCHING OF HOUSING SCHEMES AT E/11 ISLAMABAD
AND LOI BHER
The Managing Director briefed the Board about the launching
of the two Housing Schemes at E/11 and Loi Bhair on
commercial basis, mentioning that the land in question was
allotted to the affectees of Islamabad and has been procured
from them privately. About the Loi Bhair the Board was
informed that the agreement has been made to purchase a
piece of land comprising over an area of 1000 Kanals. The
Chairman was further informed that agreements in this
connection had already been signed with the owners and an
advance money of Rs.10 lacs has also been paid while a sum
of Rs. 5 lacs have been advanced for the E11 scheme. The
Board was further briefed that these two schemes would yield
a good profit of about 20/30 million rupees. It was further
SMC No. 11/2011
43
explained that to organize these two schemes we would be
requiring skeleton staff for which two/three persons would be
employed. Besides a Suzuki Jeep will also have to be
purchased to visit the site etc.
The proposal was approved by the Board.”
27.
The Board of Directors of the NPF in its meeting held
on 26.02.1989 also passed a Resolution to set up two housing
schemes in Rawalpindi/Islamabad area to cater for the housing
needs of the beneficiaries of the NPF and Government Servants in
Lohi Bher Area (O-9) and Sector E-11 Islamabad which reads as
under:
“RESOLUTION
Resolved by the Board of directors in its meeting held
on 26/02/1989 to launch two Housing Schemes in
Rawalpindi/Islamabad area at Loi Bhair and E/11.
It was further resolved that an area of 1000 kanals
approximately at Loi Bhair Rawalpindi/Islamabad
should be purchased to cater for the housing needs of
the beneficiaries/government servants and general
public.
The Board approved the agreements dated February
7, 1989 and January 29, 1989 signed by the Managing
director, National Police Foundation and the sellers.
Sd/-
Sd/-
(S. K. MAHMUD)
(HAFIZ S. D. JAMY)
CHAIRMAN
MANAGING DIRECTOR
Sd/-
Sd/-
(M. M. SAEED)
(SHAHID ABBAS)
DIRECTOR INDUSTRIES DIRECTOR
FINANCE”
Agreement between NPF and M/s. Land Linkers
NPF signed three agreements for the purchase of land
through Anjum Aqeel Khan, owner of an unregistered firm,
namely, M/s. Land Linkers. First agreement was made on
3.11.1997 for the purchase of 200 to 300 kanals of land @
SMC No. 11/2011
44
Rs.595,000/- per kanal. Under this agreement 252 Kanals 6-1/2
marlas land was provided by Anjum Aqeel Khan to the NPF.
Second agreement was made on 28.8.2001 for the purchase
of 318 kanals land @ Rs.8,25,000/- per kanal and 318 kanals 12
marlas land was provided to NPF.
Third agreement was made on 12.4.2003 for the purchase of
58 kanals land @ Rs.825,000/- per kanals and 37 kanals 12 marlas
land had been provided under this agreement to the NPF.
28.
General
rules
for
membership
and
terms
and
conditions of allotment were also reduced into writing by the
foundation in the following manner:-
Membership
1.
Acceptance of membership is subject to the screening of
the applications, which may accept or reject any
application without assigning any reason.
2.
An applicant can apply for only one plot.
3.
In case the National Police Foundation due to any
reason fails to allot a plot the applicant shall not claim
any damages, compensation or interest, however the
applicant will be entitled to the refund of the principal
amount deposited with the NPF.
4.
If the number of applications received is more than the
plots available, then the allotment shall be determined
by ballot. The Managing Director reserves the right to
allot 10% of the plots at its discretion.
5.
Each applicant will pay in advance by means of crossed
bank draft/pay order en-cashable at Islamabad drawn
in favour of National Police Foundation Islamabad.
Cash Payment / cheques shall not be acceptable.
SMC No. 11/2011
45
6.
After an applicant’s membership is accepted, he will be
intimated the total cost of the plot along with schedule
of payment.
7.
All applications will be accepted subject to availability
of land.
Allotment
1.
Allotment will be made subject to the following terms
and conditions:-
a.
In case of a corner plot you are required to pay
10% extra price of the plot.
b.
All payments shall be made to NPF through a
Bank Draft / Pay Order.
c.
Conservancy charges at the prescribed rate shall
be paid by you to the NPF after the completion of
development work.
2.
The possession of the plot will be handed over to you on
the
completion
of
development
work
and
the
construction
will
be
allowed
after
taking
over
possession of the plot as per building bye-laws of the
CDA / RDA.
3.
The location / size of the plot is tentative and may vary
at the time of actual demarcation and handing-over the
possession of plots. The NPF reserves the rights to
change the plot without any notice.
4.
Mutual transfer of plots will be permissible with the
prior approval of the NPF on payment of transfer fees
and all other dues etc. if any outstanding against the
transferor.
5.
Transfer of plot will be permissible with the approval of
NPF on production of legal documents as required by
NPF. The transfer fees shall be charged at the
prescribed rate.
SMC No. 11/2011
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6.
Demarcation fee Rs. 500/- per plot will be charged
from you at the time of handing over the possession of
the plot for the first time and for every subsequent
demarcation on your request a fee of Rs. 500/- will be
charged.
7.
You shall submit the building plan prepared by an
approved architect of the CDA / RDA for the approval
of the CDA / RDA and the building on the plot shall
have to be completed in accordance with the building
and zoning regulations of the CDA / RDA.
8.
No allottee/transferee shall amalgamate or sub divide
the plot without prior permission and sanction of the
NPF/CDA/RDA.
9.
If at the time of demarcation the area of the plot is
found excessive the allottee shall pay such price of
excessive area as may determine by the NPF. In case
the size of plot is found lesser the NPF will refund the
amount of the lesser area @ cost of land charged from
the member.
10.
The extension in the construction period may be
allowed by the NPF on payment of extension surcharge
at the rate prescribed by the CDA/RDA.
11.
In case of breach of any of the above cited conditions
and non-observance of the above noted formalities
within due time as given in this letter or in the
agreement to be executed by you, the allotment will be
liable to cancellation after deducting of 5 to 10% of the
price of the plot and the plot with any building or
material found thereon shall re-vest in the NPF without
any liabilities to pay compensation thereof. Further
that you will also be responsible for any loss that the
NPF may sustain in the re-sale of the plot. The decision
of the NPF in this behalf shall be final.
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12.
The allotment shall be cancelled if any instalment of the
development charges is not paid within the stipulated
or extended period.
13.
All the payments should be made in the name of NPF
through Bank Draft / Pay Order. No cash / cheque will
be acceptable.
14.
Corner Plot charges should be paid along with 1st
instalment.
15.
Any change in address may invariably be intimated to
this office.
TERMS AND CONDITIONS
1.
Acceptance of membership is subject to the screening of
the applications, which may accept or reject my
application without assigning any reason.
2.
An applicant can apply for only one plot.
3.
In case the National Police Foundation due to any
reason fails to allot a plot the applicant shall not claim
any damages, compensation or interest, however, the
applicant will be entitled to the refund of the principal
amount deposited with the NPF.
4.
If the number of applications received is more than the
plots available, then the allotment shall be determined
by ballot. The Managing Committee reserves the right
to allot 10% of the plots at its discretion.
5.
Each applicant will pay in advance by means of crossed
bank draft / pay order cashable at Islamabad drawn in
favour of National Police Foundation Islamabad. Cash
payment / cheques shall not be acceptable.
6.
After an applicant’s membership is accepted, he will be
intimated the total cost of the plot along with schedule
of payment.
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7.
All applications will be accepted subject to availability
of land.
29.
During pendency of the instant proceedings, Mr. Zafar
Ahmad Qureshi, Ex-MD of National Police Foundation inquired
into the matter of allotment of plots in the aforesaid two residential
schemes and found the following illegalities / irregularities
therein:-
(a)
In Qilla No. 74 comprising 8 Kanals land, NPF
authorities purchased 9 kanals 9 marlas land in three
transactions against an entitlement of 4 kanals as per detail
given below:-
i.
Agreement dated 4.6.1998 between Mr. Abdul Hameed
(as owner) (first party) and Mr. Abdul Hannan AD/NPF
(second party) for 4 kanal and @ Rs. 5,95,000. Total
amount of Rs. 23,79,000/- was paid against entitlement
letter No. CDA/DL/1(2)(12)/84 dated 2-3-1986.
ii.
Agreement dated 4.4.1998 between Mr. Aamir Shahzad
Khan s/o Khuda Dad Khan legal attorney (first party)
and Mr. Abdul Hannan AD/NPF (second party) same 4
kanals land @ Rs. 5,95,000/-. (total amount of Rs.
23,79,000/-) was purchased against same entitlement
letter No. CDA/DL/1(2)(12)84 dated 2.3.1986.
iii.
Agreement dated 26.8.2000 between Mr. Aamir Shahzad
Khan s/o Khuda Dad Khan legal attorney (first party)
and Abdul Hannan AD/NPF (second party) 1 kanals 9
marlas land @ Rs. 5,95,000/-. (total amount of Rs.
8,62,750/-)
for
the
same
entitlement
letter
No.
CDA/DL.1(2)(12)84 dated 2.3.1986 of 4 kanals land was
purchased.
CDA vide its letter No. CDA/DLR/6(83)2001/658 dated 28.7.2001
transferred only 4 kanals land to NPF.
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49
(b)i. Vide agreement dated 4.5.1998 between Mr. Abdul
Qayyum s/o Muhammad Din (legal attorney) of Ali
Haider s/o Nadir Khan as (first party) and Abdul
Hannan AD/NPF (second party) 16 kanals land in Qilla
No. 56,44,47 was purchased @ Rs. 5,95,000/- and total
amount (Rs. 95,19,000/-) was paid.
ii.
Another 5 kanals land in the same Qilla No. was
purchased under agreement dated 29.7.1999 from Mr.
Muhammad Ashraf s/o Nadir Khan (first party) and
Abdul Hannan AD/NPF (second party) total amount of
Rs. 29,75,000/- was paid.
iii.
The same land was again purchased by giving 18
developed plots to Sh. Arif Pervez who won the case form
Supreme Court and was declared owner of 21 kanals
land in Qilla No. mentioned above vide MOU dated
28.10.2002 signed by Sh. Arif Pervez and Ch. Iftikhar
Ahmed MD/NPF. The amount paid to Abdul Qayyum
and Muhammad Ashraf mentioned above was not
recovered from M/S land linkers.
(c)i. Under agreement dated 10.7.1998 between Mr. Aamir
Shahzad Khan s/o Khuda Dad Khan (legal attorney) of
Tariq Mehmood s/o Abdul Rehman, Mrs. Naran Begum
d/o Abdul Rehman and Abdul Hannan AD/NPF (second
party) 2 kanals 16 marla land out of Qilla No. 219, 220
and 225 was purchased @ Rs. 5,95,000/- and an amount
Rs. 16,65,000/- was paid against entitlement letter No.
CDA/DL/1(2)(12)/84 dated 2-3-1986.
ii.
Again under agreement dated 19.6.1999 between Mr.
Aamir Shahzad Khan s/o Khuda Dad Khan (legal
attorney) of Tariq Mehmood s/o Abdul Rehman, Mrs.
Naran Begum d/o Abdul Rehman (first party) and Abdul
Hannan AD/NPF (second party) same land 2 kanals 16
marlas land @ Rs. 5,95,000/- and sum of Rs. 16,65,000/-
was paid against the same entitlement letter No.
CDA/DL/1(2)(12)/84 dated 2.3.1986.
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50
CDA vide its letter CDA/DLR/6(83)/2001/544 dated 17.7.2001
transferred only 1 kanals 11 marlas land in the name of NPF.
(d)i. Under agreement dated 30.3.1998 between Mr. Aamir
Shahzad Khan s/o Khuda Dad Khan (first party) and
Abdul Hannan AD/NPF (second party) 2 kanals 10
marlas
land
out
of
Qilla
No.
282,
369
to
371,362,363,341,302 to 305 and 309 @ Rs. 5,95,000/-
and total amount of Rs. 14,87,500/- was paid against
entitlement
letter
No.CDA/DL/1(2)(12)/84
dated
2.3.1986.
ii.
Again under agreement dated 4.7.1998 between Mr.
Aamir Shahzad Khan s/o Khuda Dan Khan (legal
attorney) of Mrs. Aamir Jan as (first party) and Abdul
Hannan AD/NPF (second party) same land 2 kanals 10
marlas of same Qilla No. and vide same allotment letter
No. CDA/DL/1(2)/12(84) dated 2.3.1986 was purchased
@ Rs. 5,95,000/- per kanals and an amount Rs.
14,87,500/- was paid.
iii.
For the third time under agreement dated 16.6.1999
between Mr. Aamir Shahzad Khan s/o Khuda Dad Khan
(legal attorney) of Mrs. Aamir Jan as (first party) and
Abdul Hannan AD/NPF (second party) 2 kanals 10
marlas land was purchased from same Qilla No. and the
authority of the same letter No. CDA/DL/1(2)(12)/84
dated 2.3.1986 @ Rs. 5,95,000/- and total amount Rs.
14,87,500/- was paid.
CDA vide its letter No. CDA/DLR/6(83)/2001/676 dated 21.7.2001
transferred 2 kanals 8 marlas land in the name of NPF in above
mentioned Qilla Nos.
(e)i. Under agreement dated 30.3.1998 between Mr. Zafar
Iqbal s/o Ghulam Farid as (first party) 6 kanals 5 marlas
land consisting of Qilla No. 441/1 to 449/1 and 454/1 @
Rs. 5,95,000/- and a total amount Rs. 37,18,750/- was
paid against entitlement letter No.CDL/DL/1(2)(12)/84
dated 2.3.1986.
SMC No. 11/2011
51
ii.
Again under agreement dated 19.6.1999 the same land
was bought from Mr. Zafar s/o Ghulam Farid (legal
attorney) of Mr. Allah Bux Khan s/o Feroze Khan as
(first party) and Abdul Hannan AD/NPF (second party)
for the same Qilla Nos. at the same rate and paying same
amount Rs. 37,18,750/- against entitlement letter No.
CDA/DL/1(2)(12)/84 dated 2.3.1986.
CDA vide its letter No. CDA/DLR/6(83)2001/659 dated 21.7.2001
transferred 5 kanals 3 marlas land from the said Qilla Nos.
(f)
Pursuance to purchase of land agreement dt 28.8.2001 &
dt 12.4.2003 the following irregularities were committed in the
transactions.
CDA transferred 563 kanals 6-1/2 marlas land. The rest of land
was not provided due to irregularities and illegalities
mentioned at serial No.1 above as per detail given below:-
i)
Land of Abdul Qayyum and
Muhammad Ashraf cancelled
21 ---- 00
ii)
Duplicated sale / purchase of land
21 ----- 19
iii)
Excess share of land sold and not
transferred by CDA
2 ------ 05
Total
45 --- 04
Advance payments to M/s Land Linkers for purchase of land
started on 4.11.1997 and continued 12.4.2003. Adjustments of
advance against the land purchased by M/s Land Linkers
continued till 28.8.2006. Another 1 kanals 13 marlas land was
transferred to NPF in 2010, but possession has not been handed
to NPF. Abdul Hannan Addl. Director (R) the then AD executed
all the transactions related to first agreement dated 3.11.1997.
The management of the NPF did not bother for the shortage of
45 kanals land and continued to make payments in advance to
M/s Land Linkers till 12.4.2003. Abdul Hannan played a key
role in this regard as he signed all the agreements / power
attorneys on behalf of NPF. He never put up any note or
reported the irregularities / illegalities i.e. duplicate purchase of
land because he himself was party to it. This shortage of land
was first pointed out by Laeeq Ahmed Khan Director Housing,
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52
vide letter No. HD/28/NPF/E-11/2005/761 dated 28.3.2005,
thereafter Anjum Aqeel Khan gave undertaking dated
22.2.2006 to fulfill the short fall of land within 2 months but he
failed to honour his commitment.
(g)
Anjum Aqeel Khan requested for affiliation of 75 kanal
land vide letter dated 16.5.2002 to the MD/NPF, which was
accepted by NPF. In pursuance to this acceptance, he provided
2 lists of his 149 + 29 nomineesfor allotment of plots of different
sizes on his affiliated land. He had given undertaking that these
allotment would be subject to proper transfer / possession of the
said land in favour of NPF. But contrary to the undertaking
this condition was not kept in view or incorporated in the
allotment letters. The management of NPF issued 91 + 29 = 120
allotment letters to his nominees and thus allotted 120
developed plots comprising land measuring 41 kanals. 21 plots
were allotted in the colony area i.e. sector E-11 of NPF and 99
allotment letters were issued on the proposed affiliated land
adjacent to the scheme. In response to this request Anjum Aqeel
Khan transferred 71 kanals land to NPF from 27.8.2003 to
10.6.2004.
(h)
On 25.8.2003 Anjum Aqeel Khan requested for affiliation
of 60 kanals land and given undertaking that he will pay
development charges as well. He did not provide land
documents like fard, aks shajra not even mentioning Qilla No.
or Khasra No. for proposed land offered for affiliation. He did
not given any undertaking for provision of land nor made any
specific agreement with NPF. The NPF officials Laeeq Ahmed
Khan Director Housing, Abdul Hannan, Addl. Director
Housing, Khuda Bukhsh Dy. Director Housing, Rafat Mustafa,
Dy Director (Budget & Accounts) recommended to accept this
request if Anjum Aqeel Khan is asked to get the land transferred
to NPF. Iftikhar Ahmed Khan MD/NPF approved this
recommendation. Anjum Aqeel Khan submitted a list of 61
nominees indicating the plot numbers. NPF allotted 61
developed plots comprising 33 kanals land. Out of this list 32
developed plots (comprising 20 kanals land) were allotted on
colony land and 28 developed plots (comprising 13 kanals land)
SMC No. 11/2011
53
were allotted on proposed affiliated land on 10.9.2003. In
pursuance of this request he did not provide any land although
reminded again and again every time he reiterated his
commitment.
(i)
On 29.4.2004 Anjum Aqeel Khan requested for affiliation
of 50 kanals land and gave undertaking that he will pay
development charges. He did not provide land documents like
fard, aks shajra not even mentioning Qilla No. or Khasra No.
for the proposed land offered for affiliation. He did not give
any undertaking for provision of land nor made any specific
agreement with NPF. NPF officials Khuda Bakhsh and Abdul
Hannan recommended the proposal and MD Ch. Iftikhar
Ahmed Khan approved it on 11.5.2004. He submitted a list of 91
typed and 4 hand written (95) nominees. The allotment letters
(by Ch. Iftikhar Ahmed Khan MD/NPF) were issued on
14.5.2004 to 95 nominees of Anjum Aqeel Khan. NPF allotted
95 developed plots comprising 73 kanals land out of which 57
developed plots comprising about 39 kanals land allotted in
colony area and 38 plots comprising about 34 kanals land on
proposed affiliated land.
(j)
On 9.9.2004 Anjum Aqeel Khan surrender 25 allotment
letters of plots issued on 14.5.2004 with the request that 5 plots
should be adjusted at another place. He surrendered 20
allotment letters (issued on 14.5.2004) and requested that this
area should be declared Flat Area. Mr. Khuda Bakhsh
recommended the proposal and Abdul Hannan Addl. Director
observed “since there is no financial involvement on part of
NPF, hence the request may please be approved”. Mr. Sikandar
Shaheen (Secretary) instead of Director Housing signed and
marked the file without any remarks and sent to MD. It was
approved by the MD on 6.10.2004. In pursuance of approval
24367 Sq.Yds (48 kanals) land was allotted to Anjum Aqeel
Khan on 14.10.2004 as commercial area. It is pertinent to
mention to that Anjum Aqeel Khan had not requested for
allotment of 48 kanals land and this land was allotted to Anjum
Aqeel Khan in lieu of proposed affiliated land of 50 kanals
(request dated 29.4.2004). By now NPF allotted 48 kanals
SMC No. 11/2011
54
developed plots and 48 kanals commercial area a total of 96
kanals land against of fake request of 50 kanals affiliation. Mr.
Abdul Hannan is on record to have given a certificate to the
effect that Anjum Aqeel Khan has paid the development charges
so possession should be handed over to him. Whereas Anjum
Aqeel Khan had not paid any development charges for the
commercial area till date. It was a fraudulent transaction
planned and executed by Anjum Aqeel Khan, Khuda Bakhsh and
Abdul Hannan. MD was probably misled by the strong
recommendation of Deputy Director and Addl. Director but it
does not absolve him from the responsibility being the final
authority. As per record all the allotment letters issued to the
nominees of Anjum Aqeel Khan were signed by Iftikhar Ahmed
Khan Managing Director/NPF and Laeeq Ahmed Khan Director
Housing/NPF.
The Inquiry Officer Mr. Zafar Ahmad Qureshi, has further stated in
his report that following general irregularities have been
committed in the purchase and affiliation of the land in question.
These acts on the part of alleged persons are without any legal
justification:-
i.
Duplicate / triplicate transactions of sale / purchase were made
regarding the land provided to NPF by Anjum Aqeel Khan.
ii.
All payments were made by NPF to Anjum Aqeel Khan in
advance and unlimited time was given for provision of land
without any plausible justification.
iii.
The plots on developed colony land were allotted to the
nominees of Anjum Aqeel Khan without getting corresponding
land transferred in the name of NPF.
iv.
All the transaction of affiliation and allotment of land were
without any formal agreement or undertaking to provide the land
to NPF.
SMC No. 11/2011
55
v.
The requests of Anjum Aqeel Khan were, for the allotment of
plots to his nominees on proposed affiliated land, but plots were
allotted on colony land also without any plausible reason.
vi.
No formal request of Anjum Aqeel Khan is available on record
for allotment of plots to his nominees on NPF colony land.
vii.
Allotment of 95 plots comprising 73 kanals land against a fake
request of affiliation of 50 kanals land.
viii.
Allotment of 48 kanals commercial land against surrender of 20
allotment letter of 20 kanals land.
ix.
Commercialization of a residential piece of land measuring 48
kanals without consideration.
x.
Iftikhar Ahmed Khan MD/NPF and Laeeq Ahmed Khan
DH/NPF issued irrevocable allotment letters to the nominees of
Anjum Aqeel Khan. The allotment letters should have been
subject to the provision of land by Anjum Aqeel Khan. So in case
of non-fulfillment of his commitment, NPF should have been in a
position to cancel these allotment letters.
Assessment of the outstanding liabilities of Anjum Aqeel
Khan
Sr.
No.
Description
If
Crystal
Court
Surrendered
If
Crystal
Court
not
Surrendered
1.
Land allotted by NPF (developed
plots) To the nominees of Anjum
Aqeel Khan
170-K
170-K
2.
Crystal Court (Commercial land)
48-K
00-K
3.
Net
land
allotted
by
NPF
developed plots (In colony area &
proposed affiliated land)
122-k
170-k
4.
Add: Wastage calculated as per
CDA Rules
104-K
145-K
5.
Total shortage of affiliated land
54:46
226-K
315-K
6.
Add: Shortage of land in purchase 45-K
45-K
SMC No. 11/2011
56
7.
Less: affiliated land transferred to
NPF by land linkers
71-K
71-K
8.
Net outstanding shortage of land
200-K
289-K
30.
During the course of inquiry, Anjum Aqeel Khan was
confronted with the record of procurement of land by the inquiry
officer as well as the allegations against him. Said Anjum Aqeel
Khan after admission of the allegations of procurement of land
executed an agreement in favour of NPF which reads as under:-
“In order to resolve my dispute with the NPF
regarding the supply of land for the NPF Scheme in
Sector E-11, Islamabad, I solemnly undertake to abide
by the following terms and conditions:
1. I was allotted a piece of land by NPF vide letter No.
HD/28/NPF/2004/4517 dated 14.10.2004 in NPF
Housing Scheme E-11, Islamabad. This piece of land
is named as Crystal Courts. Out of the land
mentioned in this letter, NPF had the ownership of
only 22 kanals.
2. I voluntarily settle and surrender this property
measuring 22 kanals of Crystal Courts in favour of
NPF and handover the possession with immediate
effect. Henceforth, I or any of my legal heirs will not
have any sort of claim over this property and any
claim over this property will not be agitated by me or
any of my legal heirs at any forum in future.
3. I will immediately withdraw and Stay order / the
Court case filed by me against NPF concerning this
property in Civil Court at Islamabad.
4. In today’s meeting with NPF, it has been found that
land measuring 126 kanals 14 marlas is due against
SMC No. 11/2011
57
me in this scheme. At present, I am not in a position
to provide this land to NPF. I undertake to pay the
price of this land to NPF. I undertake to pay the price
of this land to NPF @ rates prevailing in the vicinity
in the year 2004 within 01 year up prevalent rate of
land.
5. This rate would be determined by a committee
constituted by the Ex-officio Chairman of NPF
(Secretary Interior).
6. Previously, NPF has cancelled the allotment letters of
my 14 nominees. These plots have been subsequently
re-allotted to police beneficiaries / fresh allottees and
restore all the previous allotments.
7. NPF would compensate the rest of the affecttees who
had got the allotment letters of residential plots and
could not get plots due to non-availability of land. I
would not have any ability of the affecttees.
8. This settlement would be treated as full and final
settlement between me and NPF regarding the supply
of land to NPF for NPF Housing Scheme in Sector E-
11, Islamabad.
The Inquiry Officer Mr. Zafar Ahmad Qureshi also recorded the
statements of Iftikhar Ahmed Khan, ex-MD, Laeeq Ahmed Khan,
ex-Director Housing, Abdul Hannan, ex-Addl. Director Housing,
Khuda Bukhsh, ex-Deputy Director Housing and Anjum Aqeel
Khan. All the officers / officials of NPF had stated before the
Inquiry Officer that they had rendered their services honestly and
had left no stone unturned to make this scheme a reality. They had
further stated that they had never obtained any personal gain at
SMC No. 11/2011
58
any stage. Laeeq Ahmed Khan had pointed out that during his
incumbency as Director Housing, he had written a letter to Anjum
Aqeel Khan in which he pointed out the short fall of land and asked
Anjum Aqeel Khan to provide the additional land to bridge this
shortfall.
31.
On 27.5.2011, an undertaking on a stamp paper of Rs.
500 has been executed by Anjum Aqeel Khan in favour of NPF.
This undertaking/settlement agreement is reproduced below:
“In order to resolve my dispute with the National
Police Foundation (NPF) regarding the purchase,
affiliation and possession of land for the National
Police Foundation Scheme in Sector E-11, Islamabad.
I, Anjum Aqeel Khan son of Khuda Dad Khan r/o Golra
Sharif, Islamabad, solemnly undertake to abide by the
following terms and conditions:
(i)
I was allotted a piece of land by NPF vide letter
No. HD/28/NPF2004.4517 dated 14.10.2004 in
NPF Housing Scheme, E-11, Islamabad. This piece
of land measuring 24,367 Sq. yds. Is named as
Crystal Courts. Out of the land mentioned in this
letter, through negotiation and settlement first
time it came on record that 23 kanals land (11,949
sq. Yds.) is belong to NPF.
(ii)
I voluntarily settle and surrender this property
measuring approximately 23 kanals (11,949 sq.
yds) of Qilla Nos. 229 (7 kanals 3 marlas), Qilla
No. 230/1 (1 kanal 18 marlas) and Khasra No. 75
& 76 (13 kanals 9 marlas) in favour of NPF and
handover the possession with immediate effect.
SMC No. 11/2011
59
Henceforth, I, or any of my legal heirs will not
have any sort of claim over this property and any
claim over this property will not be agitated by
me or any of my legal heirs at any forum in
future.
(iii) That I, Mr. Anjum Aqeel Khan son of Khuda Dad
Khan is solemnly responsible for remaining land
measuring 25 kanals (12,418 sq.yds) of Crystal
Courts. National Police Foundation has no
liability whatsoever for any legal / illegal
transaction after or before handing over the
possession of approximately 23 kanals (11,949 sq.
yds) land to NPF from Crystal Courts as per Qilla
and Khasra numbers mentioned above in Para
(ii), which is already in the name of NPF as per
CDA revenue record.
(iv) I will immediately withdraw the Stay order / the
court case filed by me against NPF concerning
this property in Civil Court at Islamabad.
(v)
In today’s meeting with NPF, it has been found
that land measuring 126 kanals 14 marlas is due
against me in this scheme. At present, I am not in
a position to provide this land to NPF @ rates
prevailing in the vicinity in the year 2004 within
01 (one) year.
(vi) This rate would be determined by the Chairman of
NPF (Secretary Interior) in consultation with the
Members of the Committee of Administration.
(vii) Previously, NPF had cancelled the allotment
letters dated 5.11.2010 of my nominees of any
other. These plots have been subsequently re-
SMC No. 11/2011
60
allotted to police beneficiaries, would be restored
immediately.
(viii) I, voluntarily assure with the cooperation /
assistance of Mr. Tahir Ahmad, Mr. Masroor
Sarwar Khan and Mr. Tahir Mahmood Khan to
solve the financial burden of 59 affectees by
affiliation of 22 kanals land to accommodate 59
affectees.
(ix) This settlement would be treated as full and final
settlement between me and NPF regarding the
purchase, affiliation and possession of land to
NPF for NPF Housing Scheme in Sector E-11,
Islamabad.”
32.
On 26.5.2011, another agreement for the affiliation of
land to settle the claims of 59 effecttees was signed after lapse of
eleven years. In this agreement first party is Deputy Director
Housing, NPF whereas second party are the three nominees of
Anjum Aqeel Khan namely Mr. Nisar Ahmed son of (late) Dilbar
Khan, Mr. Tahir Mehmood Khan son of (late) Muhammad Afzal
Khan and Mr. Masroor Sarwar Khan s/o Rana Muhammad Sarwar
Khan. All the signatories / parties acknowledge as follows:
1. Land measuring 11 kanals 13 marlas (7,048 square yards)
land was transferred to NPF on 18.8.2010 in Sector E-11
Islamabad, out of which 10 kanals land was transferred by
Mr. Nisar Ahmed and 1 kanals 13 marlas land by Mr. Anjum
Aqeel Khan.
2. The second part undertakes to transfer additional land of
about 9 kanals including 2 residential plots making total of
SMC No. 11/2011
61
about 22 kanals. This whole land shall be affiliated by NPF
and converted into Commercial area.
3. According to the submitted layout plan, a total plots of 21 are
achieved as follows:
a) Plot Size 40’X60’ : total number 17
b) Plot Sized 60’X60’ : total number 02
c) ODD Size plots : total number 02
Terms and Conditions for Settlement
1. Mr. Anjum Aqeel Khan has recommended Mr. Tahir
Mehmood Khan son of (late) Muhammad Afzal Khan, to
provide & transfer additional land to NPF for affiliation.
2. Mr. Tahir Mehmood Khan is providing additional land
measuring about 9 kanals (or so), including 2 residential
plots (plot No. 786-A measuring 40’X70’ and Plot No. 822
measuring 50’X90’) that Mr. Tahir Mehmood Khan would
purchase from his own sources, adjacent to & adjoining the
already transferred land of 11 kanals & 13 marlas in Sector E-
11 Islamabad. Thus the total land would become about 22
kanals or so. This whole land will be affiliated by NPF and
converted into Commercial area.
3. Against the transfer of said 9 kanals additional land, Mr.
Tahir Mehmood Khan and Mr. Masroor Sarwar Khan has
reached an understanding that 5 plots each measuring
40’X60’ including the front plot on the left side of the
commercial area (plot Nos. C-1 to C-5 as per layout plan
submitted for approval) will be allotted to Mr. Tahir
Mehmood Khan or his nominee(s). Remaining all plots shall
be allotted to Mr. Masroor Sarwar Khan or his nominees,
according to their desire, to accommodate 59 affectees and to
pay off the owner / allottee of Plot No. 822.
4. Mr. Tahir Mehmood Khan would provide additional land, as
mentioned above, to NPF for affiliation within one month of
signing of this settlement agreement of 59 affectees (7 kanals
+ 2 residential plots).
SMC No. 11/2011
62
5. The total plots towards the affectees fund would be 10 each
measuring 40’X60’ or equivalent affiliated commercial area.
Mr. Masroor Sarwar Khan, in good faith & voluntarily,
undertakes that he would pay-off or reach an understanding
with all the 59 affectees, within 45 days of approval of layout
plan or as soon as possible.
6. A mechanism has been decided that after surrendering
allotment of 6 affectees of NPF, NPF would transfer &
handover possession of one commercial plot measuring
40’X60’ (or equivalent affiliated commercial land) shall be
allotted / transferred to Mr. Masroor Sarwar Khan against
surrendering 6 allotments of affectees, totaling to 10 plots.
7. Mr. Nisar Ahmed (plot Nos.` C-11 to C-16) and Mr. Masroor
Sarwar ( any plot of NPF choice) shall be allotted “Irrevocable
Allotment Certificates” immediately upon signing of this
agreement, as per “provisional allotment” dated 5.1.2011.
Additionally Mr. Tahir Mehmood Khan or his nominee(s)
shall also be allotted “Irrevocable Allotment Certificates” for
his share of plots numbering C-1 to C-5 immediately upon
signing of this agreement.
8. Mr. Nisar Ahmed is fully authorized to sell his allotted 6
commercial plots each measuring 40’X60’, in accordance with
provisional allotment dated 5.11.2011, in the market and these
plots are free from any encumbrances or legal complications
of any kind over these plots of NPF.
9. Mr. Masroor Sarwar Khan is fully authorized to generate
funds from its own sources or commit sales of NPF securitized
allotted plots to any third party to generate finances to pay-
off affectees. But, these plots will only be allotted to Mr.
Masroor Sarwar Khan or his nominee only after paying off
affectees according to this agreement.
10. It is agreed that to generate better price of the sales of the
plots, Mr. Masroor Sarwar Khan in collaboration with NPF
or under management of NPF, can invite auction of sales of
SMC No. 11/2011
63
securitized plots using NPF platform, sales proceeds of which
shall remain securitized under NPF unless all affectees are
paid off. Such auction shall be organized by Mr. Masroor
Sarwar Khan through his company MSK International as
“Settlement Manager / Advisor. Mr. Masroor Sarwar Khan,
Mr. Nisar Ahmed and Mr. Tahir Mehmood Khan can also sell
their respective allotted plots through same auction.
11. The development of the commercial area shall commence
within 7 days or approval of layout plan and transfer &
possession of additional land by Mr. Tahir Mehmood Khan.
The complete development charges shall distributed upon all
allotted plots, proportionately, of Mr. Masroor Sarwar, Mr.
Nisar Ahmed and 10 plots of affectees fund. No. Development
charges shall be claimed from Mr. Tahir Mehmood Khan.
12. After signing of this agreement, 23 allotment letters would be
restored as mentioned in the undertaking agreement signed
between Mr. Anjum Aqeel Khan and NPF on 22.2.2011.
13. After the transfer of additional 9 kanals (7 kanals and 2
residential plots) or so land, the total land transferred by Mr.
Tahir Mehmood Khan would be about 11 kanals for the above
affiliation.
14. The total liability towards NPF would be 12 kanals (10 + 2
kanals). Therefore, this land should be exchanged by NPF to
Mr. Tahir Mehmood Khan having Khasra Numbers 111, 113,
114, 116, 127, 132, 136 (measuring 12 kanals) with the land of
NPF that is not under possession of NPF’s Qilla Numbers 430
& 434 (total 12 kanals),.
33.
Apart from the aforesaid illegalities committed by the
office bearers of the National Police Foundation in connivance of
Anjum Aqeel Khan of M/s. Land Linkers, the allotment of plots in
both the aforesaid housing schemes was made in violation of the
bye-laws / terms and conditions of the said schemes. As already
SMC No. 11/2011
64
held the National Police Foundation was established only for the
benefit of the poor and needy persons under sub section (1) of
Section 4 of the Charitable Endowments Act, 1890, thus, all the
property of the said foundation vest in the treasurer of the
Charitable Endowments for Pakistan and was in trust of the
Treasurer but the persons at the helm of affairs in the National
Police Foundation allotted plots not only to those persons who
were not at all entitled for allotment thereof but also allotted plots
to every member of the family of those police officers who were at
the helm of affairs in the said Foundation. According to the
meaning of the Charitable the benefit of the said schemes could
have been granted only to the poor, martyred and needy serving or
retired and dependents of such servants of the said Foundation or
those who had sacrificed their lives for the country.
34.
In such circumstances we are of the view that the
Committee of Administration of the Foundation has violated the
purpose of establishment of this charitable institution under the
garb of generation of funds and has committed gross illegalities, in
order to favour the higher police officers and their families by
allotment of plots even to private persons and other persons who
were not entitled to the allotment of plots. Instead of selling the
plots in open market and for the purpose of generating funds for
the National Police foundation to achieve the object of the
establishment of the said organization for the help of the needy and
the heirs of the martyrs.
SMC No. 11/2011
65
35.
In the light of the objective of the Foundation, which
has been elaborated in the foregoing paras, it is evident that the
Foundation’s real purpose was to cater for the health, educational
and charitable matters for the officials of the police department and
their dependants. However, in the garb of such objectives of the
National Police Foundation the administration of the NPF decided
to enrich their own pockets and to dole away the plots to the higher
police officials and other higher government officials for a
consideration which was not inconsonance with the market price
prevailing at that time and the police officials and that other
government officials have been allotted more than one plot.
36.
During proceedings on 22.3.2012 Mr. Humayun Raza
Shafi, M.D. National Police Foundation has submitted a list under
his signatures according to which more than one plot have been
allotted to several police & government officials and in addition to
them several plots have been allotted to other civilians. Details of
which are given below:
Srl.
No.
Name & Designation
Plot No. &
Size
Scheme
Date of
Allotment
Cost of
Land by
NPF
1.
Mr. Abdul Qadir Haye,
I.G.
379(50x90)
E-11
6.4.2003
1130000.00
2.
Mrs.
Shaheen
Qadir
Haye, wife of Abdul
Qadir Haye
380(50x90)
E-11
9.3.2002
1130000.00
3.
Mr. Abdur Razzaque,
I.G
480(50x90)
E-11
4.7.1998
1130100.00
4.
Mrs. Farhat Razzaque,
w/o
Mr.
Abdur
Razzaque
52(50x90)
E-11
4.7.1998
565100.00
SMC No. 11/2011
66
5.
Mr. Afzal Ali Shigri, I.G.
558(50x90)
E-11
31.7.2002
463933.00
6.
Mrs.
Mahlaqa
Shigri,
w/o Afzal Ali Shigri
557(50x90)
E-11
3.9.2001
1130100.00
7.
Miss Amna Rizvi, d/o
Afzal Ali Shigri
556(50x90)
E-11
3.9.2001
1130100.00
8.
Miss Mahlaiqa Shigri,
w/o Afzal Ali Shigri
1027-B
(35x65)
O-9
4.11.2004
250100.00
9.
Mis amna Shigri, d/o
Afzal Ali Shigri
1026-
B(35x65)
O-9
4.11.2004
250100.00
10.
Mrs. Gulshan Iftikhar,
w/o Iftikhar Rasheed,
I.G.
1011(50x90)
E-11
11.11.2002
1575100.00
11.
Miss Sheze Iftikhar, d/o
Iftikhar Rasheed, I.G.
E-11
10.5.2002
1575100.00
12.
Mr. Kaleem Iman, I.G.
661(50x90)
E-11
14.2.2002
1690100.00
13.
Mrs. Ayusha Hanif w/o
Kaleem Imam, I.G.
1041(50x90
)
E-11
22.4.2003
1690100.00
14.
Mr.
Muhammad
Rafique Haider, I.G.
485(50x90)
E-11
4.7.1988
1130100.00
15.
Mrs. Nabeela Rafique
Haider
486(50x90)
E-11
4.7.1998
1130100.00
16.
Rana Altaf Majeed, I.G.
470(50x90)
E-11
4.7.1998
1200600.00
17.
Mrs. Salwa Rana
469(50x90)
E-11
4.7.1998
1130100.00
18.
Saiyed Mohib Asad, I.G.
643-
C(50x90)
E-11
4.7.1998
393433.00
19.
Mrs. Nigar Mohib, wife
of Saiyed Mohib Asad,
I.G.
722(50x90)
E-11
22.8.2002
1575100.00
20.
Syed Abid Abbas, DSP
251(35x65)
E-11
4.7.1998
565100.00
21.
Mrs. Romana Abid, w/o
Abid Abbas, DSP
774(35x65)
E-11
11.11.2002
787600.00
22.
Mrs. Romana Abid, w/o
Abid Abbas, DSP
430-
X(50x90)
O-9
15.4.2003
500100.00
23.
Syed Abid Abbas, DSP
82(12x20)
O-9
8.12.2001
56100.00
24.
Mr. Haq Nawaz Kiani,
SP
807(35x65)
E-11
14.2.2002
787600.00
25.
Mrs.
Pakeeza
Nawaz
Kiani, w/o Haq Nawaz
Kiani, SP
674(50x90)
E-11
14.2.2002
1575100.00
26.
Miss Hina Nawaz, d/o
Haq Nawaz Kiani, SP
540(50x90)
E-11
4.7.1998
1130100.00
27.
Mr. Behram Tariq, I.G.
29(50x90)
E-11
4.7.1998
1130100.00
28.
Mrs.
Farida
Sultana,
w/o Behram Tariq, I.G.
29(50x90)
E-11
4.7.1998
1130100.00
29.
Ch. Muhammad Akmal,
546(50x90)
E-11
4.7.1998
1130100.00
SMC No. 11/2011
67
Inspector
30.
Mrs.
Farzana
Akmal,
w/o
Ch.
Muhammad
Akmal, Inspector
545(50x90)
E-11
4.7.1998
1130100.00
31.
Mr. Wajahat Latif, I.G.
476(50x90)
E-11
4.7.1998
1200600.00
32.
Mr.
Ahmad
Latif,
Banker,
s/o
Wajahat
Latif
477(50x90)
E-11
4.7.1998
1200600.00
33.
Mr. Mohammad Nawaz
Malik, I.G.
632-
F(50x90)
E-11
14.2.2002
1575100.00
34.
Mrs.
Surriya
Nawaz,
w/o Mohammad Nawaz
Malik
632-
G(50x90)
E-11
20.2.2002
1575100.00
35.
Mr. Naseer Ali, Banker,
s/o Muhammad Nawaz
Malik
2112-
A(50x90)
O-9
11.9.2003
500100.00
36.
Mr.
Arif
Hussain,
Accountant,
s/o
Muhammad
Nawaz
Malik
2093-
T(50x90)
O-9
11.9.2003
500100.00
37.
Mr. Manzoor Ahmad,
I.G.
669
Sub-
1068(50x90
)
E-11
1.12.1999
1200600.00
38.
Mrs.
Qaisar
Sultana,
w/o Manzoor Ahmed
670(50x90)
E-11
1.12.1999
1130100.00
39.
Ch. Manzoor Ahmad,
I.G.
400-B
(35x65)
O-9
7.10.2011
251000.00
40.
Mr.
Zaheed
Waheed
Butt, Brig.
676(50x90)
E-11
29.3.2002
1575100.00
41.
Mrs. Zille Huma Dar,
w/o Zahid Waheed Butt,
Brig.
645(35x65)
E-11
29.3.2002
105400.00
42.
Mr. Muhammad Afzal
Rana, Lt. Col.
708(50x90)
E-11
20.2.2002
787600.00
43.
Miss. Sadia Afzal Rana,
d/o Muhammad Afzal
Rana
1035(50x90
)
E-11
11.11.2002
1500350.00
44.
Agha Baqir Ali , Foreign
Service Officer
871(50x90)
O-9
4.4.1991
240100.00
45.
Agha Sibtain Raza s/o
Agha Baqir Ali
873(50x90)
O-9
4.4.1991
240100.00
46.
Mr. Amjad Bashir, s/o
Mr. Muhammad Bashir
1845-
V(50x90)
O-9
26.2.2005
958100.00
47.
Miam Imtiaz Bashir, s/o
Mr. Muhammad Bashir
1845-
H(50x90)
O-9
25.2.2005
500100.00
48.
Mr. Shaukat Aziz, Ex-
Prime Minister
411(50x90)
E-11
20.8.2002
1105100.00
49.
Mr. Shaukat Aziz, Ex-
Prime Minister
357(50x90)
O-9
7.10.1990
245100.00
SMC No. 11/2011
68
50.
Mrs.
Rukhsana
Aziz,
w/o Shaukat Aziz, Ex-
P.M.
358(50x90)
O-9
7.10.1990
245100.00
51.
Mr. Israr Ahmed, I.G.
594(50x90)
O-9
22.10.1990
245100.00
52.
Mr. Israr Ahmed, I.G.
286(50x90)
E-11
4.7.1998
1105100.00
53.
Mrs. Maimoona Israr,
w/o Israr Ahmed
593(50x90)
O-9
22.10.1990
240100.00
54.
Mr.
Sagheer
Ahmed,
PIA
143(40x60)
O-9
10.1.2005
1066880.00
55.
Mrs. Shaista Sagheer,
wife of Sageer Ahmad
76(12x20)
O-9
19.12.2002
106780.00
56.
Malik
Nazir
Ahmad,
Banker
34(15x30)
O-9
28.12.1999
104100.00
57.
Mrs. Nasim Akhtar Naz,
w/o Malik Nazir Ahmad
33(15x30)
O-9
28.12.1999
104100.00
58.
Syeda Farzana Hussain,
w/o
Syed
Shaukat
Hussain
130(15x30)
O-9
28.10.2002
200100.00
59.
Syeda Naureen Batool,
d/o
Syed
Shoukat
Hussain
122(15x30)
O-9
28.10.2002
200100.00
60.
Mr.
Sulran
Azam
Temori, IG
718(50x90)
E-11
14.2.2002
1665100.00
61.
Mr.
Sultan
Azam
Temuri, DIG
88(12x20)
O-9
14.12.2001
56367.00
62.
Mrs. Rabia Temuri, w/o
Sultan Azam Temuri
160(15x30)
O-9
4.11.2003
200100.00
63.
Mr.
Siraj
Din,
Businessman,
s/o
Muhammad Din
52(12x20)
O-9
18.7.2002
53434.00
64.
Mr.
Naik
Bakht
s/o
Muhammad Din
53(12x20)
O-9
18.7.2002
43434.00
65
Mrs.
Bilqees
Akhtar,
w/o Ghulam Ali
121(15x30)
O-9
18.10.2002
200100.00
66.
Miss Batool Akhtar, d/o
Ghulam Ali
113(15x30)
O-9
18.10.2002
200100.00
67.
Mr. Ahsan-ulHaq s/0
Abdul Aziz
109(15x30)
O-9
19.12.2002
200100.00
68.
Mr. Rizwan-ul-Haq s/o
Abdul Aziz
108(15x30)
O-9
19.12.2002
200100.00
69.
Mr.
Arif
Qayum,
Businessman
148(15x30)
O-9
17.8.2011
200100.00
70.
Mrs. Najma Arif, w/o
Arif Qayyum
147(15x30)
O-9
18.6.2003
200100.00
71.
Mr. Humayoun Javaid,
® Director FIA
184(12x20)
O-9
22.2.2010
1491000.00
72.
Mr. Humayoun Javaid,
185(12x20)
O-9
22.2.2010
1491000.00
SMC No. 11/2011
69
® Director FIA
73.
Mr.
Fazal
Mehmood
Malik, Businessman
187(12x20)
O-9
22.2.2010
1521000.00
74.
Mr.
Fazal
Mehmood
Malik, Businessman
188(12x20)
O-9
22.2.2010
1521000.00
75.
Mr. Zaheer Mahmood,
Businessman,
s/o
Mahmood Khan
2093-B
(50x90)
O-9
8.3.2003
100.00
76.
Mr. Mudasser Sheraz,
s/0 Mehmood Khan
2093-C
(50x90)
O-9
8.3.2003
100.00
77.
Mrs. Ghulam Sughra,
w/o
Mr.
Muhammad
Bashir Shakir, Captian
119-K
(50x90)
O-9
31.3.2003
500100.00
78.
Mr. Jawad Bashir, s.o
Muhammad
Bashir
Shakir
119-L
(50x90)
O-9
31.3.2003
500100.00
79.
Mrs. Zahida Parveen,
w/o Ch. Imtiaz Ahmad
119-G
(50x90)
O-9
1.4.2003
500100.00
80.
Miss. Zehra Imtiaz, d/o
Ch. Imtiaz Ahmad
119-H
(50x90)
O-9
1.4.2003
500100.00
81.
Syed
Muhammad
Shahwaze Abbas Sherazi
s/o Syed Safeer Hussain
Shah Sherazi, DSP
698-L
(50x90)
O-9
25.2.2003
100.00
82.
Syedia
Saffia
Kazmi,
w/o
Syed
Safeer
Hussain Shah Sherazi,
DSP
698-N
(50x90)
O-9
25.2.2003
100.00
83.
Syed Ibn-e-Ali Rizvi, s/o
Syed Sardar ali Shah
163-H
(50x90)
O-9
1.3.2003
450100.00
84.
Mrs. Narjis Batool Kazi,
Doctor, w/o Syed Ibn-e-
Ali Rizvi
163-G
(50x90)
O-9
1.3.2003
450100.00
85.
Mr. Jehangir Akhtar s/o
Noor Mohammad
400-M
(50x90)
O-9
31.3.2003
500100.00
86.
Mr.
Tanveer
Akhtar,
Businessman, s/o Noor
Muhammad
400-N
(50x90)
O-9
31.3.2003
500100.00
87.
Mr. Babar Mumtaz, DSP
450-K
(50x90)
O-9
31.3.2003
500100.00
88.
Mr. Amir Mumtaz s/o
Sardar
Mumtaz
Ali
Khan
450-L
(50x90)
O-9
31.3.2003
500100.00
89.
Mr. Muhammad Farhan
Ghauri s/o Muhammad
Sharif Ijaz Ghauri
99-D
(50x90)
O.-9
27.1.2004
337500.00
90.
Mr. Muhammad Faisal
Ghauri, s/o Muhammad
Sharif Ijaz Ghauri
99-F
(50x90)
O-9
27.1.2004
337500.00
91.
Mr. Akhtar Mahmud,
Businessman
s/o Ch.
2150
O-9
16.9.2002
450100.00
SMC No. 11/2011
70
Khuda Dad Khan
(50x90)
92.
Mrs. Naila Akhtar, W/o
Akhtar Mahmud
2151
(50x90)
O-9
16.9.2002
450100.00
93.
Mr. Muhammad Afzal
Khan, S.J. (R.)
2096
(50x90)
O-9
4.9.2002
450100.00
94.
Miss Atika Khan, d/o
Muhammad Afzal Khan
2093
(50x90)
O-9
4.9.2002
450100.00
95.
Mr. Mehmood Farooq
Khan,
NRSP,
s/o
Muhammad
Akbar
Khan
2105
(50x90)
O-9
15.6.2001
450100.00
96.
Mr.
Masood
Akbar,
NRSP, s/o Muhammad
Akbar Khan
2106
O-9
15.6.2001
450100.00
97.
Mr.
Abdul
Sattar,
Businessman s/o Abdul
Ghafoor
451-R
(50x90)
O-9
1.4.2003
100.00
98.
Mrs.
Shafqat
Sattar,
W/o Abdul Sattar
451-U
O-9
1.4.2003
100.00
99.
Mr. Mohammad Ahsan
Shahzad,
s/o
Abdul
Sattar
451-T
(50x90)
O-9
1.4.2003
100.00
100. Mr. Arshad Munir, s/o
Abdul Ghafoor
451-S
(50x90)
O-9
1.4.2003
100.00
101.
Mr.
Tayyab
Aziz,
Businessman, s/o Abdul
Aziz
451-P
(50x90)
O-9
1.4.2003
100.00
102.
Mrs. Rukhsana Tayyab
w/o Tayyab Aziz
451-N
(50x90)
O-9
1.4.2003
100.00
103.
Hafiz S.d. Jamy, IG (Ex-
MD NPF)
446(50x90)
E-11
4.7.1998
1188920.00
104.
Mr.
Hassan
Naveed
Jamy,
Engineer,
s/o
Hafiz S.d. Jamy
255(50x90)
O-9
10.10.1990
240100.00
105.
Mr. Gul Najam Jamy,
Govt. Service, s/o Hafiz
S.d. Jamy
813(50x90)
O-9
11.10.1990
245100.00
106.
Mr. I.M. Mohsin, I.G.
672(50x90)
E-11
14.2.2002
1130100.00
107.
Mr. I.M. Mohsin, I.G.
884(50x90)
O-9
19.2.1991
245100.00
108. Mr. Rajeel Mohsin, s/o
I. M. Mohsin
1021
(50x90)
E-11
11.11.2002
1575100.00
109.
Miss Nashita Mariyam,
d/o I. M. Mohsin
217-A
(50x90)
O-9
17.11.1992
280100.00
110.
Mr. Usman Amin Mian
s/o Mian Muhammad
Amin (I.G.) Ex-MD NPF
457(50x90)
E-11
21.3.2000
1200600.00
111.
Mr. Afnan Amin Mian,
Engineer,
s/o
Mian
Muhammad Amin (I.G.)
606
(50x90)
E-11
21.3.2000
1130100.00
SMC No. 11/2011
71
Ex-MD NPF
112.
Dr.
Sikandar
Amin
Mian, Doctor, s/o Mian
Muhammad Amin (I.G.)
Ex-MD NPF
605(50x90)
E-11
4.7.1998
1130100.00
113.
Dr.
Kamran
Fazal,
DD/FIA, son in law of
Mian Muhammad Amin
(I.G.) Ex-MD NPF
541(50x90)
E-11
4.7.1998
1200600.00
114.
Dr. Naila Kamran, D/o
Mian Muhammad Amin
(I.G.) Ex-MD NPF
542(50x90)
E-11
4.7.1998
1200600.00
115.
Mrs.
Silva
Nishat,
Mother of son in law of
Mian Muhammad Amin
(I.G.) Ex-MD NPF
479(50x90)
E-11
4.7.1998
1200600.00
116.
Mr. Laeeq Ahmad Khan
DIG
456
(50 X 90)
E-11
30.3.2002
541766.00
117.
Mr. Laeeq Ahmad Khan
DIG
289
(50 X 90)
E-11
04.07.1998
1132100.00
118.
Mrs. Hina Asher Khan
d/o Laeeq Ahmed Khan
57
(12 X 20)
O-9
22.11.2002
106780.00
119.
Mr. Umar Alam Khan
son of Laeeq Ahmed
Khan, Marketing
Manager NPF
4
12 X 20)
O-9
30.3.2002
56100.00
120.
Mr.Mrs. Aisha Khanum
wife of Umar Alam
Khan
5
(12 X 20)
O-9
01.04.2001
56100.00
121.
Mr. Sikandar Hayat
Shaheen, DIG
511
(50 X 90)
E-11
28.03.2002
580100.00
122.
Mrs. Riffat Shaheen wife
of Sikandar Hayat
Shaheen
582
50 X 90
E-11
04.07.1998
1130100.00
123.
Miss Fatima Shaheen
d/o Sikandar Hayat
Shaheen
1273
(50 X 90)
O-9
17.06.2002
450100.00
124.
Dr. Amina Shaheen
(Lady Doctor) d/o
Sikandar Hayat Shaheen
400-B
(50 X 90)
O-9
17.06.2002
450100.00
125.
Mr.Muhammad Khawar
Saeed Brother-in-Law of
Sikandar Hayat Shaheen
797
(35 X 65)
E-11
27.12.2002
775100.00
126.
Mr. Abdul Hannan Ex-
Addl.Dir./NPF
512
(50 X 90)
E-11
30.03.2002
516766.00
127.
Mr. Abdul Mateen
Kamran, Businessman
son of Abdul Hannan
604
(50 X 90)
E-11
04.12.2002
1575100.00
128.
Mr. Faisal Hannan,
Businessman son of
Abdul Hannan
1006
(50 X 90)
E-11
11.11.2002
1575100.00
129.
Mr.Abdul Mateen
Kamran, Businessman
son of Abdul Hannan
137
(50 X 70)
O-9
14.5.2003
777877.00
130.
Mr. Faisal Hannan,
Businessman son of
Abdul Hannan
136
(50 X 70)
O-9
14.05.2003
77877.00
131.
Mr. Umar Hannan son
of Abdul Hannan
135
(50 X 70)
O-9
14.05.2003
777877.00
132.
Miss Aisha Hannan D/o
of Abdul Hannan
147
(50 X 70)
O-9
14.05.2003
777877.00
SMC No. 11/2011
72
133.
Mrs. Shahida Nasreen
wife of Khuda Bukhsh
138
(50 X 70)
(purchased)
O-9
13.05.2003
777877.00
134.
Mrs. Soban Bi wife of
Khuda Bukhsh
142
(40 X 60)
O-9
07.01.2005
1066780.00
135.
Mrs. Shahida Nasreen
wife of Khuda Bukhsh
752
(50 X 90)
(purchased)
O-9
07.02.1991
240100.00
136.
Mrs. Shahida Nasreen
wife of Khuda Bukhsh
1074
(35 X 65)
O-9
07.02.1991
122600.00
137.
Mr. Khuda Bukhsh Ex-
DDH/NPF
149
(50 X 70)
O-9
13.05.2003
777877.00
138.
Mrs. Shahida Nasreen
wife of Khuda Bukhsh
124
(15 X 30)
O-9
13.01.2003
200100.00
139.
Mr. Khuda Bakhsh Ex-
DDH/NPF
513
(50 X 90)
E-11
04.07.1998
541766.00
140.
Mr. Khuda Bakhsh Ex-
DDH/NPF
426
(50 X 90)
E-11
04.07.1998
1025575.00
141.
Mr. Asad-ur-Rehman
son of Khuda Bukhsh
409-A
(50 X 90)
E-11
05.09.2003
1575100.00
142.
Mr. Khuda Bakhsh Ex-
DDH/NPF
212
(35 X 65)
E-11
(Member
ship)
04.07.1998
565100.00
143.
Miss Nasira Naureen
d/o Khuda Bukhsh
644
(50 & 90)
E-11
(purchas
ed)
21.02.2003
2871300.00
144.
Mr. Khuda Bakhsh, Ex-
DDH/NPF
211
(35 X 65)
E-11
Members
hip)
04.07.1998
565100.00
145.
Mr.Muhammad Zaman
138
(15 X 30)
O-9
27.05.2003
200100.00
146.
Mr. Muhammad Zaman
Ex-Site Engineer/NPF
298
(25 X 45)
O-9
02.08.2002
112600.00
147.
Mr.Muhammad Zaman
Ex-Site Engineer/NPF
303
(35 X 65)
E-11
04.07.1998
600350.00
148.
Mrs. Nayyar Rafat wife
of Syed Rafat Mustafa
69
(50 X 90)
E-11
04.07.1998
1130100.00
149.
Syed Rafat Mustafa ex-
DD/B&A
510
(50 X 90)
E-11
28.03.2002
516767.00
150.
Mrs. Bibi Hanifa wife of
Mumtaz Ellahi
100
(35 X 65)
E-11
04.07.1998
600350.00
151.
Mr. Mumtaz Ellahi ex-
PSO to MD/NPF
632-B
(50 X 90)
E-11
04.07.1998
1130100.00
152.
Mr. Mumtaz Ellahi ex-
PSO to MD/NPF
45
(35 X 65)
E-11
04.07.1998
565100.00
153.
Mr. Abdul Jamal Khan,
DF/NPF
514
(50 X 90)
E-11
28.03.2002
516766.00
154.
Mrs. Zarina Khan d/o
Abdul Jamal Khan
996
(50 X 90)
E-11
11.11.2002
1550100.00
155.
Mr.Muhammad Khan
Asstt:/NPF
206
(35 X 65)
E-11
04.07.1998
552600.00
156.
Mrs. Naseem Akhtar
wife of Muhammad
Khan
357
(35 X 65)
E-11
04.07.1998
552600.00
SMC No. 11/2011
73
37.
The above list clearly shows that the successive
Managing Directors of the NPF have allotted the plots to the police
officials not only over and above their entitlement but certain
civilians of their choices as well as military officials have been
allotted plots, who, even did not fall within the definition of the
beneficiaries as discussed in the preceding paras. Some of the
allottees in the above list have been allotted plots only for a sum of
Rs.100/- as shown at Srl. Nos. 75, 76, 81, 82, 97, 98, 99, 100, 101
and 102 of the list reproduced hereinabove.
38.
The Board of Directors of the Foundation while
establishing housing schemes did not at all fix the criterion by
making bye-laws / terms and conditions for allotment of plots in
the housing schemes and divided plots to their nears and dears
without there being any logic for such allotments. Even the Board
of Directors did not frame any rules / bye-laws for allotment of
plots to the general public and allotted plot to the persons of their
choice without having published in the newspapers the policy or
criteria regarding allotment of plots. The plots in the said scheme
were also not put to auction in accordance with law by the Board of
Directors, as such, the Board of Directors has been utilizing the
foundation for their personal gains for the benefit of their nears
and dears.
39.
It is also apparent from the record that the National
Police Foundation (NPF) was established purely for the welfare of
police officials but the officers at the helm of affairs in the
SMC No. 11/2011
74
Foundation allotted land worth billions of rupees at throwaway
prices i.e. for Rs.100/- only to the ruling elite, including generals,
bureaucrats, ambassadors, close relatives of top police officials and
well-connected civilians. The loot sale of a facility created for the
welfare of the poor cops has been going on in sectors E-11 and O-9
of Islamabad, which were purchased by the government-controlled
NPF on nominal prices for the benefit of all police forces in the
country. It has also been established on record that the privileged
ones
have
gobbled
up
everything,
generously.
Such has been the largesse of the NPF that some were allotted two
and even more, while for some senior police officers, selected
employees of the NPF and even civilians, floodgates of generosity
were opened to the extent that more than five plots and in certain
cases
more
than
ten
plots
were
given
to
one
family.
In one case, an NPF employee got eight plots from the Foundation
for himself and his family. There is a long list of police officials and
even others who got two or more than two plots in the name of
members of their families. All these allotments were made by
successive Managing Directors (MDs) of the NPF who were only
competent to allot one plot to each police official but they illegally
allotted plots to the civilians, other bureaucrats and military
personnel.
40.
As far as the arguments of learned counsel for the ex-
officials of the National Police Foundation that they had acted in
good faith for the benefit and interest of the Foundation and the
SMC No. 11/2011
75
alleged irregularities or lapses are not at all attributable to any
malafide or deliberate intent on their part, have no force at all for
the simple reason that the said ex-officials were in power at the
relevant time and that they made decisions detrimental to the
interest of the Foundation and its beneficiaries. They did not at all
make their efforts for the betterment and interest of the
Foundation rather allotted plots to their nears and dears who were
not at all entitled for such allotment. Even they failed to utilize the
funds of the Foundation according to the true spirit of the
constitution thereof, as such, they were fully responsible for the
acts and omission as highlighted by the inquiry officer in his report,
referred to hereinabove.
41.
As far as the case of Anjum Aqeel Khan is concerned,
suffice it to observe that a fact finding inquiry was conducted by an
honest and upright officer by associating all the concerned
including Anjum Aqeel Khan in the said inquiry wherein he had not
only admitted lapses on his part regarding loss to the Foundation
but also entered into agreements for making good the loss suffered
by the Foundation. Even learned counsel for Anjum Aqeel Khan in
his CMA No. 3742 of 2013 while summing up his arguments also
stated that Anjum Aqeel Khan stands ready and willing to abide by
the terms of the settlement agreement signed by him with the NPF.
42.
While taking up the issue of settlement agreement
dated 4.3.2013 arrived at between the Foundation and Anjum
Aqeel Khan of M/s Land Linkers during pendency of the matter
SMC No. 11/2011
76
before this Court in order to make up the loss suffered by the
Foundation at his hands, we are further fortified from the judgment
in the case referred supra (PLD 2011 S.C. 619) relevant portion
wherefrom reads as follows:
“25. A part of the argument vehemently canvassed at
the bar was that the main purpose of awarding
contract to this party was to get the CDA land cleared
off from the illegal occupants, which the CDA was
unable to do. In this behalf, reference was made to
agreements containing recitals of payment of different
sums of money made to certain persons in lieu of their
vacating such land. According to the aforesaid
agreements, huge sums of money running into millions
of rupees were allegedly paid. But, surprisingly, no
details of payment, such as bank drafts, pay orders,
cheques, etc. were given in the said agreements. It is
not believable that such large sums of money were paid
in cash. Besides, the agreements in question were
documents not registered in accordance with law.
There was, so to say, no valid proof of payment
furnished to our satisfaction. Further, no details of the
land allegedly in the illegal possession of the land
grabbers along with the names/number of encroachers
were provided. Thus, looked at from any angle,
the transaction appears to be a sham deal. The
whole exercise appears to be an eyewash.”
43.
In this view of the matter the agreements as afore-
stated appears to be another example of fraud with the Foundation
as there is no date for finalization / completion of the said
agreements, as such, the said agreements cannot be termed as good
in the eyes of law. The said agreements also appears to be a tricky
to the effect that the same might have been executed in order to
avoid the consequences of the criminal proceedings got initiated by
the Foundation against Anjum Aqeel Khan. The said agreement is,
therefore, held to be of no legal effect.
44.
In view of the above discussions, we hold that the Board
of Directors of the Foundation in connivance with Anjum Aqeel
SMC No. 11/2011
77
Khan of M/S Land Linkers with malafide intention gave a huge and
colossal loss to the Foundation which has surfaced in the enquiry
report of Mr. Zafar Ahmad Qureshi as stated above. Board of
Directors, instead of generating funds for the poor and needy
persons who were still facing hardships to acquire a roof to live
under has allotted the plots to their near and dears under the garb
to generate the funds.
45.
While summing up our discussion made above, we
declare that the National Police Foundation was a charitable
organization established under section 5 of the Charitable
Endowments Acts, 1890 aiming at helping the poor and for those
who had lost their lives while being in service or on duty in the
shape of education, medical relief etc. The Committee of
Administration/Rule Making Body was not authorized to make
rules in conflict with or in derogation of the substantive provisions
of law or the statute under which the rules are framed. Rules
cannot go beyond the scope of the Act but the rules/regulations
were made by the Committee of the Administration of the Police
Foundation according to their own whims and not according to the
purposes envisaged by the Charitable Endowment Act. The
persons mentioned in para 36 above have been allotted plots who
were not entitled for such allotment and in some cases they have
been allotted more than one plot or even a single plot without
observing any bye-laws/rules, as such, the allotment of plots was
not made by the Foundation in a transparent manner. Even some
SMC No. 11/2011
78
persons were allotted 1 kanal plot against payment of only Rs.
100/-. The allotment of plots in the National Police Foundation
can be termed a bad example of mal-administration as every officer
of the said foundation at the helm of affairs tried to loot the
Foundation by allotting plots to their nears and dears without
observing any codal formalities required for the purpose.
46.
Anjum Aqeel Khan who had entered into agreements
with the National Police Foundation to arrange land for
establishment of residential colony also got the developed plots
allotted against affiliation of land to various persons without paying
the development charges and accounting for the land as per
formula of the CDA.
47.
While making allotments of plots the then Board of
Directors allotted plots to their near and dears ignoring legal
heirs/family members of those police personnel who had laid down
their lives for this nation. Under the Constitution of Islamic
Republic of Pakistan no one can be permitted even though he be
the head of the department to purchase all the plots for himself, or
to give out the same as per his own choice. There are number of
examples of such malpractices on the part of the police high ups
who remained at the helm of affairs in the National Police
Foundation. Most of the poor policemen were left up without
allotment of any plot, though some have been allotted. The high
ups of the police hierarchy have purchased a good number of plots
SMC No. 11/2011
79
in violation of the purpose the Foundation was established for. Not
only that, they after having acquired such plots started business.
The Board of Directors without observing any legal or codal
formalities such like advertisement in the press and without
framing any bye-laws for the allotment of plots doled them out,
whereas poor policemen are still facing hardships to acquire a roof
to live under. Even the land earmarked for lawns/parks was also
converted into plots for allotment to the higher police officers of the
ranks of I.G., D.I.G., S.S.P. etc.
48.
For the foregoing reasons it is held and directed as
under:-
1.
The illegalities and irregularities in the procurement of
land committed by the Board of Directors in connivance
with Anjum Aqeel Khan are worst examples of
corruption and corrupt practices and all those who are
responsible are liable to be penalized in accordance
with the law of the land and also to make the loss good
by recovering the said loss through coercive measures.
2.
All the plots, one, two or more than that which have
been illegally and un-authorizedly allotted without
entitlement, as discussed above, to any person, whether
police officials, employees of NPF, other government
officials or the civilians, businessmen, etc. or their
dependants are declared to be illegally allotted and are
SMC No. 11/2011
80
thus cancelled forthwith. However, if they are
interested to retain the plots in their names they are
directed to pay price thereof according to the present
market value within a period of two months from today.
3.
Anjum Aqeel Khan or his nominee shall be entitled to
retain only those plots in lieu whereof he has given land
for being affiliated and not otherwise, that too subject
to payment of development charges according to the
nature of the plots within two months. In case he or his
nominee fails to pay the development charges within a
period of two months, he shall not be entitled to retain
them.
4.
Anjum Aqeel Khan is directed to fulfill his outstanding
liability of 126 kanals of land as undertaken by him
through agreement dated 27.5.2011 reproduced in para
No. 31 and if he is not in a position to provide 126
kanals of land to the Foundations then he will pay
present market price of 88 developed plots in
accordance with 54:46 ratio formula of CDA and
adopted by the Foundation within the period of two
months from today, otherwise law will take its own
course by initiating penal action as well as attachment
of all his property, moveable or immoveable and that of
his dependents.
SMC No. 11/2011
81
5.
The persons who are nominated for allotment of plots
by Anjum Aqeel Khan without having corresponding
land transferred in the name of NPF or who have filed
miscellaneous applications against Anjum Aqeel Khan,
shall not be allotted plots until and unless they are
found legally entitled to such allotment by way of
affiliation or through any other mode. They are at
liberty to launch any sort of proceedings against Anjum
Aqeel Khan, if so desired. However, it is clarified that
the Foundation will not be responsible for any act or
omission of said Anjum Aqeel Khan while nominating
the persons for allotment of plot in the Foundation.
6.
Any other shortfall of land is directed to be made up by
Anjum Aqeel Khan of M/s. Land Linkers.
7.
The Managing Director of the National Police
Foundation is directed to ensure compliance with the
aforesaid directions in letter and spirit within a period
of two months from today and submit compliance
report thereof to this Court, where-after the Auditor
General for Pakistan shall get the accounts of the
Foundation audited as well as transactions of allotment
of plots, affiliation of land and deposit of development
charges with the Foundation and submit report to this
Court within a month. He shall also submit audit
SMC No. 11/2011
82
report regarding receipts and payments by the
Foundation from the date of its creation till date.
49.
As a consequence of our above conclusion, it has been
found necessary to initiate proceedings against Anjum Aqeel Khan
and other responsible persons, whose reference has been made in
the preceding paras. Chairman NAB is directed to initiate the
proceedings under the NAB Ordinance, 1999 as amended,
promptly, so it may serve the deterrence of like minded people. It
is further directed that the progress repot shall be submitted by the
Chairman NAB through the Registrar of this Court for the action
taken by him within 90 days.
Chief Justice
Judge
Judge
Announced in Open Court
By Ijaz Ahmed Chaudhry, J.-
On 31.10.2013
At Islamabad
APPROVED FOR REPORTIG
(Zulfiqar)
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ
MR. JUSTICE GHULAM RABBANI
SUO MOTU CASE NO. 13 OF 2009
[Action on press clipping from the Daily
“Patriot”,
Islamabad
dated
04.07.2009
regarding
Joint
Venture
Agreement
between
CDA
and
Multi-Professional
Cooperative Housing Society (MPCHS) for
development
of
land
in
Sector
E-11,
Islamabad]
ON COURT NOTICE
For the CDA:
Mr. Khalid Anwar, Sr. ASC
Raja Abdul Ghafoor, AOR
Mr. Waqar Ali Khan, Director (Land)
For MPCHS:
Mr. Zulfiqar Khalid Maluka, ASC
Amicus Curiae: Mr. Muhammad Akram Sheikh, Sr. ASC
FOR THE APPLICANTS
CMA No. 4204/2009: Mr. M. Ikram Chaudhry, ASC
CMA No. 4686/2009: Dr. Aslam Khaki, ASC
Dates of hearing:
8th to 10th & 14th March, 2011
.-.-.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In December
2008, the Capital Development Authority (CDA) entered into a
Joint Venture Agreement (JVA) with M/S Multi Professional
Cooperative Housing Society (MPCHS) for development of 54
SMC 13-2009
2
acres of land located in northern strip of Sector E-11, Islamabad.
A news report appeared in the DAILY PATRIOT dated 04.07.2009
stating that prime land belonging to the CDA had allegedly been
given to MPCHS through an underhand deal. The press clipping
was registered as Human Rights Case No. 3557-G of 2009 vide
order dated 06.07.2009 passed by one of us (Iftikhar Muhammad
Chaudhry, CJ) and a report was called from the Chairman CDA. It
was, inter alia, stated in the report that originally CDA owned 78
acres of land at northern strip of Sector E-11, out of which 24
acres were utilized for adjustment of the outstanding claims of
the locals as per directions of the High Court and the remaining
land was under adverse possession, therefore, considering that
the said land would be consumed to settle the claims, which were
the subject matter of many petitions pending in different Courts,
CDA entered into the JVA with MPCHS. It was further stated that
in pursuance of decision of CDA Board, Expression of Interest
was invited from interested parties and after due consideration
and evaluation, the said JVA was signed. The matter was
registered as Suo Motu Case No. 13 of 2009 and was fixed in
Court.
2.
In the concise statement filed on behalf of the CDA, it
is submitted that in 1968, land measuring 654 acres in Golra
Revenue Estate comprising Sectors E-11 (203 acres), E-12 (36
acres), F-11 (45 acres), F-12 (77 acres) and Blue Area (293
acres)
was
exempted
from
acquisition
by
the
Federal
Government with the approval of Field Marshal Muhammad Ayub
SMC 13-2009
3
Khan, the then President of Pakistan. In 1969, the CDA acquired
land falling in Sector E-11 at a nominal cost of Rs.208/- per
kanal, but did not announce Award in respect of houses/built up
property nor any compensation/allotment of plots was made to
the affectees/occupants. In 1983, the CDA with the approval of
the then President of Pakistan decided to exchange and
consolidate in Sector E-11 the land of Golra Revenue Estate
situated in Sectors F-11, F-12, E-12 and Blue Area. In 1986, six
Cooperative Housing Societies including the National Police
Foundation with the approval of CDA purchased land in Sector
E-11,
took
possession
from
the
affectees/occupants
and
developed it. Only 78 acres of land located in the northern strip
of Sector E-11 remained with the CDA. Subsequently, 24 acres
were allotted to locals against their claims, leaving a balance of
54 acres.
3.
It is further stated that in December 1992, CDA in
exercise of the powers conferred by section 51 read with section
11 of the CDA Ordinance, 1960 framed with the approval of the
Federal Government the Islamabad Capital Territory (Zoning)
Regulation, 1992, hereinafter referred to as ‘the Regulation’. The
Regulation divided the Capital Territory into five Zones, viz.,
Zones 1 to 5. The development of Zone 1 was entrusted to CDA,
while private parties were authorized to buy and develop land
falling in Zones 2 and 5. Although Sector E-11 was located in
Zone 1 and was to be developed by the CDA itself, but on
account of consolidation of land, it was provided in regulation
SMC 13-2009
4
4(1)A(iv) of the Regulation that no private scheme of any kind
whatsoever shall be allowed except in Sector E-11 where the
schemes would be regulated by the provisions applicable to
schemes in Zone 2. In June 1993, the CDA framed Modalities and
Procedures under the Regulation for development of private
housing schemes in Zones 2 and 5.
4.
In 2005, the CDA, in exercise of powers conferred by
section 51 read with section 49 of the CDA Ordinance, 1960
framed
the
Islamabad
Land
Disposal
Regulation,
2005.
Regulation 4 thereof provided that the CDA Board may decide to
enter into JVAs with any private or public sector agency
regarding property vested in it for any specific project.
5.
On 30.06.2005, the CDA, by advertisement published
in
the
Daily
Dawn,
invited
Expression
of
Interest
for
development/construction of high-rise residential apartments,
commercial, educational, health centres and recreational facilities
in the northern strip of Sector E-11. Some developers showed
interest, but the proposal could not mature due to adverse
possession of the land and built up property in the area.
6.
On 14.03.2008 the CDA, by advertisement in the Daily
Dawn and Jang again invited Expression of Interest. Three bids
from M/S Services Cooperative Housing Society, M/S Golra
Associates and M/S MPCHS were received. The proposal of
MPCHS, having been approved by the CDA Board was accepted
and the JVA dated 02.12.2008, after completion of the codal
formalities, was signed. The MPCHS got vacated the possession
SMC 13-2009
5
from the occupants, got approval of planning and engineering
designs and 80% of the work had already been completed. The
CDA has not spent a single rupee on acquiring possession of
land, preparation of its master plan, engineering designs and
execution of development works, etc. It was pointed out that on
the contrary the CDA had failed to take over possession of the
acquired land in Bheka Syedan Sector F-11, Sector E-12, Sector
F-12 and Sector G-12.
7.
It is pleaded that the other bidders did not object to
the award of contract to MPCHS. All major projects relating to
buildings, bridges, flyovers, source development of water supply,
planning/construction of sewerage treatment plants, etc., were
carried
out
by
engaging
specialized
planners,
architects,
consultants and contractors of repute.
8.
Mr. Khalid Anwar, Sr. ASC who appeared on behalf of
the CDA submitted that CDA has observed all rules and
regulations while entering into the JVA in a transparent manner
and selecting a party. The CDA, by advertisement published in
the Daily Dawn dated 30.06.2005 invited Expression of Interest
for construction of high rise apartments in Sector E-11 having
shopping centre and other facilities such as community centre,
school, mosque, playfields, health centre in the northern acquired
strip of land measuring about 70 acres on joint venture basis.
The Expression of Interest was invited from high profile well-
reputed national and international development firms having vast
experience in development of housing/construction. However,
SMC 13-2009
6
nobody came forward mainly because of adverse possession on
the land in question.
9.
The issue was then considered by the CDA Board in its
meeting held on 28.02.2008. It was decided that the housing
societies already working in Sector E-11 and having possession
of the land will be allowed to have a joint venture with CDA on
the land which is owned by the CDA, but is in possession of the
societies. Accordingly, by a fresh public advertisement dated
14.03.2008, expression of interest was again invited from the
private parties/real estate developers, societies of good repute to
develop 54 acres of land in E-11. It was given out that the
subject land, though validly owned by CDA, was under adverse
possession of certain illegal squatters and the selected party
would have to get the area cleared off and ready for
development at its own risk and cost. Reference in particular was
made to clauses 3 and 4 of the advertisement, which are
reproduced below: -
“3.
Preference will be accorded to societies already
operating in Sector E-11. Such preference will be
determined, in addition to other parameters, by
the contiguity and adjacency to the northern
strip of sector E-11.
4.
Only those societies of Sector E-11 which have
clear, undisputed title and possession will be
considered. Application of Societies/Parties of E-
11, which possess land in excess of their
ownership will not be entertained and will be
summarily rejected.”
SMC 13-2009
7
In response to the above advertisement, three proposals,
including that of MPCHS were received, which were scrutinized by
the evaluation committee in its meeting held on 09.07.2008.
MPCHS was found to be qualified as against the other two firms,
namely, M/S Services Co-Operative Housing Society and Golra
Associates (Pvt.) Ltd. who had only submitted expression of
interest but not the technical and financial bids. The credentials
of the two firms were checked and it was observed that they did
not
fulfil
the
conditions
prescribed
in
clause
4
of
the
advertisement. The CDA Board in its meeting held on 21.07.2008
approved the proposal of MPCHS and JVA was entered into with
it. To ensure transparency in the execution of the works by the
MPCHS, it was agreed, inter alia, that the MPCHS shall, in
consultation with the CDA, appoint at its sole cost consultant of
international repute through open advertisement in two leading
English Daily Newspapers with national circulation for planning,
designing and supervision of development work of the project
and the terms of reference shall be formulated in accordance
with CDA planning requirements/standards. The work will be
awarded to contractors duly registered with PEC in the respective
category. After approval of the development plan and as full and
final consideration for the all actions and activities undertaken by
MPCHS under the agreement and the letter of intent, including
without limitation executing development works, the remaining
area under residential plots, commercial area, medium rise/high
rise apartment buildings, super store, petrol pump, education
SMC 13-2009
8
centre, health centre and other recreational places like hotel and
community clubs if and as provided shall be divided between the
parties on 57 : 43 ratio, though initially MPCHS in the draft JVA
submitted along with the financial proposal had proposed 50 : 50
ratio. It being a transparent transaction, the Suo Motu Case be
disposed of in the interest of justice.
10.
Mr. Zulfiqar Khalid Maluka, who appeared on behalf of
MPCHS submitted that MPCHS was registered with the Registrar
of Cooperative Societies, ICT, Islamabad. The objectives of the
society are to promote economic interests of its members on the
principles of cooperation, self help, on no profit – no loss basis.
On account of excellent developmental work, integrity and
experience, MPCHS is registered by Moody International for
complying with the requirements of ISO 9001:2008 and ISO
14001:2004. The Senate of Pakistan commended excellent
performance of MPCHS and rated it next to Defence Housing
Society. It had completed different schemes for which CDA had
issued final NOC. The land in Golra Revenue Estate was
exempted from acquisition as far back as the year 1968-69 by
the then President of Pakistan as a mark of respect for the Great
Pir of Golra Sharif. The provision allowing operation of private
societies in Sector E-11 is to be seen in the context of adverse
possession and the consolidation in the said sector of land of
Golra Revenue Estate spread over in different sectors. MPCHS
had acted in pursuance of the advertisement duly published in
the
press
dated
14.03.2008
wherein
other
parties
also
SMC 13-2009
9
participated and the bid offered by his clients was accepted after
duly verifying its credentials. The JVA was concluded with MPCHS
as a result of open bidding in the transparent manner at the
benefits most suitable to CDA.
11.
On the other hand, Mr. Muhammad Akram Sheikh, Sr.
ASC who appeared as an Amicus Curiae on Court’s notice,
submitted that the Regulation framed by the CDA was ultra vires
of the provisions of the CDA Ordinance, 1960. The word “agency”
defined in section 2 of the Ordinance does not include a private
company. The powers and duties of the CDA are provided in
Chapter – III of the Ordinance. Section 11 provides for the
preparation of master plan and master programme. Section 12
provides that all schemes will be prepared by a local body or an
agency of the Federal or Provincial Government. The manner and
form of a scheme to be prepared by the Authority are provided in
sections 13 and 14 while the enabling powers of the Authority
are laid down in section 15. The power of the CDA to enter into
and perform contracts under clause (v) of subsection 2 of section
15, as also its power under section 49 of the Ordinance to retain,
lease, sell, exchange, rent or otherwise dispose of any land
vested in it are not attracted in the instant case.
12.
The learned Amicus Curiae has stated that sections 22
to 32 of the Ordinance empower the CDA to acquire land as per
procedure laid down therein, while section 49B read with section
49D provides for summary ejectment of unauthorized occupants
with police assistance. But, in the present case, the CDA
SMC 13-2009
10
functionaries never tried to exercise such powers. Chapter VII of
the CDA Ordinance, 1960 provides “Penalty and Procedure” for
contravention of any provisions of the Ordinance or Rules or
Regulations made or schemes sanctioned thereunder. The CDA
has tried to justify its action under regulation 4(1)A(iv) of the
Regulation, but the said Regulation does not apply to the facts
and circumstances of the present case as the same applies to
unacquired sectoral areas whereas the land in question is an
acquired land and the CDA has its own mechanism of its
development under the relevant provisions of the Ordinance and
Rules or Regulations made thereunder. As regards authority to
enter into the JVA with any private and public sector agency by
the CDA Board it is provided in section 4 of the Islamabad Land
Disposal Regulation, 2005, however, the same is not applicable
to the instant case in view of regulation 2B of the said Regulation
and section 2(a) of the Ordinance, which defines the word
“agency” and private & public sector agencies are not included
therein. Moreover, the first proviso to regulation 4 of the
Regulation, 2005 is inconsistent with section 51 of the Ordinance
and thus has no legal sanction and binding force.
13.
On the issue of transparency in the JVA, the learned
Amicus Curiae submitted that the aforesaid clause (iv) of
Regulation 4(1)A seems to have been added to benefit Mr. K. U.
Faruqui, the President of MPCHS who was then Cabinet Secretary
to the Government of Pakistan and had prepared summary for
the Prime Minister of Pakistan and the first proviso to regulation
SMC 13-2009
11
4 of the Regulation also seems to have been added just to
swindle a public property valuing billions of rupees for the benefit
of Mr. K.U. Faruqui, which raises many questions on the
transparency in the JVA and smacks of mala fides on their part.
In the concise statement, the CDA functionaries have not
provided exact khasra numbers of the 54 acres land in question
and have also not provided names of the occupants at the time
of acquisition of the land in the years 1968-69 and have also not
provided the names of the occupants of the land at the time of
entering into the JVA. Nothing has been said about the
agreement entered into between one Rashid Mehmood Khan and
MPCHS whereby said Rashid Mehmood Khan had agreed to get
the land vacated on payment of commission/service charges @
3% of the purchase price though the CDA had its own
Enforcement
Directorate,
which
was
authorized
to
eject
unauthorized occupants summarily with the assistance of local
police.
14.
Mr. Akram Sheikh next submitted that regulation
being delegated legislation have to be consistent with the statute
under which they were framed. Delegated legislation could be
described as orders, rules, regulations, schemes, licences and
instruments, the nomenclature used would be the one laid out by
the enabling Act. A delegated legislation, in this case the
Regulation, could be struck down as ultra vires on five main
grounds, namely, if statutory procedure prescribed for making
them had not been followed; if they were repugnant to provisions
SMC 13-2009
12
of some other statute; if they conflicted with the parent Act
itself; if they were uncertain; and if they were unreasonable. The
regulation in question is not within the parameters envisaged by
the parent Act, therefore, the same is ultra vires. He has referred
to the definition of “regulation” from Advanced Law Lexicon, 3rd
Edition 2005, Black’s Law Dictionary, Seventh Edition. He also
referred to Khawaja Ahmad Hassan v. Government of Punjab
(2005 SCMR 186), Mian Ziauddin v. Punjab Local Government
(1985 SCMR 365), Province of East Pakistan v. Nur Ahmed (PLD
1964 SC 451), Ummatullah v. Province of Sindh (PLD 2010
Karachi 236) and Kerala Samsthana Chethu v. State of Kerala
[(2006) 4 SCC 327].
15.
We have heard the learned counsel and have gone
through the relevant provisions of the CDA Ordinance, 1960 and
the record produced by the CDA.
16.
The first question, which requires to be determined by
this Court in the instant case is whether it was permissible for the
CDA to have framed a Regulation, which was inconsistent with
the parent statute, i.e. the Ordinance. It may be seen that
subsection (1) of Section 12 of the Ordinance provides that the
CDA may, pursuant to the master plan and the master
programme, call upon any local body or agency operating in the
Specified Areas to prepare, in consultation with it, a scheme or
schemes in respect of matters ordinarily dealt with by such local
body or agency, and thereupon the local body or agency shall be
responsible for the preparation of the scheme or schemes,
SMC 13-2009
13
whereas,
subsection
(5)
provides
that
no
planning
or
development scheme shall be prepared by any person or by any
local body or agency except with the concurrence of the
Authority. Under subsection (2), the schemes may relate to land
use, zoning and land reservation, public buildings, industry, etc.
Subsection (3) empowers the Federal Government to add to,
alter or amend the list of subjects (schemes). Under subsection
(4), the expenditure on the preparation of such schemes is to be
borne as agreed to between the CDA and the local body or
agency while under subsection (5), no planning or development
shall be prepared by any person or by any local body or agency
except with the concurrence of the CDA. The term “agency”, as
defined in section 2(a) means any department or organization of
the Federal or Provincial Government and includes a corporation,
or other autonomous or semiautonomous body set up by the
Federal or Provincial Government. The term “local body” as
defined in clause (j) ibid means the local body, the local council
or the municipal body as defined in clauses (23) (24) and (27) of
Article 3 of Basic Democracies Order, 1959 (P.O. 18 of 1959), or
the Cantonment Board, having jurisdiction in the area concerned,
and includes an Improvement Trust within such area.
17.
The word ‘regulation’ as defined in Advanced Law
Lexicon referred to by the learned Amicus Curiae means a rule or
order prescribed by superior for the management of some
business or for the government or a company or society. It is a
rule, ordinance or law by which conduct etc., is regulated. It
SMC 13-2009
14
implies a rule for a general course of action, but does not apply
to a case in which specific instructions are to be given applicable
to that case alone. According to Black’s Law Dictionary, the term
‘regulation’ means a rule or order having legal force issued by an
administrative agency or a local government. In Khawaja Ahmad
Hassan (supra), it was held as under: -
“25. It must be kept in view that “when the
legislature confers power on Government to frame
rules it is expected that such powers will be used only
bona fide, in a responsible spirit and in the true
interest of the public and in furtherance of the object
for the attainment of which such powers were
conferred”. (Land Realization Co. Ltd. v Postmaster-
General (1950) 66 TLR (Pt. 1) 985, 991, per Romer, J.
(1950) Ch. 435. It is to be noted that rule-making
authority which falls within the ambit of subordinate
legislation as conferred upon the Government by
virtue of section 191 of the Ordinance is neither
unlimited
nor
unbridled
and
the
limitations
as
mentioned in section 191 of the Ordinance must be
adhered to in letter and spirit.
29. It is a well-recognized principle of interpretation
of statutes that if the rules framed under the statute
are in excess of the provisions of the statute or are in
contravention of or inconsistent with such provisions
then those provisions must be regarded as ultra vires
of the statute and cannot be given effect to. (Barisal
Cooperative Central Bank v. Benoy Bhusan AIR 1934
Cal.537; Municipal Corporation v. Saw Willie, AIR
1942 Rang 70, 74)".
30. In the case of statutory rules the Court can
always examine the question as to whether the same
are inconsistent with the statute under which they are
made. In this regard we are fortified by the dictum
laid down in Hazrat Syed Shah Mustarshid Ali
Al-Quadari v. Commissioner of Wakfs AIR 1954 Cal.
436.
31. A rule-making body cannot frame rules in
conflict with or derogating from the substantive
provisions of the law or statute, under which the rules
are framed. No doubt that the rules-making authority
has been conferred upon the Government but "a rule,
which the rule-making authority has power to make
will normally be declared invalid only on the following,
grounds: -
SMC 13-2009
15
(1)
Bad faith, that is to say, that powers
entrusted for one purpose are deliberately used
with the design of achieving another, itself
unauthorized or actually forbidden;
(2)
that it shows on its face a misconstruction
of the enabling Act or a failure to comply with
the conditions prescribed under the Act for the
exercise of the powers; and
(3)
that it is not capable of being related to
any of the purposes mentioned in the Act.
(Shankar Lal Laxmi Narayan Rathi v. Authority
under Minimum Wages Act, 1979 MPLJ 15 (DB).
Rules cannot go beyond the scope of the Act M.P.
Kumaraswami Raja AIR 1955 Mad. 326 nor can they,
by themselves, enlarge the scope of statutory
provisions. K. Mathuvadivelu v. RT Officer, AIR 1956
Mad. 143. They cannot also militate against the
provision under which they were made. (Kashi Prasad
Saksena ro. State of U. P. AIR 1967 All. 173.
32. There is no cavil with the proposition that "the
power of rule making is an incidental power that must
follow and not run parallel to the present Act. These
are meant to deal with details and can neither be a
substitute for the fundamentals of the Act nor can add
to them. PLD 1975 Azad J&K 81 = PLJ 1975 Azad J&K
89. There are two main checks in this country on the
power of the Legislature to delegate, these being its
good sense and the principle that it should not cross
the
line
beyond
which
delegation
amounts
to
abdication and self-effacement. The only requirement
of law in such situations is to insist that the
subordinate body charged with the duty of making
rules must strictly confine itself within the sphere of
its authority for the exercise of its subordinate
legislative power and in each case it is the duty of the
Courts in appropriate proceedings to be satisfied that
the rules and regulations so made are:--
(a) by the authority mentioned in the Act, and
(b) that they are within the scope of the power
delegated therein. (PLD 1966 Lah. 287).
“36. It is a well-recognized principle of interpretation
of statutes that if the rules framed under the statutes,
or bye-laws framed under the rules, are in excess of
the provisions of the statute or are in contravention of
or
inconsistent
with
such
provisions
then
SMC 13-2009
16
these provisions must be regarded as ultra vires of the
statute and cannot be given effect to. (Barisal
Cooperative Central Bank v. Benoy Bhusan, AIR 1934
Ca1.537, 540).”
In Nur Ahmad’s case (supra), it was held that reading the rule in
the above manner would be tantamount to enlarging its scope by
depriving the aggrieved party of the right of being heard which
he has. The Basic Democracies Order does not deprive him of
that right. The rule-making Authority therefore, cannot clothe
itself with power which the Statute itself does not give. In Mian
Ziauddin’s case (supra), it was held that the rules framed under
the Ordinance could not go beyond and over-reach the Ordinance
itself. In Ummatullah’s case (supra), it was held that Strong
presumption as to constitutionality, legislative competence,
legality, reasonableness and intra vires attached to a statute is
also
attached
with
full
force
to
subordinate
legislative
instruments as well, such presumption though refutable, onerous
burden is cast on person challenging validity or vires of
legislative instrument, on any count. In order to strike down a
subordinate legislative instrument, challenger has to show that
any of the disqualification exist namely (a) it impinges upon
fundamental rights guaranteed under the Constitution (b) it is in
conflict with any Constitutional provision (c) it is beyond the
legislative competence of the delegatee making it, and or (d) it is
violative or beyond the scope of the parent or enabling statute.
(see KBCA v Hashwani Sales and Services Ltd. PLD 1993 SC 210
@ 228 C, Maharashtra State Board of Secondary Education and
Higher Secondary Education and another v. Paritosh Bhupesh
SMC 13-2009
17
Kurmarsheth AIR 1984 SC 1543). It was further held that when
the parent law i.e. Sindh Buildings Control Ordinance 1979 does
not provide for matter relating to change in land use
classification, or conversion of one category of land into another
it cannot through delegated legislative instrument confer, bestow
or delegate any power and duties on “Concerned Authorities”,
which powers and performance of duty are not within its own
domain or scope of authority. It is settled principle of law that
what cannot be done directly cannot be done or allowed to be
done indirectly. It is also trite principle of law; what is not
possessed can neither be conferred nor delegated. In Kerala
Samsthana Chethu’s case (supra), it was held that the power of
the Government was to make rules only for the purpose of
carrying out the purposes of the Act and not dehors the same. In
other words, rules cannot be framed in matters that are not
contemplated under the Act. Reference in the above case was
made
to
Bombay
Dyeing
&
Mfg.
Co.
Ltd.
v.
Bombay
Environmental Action Group [2006 (3) SCALE 1], wherein it was
held that a policy decision, as is well known, should not be lightly
interfered with but it is difficult to accept the submissions made
on behalf of the learned counsel appearing on behalf of the
Appellants that the courts cannot exercise their power of judicial
review at all. By reason of any legislation whether enacted by the
legislature or by way of subordinate legislation, the State gives
effect to its legislative policy. Such legislation, however, must not
be ultra vires the Constitution. A subordinate legislation apart
SMC 13-2009
18
from being intra vires the Constitution should not also be ultra
vires the parent Act under which it has been made. A subordinate
legislation, it is trite, must be reasonable and in consonance with
the legislative policy as also give effect to the purport and object
of the Act and in good faith. In the case of Vikramaditya Pandey
v. Industrial Tribunal, Lucknow [(2001) 2 SCC 423] the Indian
Supreme Court has held that the provisions of the regulations in
question to the extent of their inconsistency with any of the
provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur
Vanijya Adhishthan Adhiniyam, 1962, Workmen Compensation
Act, 1923 and any other Labour Laws for the time being in force,
if applicable to any cooperative society or class of cooperative
societies shall be deemed to be inoperative. By plain reading of
the said Regulation it is clear that in case of inconsistency
between the Regulations and the provisions of the Industrial
Disputes Act, 1947, the State Act, the Workmen Compensation
Act, 1923 and any other labour laws for the time being in force, if
applicable to any cooperative society or class of cooperative
societies to that extent Regulations shall be deemed to be
inoperative. In other words, the inconsistent provisions contained
in the Regulations shall be inoperative, not the provisions of the
other statutes mentioned in the Regulation.
18.
From an examination of the above case law it is clear
that a rulemaking body cannot frame rules in conflict with, or in
derogation of, the substantive provisions of the law or statute,
under which the rules are framed. Rules cannot go beyond the
SMC 13-2009
19
scope of the Act. Thus, we are inclined to hold that no rule can
be made which is inconsistent with the parent statute, whereas,
no regulation can be made inconsistent with the parent statute or
the rules made thereunder and the provisions of these rules or
regulations, as the case may be, to the extent of their
inconsistency with the parent statute or the rules shall be
inoperative.
19.
The thrust of the arguments on the issue whether the
CDA was authorized to enter into JVA with a private entity for
preparation of a scheme in terms of section 12 of the Ordinance
was that it was allowed to do so in terms of the provision of
regulation 4(1)A(iv) of the Regulation, which provides that the
development of land in the zones shall be subject to the following
conditions: -
A.
Un-acquired Sectoral Areas: In these areas of Zone-1,
(i)
land
shall
be
acquired
under
a
phased
programme and developed by the Authority in
accordance with the land use pattern spelled out
in the Master plan;
(ii)
no sale/ purchase of land which entails change in
land use shall be allowed;
(iii) no construction of houses or buildings shall be
allowed. However, repair of old houses and
expansion of existing houses may be allowed by
the Authority to the native residents subject to
the conditions that the site is located within the
main body of the village. The covered area of
such construction shall not exceed 1000 Square
feet including expansion and such permission
shall not in any way impede the right of the
SMC 13-2009
20
Authority to acquire the property whenever
needed; and
(iv) no private scheme of any kind whatsoever shall
be allowed, except in sector E-11. Schemes in E-
11 will be regulated according to the provisions
applicable to schemes in Zone 2.
Above clause (iv) is couched in negative terms, inasmuch as it
provides that no private scheme of any kind whatsoever shall be
allowed in Zone-1. However, as an exception, a private scheme
is allowed to be launched in Sector E-11, but the same will be
regulated by the provisions applicable to schemes in Zone-2. It
may be noted that the said provision is not in consonance with
the mandate and scope of section 12 of the Ordinance, which
lays down that all schemes pursuant to the master plan and the
master programme are to be prepared by a local body or agency.
The CDA could not have extended the scope of section 12 by
framing regulation and allowed preparation of schemes by the
private organizations even with prior approval of the Federal
Government. This is something not envisaged by the Ordinance
and something, not permitted by the statute could not be allowed
to be done by the subordinate legislation.
20.
In the case in hand, as noted earlier, the exception to
clause (iv) of Regulation 4(1)A providing for development of a
private scheme in Sector E-11 falling in Zone 1, which is to be
developed by the CDA either itself or through an agency of the
Federal or a Provincial Government or a local body in terms of
section 12 read with section 2(a) & (j) of the Ordinance is
SMC 13-2009
21
inconsistent with the Ordinance, and hence inoperative. Such an
arrangement is against the primary aim and object of the
Ordinance as reflected in its preamble, viz., the Capital
Development
Authority
is
established
for
making
all
arrangements for the planning and development of Islamabad
within the framework of a regional development plan, which is
further reinforced by section 13 of the Ordinance, which provides
that the Authority may, pursuant to the master-programme,
itself prepare schemes relating to matters enumerated in
subsection (2) of section 12 of the Ordinance. In this view of the
matter, the JVA with a private organization is not sustainable.
21.
The learned counsel appearing for the CDA as well as
the learned counsel for the MPCHS made repeated reference to
clause (3) of the JVA, which obligates the second party (MPCHS)
to clear off from the occupants (affectees/illegal encroachers) all
the area under the northern strip (54 acres) and planned right of
way for the construction of north and east service roads of Sector
E-11. The stance of the learned Amicus Curiae, on the other
hand, was that the CDA was legally and physically equipped with
the necessary powers and infrastructure in the shape of
Enforcement Directorate, duly authorized to deal with the
situation of the kind in a summary manner and get the land
owned by the CDA vacated from the illegal occupants. Though an
attempt was made to depict the inability of the CDA to get
cleared its lands from the illegal occupants in various Sectors,
e.g. G-12, F-12, etc., but no reference was made to the
SMC 13-2009
22
countless instances where the CDA had, in exercise of its powers
and by use of police force, got vacated its lands in various
sectors/other areas, such as Bani Gala, etc. Clearly, it was
abdication of the exercise of lawful powers and jurisdiction in
favour of the land grabbers, which can hardly be allowed to be
pressed into service to the great detriment of the general public.
Illegal occupants cannot be allowed to take advantage of their
illegal acts and wrongful gains. Instead of allowing the law to
take its course, the approach and the conduct of the CDA appear
to be aimed at encouraging illegal encroachments upon the State
lands. In the circumstances, the act of payment to illegal
occupants was not warranted by law. The much trumpeted card
is not available to the CDA functionaries and no support at all
could be drawn from it.
22.
It was argued by Mr. Zulfiqar Khalid Maluka, ASC that
MPCHS, as provided in its Byelaws of 2005, was a cooperative
housing society formed with the objectives of promoting
economic interests of its members on the principles of
cooperation, self-help, on no profit – no loss basis, such as to
arrange, buy or otherwise acquire land, buildings, prepare layout
plans, establish, construct and maintain residential colonies,
apartments, commercial areas, farm houses, etc. It may be
pertinent to mention here that a ‘housing society’, as defined in
section 3(h)(4) of the Cooperative Societies Act, 1925, means a
society formed with the object of providing its members with
dwelling houses on conditions to be determined by its bylaws.
SMC 13-2009
23
Therefore, the objectives of the society can hardly be pressed
into service to meet the initial obligation of the CDA either to
develop land itself or get it done through an agency of the
Government or a local body. Even otherwise, the learned counsel
also failed to show that development of sectoral land was the
expertise of MPCHS and it was hardly equipped to undertake
construction work.
23.
As far as a limb of argument that MPCHS had made
huge investment of over one billion rupees, firstly in getting
cleared the land from the illegal occupants, and secondly in
developing the land in question, therefore, any finding/decision
at this stage nullifying the JVA would result in great loss to a
private investor, who had come forward to make investment in
the government sector at a time when the economy of the
country was passing through a difficult period. Such a decision
would discourage investment, which is the lifeblood of any
economy, and more particularly of a developing economy.
However, the learned counsel failed to place on record any valid
documentary evidence in support of their claim. The issue in the
case in hand revolves around transparency in a transaction
entered into by or on behalf of a public body, which cannot be
allowed to be compromised in any event.
24.
It is well-settled that in matters in which the
Government bodies exercise their contractual powers, the
principle of judicial review cannot be denied. However, in such
matters, judicial review is intended to prevent arbitrariness or
SMC 13-2009
24
favouritism and it must be exercised in larger public interest. It
has also been held by the Courts that in matters of judicial
review the basic test is to see whether there is any infirmity in
the decision making process. It is also a well-settled principle of
law that since the power of judicial review is not an appeal from
the decision, the Court cannot substitute its decision for that of
the decision maker. The interference with the decision making
process is warranted where it is vitiated on account of
arbitrariness, illegality, irrationality and procedural impropriety or
where it is actuated by mala fides. Reference may be made to
(1) Ramana Dayaram Shetty v. International Airport Authority of
India (1979) 3 SCC 489; (2) Tata Cellular v. Union of India
(1994) 6 SCC 651 = AIR 1996 SC 11; (3) Raunaq International
Ltd. v. I.V.R. Construction Ltd. (1999) 1 SCC 492; (4) Air India
Ltd. v. Cochin International Airport Ltd. (2000) 2 SCC 617; (5)
Reliance Energy Ltd. v. Maharashtra State Road Development
Corpn. Ltd. (2007) 8 SCC 1] and (6) judgment dated 24.08.2009
of the Andhra High Court in Nokia Siemens Networks Pvt. Ltd. v.
Union of India. In Air India Ltd. v. Cochin Int., Airport Ltd. (AIR
2000 SC 801), it was held as under: -
“7.
The law relating to award of a contract by the
State,
its
corporations
and
bodies
acting
as
instrumentalities and agencies of the Government has
been settled by the decision of this Court in R. D.
Shetty v. International Airport Authority ; Fertilizer
Corporation Kamgar Union v. Union of India ; Asstt.
Collector, Central Excise v. Dunlop India Ltd. ; Tata
Cellular v. Union of India ; Ramniklal N. Bhutta v.
State of Maharashtra and Raunaq International Ltd. v.
I.V.R. Construction Ltd. . The award of contract,
whether it is by a private party or by a public body or
the State, is essentially a commercial transaction. In
SMC 13-2009
25
arriving at a commercial decision considerations which
are of paramount are commercial considerations. The
State can choose its own method to arrive at a
decision. It can fix its own terms of invitation to
tender and that is not open to judicial scrutiny. It can
enter into negotiations before finally deciding to
accept one of the offers made to it. Price need not
always be the sole criterion for awarding a contract. It
is free to grant any relaxation, for bona fide reasons,
if the tender conditions permit such a relaxation. It
may not accept the offer even though it happens to be
the highest or the lowest. But the State, its
corporations,
instrumentalities
and
agencies
are
bound to adhere to the norms, standards and
procedures laid down by them and cannot depart from
them arbitrarily. Though that decision is not amenable
to judicial review, the Court can examine the decision
making process and interfere if it is found vitiated by
mala fides, unreasonableness and arbitrariness. The
State, its corporations, instrumentalities and agencies
have the public duty to be fair to all concerned. Even
when some defect is found in the decision making
process the Court must exercise its discretionary
power under Article 226 with great caution and should
exercise it only in furtherance of public interest and
not merely on the making out of a legal point. The
Court should always keep the larger public interest in
mind in order to decide whether its intervention is
called for or not. Only when it comes to a conclusion
that
overwhelming
public
interest
requires
interference, the Court should intervene.”
In Tata Cellular v. Union Of India (AIR 1996 SC 11) = [(1994) 6
SCC 651], it was held as under: -
“85. It cannot be denied that the principles of judicial
review would apply to the exercise of contractual
powers by Government bodies in order to prevent
arbitrariness or favoritism. However, it must be clearly
stated that there are inherent limitations in exercise of
that power of judicial review. Government is the
guardian of the finances of the State. It is expected to
protect the financial interest of the State. The right to
refuse the lowest or any other tender is always
available to the Government. But, the principles laid
down in Article 14 of the Constitution have to be kept
in view while accepting or refusing a tender. There can
be no question of infringement of Article 14 if the
Government tries to get the best person or the best
quotation. The right to choose cannot be considered to
be an arbitrary power. Of course, if the said power is
SMC 13-2009
26
exercised for any collateral purpose the exercise of
that power will be struck down.
86. Judicial quest in administrative matters has been
to find the right balance between the administrative
discretion to decide matters whether contractual or
political in nature or issues of social policy; thus they
are not essentially justifiable and the need to remedy
any unfairness. Such an unfairness is set right by
judicial review.
89.
Observance of judicial restraint is currently the
mood in England. The judicial power of review is
exercised
to
rein
in
any
unbridled
executive
functioning. The restraint has two contemporary
manifestations.
One
is
the
ambit
of
judicial
intervention; the other covers the scope of the court's
ability to quash an administrative decision on its
merits. These restraints bear the hallmarks of judicial
control over administrative action.
90.
Judicial review is concerned with reviewing not
the merits of the decision in support of which the
application for judicial review is made, but the
decision-making process itself.”
In Sterling Computers Ltd. v. M/s. M. & N. Publications Ltd, (AIR
1996 SC 51), it was held as under: -
19.
While exercising the power of judicial review, in
respect of contracts entered into on behalf of the
State, the Court is concerned primarily as to whether
there has been any infirmity in the “decision making
process”. In this connection reference may be made to
the case of Chief Constable of the North Wales Police
v. Evans, [1982] 3 All ER 141, where it was said that
“The purpose of judicial review.”
“... is to ensure that the individual receives fair
treatment, and not to ensure that the authority,
after according fair treatment, reaches on a
matter which it is authorized or enjoined by law
to decide for itself a conclusion which is correct
in the eyes of the court.”
By way of judicial review the court cannot examine
the details of the terms of the contract which have
been entered into by the public bodies or the state.
Courts have inherent limitations on the scope of any
such enquiry. But at the same time as was said by the
House of Lords in the aforesaid case, Chief Constable
of the North Wales Police v. Evans (supra), the Courts
SMC 13-2009
27
can certainly examine whether ‘decision making
process’ was reasonable, rational not arbitrary and
violative of Article 14 of the Constitution.
20.
If the contract has been entered into without
ignoring the procedure which can be said to be basic
in nature and after an objective consideration of
different options available taking into account the
interest of the State and the public, then Court cannot
act as an appellate authority by substituting its
opinion in respect of selection made for entering into
such contract. But, once the procedure adopted by an
authority for purpose of entering into a contract is
held to be against the mandate of Article 14 of the
Constitution, the Courts cannot ignore such action
saying that the authorities concerned must have some
latitude or liberty in contractual matters and any
interference by court amounts to encroachment on the
exclusive right of the executive to take such decision.
… … … …
26. The cases aforesaid on which reliance was placed
on behalf of the appellants, have also reiterated that
once the State decides to grant any right or privilege
to others, then there is no escape from the rigour of
Article 14; the executive does not have an absolute
discretion, certain precepts and principles have to be
followed, the public interest being the paramount
consideration. It has also been pointed out that for
securing the public interest one of the methods
recognised is to invite tenders affording opportunity to
submit offers for consideration in an objective
manner. However, there may be cases where in the
special facts and circumstances and due to compelling
reasons which must stand the test of Article 14 of the
Constitution, departure of the aforesaid rule can be
made. This Court while upholding the contracts by
negotiation in the cases referred to above has
impressed as to how in the facts and circumstances of
those cases the decisions taken by the State and the
authorities concerned were reasonable, rational and in
the public interest. The decisions taken in those cases
by the authorities concerned, on judicial scrutiny were
held to be free from bias, discrimination and under the
exigencies of the situation then existing to be just and
proper. On the basis of those judgments it cannot be
urged that this court has left to the option of the
authorities concerned whether to invite tenders or not
according to their own discretion and to award
contracts ignoring the procedures which are basic in
nature, taking into account factors which are not only
irrelevant but detrimental to the public interest.”
SMC 13-2009
28
25.
A part of the argument vehemently canvassed at the
bar was that the main purpose of awarding contract to this party
was to get the CDA land cleared off from the illegal occupants,
which the CDA was unable to do. In this behalf, reference was
made to agreements containing recitals of payment of different
sums of money made to certain persons in lieu of their vacating
such land. According to the aforesaid agreements, huge sums of
money running into millions of rupees were allegedly paid. But,
surprisingly, no details of payment, such as bank drafts, pay
orders, cheques, etc. were given in the said agreements. It is not
believable that such large sums of money were paid in cash.
Besides, the agreements in question were documents not
registered in accordance with law. There was, so to say, no valid
proof of payment furnished to our satisfaction. Further, no details
of the land allegedly in the illegal possession of the land grabbers
along with the names/number of encroachers were provided.
Thus, looked at from any angle, the transaction appears to be a
sham deal. The whole exercise appears to be an eyewash. This
also negates the claim of huge investment made by the MPCHS
in this project.
26.
Having held that the CDA was not competent to allow
private societies to operate in Zone-1, even otherwise the
transaction could, in no manner, be termed as transparent. There
was complete absence of fair and open competition in the bidding
process where only three parties had submitted the expression of
interest, two of whom did not meet the requirement of
SMC 13-2009
29
submission of technical and financial proposals along with the
bid/letter of intent, thus practically leaving only one party in the
field. Such a situation did call for making a fresh advertisement,
which was not done. On the other hand, the CDA Board, in its
meeting
held
on
18.07.2009,
approved
planning
and
development of an area measuring 53.86 acres owned by the
CDA in the northern strip of Sector E-11 on joint venture basis
with MPCHS with the following land use: -
Built up area
Residential apartments
14 acres
25.99 %
Commercial
3.73 acres
6.92 %
Social Services
3.41 acres
6.33 %
Residential plots
5.94 acres
11.03 %
? Roads
15.89 acres
? Green area
2.8 acres
? Proposed land use analysis of the scheme is given
below: -
Schedule of plots
S. No.
Use
Area in kanals
%age
1.
Residential plots
47.58
11.05
2.
High rise and medium
rise plots
112.05
25.99
3.
Commercial
29.86
6.92
4.
Institutional
70.51
16.35
5.
Education & health
27.28
6.33
6.
Roads
127.12
29.05
7.
Parks & open spaces
16.64
3.86
Total:
430.39
100
The non-saleable CDA area was shown as under: -
(i)
Road area, parking & footpath
102.15 kanal
(ii)
Parks, green area & Nullahs
32.27 kanal
(iii)
Mosque
03.68 kanal
(iv)
Facilitation centre
03.04 kanal
(v)
Fire station
01.89 kanal
Total:
143.08 kanal
SMC 13-2009
30
The break-up of the non-divisible/saleable area is as under: -
(i)
Five star hotel plot No. 88
22.28 kanal
(ii)
Super Mart plot No. 69
14.95 kanal
(iii)
Filling station plot No. 68
3.61 kanal
(iv)
Hospital plot No. 64
6.00 kanal
(v)
Education enclave plot No. 63
21.88 kanal
(vi)
Entertainment enclave plot No. 65 21.87 kanal
Total:
90.59 kanal
The break-up of the divisible/saleable area is as under: -
A
RESIDENTIAL AND APARTMENTS PLOTS
CDA 57 %
(i)
Plot No. 87 G+ 15
27.54 kanal
(ii)
Plot No. 86 G+ 15
28.46 kanal
(iii) Plot No. 82 G+ 6
07.93 kanal
Total:
63.93 kanal
MPCHS 43 %
(i)
Plot No. 85 G+ 15
21.96 kanal
(ii)
Plot No. 84 G+ 15
20.22 kanal
(iii) Plot No. 83 G+ 6
05.90 kanal
Total:
48.08 kanal
B
COMMERCIAL PLOTS
CDA 57 %
(i)
Plot No. 80 G+ 4 size 61’x80’
542.22 sq. yds.
(ii)
Plot No. 81 G+ 4 size 61’x80’
542.22 sq. yds.
(iii) Plot No. 77 G+ 4 size 70’x90’
700.00 sq. yds.
(iv) Plot No. 72 G+ 4 size 66’x70’
513.33 sq. yds.
(v)
Plot No. 73 G+ 4 size 66’x70’
513.33 sq. yds.
(vi) Plot No. 70 G+ 4 size 70’x70’
544.44 sq. yds.
(vii) Plot No. 71 G+ 4 size 70’x70’
544.44 sq. yds.
Total:
3899.98 sq. yds. = 06.45 kanal
MPCHS 43 %
(i)
Plot No. 74 G+ 4 size 66’x70’
513.33 sq. yds.
(ii)
Plot No. 75 G+ 4 size 66’x70’
513.33 sq. yds.
(iii) Plot No. 76 G+ 4 size 70’x95’
738.88 sq. yds.
(iv) Plot No. 78 G+ 4 size 66’x80’
586.66 sq. yds.
(v)
Plot No. 79 G+ 4 size 66’x80’
586.66 sq. yds.
Total:
2938.87 sq. yds. = 04.86 kanal
SMC 13-2009
31
C
RESIDENTIAL PLOTS
CDA 57 %
(i)
Plot No. 61, 62
(2 each measuring 35’x80’ = 311.11 sq. yds) 622.22 sq. yds
(ii)
Plot No. 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23,
24, 25, 26, 35, 38, 39, 40, 41, 42, 43 and 44
(22 each measuring 50’x90’ = 500 sq yds.) 11000.00 sq yds.
(iii) Plot No. 1, 9, 10, 18, 27, 28, 37 and 45
(8 each measuring 60’x90’ = 600 sq yds.) 4800.00 sq yds.
Total:
16422.22 sq yds. = 27.14 kanal
MPCHS 43 %
(i)
Plot No. 46 to 60
(15 each measuring 35’x80’ = 311.11 sq yds.) 4666.65 sq yds.
(ii)
Plot No. 2 to 8, 29 to 34
(13 each measuring 50’x90’ = 500 sq yds.) 6500.00 sq yds.
(iii) Plot No. 19 & 36
(2 each measuring 60’x90’ = 600 sq yds). 1200.00 sq yds.
Total:
12366.65 sq yds. = 20.44 kanal
D
SPECIALIZED BUSINESS/OFFICE BUILDING
CDA 57 %
Plot No. 66 G+18
15.05 kanal
MPCHS 43 %
Plot No. 67 G+18
11.31 kanal
Grand total: 53.87 acres (430.93 kanal)
Terms and conditions, such as the ratio of plots to be offered to
the
intending
bidders,
etc.,
were
not
published
in
the
advertisement and a full picture was not given to them. If the
advertisement had mentioned the details of the benefits to be
offered to the bidders, e.g., share in the plots for residential,
commercial, 5-star hotels and multi-storeyed buildings, certainly
more parties would have been attracted and so better offers
would have come.
SMC 13-2009
32
27.
By the earlier advertisement published in 2005,
expression of interest was invited from well reputed national and
international development firms having vast experience. They
were required to provide the detail of company/consortium,
experience and list of housing projects/construction projects
undertaken by them. However, in the advertisement of 2008, the
terms and conditions were changed drastically to the effect that
the expression of interest was invited from private parties/real
estate developers/societies of good repute. They were required
to submit precise mode of partnership, specifying method and
quantum of benefits to be shared with CDA. It was stated that
most reliable, credible and beneficial formula would be preferred.
The purpose was the development of northern strip of Sector
E-11. In the said advertisement, it was also stated that
preference would be accorded to Societies already operating in
Sector E-11. Only those societies of E-11 which had clear,
undisputed possession would be considered. Those who had land
in excess of their ownership would not be entitled and the parties
would be responsible for clearing off the strip at their own risk
and cost. It seems that this device was adopted to keep the
interested parties out of competition, except MPCHS who fulfilled
the said conditions.
28.
It was argued by the learned counsel for the CDA that
changes were brought about in the terms and conditions offered
in the advertisement in terms of the decision of the CDA Board
dated 28.02.2008. In the first advertisement, bids were invited
SMC 13-2009
33
from national and international development firms, private
parties/real estate developers/societies and preference was be
accorded to Societies already operating in Sector E-11. It is to be
seen whether the CDA Board could have, in all fairness, agreed
to terms and conditions, which were totally different from those
mentioned in the advertisement and render the transaction
bereft of the essential attributes of transparency and fairplay.
The Governmental bodies are invested with powers to dispense
and regulate special services by means of leases, licences,
contracts, quotas, etc., where they are expected to act fairly,
justly and in a transparent manner and such powers cannot be
exercised in an arbitrary or irrational manner. Transparency lies
at the heart of every transaction entered into by, or on behalf of,
a public body. To ensure transparency and fairness in contracts,
inviting of open bids is a prerequisite. The reservations or
restrictions, if any, in that behalf should not be arbitrary and
must be justifiable on the basis of some policy or valid principles,
which by themselves are reasonable and not discriminatory.
29.
In the case in hand, in response to the advertisement
dated 14.03.2008, three parties, namely, M/S Services Coop
Housing Society Islamabad, M/S Golra Associates (Pvt.) Ltd.,
Islamabad and MPCHS submitted their bids. The first two parties
only submitted application/letter along with the requisite pay
order. M/S Golra Associates also filed one map along with the
application. MPCHS alone submitted financial and technical
proposals. To evaluate the bids, the Chairman CDA constituted
SMC 13-2009
34
an evaluation committee consisting of the following officers of the
CDA: -
(i)
Financial Advisor/Member
(ii)
Member Estate
(iii) Member (Planning & Design)
(iv) Head of Treasury
(v)
Director PMO
(vi) Director (Land & Rehabilitation)
The Evaluation Committee, in its meeting held on 09.07.2008,
examined the bids and found that the first two firms had only
submitted their expression of interest without technical and
financial bids, therefore, the same did not fulfil the conditions
prescribed in clause 4 of the advertisement, hence their
expression of interest was not accepted. The Committee
recommended that MPCHS, at that initial stage, was qualified for
further processing of the case. Thereafter, the CDA Board, in its
meeting dated 21.07.2008 approved that Director Lands &
Rehabilitation to issue letter of intent to MPCHS.
30.
Though
it
was
an
open
bid
invited
through
advertisement in the press, but only three parties came forward
out of which two did not submit the financial and technical
proposals along with their applications, which depicted their non-
seriousness in the matter. Only one firm, MPCHS submitted the
application accompanied by the financial and technical proposals,
which was accepted by the CDA authorities. Thus, with only one
party left in the field, practically there was no competition. The
non-submission of financial and technical proposals, in the
circumstances, appeared to be collusive and mala fide. In such a
situation, the CDA, instead of going for further advertisement of
SMC 13-2009
35
the tender, chose to be content with the one and the only party
in the field and thus deprived of the advantage of competitive
bidding. This action of the CDA functionaries contravened the
provisions of Article 18 of the Constitution and caused a great
detriment to the public exchequer as well.
31.
In the case of Fast Food outlet in F-9 Park Islamabad
titled as Human Rights Cases No. 4668/06, etc., (PLD 2010 SC
759), having noted that the 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, it was held that the
issuance of licence to M/S S&S Enterprizes was illegal and
unsustainable and liable to be withdrawn/cancelled. It was
further held that regulation 12(3) of the Islamabad Land Disposal
Regulation, 1993 obligated 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. Earlier, this Court in the case of
Iqbal Haider (supra) noticed 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 was made. It was noted that in the
scheme of a sector, some of the areas were earmarked as public
SMC 13-2009
36
parks for the general public, playing fields and graveyards and
according to Article 12(3) of the Regulation, the same were to be
developed and maintained by the CDA. Thus, it was concluded
that during the classification of the plots, under Article 3 of the
Regulation, if a piece of land was earmarked as a public park, it
could not be leased out and CDA itself was bound to develop the
same.
32.
It is important to note that Islamabad being the
Capital of the country, each inch of its land belongs to the entire
public of Pakistan. Admittedly, it is a prime land situated in
Sector E-11, which is a most expensive location of the capital
city. The CDA, which is a statutory body, established by law, is
mandated not only to make arrangements for the planning and
development
of
the
Capital
City,
but
is
to
be
authorized/compelled to perform functions of a Municipal
Committee, inter alia, to promote interests of different sections
of the society including taxpayers. Any transaction, which is not
transparent, and goes against the interests of the general public
constitutes violation of Article 9 of the Constitution, which
guarantees right to life to all persons. Right to life has been
explained and interpreted by the Superior Courts in a large
number of cases. It includes right to livelihood, right to acquire,
hold and dispose of property, and right to acquire suitable
accommodation, which could not hang on to fancies of individuals
in authority, and includes all those aspects of life which go to
make a man’s life meaningful, complete and worth living. It
SMC 13-2009
37
implies the right to food, water, decent environment, education,
medical care and shelter. A fundamental right cannot be
snatched away or waived off pursuant to any agreement. This
Court, in the case of Moulvi Iqbal Haider v. Federation of Pakistan
(PLD 2006 SC 394) dealt with a somewhat similar transaction as
under: -
“17. It has been noted that deal between respondents
Nos.1 and 2 has not been made in a transparent
manner…… Essentially, when a party makes investment,
may be meager one, it would make money by granting
licences, franchise, etc. for which it will enter into
agreements with local and international parties and the
burden of the same ultimately is to be borne by the
general public, in terms of tickets, amusement fee etc. … …
20.
At this juncture, to unfold the mala fides on the part
of respondent No.1 i.e. C.D.A., it is to be noted that in the
publication, neither specification of the areas of Jubilee
Park Markaz F-7 was mentioned, on which Mini Golf Course
was to be developed nor the period for which the lease
was intended to be given. Inasmuch as, it was not
disclosed in the publication that what is the reserved lease
money fixed by the C.D.A. because in absence of such
information, the genuine bidder could not offer bid
accurately except those bidders who have the blessings of
the authority competent to accommodate any one of them
out of way. It is also important to be kept in mind that
volume of the lease money depends upon the area of the
land, as we are of the opinion that if C.D.A. had disclosed
in publication that an area of 5.05 acres is available for the
purpose of development of Mini Golf Course, there was
every possibility of fetching much higher lease money,
than one, on which it has been given to respondent No.2.
We are told that the plot is situated in the commercial area
of Markaz F-7, where the prices of the property are
extremely on a high side but with ulterior intentions, this
important information was concealed.
21.
Be that as it may, out of both the pre-qualified
interested parties, D M/s. Family Entertainment Centre
offered 2.5 million (Rs.25 lacs) per annum for the subject
matter, whereas respondent No.2 offered Rs.6 lacs per
annum rent for the subject matter for a period of at least
15 years, with 25% increase on every three years. It is
stated that the C.D.A. evaluated both the offers and
rejected the one quoted by M/s. Family Entertainment
Centre, as it has failed to secure requisite points obtained
by respondent No.2, as such respondent No.2 was called
upon to increase/match the bid up to Rs.2.5 million.
However, the report of evaluation committed is not
SMC 13-2009
38
available to ascertain as to whether it was carried out
independently or otherwise. Thus it is held that in such like
situation, C.D.A. if at all was interested to lease out the
Public Park, instead of developing the same, may have
invited fresh proposals instead of calling upon respondent
No.2 to enhance the lease money because in granting
contracts for the purpose of fetching money to support the
public exchequer, the competent authority had an
obligation to adopt such devices on the basis of which
more money could be procured as it has been held in
Captain-PQ Chemical Industries (Pvt.) Ltd. v. A.W.
Brothers (2004 SCMR 1956). C.D.A. seems to be
interested to grant lease of Jubilee Park to respondent
No.2, as it is evident from preceding narration of facts. The
negotiation with respondent No.2 culminated in its success
because of its agreeing to match the bid to the extent of
Rs.2.5 million, which was however, subject to extending
him extraordinary benefit in formulating the conditions of
agreement, two of them are most important, which may
be referred to from the conditions reproduced herein above
i.e. being Nos.4 & 5, which, later on, became part of the
lease agreement dated 4th June, 2005 as Conditions No.14
and 15. These concessions were allowed to respondent
No.2
contrary
to
the
restriction
imposed
in
the
advertisement published on 14th August, 2004 namely, no
heavy civil structure will be allowed, open and soft
landscaping will be done, whereas contrary to it,
respondent No.2 has been allowed to construct arcs of
1000 sq. yards besides 1500 sq. yards for family and
children activities and eating court, which is impossible
unless a concrete flooring is made. It is also to be seen
that nothing was mentioned in the publication in respect of
concession expected to be available to successful bidders
in terms of period of lease, the area, as it has been
pointed out herein above, the period of completion of
project and commencing date for the purpose of making
payment of lease money i.e. after a period of about 20
months, etc.
22.
It is an unfortunate aspect of the case that prime
land situated in one of the most posh area of the capital
city has been leased out in a most opaque manner,
causing colossal loss to the public exchequer for which
C.D.A. had no authority, as discussed above. … … …
………..
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
SMC 13-2009
39
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.”
21.3233.
For the foregoing reasons, it is held and directed
as under: -
(a)
Clause (iv) of regulation 4(1)A of the Regulation is
declared to be inconsistent with sections 12 and 13
read with section 2(a) & (j) and consequently the JVA
entered with MPCHS is rendered inoperative and
ineffective qua CDA.
(b)
The CDA Board is directed to takeover the project and
complete the same in accordance with the provisions
of the Ordinance.
(c)
The Chairman CDA shall ensure implementation of the
above direction and submit compliance report within a
period of one month from the date of this judgment.
(d)
MPCHS will, however, be at liberty to pursue the
remedy for recovery of any amount spent on the
project in accordance with law.
CHIEF JUSTICE
JUDGE
Islamabad
Announced in Court on 15.04.2011.
C.J.
APPROVED FOR REPORTING
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In the supreme court of Pakistan
(Original Jurisdiction)
Present:
Mr. Justice Amir Hani Muslim
Mr. Justice Qazi Faez Isa
Mr. Justice Sardar Tariq Masood
Suo Moto Case No. 13 of 2016
(Action against illegalities, contraventions
and violations in appointments within NAB)
AND
Civil Misc. Application No. 5811 of 2016
(Application for impleadment of Mirza Sultan
M. Saleem and others)
AND
Civil Misc. Application No. 5887 of 2016
(Application BY Syed Adil Gillani)
AND
Civil Misc. Application No. 6001 of 2016
(Application of Sr. Shafiq-ur-Rehman S/o
Sajawal Khan)
AND
Civil Misc. Application No. 6028 of 2016
(Anonymous application regarding illegal
appointments in NAB)
AND
Civil Misc. Application No. 6285 of 2016
(Impleadment application by Asad Kharal)
AND
Civil Misc. Application No. 6907 of 2016
(Application by Mirza Sultan M. Saleem)
AND
Civil Misc. Application No. 6980 of 2016
(Impleadment Application by Dr. Shaista Nuzat)
AND
Civil Misc. Application No. 6984 of 2016
(Impleadment Application by Yasir Ali)
AND
SMC.13/2016
2
Civil Misc. Application No. 7093 of 2016
(Application by Muhammad Arshad Saeed)
AND
Civil Misc. Application No. 7363 of 2016
(Application of Haji Muhammad Tariq Aziz Khokhar)
AND
Civil Petition No. 630-K of 2015
(Abdul Hadi Vs. NAB and others)
AND
Civil Petition No. 65-Q of 2015
(Mirza Luqman Masud and
others Vs. Chairman NAB and
others)
AND
Civil Misc. Application No. 1249 of 2017
(Report by Joint Secretary (D & L), on behalf
of Establishment Division)
In Attendance:
On Court Notice
:
Syed Tahir Shahbaz, Secretary,
Establishment Division.
For the Federation
:
Ch. Amir Rehman, Addl. Attorney General.
For the NAB
:
Khawaja Haris Ahmed, Sr. ASC
Mr. Waqas Qadeer Dar, PG, NAB.
Mr. Qamar Zaman, Chairman NAB
For Ms. Aliya Rasheed
:
Hafiz S. A. Rehman, Sr. ASC.
(in CMA. 7192/16)
For Maj. (R) Shehzad Saleem :
Malik Muhammad Qayyum, Sr. ASC
and Maj. (R) Shiraz Naeem
For Brig.(R) Farooq Nasir
:
Mr. Ahmed Awais, ASC
For Maj (R) Shabir Ahmed :
Mr. Muhammad Shoaib Shaheen, ASC
and for Syed M. Husnain
Mr. Rashid Javid Lodhi, ASC.
For Ziaullah Toru
:
Khawaja Azhar Rashid, ASC.
For Zahir Shah
:
Dr. Muhammad Ali Saif, ASC.
For Adnan Shehzad Asghar, :
Raja Imran Aziz, ASC.
Yasir Mehmood, Muhammad
Mr. Arshad Ali Ch., AOR.
Fahad Khan, Karim Bux and
Harmoon Bhatti
SMC.13/2016
3
In CMAs.5811 & 6907/16
:
Mr. Abdur Rehman Siddiqui, ASC.
Mr. Ahmed Nawaz Ch., AOR.
In CMA.5887/16
:
Mr. Hashmat Ali Habib, ASC
In CMA.6001/16
:
Shafiq-ur-Rehman, In-person.
In CMA 6285/16
:
Asad Kharal, In-person.
In CMA.6980/16
:
Sardar Muhammad Aslam, ASC.
Dr. Shaista Nuzat, In-person
In CMA.6984/16
:
Nemo.
In CMA.7093/16
:
Nemo.
In CMA.7363/16
:
Mr. Aftab Alam Yasir, ASC.
Syed Rifaqat Hussain Shah, AOR.
In CP No.65-Q/2015
:
Mr. Muhammad Aslam Chishti, Sr. ASC.
Mr. Zahoor-ul-Haq Chishti, ASC.
In CP No.630-K/2015
:
Mr. Shahid Anwar Bajwa, ASC.
In Attendance
Raja Saif-ur-Rehman, ASC.
Mr. Muhammad Umer Riaz, ASC.
Mr. Riaz H. Rahi, ASC.
Mr. Kamran Murtaza, ASC.
Mr. Mehr Khan Malik, AOR.
Mir Aurangzaib, AOR/ASC.
Dates of Hearing
:
27th, 28th and 29th March, 2017.
JUDGMENT
Amir Hani Muslim, J. These Suo Moto proceedings were initiated under Article
184 (3) of the Constitution of Pakistan on an anonymous application/letter
wherein it was alleged that illegalities, contraventions and violations were
committed/made in the appointments made in the National Accountability Bureau
(“NAB”). It was, inter alia averred that NAB, which was the apex anti-corruption
body of the country, had never come under legal scrutiny and the judgments of
this Court reported as Contempt Proceedings Against Chief Secretary Sindh (2013
SCMR 1752) and Ali Azhar Khan Baloch vs. The Province of Sindh (2015
SCMR 456) were not followed to stream-line the service structure within NAB. It
was further stated that there were a number of officers who lacked the eligibility
criteria prescribed in the rules made pursuant to the National Accountability
SMC.13/2016
4
Ordinance, 1999 (“the NAB Ordinance”) were still working in NAB in different
capacities. The said rules, which have been made pursuant to the NAB
Ordinance, are the “National Accountability Bureau (NAB) Employees Terms
and Conditions of Service (TCS), 2002” (“the TCS”). Pursuant to the TCS Rules
the methods of appointment and qualifications were prescribed in the “National
Accountability Bureau (NAB) Methods of Appointment and Qualification
(MAQ)” (“the MAQ”). After registering the said application / letter as a Suo
Moto Case under Article 184(3) of the Constitution, notices were issued to the
learned Attorney General for Pakistan and the Chairman NAB. When this case
was fixed on 23.09.2016, it was observed by this Court as under:
“2.
We have gone through the concise statement filed by the NAB
and have noticed that appointments made in the NAB are, prima facie,
violative of the principles enunciated by this Cout in the cases reported
as Contempt Proceedings Against Chief Secretary, Sindh and others
(2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh
and others (2015 SCMR 456). The NAB has taken the stance that these
judgments do not apply to their employees on the ground that they are
not civil servants. This stance is completely in conflict with the
observations made by this Court in para 121 of the judgment Ali Azhar
Khan Baloch (supra) where this Court has held that the principles laid
down in aforesaid judgments would be applicable to the civil servants,
Government servants and all other employees serving in different
statutory organizations which are working under the administrative
control of the Government.”
2.
Notice of the proceedings as contemplated under Order XXVII-A
CPC was also given to the learned Attorney General for Pakistan vide order dated
24.10.2016. Furthermore, NAB was required to file service profile of the officers
whose appointments were challenged through different CMAs, inter alia, on the
ground of legal infirmities in their appointments. In compliance with this
direction, NAB filed a report (CMA No.8114/2016) setting out the infirmities in
the appointments made in NAB, but as this Court was not satisfied with the report
it was decided to take up the case of all the officers / officials named in the said
report and decide their fate on merits in accordance with law. Notices were issued
SMC.13/2016
5
to all the concerned officers / officials vide order dated 7.12.2016. Thereafter, on
12.01.2017, this Court observed as under:
“We have heard the learned Counsel for the NAB and have perused the
report submitted by the committee on the issue of appointments made in
the NAB. We are not satisfied with the report. The stance of the NAB
that a committee comprising senior officers of the NAB and the
Establishment Division was constituted to scan the appointments made
in the NAB, is also incorrect, as the report submitted by the NAB
reflects that the representative of the Establishment Division has not
signed it.
2.
With the consent of the learned Counsel for the NAB and the
Counsel representing the parties present in Court, we direct the
Secretary, Establishment Division, Government of Pakistan, to
scrutinize as to whether all the appointments / promotions / absorptions
/ deputations and appointments on contract basis made in the NAB
since 2002 till date are in conformity with the National Accountability
Bureau (NAB) Employees Terms and Conditions of Service (TCS)
2002, and National Accountability Bureau Methods of Appointment
and Qualification (MAQ) 2002 (amended from time to time) and
whether
the
officers
who
were
appointed/promoted/absorbed/
appointed
on
deputation
or
on
contract
basis
hold
the
qualification/relevant experience in the required field and these
appointments were in conformity with the principles laid down by 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). A detailed report against each appointment /
promotion / absorption / deputation made in BS-16 to BS-22 in the
NAB shall be submitted by the Secretary. The Secretary, Establishment
Division, may summon the original service profile of the officers of the
NAB which shall be provided to him immediately without delay. The
Chairman, NAB, and all his subordinates shall extend full co-operation
to the Secretary, Establishment Division, in this exercise, which shall
be completed within 04 weeks from the date of communication of this
Order.
3.
A copy of the report submitted by the NAB shall also be
provided to the Secretary, Establishment Division, for his perusal
which may be of some assistance to him in completion of the task. Copy
of this order shall be faxed immediately to the Chairman, NAB, the
Secretary, Establishment Division and Attorney General for Pakistan
for their information and compliance.”
3.
Thereafter, when this case was fixed on 22.03.2017, it was
observed by this Court as under:
SMC.13/2016
6
“….According to the Secretary, Establishment nine officers lacked
inherent qualification for appointment to the post. In addition with
regard to the issue of promotion where, according the Secretary,
Establishment, there are many inconsistencies. The Secretary,
Establishment has not given his own opinion as to whether these
officers qualified to be retained in the office or not. Kh. Haris Ahmed,
learned Sr. ASC is put on notice to go through the report and make
statement as to whether the discrepancies in the appointments /
promotions are correct and whether in particular the nine officers
pointed out by the Secretary, Establishment had the requisite
qualification on the date of their appointment and, if they did not
whether such officers were entitled to subsequent promotions. He states
that he will examine the report of the Secretary, Establishment with
regard to the inherent disqualification of nine officers, the promotion
that were given and whether the appointments by promotion or
absorption were inconformity with the principles laid down by this
Court in the judgments reported as: Contempt Proceedings against
Chief Secretary, Sindh (2013 SCMR 1752) Ali Azhar Khan Baloch Vs.
Province of Sindh (2015 SCMR 456) and Ch. Muhammad Akram Vs.
Registrar, Islamabad High Court (PLD 2016 SC 961). Kh. Muhammad
Haris, learned Sr. ASC will file a report which will cover all material
aspects as pointed out by Secretary Establishment…”
Following the above mentioned directions, NAB submitted its response, through
CMA 1748 of 2017, which states that to the extent of some of the officers they
agree with the report of the Secretary Establishment.
4.
Khawaja Harris Ahmed, Senior ASC appeared as Counsel for the
NAB and made a statement on behalf of NAB and the Chairman NAB, stating
that the list of nine officers who were found to have inherent disqualifications in
their appointments according to the report of the Secretary Establishment can be
divided into two sets of officers. The first set of officers comprises of three
officers with regard to whom NAB has no dispute with the findings of the
Secretary Establishment that they did not meet the stipulated qualification and
were inherently disqualified. The second set comprises of six officers whose
induction in NAB according to his understanding is protected by a ‘deeming
clause’ which is sub-rule (2) of Rule 14.03 of TCS. This ‘deeming clause’,
according to him, provides that officers who have been inducted in NAB under
Rule 14.03 of the TCS will be deemed to be ‘transfer employees’ for all purposes
SMC.13/2016
7
under the TCS and the requirements of TCS will not apply to them . He further
contends that Rule 3.30 of TCS would not be attracted in the case of induction of
these employees who were already serving in NAB. In an attempt to explain his
interpretation of the deeming clause in sub-rule (2) of Rule 14.03 of TCS, he
stated that the last line of the said sub-rule provides that those inducted in NAB
through Rule 14.03 shall be deemed to be appointments by transfer “for all
purpose of the TCS”. By virtue of this phrase, he states, that the relevant rules
applicable to appointment by transfer in part IV of the TCS titled ‘Appointment
by Transfer’ which prescribe that three elements need only to be fulfilled, which
are that the appointment must be in the public interest (Rule 3.28 of TCS), only
regular incumbents be considered (Rule 3.29 of TCS) and employees possess
qualifications required for initial appointment to the relevant post (Rule 3.30 of
TCS). These elements, he contends, are presumed to have been fulfilled by an
inductee by operation of the deeming clause. In this regard he has referred to the
case of Munir Hussain Bhatti vs. Federation of Pakistan (PLD 2011 SC 407).
5.
The learned Senior ASC next contends that there are three main
categories of appointments mentioned in the report of the Secretary Establishment
Division wherein inconsistencies were found in the mode of appointment; i.e. (i)
appointment by initial appointment (ii) appointment by induction and (iii)
appointment by promotion. Regarding the first category, in which employees
were inducted through initial appointment, he states that there were 629
appointments made in NAB, out of which in 101 appointments inconsistencies
were found in the report of the Secretary Establishment and NAB agrees that
there were inconsistencies in 48 appointments and states the concerned officers
will be de-notified. He further stated that apart from these, there are twelve (12)
officers who are no longer in the service of NAB and that NAB does not agree
with inconsistencies found in the appointments of the remaining 39 officers.
6.
With regard to the second category, where appointments were
made by promotion, the learned counsel states that the said report reflects that 561
SMC.13/2016
8
appointments were made by promotion within NAB out of which inconsistencies
were found in only 133 appointments and out of these 35 officers have retired. He
submitted that NAB agrees with the findings of inconsistencies in 102 of these
appointments except four officers who were pointed out in Annexure IV of the
said report, namely: (1) Khalid Mehmood, (2) Ansar Yaqub, (3) Saleem Chandio
and (4) Afshan Basharat. Regarding these four officers he states that their
appointments were governed by Rule 14.02 of the TCS. He states that Khalid
Mehmood was appointed on deputation basis in NAB from the Accounts and
Works Department Punjab in the year 2007. He states that Khalid Mehmood and
Ansar Yaqub were promoted on the decision of the Federal Service Tribunal and
since there is no provision in the TCS that provides for the fate of appointments
by promotion given by a Service Tribunal’s decision, Rule 14.08 of the TCS
applies to their appointments which provides that “in matters not covered under
the TCS the employees of NAB shall be governed by the rules applicable to the
other civil servants and the instructions issued from time to time by the Federal
Government on such subject”. He further contends that the third officer namely
Saleem Chandio was given a conditional promotion on the recommendations of
the DPC and his case too is, therefore, distinguished and attracts special treatment
on this ground. As regards the fourth officer Afshan Basharat she was given
conditional promotion on the ground that her senior was resigning and thereafter
she was promoted when the resignation of her senior was finalized and contends
that Rule 3.24 of TCS applies to her appointment by promotion.
7.
Khawaja Haris Ahmed, learned ASC then contends that in the third
category of appointment, which was by induction, there were 32 officers who
were inducted in NAB pursuant to Rule 14.03 of the TCS. He submitted that
proviso (i) of paragraph 2 of the MAQ specifically addressed the treatment of
officers who had been working in NAB on transfer / deputation basis for the past
one year prior to the promulgation of the MAQ. The proviso states that vacancies
will be reserved for such employees against the posts equal to those already held
SMC.13/2016
9
by them on regular basis in their parent departments in terms of Rules 14.02 and
14.03 of the TCS. He further submits that out of these 32 officers only 15 are still
in service while the rest have retired. Out of these remaining 15 officers, six (6)
officers have been cleared by the Secretary Establishment in his report. He
contends that one of these nine (9) officers is Aliya Rasheed and NAB agrees with
the findings of the report of the Secretary Establishment in her case. He, however,
states that she has been retained in NAB on the basis of judgments of this Court in
her favour. A judgment of this Court passed in CP No.1632/2011 decided on
2.12.2011 wherein this Court observed that her appointment, future promotion or
career shall not be affected in any manner and the second judgment of this Court
in HRC No.1305-G/2009 wherein it was observed by this Court that she should
not be discriminated against with regard to her promotion.
8.
The learned counsel further contends that another officer, S. M.
Hasnain, did not complete the one year period of service in NAB as per proviso
(i) of para 2 of MAQ before his induction. With regards to his induction Khawaja
Haris Ahmed submits that a lenient view may be taken as he was short of the
requisite experience by only a few months. Regarding the remaining seven 7
officers, he contends that NAB agrees that the required qualifications were not
met by these officers, however, these officers do not need to comply with the said
requirements as proviso (i) of para 2 of MAQ read with Rule 14.03 of TCS
governs their induction. He submits that sub-rule (2) of Rule 14.03 contains a
deeming clause whereby employees inducted from the Federal Government, other
than those from the Armed Forces, could exercise a one time option for their
absorption and would be deemed to have been appointed on transfer under the
TCS, subject to the consent of the competent authority of their parent department
and the approval of the appointing authority in NAB.
9.
Khawaja Haris Ahmed, ASC learned counsel further argued that
apart from these nine officers, there was one more officer, namely, Zia Ullah
Khan Toru who is currently serving as Deputy Director (BS-20) in NAB. This
SMC.13/2016
10
officer was continuing on the basis of a judgment in his favour from the Peshawar
High Court. This judgment was appealed before this Court but the petition was
dismissed therefore, Zia Ullah was appointed in NAB without an advertisement,
and without meeting the requisite academic qualification criteria.
10.
Mr. Waqas Qadeer Dar, the Prosecutor General (“PG”) NAB,
stated that in the MAQ the qualifications required for appointment, in the
Schedule under ‘Academic Qualification’ also includes “any qualification
approved by the competent authority”. He contends that the said word “any” is of
wide import and would include any qualification. In this regard he referred to the
case of Inamur Rehman Vs. Federation of Pakistan (1992 SCMR 563) and
regarding interpretation of word “qualification” he referred to the case of Noor-
Ul-Ameen Vs. Muhammad Abdul Qayum Khan (1991 MLD 2658).
11.
Malik Muhammad Qayyum, learned Sr.ASC, appeared on behalf
of Major (R) Shiraz Naeem, who is currently serving in the NAB as Director on
“Own Pay Scale” (OPS). The learned Senior ASC contends that Major (R) Shiraz
Naeem was previously serving in the Pakistan Army and was sent on deputation
to NAB. Thereafter, he served in NAB on deputation from 1999 till the year 2003
after which he retired from the Pakistan Army and was inducted in the NAB
under the TCS. He pointed out that Major (R) Shiraz Naeem possessed the
required academic qualifications since he had a Masters Degree in Computer
Sciences and therefore, he did not have any inherent disqualification. He also
submits that the report of the Secretary Establishment had no adverse findings
against his appointment. Malik Muhammad Qayyum, learned Sr. ASC also
appeared on behalf of Maj. (Retd) Shehzad Saleem and contended that at the time
of his induction in NAB he fulfilled all the codal formalities, therefore, his
induction was in accordance with the law / rules.
12.
Mr. Ahmed Awais, learned ASC, appeared on behalf of Brig. (R)
Farooq Naseer Awan and contends that the applicant was directly appointed as
SMC.13/2016
11
Director General (BS-21) in NAB in the year 2013 and fulfilled the requisite
academic qualifications prescribed in the MAQ since he had a B.Sc. degree as
well as M.Sc. degree. With regard to his mode of appointment, he contended that
307 candidates had applied for the said post in February 2013 and he was duly
selected. Despite there being no irregularity in his appointment he contends that
his case falls in the list of 48 officers regarding whose appointment NAB agrees
with Secretary Establishment’s report that inconsistencies existed.
13.
Hafiz S.A. Rehman, learned ASC, appeared on behalf of Aliya
Rasheed in CMA No. 7192 of 2016. He contends that Aliya Rasheed was
appointed in NAB on 26.06.2003 pursuant to a directive by the then Prime
Minister on account of her being an exceptional tennis star who represented the
country in various international tennis tournaments. He contended that she had
never been involved with or assigned any investigation related matter throughout
her service in NAB and was only involved in raising awareness against
corruption. He next contended that her appointment was not made under the TCS
or MAQ but was made pursuant to the said policy of the Prime Minister. He
concedes that no other sportsperson was appointed in NAB pursuant to this
policy. He next contends that she has been retained in NAB on the ground of
judgments of this Court in her favour, passed in CP No.1632/2011 decided on
2.12.2011 wherein this Court observed that her appointment, future promotion or
career shall not be affected in any manner and the second judgment of this Court
in HRC No.1305-G/2009 wherein it was observed that she should not be
discriminated against with regard to her promotion.
14.
Mr. Shoaib Shaheen, learned ASC, appeared on behalf of the
applicants namely, Major (R) Shabbir Ahmed and S.M. Hasnain. He contends that
both of the applicants were appointed in NAB pursuant to Rules 14.02 and 14.03
of the TCS. He also contends that although Major (R) Shabbir Ahmed did not
initially have the required qualifications for the post of Deputy Director (BS-20)
on 30.09.2003 when he was absorbed in NAB, he had later acquired a LLB
SMC.13/2016
12
degree in the year 2005 and then a MBA degree in the year 2010. He submits that
a recent judgment of this Court in the case of DCO/ Chairman District
Recruitment Committee Khanewal Vs. Kishwar Sultana (Civil Appeal No. 843 to
863 of 2012 etc) supports the proposition that where a person lacks the
qualifications required for initial appointment to a post, he may acquire the
required qualification later to cure the defect. With respect to the case of the
applicant S.M Hasnain, he contends that the said officer did not complete the one
year period of service in NAB as per proviso (i) of para 2 of MAQ before his
induction, however he had four years of experience in the Anti-Corruption
Establishment. He also referred to Rule 14.01 of the TCS whereby the Chairman
if he is satisfied may relax any provision or condition.
15.
Dr. Shaista Nuzhat who was previously employed in NAB and is
now serving in the Establishment Division in BS-19, appeared in CMA
No.6980/2016 and submitted that she only wanted to place some facts on record
regarding the appointment of Ms. Aliya Rasheed. She contended that Ms. Aliya
Rasheed was initially a project employee in the Ministry of Education, remained
on contract basis in the said Ministry and was never appointed on regular basis.
Thereafter, she was appointed in NAB in BS-18 on contract basis and was
inducted after two months in BS-19. She further contended that Prime Minister
had twice turned down the summary for her appointment but she was appointed in
NAB in violation of the law / rules.
16.
Maj. (Retd) Syed Burhan Ali, appears in person and contends that
he is presently posted as Director General NAB, Lahore (BS-20). While giving
details of the process of his induction in NAB, he contends that he was a serving
Major in Pakistan Army and was appointed on deputation to NAB as Deputy
Director (B-18) in the year 2000, following which his induction took place on
30.9.2003. He next contends that he was holding a B.Sc. degree at the time of his
induction and his case fell in the category of those officers who possessed “any
qualification approved by the competent authority” as stipulated in the
SMC.13/2016
13
qualification requirement for the post of Deputy Director (BS-18) under the
“Academic Qualification” in the Schedule to MAQ, therefore, the qualifications
which were relevant for other officers were not attracted in his case. He also
refers to Rule 1.02 (b) of the TCS, submitting that his case falls within the ambit
of those officers on deputation who were excluded from the application of the
TCS even though after induction he was no longer a deputationist.
17.
Maj. (Retd) Tariq Mehmood Malik, Director General NAB,
Balochistan, appeared in person and contended that his case was similar to that of
Maj. (Retd) Syed Burhan Ali. He contends that he was holding a B.Sc. degree at
the time of his induction and his case fell in the category of those officers who
possessed “any qualification approved by the competent authority”, therefore, the
academic qualification which were relevant for other officers were not attracted in
his case. He also referred to Rule 1.02 (b) of the TCS, submitting that his case
falls within the ambit of those officers who were on deputation and had been
excluded from the application of the TCS even though after induction he was no
longer a deputationist.
18.
Chairman NAB, appeared in Court and was confronted with his
opinion about those officers who did not have the requisite academic
qualifications for their appointment and are serving in NAB, and why these
officers had not been de-notified as yet. In response to this he stated that he
agreed that the qualification/criteria prescribed in the TCS and the MAQ cannot
be compromised, therefore, the officers who lacked the required qualifications at
the time of their appointments, should indeed be de-notified.
19.
On 28.03.2017 the Chairman NAB submitted that with regard to
the nine officers who were found to have inherent disqualification in their
appointments in the Secretary Establishment’s report, two Directors namely
Muhammad Younas and Capt. (Retd) Farrukh Naseem Akhtar have opted for
voluntary retirement, whereas, two other officers, namely, Col. (Retd) Naeem and
SMC.13/2016
14
Sq. Ldr. (Retd) Tariq Nadeem serving as DG and Director respectively have
retired. He further submits that two officers, namely, Syed Muhammad Amir
(Additional Director) and Ansar Yaqub (Deputy Director) have opted for
repatriation to their parent departments. He stated that Ms. Aliya Rasheed, who
was not amongst these nine officers, was offered voluntary retirement but chose
not to opt for the same and contest her case on merits. He next states that the
issue now remains only with regards to three officers, namely, Maj. (Retd) Syed
Burhan Ali, Maj. (Retd) Tariq Mahmood Malik and Maj. (Retd) Shabbir Ahmed.
20.
When this matter was fixed on 28.03.2017, the following order
was passed by this Court:
“We asked the Chairman, NAB to respond to the option which this
Court had extended to the nine officers against whom the report
submitted by the Secretary, Establishment Division, Government of
Pakistan and which was concurred by NAB that the said nine officers
did not meet the stipulated criteria prescribed for appointment.
2.
The Chairman, NAB states that two of these officers have
retired, namely, Col. Naeem, Director General NAB, Karachi and
Tariq Nadeem, Director NAB, Lahore.
3.
Chairman NAB further states that Mr. Muhammad Younas,
Director NAB, and Mr. Farrukh Naseem Akhtar, Director NAB have
opted to avail pre-mature retirement. Therefore, these two officers
shall submit pre-mature retirement applications to the Chairman, NAB
which should be processed in accordance with rules and accepted. It is
clarified that these two officers would be entitled to all the pensionary
benefits and perks that would be due to them upon such retirement.
4.
With regard to Syed Muhammad Amir, Additional Director
NAB, Quetta and Ansar Yaqoob, Deputy Director NAB, Lahore, the
Chairman, NAB states that they have sought to be repatriated to their
respective parent departments. Let such applications be made to the
Chairman, NAB, who in turn shall relieve these officers by repatriating
them to their respective parent departments. Their lien, if it had been
terminated shall stand revived and they would be entitled to the same
benefit of salary and seniority as per their batch-mates, and if their
batch-mates have been promoted, they shall also be entitled to
promotion in their parent departments. The parent departments shall
complete this exercise from the date they receive the order of
repatriation/relieving by the Chairman, NAB.
SMC.13/2016
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5.
As regards the remaining three officers, namely, Maj. (R) Syed
Burhan Ali, who is posted as Director General NAB, Lahore, Maj. (R)
Tariq Muhammad, who is working as Director General NAB,
Balochistan and Maj. (R) Shabbir Ahmed, Director NAB holding acting
charge of Director General, NAB Karachi, the matter is adjourned for
tomorrow. i.e. 29.03.2016. In the meantime, Chairman NAB shall get
in touch with Secretary Establishment Division, Government of
Pakistan”
21.
Through the NAB Ordinance, NAB was created with the purpose
to eradicate corrupt practices and hold accountable persons who had indulged in
corrupt practices. The object, as mentioned in its Preamble was to provide
effective measures for the detection, investigation and prosecution of those
involved in corruption and corrupt practices or who had misused or abused their
powers. The apparent objective was not to target petty criminals but those who
had indulged in massive corruption or where there had been major misuse or
abuse of powers. NAB also had the mandate to proceed against white collar
criminals who may not be easily detected by the provincial police or the Anti-
Corruption Establishments in view of the subterfuge with which such persons
operate or in view of the difficulty associated with unearthing such crimes. The
very mandate of NAB means that the different positions in NAB are filled by
persons possessing certain minimal academic qualifications and experience as
stipulated in the Schedule to MAQ. Similarly, stringent conditions for promotion
were mentioned in the TCS and MAQ. We were dismayed with the contents of
the report submitted by the neutral and very senior bureaucrat, the Secretary
Establishment Division, Government of Pakistan. Whereas, NAB acknowledges
many of the shortcomings and discrepancies in the appointments, inductions and
promotions it had a different viewpoint with regard to certain others.
22.
The learned counsel representing officers in NAB as well as
Khawaja Haris Ahmed, learned senior ASC, representing NAB have tried to
justify as to why the stipulated academic qualification or the prescribed
experience was not met by a person appointed and/or promoted. A number of
SMC.13/2016
16
untenable arguments in this regard were put forward which have been mentioned
hereinabove. In this regard reference was made to sub-rule (2) of Rule 14.03 of
TCS and much stress was placed on the word “deemed” appearing therein.
Another argument that was put forward was that appointments made by transfer,
as attended to in Part VI of the TCS, had their own methodology and that the
appointments made pursuant to these provisions would not require to meet the
criteria specified in MAQ. The learned PG, NAB put forward another novel
contention which was that under the title “Academic Qualification” which
mentions specific qualifications that appointments could also be made if the
appointee had “any qualification approved by the competent authority”. Messrs
Malik Muhammad Qayyum, learned Senior ASC, Ahmed Awais, learned ASC
and Muhammad Shoaib Shaheen, learned ASC, stated that if a person had
subsequently acquired the required academic qualification he cannot be removed
or de-notified on the ground that he did not have the stipulated academic
qualification. It was also stated that the Chairman, NAB has the power to relax
any provision, condition or requirement. The individuals who represented
themselves advanced similar arguments. Hafiz S. A. Rehman, learned Senior ASC
canvassed another extra-ordinary viewpoint which was that if an appointment was
made, pursuant to a policy issued by the Prime Minister that supported or
encouraged sportspersons, the stipulated qualification and experience would not
be relevant.
23.
Though an attempt has been made to make this matter
complicated, it is basically very simple. The MAQ and the TCS prescribed the
requisite academic qualification and experience, inter alia, that a person who is
appointed must possess at the time of his appointment. To appreciate the
respective contentions, it would be appropriate to reproduce certain provisions of
the TCS:
“1.02.
Commencement
and
Application.
These
terms
and
conditions of service (TCS) shall come into force at once and shall
apply to all employees of the National Accountability Bureau other
than:
SMC.13/2016
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(b)
a person who is serving on deputation from the Federal or the
Provincial Government or from a corporation, statutory body or Local
Fund or an autonomous body etc;”
“3.30.
Possessing Qualifications for Initial Appointments. Only an
employee possessing the qualifications and other conditions laid down
for initial appointment to the post on which appointment by transfer is
being made, shall be considered by the Selection Board or the
Departmental Selection Committee, as the case may be, for
appointment by transfer.”
“14.01. Just and Equitable Treatment in Hardship Cases.
Notwithstanding anything to the contrary contained in these TCS in
relation to the terms and conditions of service of an employee, the
Chairman may, if he is satisfied, for reasons to be recorded in writing,
that strict application of any provision or, condition causes hardship in
any case, by order, relax this requirement to such extent as it may deem
fit, for ensuring just and equitable treatment to the employee concerned
without infringing the right of any other employee.”
“14.02. Appointments made Prior to Coming Into Force These
TCS. On commencement of these TCS, all appointments made either
by initial recruitment or promotion or transfer other than of those
employees who were posted on deputation or employee or contract
before coming into force of these TCS, shall be deemed to have been
made on regular basis, subject to fulfillment of conditions of eligibility
prescribed in the Methods of Appointment and Qualification, (MAQ)
for
each
post,
recommendation
of
appropriate
Selection
Board/Committee as well as approval of the appointing authority.”
“14.03. Induction of Employees of other Services. (1) A person
belonging to the Federal Government including the Armed Forces of
Pakistan or a Provincial Government or a Corporation or body set up or
controlled by any such Government and serving on deputation in the
NAB may opt for permanent absorption in the NAB against the post
equal to or identical with the post held on regular basis by him, under
such Government, Corporation or body.
(2)
The option for absorption once exercised shall be final and
subject to the consent of the competent authority of such employee in
the parent department and approval of the appointing authority in the
NAB, his appointment in the NAB shall be deemed as appointment on
transfer for all purposes under these TCS.”
24.
Clause (b) of Rule 1.02 of the TCS is restricted only to such
persons who are “serving on deputation” in NAB, and this Rule has no application
if a person wants to be permanently absorbed in NAB. Rule 14.03 of TCS does
not stipulate that, those who opt for permanent absorption in NAB are not
required to have the academic qualifications and experience provided in the
MAQ. Neither the MAQ nor any rule of the TCS mentions that the qualifications
prescribed in MAQ would not apply to such persons. Therefore, the prescribed
qualifications are applicable. This would also apply to the appointments made on
transfer basis.
25.
With regard to the induction of an employee from any other
service and the argument that he “shall be deemed as appointment on transfer”
SMC.13/2016
18
and therefore would only be required to comply with Rules 3.28, 3.29 and 3.30 of
TCS is not supported by the TCS. Rule 3.30 clearly stipulates that, “only an
employee possessing the qualifications and other conditions laid down for initial
appointment to the post on which appointment by transfer is being made shall be
considered…”. Therefore, if a person is to be inducted in NAB from another
service he must have the requisite qualifications, and if he did not have them he
cannot be appointed. As regards the other limb of the argument that induction is
“deemed as appointment on transfer” is also of no consequence as Rule 14.03
does not state that the inductee from another service is exempt from having the
prescribed academic qualifications and other eligibility criteria. The persons who
were so inducted in NAB were already advantageously placed as they did not
have to compete with others in a competitive process, therefore, to project them as
victims is wholly inappropriate.
26.
As regards the learned PG’s contention that, under the title
“Academic Qualification” in the Schedule to MAQ, the competent authority can
substitute the stipulated academic qualifications by “any qualification” this
contention has no application in these cases, since the competent authority had not
exercised such powers nor had substituted the stipulated academic qualifications
with any other qualification. Therefore, we need not speculate as to the kind of
alternative qualifications which could have been approved by the competent
authority. We may, however, observe that if the competent authority elects to
substitute the stipulated academic qualification it could only be to ensure that
certain skills which accompany a particular academic qualification were required.
The alternative attempt by the learned PG, to read the words “any qualification”
on their own, is precluded by the fact that these words are followed by the
following words- “approved by the competent authority”.
27.
The contention that a person can obtain the requisite qualifications
subsequently, that is after he had already joined the service of NAB is
unsustainable. If this concept or principle is accepted it would render meaningless
SMC.13/2016
19
the stipulated qualification for a particular job. Though reference has been made
to an unreported judgment mentioned in paragraph 14 (above) but that judgment
is based on altogether different facts and circumstances. In that case the Skill
Development Council constituted under the National Training Ordinance, 1980
had embarked upon issuing diplomas and certificates which it was not entitled to
do and this Court held, that “persons employed on the basis of the same may
continue in service” provided they also “possess the requisite or relevant
qualifications”, and as regards “those who could not improve their qualification
should improve it within a period of one year…”. An untenable situation was
created by the Government itself as it had stipulated that those who possess
certificates/diplomas from the Skill Development Council could apply. This
judgment is given on its own the peculiar facts and circumstances and does not
lay down any principle of law in terms of Article 189 of the Constitution.
Moreover, in the present case NAB did not issue any notification that it would
also accept any other degree/diploma/certificate, consequently, the said judgment
has no relevance to the facts of this case.
28.
As regards the argument that, the Chairman, NAB possesses the
power to relax any provision or condition under Rule 14.01 of the TCS and in
making the appointments he is presumed to have done so, is negated by the said
Rule itself. The Chairman’s power to relax is circumscribed in terms of Rule
14.01 itself. To begin with this Rule is premised on the fact that the person
affected by any particular provision or condition is already an employee of NAB,
which was not so in the present case, as deputationists in NAB are not employees
of NAB. This Rule does not apply to those who are being appointed or inducted in
NAB. In addition the Chairman, NAB can only exercise his powers to relax rules
only to the extent that a particular provision or condition “causes hardship” and
provided it is “just and equitable”. All these factors have to be attended to by the
Chairman, NAB “in writing”. Moreover, nothing has been brought on the record
to show that the Chairman, NAB had actually exercised such powers. If a person
SMC.13/2016
20
does not have the requisite academic qualification it cannot be construed to “cause
hardship”, therefore, the question of providing “just and equitable treatment” in
terms of Rule 14.01 would not arise. Besides the aforesaid reasons, we are of the
considered view that the Chairman, NAB did not have the authority to relax the
rules by compromising eligibility and academic qualifications. In this regard, we
are fortified by the judgment of this Court in the case of Muhammad Akram v.
Registrar, Islamabad High Court (PLD 2016 SC 961). Consequently, we are clear
that Rule 14.01 of the TCS is not attracted.
29.
As regards pressing into service the “policy” issued by the Prime Minister
to support and encourage sportspersons with regard to Ms. Aliya Rasheed, the
referred to “policy” is reproduced hereunder:
“In order to promote sports at grass root level and inculcate
discipline amongst the masses for national integration and
cohesion, the Prime Minister has been pleased to direct that
the sportsmen of International/National level may be
provided jobs in Government Departments and large
organizations like PIA, WAPDA, Police, Railways and
other Federal/Provincial Departments/Autonomous Bodies,
through a proper selection procedure. For this purpose
Departments/Organizations
concerned
should
make
necessary provision in their service rules.
2.
M/o MCST&YA will monitor the progress of
implementation of this directive and submit monthly
progress report for information of the Prime Minister.”
Supporting the said appointment on the basis of this “policy” is not
sustainable on a number of grounds. Firstly, the NAB Ordinance, the TCS and
MAQ do not vest the Prime Minister with any authority to issue such a policy.
Secondly, pursuant to the purported policy neither the MAQ or the TCS were
amended. Thirdly, the appointment was made without advertising the post or
inviting equally placed persons to participate. Simply issuing such “policy”
without any further action thereon cannot substitute the provisions of the NAB
Ordinance, the TCS and/or the MAQ.
SMC.13/2016
21
30.
It is, therefore, quite clear that none of the arguments and
contentions that were advanced could justify the appointments, inductions or
transfers mentioned hereinabove.
31.
We accordingly hold and direct that:
I.
The initial appointments of 05 officers namely Muhammad Fahad Khan,
Yasir Mehmood, Karim Bux, Harmoon Bhatti, and Adnan Shehzad Asghar,
whose names have been mentioned at page 86 of C.M.A.No.1748 of 2017, have
been found to be inconsistent with the National Accountability Bureau (NAB
Employees Terms and Conditions of Service) (TCS), 2002. The learned counsel
for these officers, stated that one of these officer, namely, Adnan Shehzad Asghar
may be allowed to be repatriated to his parent department, i.e. the National Bank
of Pakistan. In these circumstances and to avoid any hardship, we direct the
Chairman, NAB, to immediately repatriate Adnan Shehzad Asghar to his parent
department, i.e. the National Bank of Pakistan, and the Bank, in turn, shall allow
him to join. He shall be given seniority and promotion alongwith his batch mates
as if he was never repatriated. Termination of lien will not come in the way of the
aforesaid officer. According to the learned Counsel the remaining four officers
named hereinabove had not produced equivalence certificate from the Higher
Education Commission (HEC) and be given an opportunity to do so. We therefore
grant time to these officers to submit equivalence certificates after obtaining them
from the HEC in respect of their degrees/certificates within four weeks from
today. In case they fail to produce the requisite equivalence certificates, their
services shall be terminated forthwith under intimation to this Court through the
Registrar.
II.
On the issue of requisite experience in the initial appointments in the
NAB, the Secretary, Establishment Division, had noticed 96 officers who lacked
the requisite experience and he suggested, with the consent of the Chairman,
NAB, that a committee be formed to examine the issue. The list of these officers
was placed separately by the Secretary, Establishment Division, which was taken
SMC.13/2016
22
on record. We agree with this suggestion and constitute such Committee, which
shall be headed by Syed Tahir Shahbaz, Secretary, Establishment Division, who
shall be its Chairman and its Members shall be Mr. Muhammad Shakeel Malik,
Director General (H.R), NAB and one Member of the Federal Public Service
Commission to be nominated by the Chairman, FPSC. The Chairman, FPSC, shall
notify the Member for the purpose of joining the Committee within one week
from today.
III.
The Chairman NAB/Competent Authority shall issue notices to all these
officers to appear before this Committee. The Committee after affording them an
opportunity of a hearing, shall record its findings within two months and the
findings shall be acted upon by NAB.
IV.
With regard to the appointments by promotion the Secretary,
Establishment Division, found 137 promotions made in NAB to be inconsistent
with the TCS and or MAQ and the NAB authorities concur with him. The
Chairman, NAB, informs that out of these 137 officers 35 have retired. We direct
that the remaining officers shall be issued show cause notices to appear before the
Committee referred to hereinabove. The Committee shall afford these officers an
opportunity of a hearing and decide their cases within two months from the date
they appear before the Committee. The findings shall be acted upon forthwith by
the NAB. The Committee and the Chairman, NAB, shall submit compliance
reports in respect of both the aforesaid issues for our perusal in Chambers, within
15 days of the recording of findings by the Committee.
32.
As regards the officers namely Maj (R) Syed Burhan Ali, Maj (R)
Tariq Muhammad, Maj (R) Shabbbir Ahmed and Ms. Aliya Rasheed, they were
not qualified to hold the respective posts in NAB. They shall therefore be de-
notified immediately. It will, however, be open for these officers to exercise the
option of proceeding on retirement within four days from today, and if such
option is exercised it shall be accepted by NAB. They shall be entitled to all the
pensionary benefits to which they are entitled to under the law/rules. However, in
case they fail to exercise the option of retirement, their services shall be
SMC.13/2016
23
terminated after expiry of four days. It will be open to these officers to apply for
the posts advertised by the NAB in future and they shall be entitled to appear in
the examinations to be conducted by FPSC provided they meet the eligibility
criteria and compete with the other candidates. The Chairman, NAB, shall submit
compliance report in this regard within seven (7) days for our perusal.
33.
We expect that all the existing vacancies in NAB or that may be
pursuant to the Committee’s findings in future shall be filled within three months
through the Federal Public Service Commission, from the date, the proposed
Committee finally submits its report for our perusal. In the intervening period,
NAB shall requisition its existing vacancies to the FPSC, which shall take steps
for filling up the same. We are aware that the recruitment rules of NAB exclude
recruitment through the FPSC, but in the larger public interest, the FPSC shall
undertake this exercise and the posts shall be filled in by observing the mandate of
Articles 240 and 241 of the Constitution, as these posts are extremely sensitive
and only the most qualified candidates should be appointed. The Chairman, NAB,
shall submit compliance report in the matter.”
34.
These proceedings alongwith all the listed Applications are
disposed of in the above terms. The connected Civil Petitions No. 630-K of 2015
and 65-Q of 2015 are de-tagged and should be fixed for hearing before an
appropriate Bench. Office is directed to send copies of this judgment to the
Chairman, Federal Public Service Commission, Islamabad, the Secretary
Establishment Division, Government of Pakistan, Islamabad and Chairman,
National Accountability Bureau for information and compliance. The time periods
mentioned above shall commence from the date of receipt of the judgment by the
aforesaid.
Judge
Judge
Judge
Bench-III
Islamabad:
31.03.2017
Approved for Reporting
(Sohail)
| {
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"url": ""
} |
IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Khilji Arif Hussain
Mr. Justice Tariq Parvez
SUO MOTO CASE NO. 15 OF 2009 A/W
CMAs. 4928-4929/2009 & 1989 & 1998/2010.
(Corruption in Pakistan Steel Mills Corporation)
AND
CONST. PETITION NO. 30 OF 2010
(Wattan Party vs. Federation of Pakistan)
AND
H.R.C NOs.13922-S, 14156-S & 12664-P/2010
(Applications of Ahmed Hussain and Asif Khawaja)
For the petitioner
:
Barrister Zafaullah Khan, Sr. ASC.
(in Const. P.30/2009)
Mr. Arshad Ali Ch. AOR.
On Court Notice
:
Mr. Dil Muhammad Alizai, DAG.
For Pak. Steel Mills
:
Mr. Fakhruddin G. Ibrahim, Sr. ASC.
Mr. M.S. Khattak, AOR.
Mr. Waseem Ahmed, CEO.
Mr. Qamar Mehmood Sindhu, Dy. GM.
Raja Aviz Mehmood,
Chief Law Officer.
For Ex-Chairman, PSM :
Mr. Suleman Aslam Butt, ASC.
(Mr. Moin Aftab).
For Riaz Lalji
:
Mr. Mansoor-ul-Arfeen, ASC.
For M/o Industries
:
Mr. Gul Muhammad Rind, Secy.
Mr. Abdul Ghaffar Somoro, Ex-Secy.
SMC.15/09, etc.
2
For M/o Interior
:
Mr. Rehman A. Malik (in-person).
Mr. Qamar Zaman Ch., Ex-Secy.
Mr. Nasir Hayat, Ex-Addl. Secy.
For FIA
:
Mir Zubair Mehmood, Dir. (Sindh)
Mr. Moazam Jah, Dir. (Sindh)
Mr. Azam Khan, Director Law.
Mr. Khaleeq-uz-Zaman, Dy. Dir.
Mr. Akhtar Baloch, Dy. Dir.
Mr. Anwar Qureshi, Asst. Dir.
Mr. Wasim Ahmed, Ex-DG.
For the NAB
:
Mr. Akbar Tarrar, Addl. PG.
For the applicant
:
Dr. Aslam Khaki, ASC (in-person).
(in CMA 4928/2009)
For the applicants
:
Mr. Abdul Hafeez Pirzada, Sr. ASC.
(in CMA 4929/2009)
Mr. Mehmood A. Sheikh, AOR.
For the applicants
:
Mr. Khalid Anwar, Sr. ASC.
(in CMA 1989/2010)
For the applicants
:
Raja Qureshi, Sr. ASC.
(in CMA 1998/2010)
Raja Abdul Ghafoor, AOR.
For Pak. Steel Re-Rolling:
Mr. S.M. Zafar, Sr. ASC.
Mills Association
For Iron Steel Merchants:
Mr. Sohail Muzaffar, ASC.
Mr. Khalid Javed, ASC.
For respondent No.2
:
Mr. Tahir Hussain Lughmani, ASC.
(in Const. P.30/2010)
Dates of hearing
:
7th, 16th & 30th Oct., 2009;
25th Nov., 2009; 17th & 24th Dec., 2009;
25th Jan., 2010; 8th Mar., 2010;
25th Jun., 2010; 21st Jul., 2010;
4th Nov., 2010; 24th Jan., 2011;
1st & 23rd Feb., 2011; 9th Mar., 2011;
13th & 28th Apr., 2011; 13th Mar., 2012
& 15th March, 2012.
* * * * * * * * * *
SMC.15/09, etc.
3
JUDGMNET:
TARIQ PARVEZ, J. – Pakistan is governed under
the Constitution of Islamic Republic of Pakistan, 1973 [herein
after referred to as ‘the Constitution’] and the State is named as
“Islamic Republic of Pakistan”. The very name of the country has
direct nexus with the very reason and object of the creation of
this country, which is reflected in Article 2A of the Constitution,
commonly known as ‘Objectives Resolution’, which inter alia
states that “wherein the Muslims shall be enabled to order their
lives in the individual and collective spheres in accordance with
the teachings and requirements of Islam as set out in the Holy
Quran and Sunnah”. With this background of the very creation
of the Muslim State, we have to visualize our individual as well
as collective behavior, which is subject to teaching of Islam and
Sunnah of Prophet Muhammad (PBUH).
2.
It is commonly known that higher the position,
greater the responsibility and the accountability. It is expected
from every citizen of Pakistan that he shall be loyal to the State
and the basic duty of every citizen is to be obedient to the
Constitution and law as ordained under Article 5 of the
Constitution.
3.
Trust/breach of trust has been defined under Anglo-
Saxon laws and by Courts interpretation but foremost importance
SMC.15/09, etc.
4
is to be given to teaching of Allah Almighty in the Holy Quran, a
book which is for all times to come and for all human beings; in
Surah-Al-Anfal ayt.27 Allah Almighty warns:-
Similarly, in Surah-Al-Hajj ayt.38 it is command by Allah
Almighty:
In Surah-Al-Baqarah ayt. 188
4.
Corruption is generally defined as an act of doing
something with the intent to give some advantage in consistent
with official duty and to the rights of others; this amounts to
SMC.15/09, etc.
5
misconduct in office, misbehaviour in office, misdemeanor in
office or official corruption; it is a menace and curse in a society.
In Words & Phrases, Permanent Edition, Vol.27 (at page
432), the word ‘misappropriation’ has been defined as ‘wrong
appropriation; to turn or put to a wrong purpose’.
In Words & Phrases, Permanent Edition, Vol.27 (at page
546), the word ‘mismanagement ’ has been defined as ‘to
manage badly, improperly, or unskillfully’.
In Stroud’s Judicial Dictionary (5th Edn.) at page 1605,
the word ‘misappropriate’ is defined as ‘wrongful conversion of
or dealing with anything, by the person to who it had been
interested.
In Supreme Court on Criminal Law 1950-2002,
6th Edn. (Vol.2), the definition of corruption has been elaborately
and meaningfully given by Indian Supreme Court as under:-
“Corruption in a civilized society is a disease like
cancer, which if not detected in time is sure to malign
the
polity
of
country
leading
to
disastrous
consequences. It is termed as plague which is not only
contagious but if not controlled spreads like a fire in a
jungle. Its virus is compared with HIV leading to
AIDS being incurable. It has also been termed as
Royal thievery. The socio political system exposed to
such a dreaded communicable disease is likely to
crumble under its own weight. Corruption is opposed
to democracy and social order, being not only anti
people, but aimed and targeted against them. It affects
the economy and destroys the cultural heritage. Unless
nipped in the bud at the earliest. It is likely to cause
turbulence shaking of the socio-economic-political
system in an otherwise healthy, wealthy, effective and
vibrating society. [(State of Madhya Pradesh vs. Ram Singh) AIR
2000 SC 870: 2000 Cr. LR (SC) 188].
SMC.15/09, etc.
6
5.
Corruption, spreading throughout the World in
different countries at different levels and considering it to be a
menace for the Society, the United Nations could not remain
oblivious, formation of which is with the object to maintain peace
amongst the Nations/States in this World, “the United Nations
Convention against Corruption” was passed by the General
Assembly Resolution 58/4 of 31.10.2003 and adopted, to which
Pakistan is member country as signatory.
In this Convention, corruption was considered as one of the
serious problems and threats posed to the stability and security of
societies, undermining the institutions and values of democracy,
ethical values and justice and jeopardizing sustainable
development and the rule of law. Illicit acquisition of personal
wealth was equated with causing damage to the democratic
institutions, national economies and the rule of law. It was
thought that effective measures are required to be taken for which
it was held that prevention and eradication of corruption is the
responsibility of all States and every State must cooperate with
another. It was, therefore, agreed upon, inter alia, that each State
party shall in accordance with fundamental principles of its own
legal system shall develop and implement or maintain effective,
coordinated anti-corruption policies and shall promote the
participation of society by reflecting the principles of the rule of
SMC.15/09, etc.
7
law, proper management of public affairs and public property, its
integrity, transparency and accountability. It was also held that
each State shall endeavour to periodically evaluate the entire
relevant legal instruments and administrative measure with a
view to determining their adequacy to prevent and fight
corruption.
Each State party to the Convention was called upon that
they shall ensure within their legal system the existence of a body
or bodies as appropriate or necessary for the prevention of
corruption and that each State party shall grant to such body or
bodies ‘necessary independence’ in accordance with the
fundamental principles of its legal system so to enable the body
or bodies to carry out its or their functions effectively, freely and
without being influenced from within or from outside; they were
to be provided necessary material resources with the specialist
staff, with continuous/periodical training to such staff. Towards
achievement of such goal, each State party was to take
appropriate steps within their legal system for maintaining and
strengthening system for recruitment, hiring, retention, promotion
and retirement of civil servants. To protect and ensure the safety
of the State properties in public sector besides the above
measures, States parties were called upon to adhere to principles
of efficiency, transparency and objective criteria, such as merit,
SMC.15/09, etc.
8
equity and aptitude, by adopting the measures for promoting
adequate remuneration and equitable pay scales, however, taking
into account the level of economic development of the State
concerned. (emphasis provided)
Each State party was to adopt appropriate legislative and
administrative measures in view of fundamental principles of
their domestic law. It was the responsibility of the State party to
promote, inter alia, integrity, honesty and responsibility among
its public officials and was to adopt the measures for establishing
the system to facilitate the reporting by the public officials of acts
of corruption to the appropriate authorities.
In this Convention, it was highlighted that the
Independence of Judiciary and its crucial role in combating
corruption, each State party within the fundamental principles of
its legal system shall take measures for strengthening integrity
and preventing opportunities for corruption among members of
Judiciary. It was also called upon the State party that it shall take
measures as necessary to establish criminal offences when
committed intentionally like making promise, offering or giving
to a public official or any other person directly or indirectly of an
undue advantage in order that the public official or the person
abuse his or her real or supposed influence with a view to
SMC.15/09, etc.
9
obtaining from an administration or public authority of the State
party an undue advantage.
Under the Convention, a very serious note was taken of
extensive attitude at all levels and in different fields of life of
increasing corruption and measures were suggested for its
eradication which includes making such practices as criminal
offence and establishing body or bodies including involving
judicial system. The measures were also suggested for the
retrenchment of the properties/assets by freezing, seizure or
confiscating the same to the State. Since the Convention was
under the auspices of the United Nations, covering the large
number of States and because cases of corruption within or
outside the State were increasing or have increased and the
mobilization of the individual in the present geographical set up
has become easy, therefore, in the Convention provisions for its
eradication were incorporated that an accused person if
committed a crime, the reporting country can request the other
State party for return of the offender; care was also taken
between the States parties to afford to each other the widest
measures
of
mutual
legal
assistance
in
investigations,
prosecutions and judicial proceedings.
6.
It is manifest from the aforementioned Quranic
Injunctions, Article 2A (Objectives Resolution) of the
SMC.15/09, etc.
10
Constitution, which is actually an offshoot of the Quranic
Injunctions and also of the United Nations Convention against
Corruption, that there are not only violation the Quranic
Injunctions but also deviation of the established conventions
agreed to by the nations the world over and to which Pakistan is
also a signatory. A glaring consequence of this deviation can be
seen in the case of Pakistan Steel Mills, which is the moot issue
in these proceedings.
7.
In the past, the strength of a country or nation was
dependent upon and determined on the basis of volume of its
fighting forces/Army, whether regular or volunteers. A State that
would have a bigger army in order to capture its neighbourhood,
comprising of small area, would attack and conquer the same in
order to extend its own territory and administrative jurisdiction.
By such conquer, not only the conquering State would acquire
more area but would also become owner of its resources, found
or available in such area of the conquered State; because of it the
conquering State would become vast, wide and more strong. The
stability of the State was dependent upon manpower. Big States
were those which possess more land and more resources. It was,
therefore, that the citizens of such States would be more
resourceful and more prosperous as against the weaker and
smaller States.
SMC.15/09, etc.
11
8.
With the advancement of education and socio-
cultural development, the present era of scientific inventions set
in. The strength becomes of scientific inventions transformed
from manpower to machine power. Today, a country which is
advanced in technology is stronger then the one which is not
more strong in machines or industry.
Machines have entered into every sphere of life of human
being and have become indispensible; it includes almost every
size of machinery. In our household items, the modern scientific
devices have become part of our domestic needs; for example a
grinder in the kitchen is not a luxury but a need; clothes which
were washed with hands are being washed by washing machines.
So where on the one hand smaller machine have become
necessary for individuals, the heavy machines become need of a
State/Country/Nation. A glance in the past history of Europe and
America, hardly a century back and thereafter, clearly amplify
the change before and after introduction of machines/industries.
9.
Technical advancement has become basis for the
determination of per capita income of a country. There are three
categories of the countries; one, who are developed; second who
are developing; and third under-developed. Pakistan in the
present state of its affairs does not fit into the category of
SMC.15/09, etc.
12
developed State; it is developing in certain spheres and is still
underdeveloped in some sectors.
10.
It cannot be denied today that strength of a country is
totally dependent upon its commercial and economical activities.
The currency rate is the test to evaluate the economical condition.
Today in our country 1$ is equal to about Rs.91/- whereas 1₤ is
equal to Rs.141/- or around. This rate of inflation clearly
demonstrates that we are lagging behind because of our failure in
building up our productive capacity.
11.
It also cannot be denied that strong economy is
guarantee for sustainment of State but for strong economy there
has to be productive activities in the State itself. The currency
rate of a country is determined on the basis of State’s resources;
either it be gold in State treasury or dollars or ponds reserves
equal to gold. We for example in Pakistan have to produce such
articles, which are exported abroad and from their export, foreign
exchange is earned and brought in the country.
12.
Pakistan Steel Mills (hereinafter referred to as ‘the
PSM’) is one of such public sector installation of which people
of Pakistan are proud of considering it to be the backbone of
industries culture for Pakistan. It is not for the first time that this
Court is under obligation to safe the national asset but even
earlier too in the year 2005, the PSM was subject matter before
SMC.15/09, etc.
13
this Court in the case of Wattan Party vs. Federation of
Pakistan (PLD 2006 SC 697).
13.
Pakistan Steel Mills is a private limited company,
wherein 100% of its shares are owned by the Government of
Pakistan; it was incorporated in the year 1968 whereas it went
into production in the years 1981 to 1984; the plant was installed
with the collaboration and assistance of the Russian Government
by the Ministry of Industries, Production and Special Initiatives;
it is installed over the area measuring about 19000 acres of the
land; the annual designed capacity of the PSM is 1.1 million tons;
at the time of inception and commencement of production, its
profitability was not good because of overstaffing, financial
liabilities, poor working discipline, low capacity utilization, small
sales, mismanagement and lack of attitude to feel responsibility.
14.
It was in that background that in the year 1997, the
Government of Pakistan decided to privatized it and got approval
from the Council of Common Interest; somehow, the process of
privatization discontinued and in the month of May, 2000,
restructuring plan was approved by the Chief Executive of
Pakistan, which included rightsizing of its employees, repair and
maintenance of the plant etc. However, in the month of March,
2005, the Ministry of Privatization and Investment again moved a
summary to the Board of Privatization Commission that the PSM
SMC.15/09, etc.
14
shall also be included in the program of privatization. After
approval, bids were asked for; however, such process was
challenged before the High Court of Sindh, Karachi, which
matter ultimately landed before this Court and in the judgment
reported as Wattan Party (supra), this process was checked and
scrutinized.
15.
Cognizance of the matter was taken by this Court
while exercising its Suo Motu jurisdiction under Article 184(3) of
the Constitution of Islamic Republic of Pakistan, when a write up
was published in Daily DAWN on 11.09.2009 with a caption
“Steel Mill Case”, it was authored by Ayesha Siddiqa, who is
regarded as an independent strategic and political analyst.
Subsequent thereto, the Hon’ble Chief Justice of Pakistan
recorded his lordship’s note, which is reproduced herein below
for the sake of convenience:-
“Comments may be called from the Chairman, PSM
for 24.09.2009”
16.
From record of the case, it reveals that on
07.10.2009, Mr. Qamar Mehmood Sindhu, Deputy General
Manager (Legal) submitted comments under his signatures on
behalf of the Chairman, PSM, while pointing out that the FIA
(Federal Investigation Agency) is already conducting an enquiry
in respect of risks losses and reduction in sales etc. in the PSM;
his comments were, however, not supported by any external or
SMC.15/09, etc.
15
internal audit report for the years 2008-09; he was, therefore,
ordered to file the same on the next date of hearing; on the same
date of hearing, the then Chairman of the PSM was required to
file further para-wise comments with reference to write up/article
dated 11.09.2009. Simultaneously, Mr. Qamar Mehmood Sindhu,
Deputy General Manger (Legal) was asked to furnish address and
telephone numbers of Mr. Moin Aftab Sheikh, Former Chairman
the PSM to the Registrar of this Court for the purpose of issuing
notice to him; simultaneously, report was also called from the
DG, FIA in respect of investigation already undertaken by FIA,
as informed by the Deputy General Manager (Legal); comments
from Ministry of Industries and Commerce were also called for
and the matter was adjourned to 16.10.2009, on which date
Mr. Abdul Mujeeb Pirzada, learned Sr. ASC appeared on behalf
of Chairman, PSM and informed that comments on behalf of his
client have been prepared but are in the process of being filed.
Mr. Moin Aftab Sheikh, former Chairman PSM did appear in-
person in response to notice but because of late service requested
for time to file comments and his explanation; however, no one
put in appearance on behalf of the DG FIA. (emphasis
provided).
On 30.10.2009, Mr. Suleman Butt, ASC appeared on behalf
of Mr. Moin Aftab Sheikh, Ex-Chairman PSM and submitted
SMC.15/09, etc.
16
reply on his behalf. Mr. Muhammad Azam, Director (Law), FIA
also appeared and stated that tentative reports have been prepared
whereas Mr. Abdul Mujeeb Pirzada, learned Sr. ASC also stated
that a Committee has been constituted by the Management of the
PSM, comprising of three members, with the terms of reference
to find out financial/administrative reasons causing loss to the
PSM and to fix responsibilities upon the person, if any, for
causing financial loss, etc. with direction to complete the
investigation and submit report by 28.10.2009.
On 25.11.2009, when the matter was taken up, Mr. Azam
Khan, Director (Law), FIA filed an enquiry report which was
made part of record. Mr. Abdul Mujeeb Pirzada, Sr. ASC for the
PSM filed another report, which was also placed on record; he
also placed on record newly awarded dealership during 2008-09
according to which 300 new dealers were registered by the PSM;
Mr. Suleman Aslam Butt, ASC for Mr. Moin Aftab Sheikh, Ex-
Chairman PSM also placed some documents to highlight the
view point of his client and while referring to the said documents,
demonstrated that he is not involved in the scam of losses to the
PSM, which according to his estimation comes to Rs.22 billion.
On 17.12.2009, it was noticed by this Court that Ministry
of Interior, Government of Pakistan under the signatures of
Mr. A. Rehman Malik, Minister for Interior has constituted a
SMC.15/09, etc.
17
Joint Investigation Team (JIT), which order was reproduced in
the order sheet of the said date and for the sake of convenience,
the same is reproduced hereinbelow as well:-
“In pursuance of the directions of the Honourable
Supreme Court of Pakistan regarding investigation into the
affairs of Pakistan Steel Mills and also showing
dissatisfaction into the investigation so far done by FIA.
Keeping in view the observations of the Honourable
Supreme Court, a broad based JIT has been constituted
with the mandate to investigate the matter thoroughly and
submit report within four weeks. The JIT is directed to
keep the Honourable Supreme Court of Pakistan enabling
the JIT to complete its investigation in a full transparent
manner and on merits.
2.
The JIT will consist of a senior officer of FIA at an
ADG level, a Deputy Secretary of Ministry of Interior, one
Deputy Secretary, Ministry of Production & Industries,
Deputy Attorney General and a Police Officer of DIG rank
from Sindh Police. A Coordinating Officer may also be
appointed to coordinate the whole matter.
3.
The services of a well reputed International Audit
firm may be co-opted to assist the JIT to cover technical
and complicated financial aspects as already discussed and
agreed with the Minister for Industries.
4.
All previous Inquiry Reports on the matter shall be
re-assessed into transparently and on merit by the JIT.
5.
ToRs of the JIT are annexed herewith. The
JiT will complete the work in four weeks time.”
Along with above order of the Ministry, terms of reference were
also attached and a team was constituted comprising of five
members.
However, the above arrangement of constitution of JIT and
terms of reference were not happily received by this Court
SMC.15/09, etc.
18
considering it to be an attempt to undo the directions contained in
order dated 25.11.2009 and once an issue is under-examination/
consideration before this Court, the same should not have been
placed before the JIT.
17.
It so happened that pending proceedings of the matter
before this Court, the then DG FIA i.e. Mr. Tariq Khosa was
transferred before completion of his tenure of his such
assignment; however, his transfer issue was not acted upon by
exercising restraint and in these circumstances notices were
issued that let Mr. A. Rehman Malik, Minister for Interior in the
Court that as to why he should not be proceeded against for
contempt of Court.
18.
Consistent efforts were being made by this Court to
procure sufficient data in the form of material in respect of the
allegations at least to make out prima facie case of corruption and
mismanagement; as such the FIA was given time and again
opportunity to do the needful to submit its report.
It was on 25.01.2010 when Mr. Azam Khan, Director
(Law) and Mr. Zubair Mehmood, Director FIA Sindh had
appeared and stated that as per their estimate, in order to proceed
against the persons who were allegedly involved in causing huge
losses to the PSM, neither the FIA nor the Special Court Anti-
Corruption is empowered to retrieve the money or effect
SMC.15/09, etc.
19
recoveries except ordering seizer of the properties belonging to
the delinquents; they had further stated that under the NAB
Ordinance, the NAB authorities are competent to effect recovery
of such amount.
19.
It transpired that at this stage of proceedings, when
the DG, FIA was to be taken on board in respect of making the
process of recovery of the embezzled amount, some uncalled for
changes were noticed in the FIA establishment including the
constitution of JIT by Mr. A. Rehman Malik, Interior Minister;
vide order dated 17.12.2009, this Court took serious notice of it
and accordingly notice was issued to Mr. A. Rehman Malik,
Interior Minister to explain as to why he should not be proceeded
against for contempt of Court.
Subsequent thereto a report was filed by FIA on
08.03.2010, which was not accepted as satisfactory, however, it
revealed from the report that certain named persons against
whom FIA had registered cases through registering FIRs were
released on bail by the Courts but no steps whatever were taken
by the FIA towards seeking there cancellation of bails.
Another report was filed on 25.06.2010 by the FIA
showing some steps taken towards recovery of misappropriated
amount; however it was pointed out to the Court that it is the
ultimate duty of the DG, FIA to ensure recovery, therefore, the
Court directed the then DG, FIA to take steps towards fair and
successful completion of the investigation. (emphasis provided).
SMC.15/09, etc.
20
20.
Noticeable information was given to the Court on
04.11.2010, by Mr. Fakhurddin G. Ibrahim, learned Sr. ASC
appearing for the PSM, while stating that M/s Anjum Asim,
Shahid & Company has been appointed to conduct Forensic
Audit; a terminology of the Forensic Audit and its efficacy has
been highlighted in the application including the definitions of
the terms; it was on 04.11.2010 that Mr. Wasim Ahmed, the then
DG, FIA was called upon to go through our order sheets and also
read inquiry report No.95/2009 prepared by Mr. Khaliquz
Zaman, Deputy Director, FIA/Crime Circle, Karachi but
Mr. Wasim Ahmed rather contested this report by giving an
impression that the said report is incorrect, however it was
admitted by the DG, FIA that the PSM had sustained losses
of Rs.22 billions. (emphasis provided).
This Court once again was not satisfied with the
investigation as reflected in our order sheet dated 24.1.2011,
because it was noticed that no professional skill was shown by
the investigating agency towards collection of incriminating
evidence involving the culprits.
On 23.02.2011, this Court was informed by Mr. Fakhruddin
G. Ibrahim, learned Sr. ASC for PSM that the Management of
PSM had issued notice to 176 persons/companies who had
received/purchased products (billets) from the PSM without
SMC.15/09, etc.
21
making payment of the actual market price and that they have
been asked to make the payment of difference in the rates. It was
directed to the Secretary, Ministry of Industries that its
department being concerned to the affairs of the PSM has shown
no interest to ensure effective progress in the investigation rather
it was their duty to do so. However, it was admitted by the
Secretary, Ministry of Industries, that uptill February, 2011, the
PSM had sustained losses of Rs.26+11=37 billions. When
confronted with the huge amount of losses caused to the
Government exchequer belonging to the PSM, the Secretary
requested that some time be given to him so he may file his
report in black and white.
On 09.03.2011, we were informed by Mr. Fakhruddin G.
Ibrahim, learned Sr. ASC for the PSM that the task of Forensic
Audit has commenced and the Auditors have requested for three
months time to accomplish the job. The Court however,
responded that they had already consumed sufficient time,
therefore, the Management of the PSM shall press upon the firm
to undertake the exercise of Forensic Audit and complete the
same as early as possible.
We were also informed by Mr. Fakhruddin G. Ibrahim that
the notices were issued to the dealers for making the payment of
differential amount between market value and the price paid by
SMC.15/09, etc.
22
them and in this regard Rs.25 millions have been recovered. In
the meantime, the Secretary, Ministry of Industries also
submitted a comprehensive report pinpointing the dealers who
have been benefitted by paying low prices of the products
purchased by them from the PSM. We were also informed that
because of taking effective steps towards the recovery and
because of strict measures duly taken to cover up the losses of the
PSM, there was remarkable reduction in the losses of the PSM
i.e. if for the financial year 2008-2009, losses were Rs.25.5
millions, in the year 2009-2010, the same have been reduced to
Rs.11 millions, while for the financial year 2010-2011, upto 31st
December, 2010 they have been further reduced to Rs.5.7
millions.
Then it was on 13.04.2011, we were again informed by Mr.
Fakhruddin G. Ibrakim, learned Sr. ASC that the Forensic Audit
Report is almost complete and shall be received in the
1st week of June, 2011. He further informed that some of the
dealers who were issued notices for depositing differential
amount of price paid by them for the products, had deposited the
amount, while few others contested the same. We were also
informed that though the FIRs have been registered but many
other dealers who were involved were let out and directions of
the Court were sought to avoid discrimination. It was also noticed
SMC.15/09, etc.
23
that certain firms like M/s Abbas Steel Industries, if on one hand
running their Private Limited Company, simultaneously was
shareholder of the PSM; therefore, the directions were issued that
let the FIA proceed against all of them without any
discrimination but strictly in accordance with the law.
On 28.04.2011, it was informed by Mr. Azam Khan,
Director (Law), FIA by stating that hectic efforts are in hand to
furnish comprehensive audit report and Interpol Authorities have
been approached to apprehend the culprits so that the looted
amount of Rs.26 billions could be recovered. It was also pointed
out that report from Ministry of Industries has also been given to
the FIA which is being implemented in letter and spirit.
This Court also directed that the Ministry of Production
shall explain as to why the comprehensive audit report so
furnished was not acted upon and as to why no steps were taken
in light of the said report.
21.
Since by then the job of Forensic Audit Report for
the year 2008-2009 was entrusted to M/s Avais Haider Liaqat
Nauman (AHLN) and as per their calculation, cumulative losses
of Rs.26.5 billions identified in the PSM as follows: -
Business Losses
:
Rs.4.68 billions.
Losses due to corrupt Practices :
Rs.9.99 billions.
Losses due to mismanagement/ :
Rs.11.84 billions.
Negligence
Total
:
Rs.26.526 billions.
SMC.15/09, etc.
24
22.
It was admitted by Mr. Gul Muhammad Rind, the
Secretary, Ministry of Industries who was present in the Court on
13.03.2012 that they have received the above Forensic Audit
Report some six months ago but no step so far has been taken by
the Ministry concerned; he also informed that five enquiries were
initiated by the FIA but no case is registered against any
delinquent. We also inquired from the Secretary, Ministry of
Industries as to why prompt action was not taken on receipt of
Forensic Audit Report to which he responded that his Ministry is
contemplating and deliberating to refer the matter to the NAB;
this Court asked the Secretary to explain the reasons for not
initiating action promptly.
23.
Pursuant to our above directions to the Secretary
Ministry of Industries, a report was filed by the Ministry
regarding action taken by it on receipt of Forensic Audit Report.
Paras 4,5,6 and 7 being relevant are reproduced herein below for
convenience.
“4.
That since investigations were carried out by the FIA
under the instructions of this Honourable Court dated
09.03.2011 therefore, it was not advisable for the Ministry to
refer the subject corruption case to the NAB authorities,
without orders of this Hon’ble Court.
5.
That during the last hearing of the lilted case on
13.03.2012, the Honourable Court observed that no effective
measures were taken for recovery of losses and in such a
pathetic situation about the affairs of Pakistan Steel Mills, the
Ministry may itself take decision to refer the matter to the
SMC.15/09, etc.
25
NAB authorities regarding all cases which have been earlier
registered by the FIA and regarding the inquiries, which are
pending with the FIA.
6.
That the matter regarding referring the above said
cases to NAB authorities was discussed with the Minister for
Production in light of the Supreme Court proceedings of dated
13-03-2012, MOP is of the opinion that although the Forensic
Report has been provided to FIA for necessary action
however, as advised by the Pakistan Steel’s Board PSM
management is in process of reviewing of the report in
consultation with M/s. AHLN to make the same in accordance
with the TORs of the contract assigned to the Audit firm.
Moreover, as the investigation is with Director General FIA
and Director FIA both are out of country therefore, after
obtaining the present status of the inquiries conducted by
them alongwith their comments/recommendations, the matter
will be taken up accordingly. MOP feels that for expeditious
finalization of inquiries, a senior Audit and Account Expert
will be nominated to complete the inquiry.
7.
The above facts show that no any delay occurs on the
part of the Ministry of Production however, the Ministry
requests the Hon’ble Court to instruct FIA for early
finalization of the inquiry report.”
24.
From perusal of different order-sheets, summary of
which has been given in detail hereinabove, coupled with the
final report filed by the Ministry of Industries in March, 2012, it
has become clear to us that neither the FIA nor the Ministry of
Industries have taken this matter seriously rather evasively and
on no good pretext they intend not to refer the matter of Rs.26
billions mega scam to the NAB Authorities, which losses pertain
to only one year time i.e. 2008-2009.
SMC.15/09, etc.
26
25.
Likewise, in pursuance of notice issued by this Court,
Sheikh Aftab Moeen Sheikh, who was Chairman of the PSM for
the period from 2008-2009 filed his reply; perusal whereof
indicates that efforts were made by him to justify/explain the
alleged losses of Rs.26 billions; he in his reply stated that losses
in the year 2008-2009 were due to severe economic recession in
the World over because of serious turmoil occasioned in steel
industry including the PSM and the sales fell from Rs.5.052
billion in July 2008 to Rs.1.131 billion in October, 2008; it was
stated that surplus and cheap steel from the World market flooded
in Pakistani market due to the recession, thus there was low
demand of the PSM products, which caused piling up of huge
inventory of finished goods and that economic suffering was
further multiplied due to the fact that in 3rd quarter of the year
2008, price of steel products went down very sharply in the
World steel market which fell by more than 68% from July, 2008
to November, 2008, rendering the PSM products uncompetitive
in the domestic market. Stand was taken by Mr. Moin Aftab
Sheikh that the prevailing domestic market had forced the PSM
to reduce prices of its products round 35% in November, 2008.
It was further stated by him that during the period in
question, procurement of basic raw materials from international
market continued on higher pre-recession prices till end of
SMC.15/09, etc.
27
March, 2009 because the PSM has entered into long term
contracts. Similarly, the PSM was to pay high freightment prices
which continued till August, 2009 because of early contracts
entered in May, 2005. Further explanation was tendered by him
while stating that adverse affects of recession to the PSM started
from August, 2008 which resulted into forced lower down of the
sale prices, whereas contractual prices of raw materials remained
higher which became reason of huge losses.
The situation was further highlighted by stating that
decrease in revenue of the PSM was due to global economic
recession, high prices of raw material (67% of total cost)
resulting in higher cost of production, less utilization of capacity
in production and personnel related costs (salaries of staff etc.
were increased by 39%). It was also reasoned that Pak rupee as
against US$ was devalued i.e. 1$ which can be bought in Rs.70/-
went up to Rs.81/- per US$ and there was increase in the prices
of natural gas and power.
It was also responded by him that the PSM products went
to the lowest ebb by November, 2008 and that the PSM products
remained uncompetitive as compared to cheap and substandard
imported identical steel products because surplus and substandard
steel from international market flooded into local market of
Pakistan with cheap price having inferior quality; and that
SMC.15/09, etc.
28
imported bulk of hot rolled materials were available in the market
less than the listed prices of the PSM.
26.
On technical side it was pointed out that out of eight
main production units, Coke Oven & By-Products Plant and Blast
Furnaces were required to be in continuous production around the
year as the batteries placed therein must remained hot and once
the batteries becomes cool down, total refractory bricks were to
be dismantled and re-built again; which is also one of the reasons
which occurred because of shutting down of the PSM.
27.
For reducing the prices of the products of the PSM, it
was stated that the same is managed and operated through a
Committee which comprises top management officials of the
PSM i.e. Chairman, Director Finance, Director Commercial and
G.M. Marketing. This Committee considers the price trend of the
steel products in the international market, which internationally
has fallen by more than 68% from July, 2008 to November, 2008,
due to international recession which yielded serious negative
impact on the sale of the PSM products. It was in these
circumstances to save the PSM from shutting down and to
improve its liquidity position, various measures were taken by the
PSM including drastic reduction in price etc. but its products did
not pickup.
SMC.15/09, etc.
29
28.
While responding to the allegations of corruption, it
was stated that since the FIA is undertaking the investigation the
responsibility of individual shall be determined which is
dependent on the result of the investigation.
29.
It appears that even the PSM management was trying
to justify the alleged losses occurred during the financial year
2008-2009; its background is given in C.M.A. No.4481 of 2009
filed by Mr. M. M. Usmani, Chairman, PSM on 15.10.2009
explaining the position by stating that FIA has started
investigation referred to it by the Government and that on receipt
of report of investigation, disciplinary action will be initiated
against the concerned employees. In fact this CMA is para-wise
reply of the allegation as contained in the Article published in the
Daily Dawn on 11.09.2009, written by Ms. Ayesha Siddiqa. It
was admitted that as per the provisional accounts of the PSM for
the year 2008-2009, the estimated losses incurred were Rs.22.143
billions and that in fact Auditor General has reported the losses of
revenue of Rs.9.672 billions only due to fixation of sale price of
products below the market price. The reason for loss shown in the
year 2008-2009 was explained to be receipt of lesser sales
revenue as per budget estimate; one of the reasons was stated to
be lower capacity utilization @ 65% as against 75% as envisaged
in the budget estimates; due to lower capacity utilization (65%)
SMC.15/09, etc.
30
for production of raw steel, the production cost increased by
Rs.1.2 billions; the personnel related costs as increased by 39%
due to CBA agreement and enhancement of salaries etc.; pilling
up of huge Inventory of finished goods.
It was also explained that due to international steel market
slump, situation became unstable which badly affect the sales
volume and profitability of the PSM.
Another reason was stated to be that a bailout package
amounting to Rs.10 billions for the PSM was approved by the
Ministry of Finance but no release of the funds was materialized
due to different requirement of the National Bank and hence, the
advantage was not achieved. It was stated that import of
secondary steel in the garb of primary is always damaging the
sales of the PSM as the same was available in the market on
lesser prices.
While responding to the charges/allegations, it was pointed
out that during July, 2008 to February, 2009, scrape to the tune of
0.727 million tons was imported into Pakistan which was
converted into ingots/billets, which competed with the PSM
billets because the same was cheaper, therefore, due to wide
difference between landed cost of the PSM billets and the local
cost of billets, which resulted into taking out PSM products out of
competition. Similarly, old ships were available at cheaper rate
SMC.15/09, etc.
31
for breaking demolition from which 0.75 million tons of steel
plates/scraps were available in market at 30% less then PSM
billets.
30.
Overall impression one gets from the detailed para-
wise comments filed by the then Chairman PSM i.e. Mr. M.M.
Usmany, it appears that on the factual and technical side it was
supporting the stance taken by Mr. Moin Aftab Sheikh, who was
Chairman PSM from 26.05.2008 till 18.08.2009. In fact both are
toeing the line of each other, rather supporting each other.
31.
With reference to subject scam in the PSM, the FIA
crime Circle Karachi also conducted inquiry in respect of
different issues and submitted detailed report on 21.11.2009
before this Court qua the investigation and registration of cases
by the FIA.
In Inquiry regarding award of canteen contract of the PSM,
the FIA detected that the alleged staff of the PSM in connivance
with the union/CBA and canteen contractor deviated from the
normal procedure and approved three contracts, mechanically
with mala fide intentions and ulterior motives by enhancing
number of employees as well as rates exorbitantly, which resulted
in causing huge loss to the Government exchequer; therefore, the
Inquiry Officer recommended that three separate cases be
registered against the three different firms and the alleged
SMC.15/09, etc.
32
officers of the PSM, who scrapped the first tenders fixed for
opening/bidding, reapproved three contracts, mechanically
without applying their minds with ulterior motives and in
connivance of each other.
On the subject of scam of reduction of prices of finished
good of the PSM and its allocation to favourits, the FIA team
found that the prices of the PSM products were reduced in
comparison to international market but when international market
was at higher side the prices were not increased and in this way
heavy financial loss was suffered by the PSM because of illegal
and irrational decisions of Mr. Moin Aftab Sheikh, the then
Chairman, PSM and others to give wrongful benefits to
M/s Abbas Steel Group. It has been further observed that as per
sales policy the management of the PSM was bound to give
priority
to
consumers
over
traders/dealers
to
avoid
commission/rebate but Mr. Moin Aftab Sheikh, the then
Chairman and others favoured some traders especially M/s Abbas
Steel Group and gave them maximum allocations, which also
caused heavy losses to the PSM. It has been further observed that
due to difference of prices of billet of the PSM with that of
international
market,
the
PSM
suffered
net
loss
of
Rs.3,655,105,437/- in sale of billets and in this connection
maximum benefit in selling of billets was availed by one group
SMC.15/09, etc.
33
i.e. M/s Abbas Steel Group which earned premium amounting to
millions of rupees wrongfully.
It is also noticed by the Inquiry Officer that M/s Abbas
Steel Group holds duel dealership i.e. trader dealership &
consumer dealership which is in violation of established selling
rules and regulations of the PSM.
It is further discovered by the FIA that Mr. Moin Aftab
Sheikh before assuming the Charge of Chairman, PSM was paid
employee of M/s Abbas Steel Group and used to visit the PSM as
Director-M/s Abbas Steel Private Ltd. Since January, 2009 to
August, 2009, more than two times, the Price Fixation Committee
met and decided to increase the prices as high premium was
prevailing in market but neither the prices were increased nor the
minutes were prepared on the direction of Mr. Moin Aftab
Sheikh, which resulted in heavy financial losses to the PSM.
Regarding procurement of 40,000 MT of metallurgical
Coke through MV AFOVOS, the Inquiry Officer discovered that
Mr. Moin Aftab Sheikh, the then Chairman PSM and
Mr. Sameen Asghar, Director Commercial of the PSM with
common objective and criminal intention in collusion with one
Capt. Rashid Abro manipulated a surprise shipment of 40,000
MT of Met Coke without its formal approval or opening of LC
and thus foisted it upon the management compelling it to accept
SMC.15/09, etc.
34
it despite the fact that international market registered a down
slide in the prices of the material and freightment, allowed the
payment on the already contractual price.
In respect of procurement of Coal at highly inflated price, it
is exposed by the Inquiry Officer that during the period from
May, 2008 to August, 2009, Mr. Moin Aftab Sheikh, Mr. Sameen
Asghar in collusion with Capt. Rashid Abro deliberately and
willfully imported Coal from Australia at highly exorbitant prices
against the prevailing low prices in the market due to
international recession and for personal wrongful gain they
avoided to make any effort to bring down the prices of Coal and
freightment, which resulted in huge losses to the PSM.
Qua procurement of 50,000 MT of Coal without tender
through ship MV ANNOULA, it is observed by the Inquiry
Officer that Mr. Moin Aftab Sheikh and Mr. Sameen Asgher with
common objective and with criminal intent fraudulantly
manipulated the import of 50,000 MT of coal on extremely
exorbitant price and on payment of exorbitant freight charges
without any justification or plausible explanation, thereby
causing colossal loss to the PSM.
It is further observed by the Inquiry Officer that the above
said officials abused their official position in attaining their
SMC.15/09, etc.
35
nefarious task by influencing their subordinate officers by
compelling them to comply with their illegal orders under duress.
32.
In pursuance of above investigation the FIA Sindh,
Karachi registered ten cases against the management of the PSM
and private persons/beneficiaries for causing loss of Rs.26
billions to the PSM. Out of these ten cases, the first three cases
pertain to malicious import of raw material (coal and coke),
involving loss of Rs.4.5 billions approximately in which the
foreign companies are involved; six cases are in respect of
corruption in sale of billets and other finished products to various
dealers/consumers on the prices lower than the prevailing market
rates causing loss of Rs.4 billions approximately; one case is
about malicious award of canteen contract to favorites.
Case FIR No.36 of 2009 relates to loss of Rs.49 Crore to
the PSM, accusing Mr. Moin Aftab Shaikh being Ex-Chairman,
Mr. Sameen Asghar, Ex-Director Commercial and Capt. Rashid
Abro a representative of M/s Noble Resources Singapore,
alleging that they fraudulently manipulated a spot purchase of
50,000 MT of coal from Port Gladstone, Australia on highly
inflated price and on extremely higher freight rates despite
declining market rate. In this case interim charge-sheet is
submitted in the Court followed by supplementary charge-sheet
and the properties of the accused persons have also been seized
SMC.15/09, etc.
36
during investigation by the FIA; trial has commenced and is
likely to be concluded within two months.
Case FIR No.37 of 2009, registered against the above
named accused, relates to fraudulently manipulation by the
accused named above in acceptance of 40,000 MT of
Metallurgical Coke, arrived from China through MV Alpha
Afovos, without opening of LC or obtaining necessary
permission by the PSM on highly inflated price and on extremely
higher freight rates resulting in loss of Rs.1 billions to the PSM.
In this case as well charge-sheet has been submitted and trial has
commenced.
In case FIR No.38 of 2009, again the above named persons
have been accused for fraudulently manipulating the ten
shipments of coal arrived from Ports Gladstone and New Castle
of Australia and Robert Bank Canada respectively, on highly
inflated price and extremely higher freight rates, causing loss of
billions of rupees to the PSM. In this case charge sheet has been
submitted and trial is under progress.
Case FIR No.1 of 2010 is in respect of award of Canteen
contract wherein it is alleged that Mr. Moin Aftab Sheikh, Ex-
Chairman, PSM in connivance with other accused persons
fraudulently scrapped the already floated tender estimating
Rs.4,62,49,827/- with an increase of 30% and award of contract
SMC.15/09, etc.
37
by manipulation at exorbitant cost of Rs.12,72,91,007/-, causing
colossal loss to the PSM to the tune of Rs.81,041,180/- to the
PSM. In this case besides Mr. Moin Aftab Sheikh, Ex-Chairman,
ten other persons are accused; namely Brig. (R) Abdul Qayyum,
PEO (A&P) PSM; Muhammad Atique Khan, DGM Incharge (IR)
PSM; Imtiaz ul Haq, DGM, PSM; Muhammad Farooq, Manager
IR Department, PSM; Muhammad Aslam, Canteen Contractor of
M/s Feed Well; Ali Haider, Canteen Contractor of M/s Cosmos
Enterprises; Asghar, DM (ECD) PSM; Najmuddin Suho,
Chairman Food Committee, PBU/CBA, PSM; Syed Zahid Ali
Hashmi, Canteen Contractor of M/s Casa Caterers and Wazir Ali.
In this case as well charge has been framed against all the
accused persons and the trial has commenced. However, some of
the accused are in judicial custody, whereas some are on interim
pre-arrest bail.
Case FIR No.39 of 2009 is regarding loss of Rs.3.65
billions, occurred due to corruption in sale of billets of the PSM
to 220 consumers/dealers due to non-increase of price according
to international market. In this case four companies of M/s Abbas
Steel Group are also one of the traders/consumers dealers, who
lifted 49,000 MT billets in 2008-09 which comes to 19% of the
total sale of billets on the prices fixed by the PSM; as per audit
report the sale price of the billets was much lower from the
SMC.15/09, etc.
38
market-value. Charge sheet in this case is submitted in the Court
against the Management of the PSM and concerned Directors of
four companies of M/s Abbas Steel Group besides seizure of
industrial land measuring 224 acres belonging to M/s Abbas Steel
Karachi and residential houses of two of the Directors of the said
group.
FIR No.9 of 2010 has been registered for extending illegal
benefit of 90 days Free Credit Scheme without mark up to
M/s Amrelli Steel Ltd. Karachi by extending the scheme mala
fidely; in this way M/s Amrelli Steel Ltd. Karachi lifted 10,000
MT of cast billet amounting to Rs.339 million resulting in
causing loss to the PSM. The accused persons involved in this
case are Sameen Asgher, Ex-Director Commercial, PSM; Abbas
Akbar Ali, CEO of M/s Amrelli Steel Ltd.; Tariq Irshad,
Proprietor of M/s Export International; Mehmood, Proprietor of
M/s Dunhill Corporation and Ch. M. Shafiq, Proprietor of M/s
Choudhry Steel Re-Rolling Mills, Lahore. In this case as well
Charge Sheet has been submitted and trial is in progress.
Case FIR No.13 of 2009 is registered regarding violation of
the PSM Sales Rules against Muhammad Sohail Proprietor of
M/s Remya Traders, Karachi and Muhammad Javed Ghani,
Proprietor of M/s Javed Trading Corporation, Quetta on the
allegation that they both used to obtain the PSM products in the
SMC.15/09, etc.
39
name of M/s Javed Trading Corporation, Quetta being a
consumer dealer but the material was never transported to factory
premises yet sold in local market on premium/own. It is alleged
against both these accused persons that they opened the bogus
accounts in M/s Habib Metropolitan Bank, Karachi for running
their illegal business and used to transfer the funds for purchase
of the PSM products to sell them in local market which resulted
in causing loss to the PSM. In this case charge sheet against the
accused persons has been submitted; however, reportedly they
both are on bail.
Case FIR No.15 of 2009 is registered on the same subject
as noted in above para against accused persons namely Ghafoor
Pathan, Deputy Manager/Incharge Customer Service Marketing,
PSM; Mohammad Sabir owner of M/s Gujrat Steel Private Ltd.
and Muhammad Imran representative of the said firm. It is
alleged that they in collusion with each other, knowingly and
fraudulently lifted the flat products on the name of their four
companies i.e. M/s Gujrat Steel Ltd., Karachi, M/s Bombay Wala
Steel, Karachi, M/s AWB Corporation, Karachi and M/s Alfalah
Steel Corporation, Karachi; against Mr. Abdul Ghafoor Pathan it
is alleged that he being Deputy Manger, PSM/In-charge,
Customer Services Marketing Department, PSM from July 2009
to December 2009 misused his official authority and willfully
SMC.15/09, etc.
40
allowed lifting of the aforesaid products and granted illegal
benefit in allocation to the above mentioned accused persons and
violated the rules and regulations of the PSM, and willfully
ignored/skipped the directions of the PSM i.e. “no customer shall
hold consumer and trader dealership (s) at the same time”. In
this case interim charge sheet was submitted in the Court, which
is treated as final and the case is under trial stage.
Case FIR No.17 of 2009 is against 13 persons including the
traders and officials of the PSM for causing wrongful loss to the
Government exchequer and for wrongful gain to the tune of
million of rupees regarding sale/purchase of various finished
products i.e. Billets and HR. The names of the accused are Moin
Aftab Sheikh, Ex-Chairman, PSM; Sameen Asgher, Ex-Director
Commercial, PSM; Rasool Bux Phulpoto, MD, PSM; Zulfiqar
Ali of M/s Aramis International Trading; Abrar Ali of M/s
Iftikhar and Co.; Shahid Hussain of M/s Hussain Enterprises;
Qutab Khan of M/s Mehran Traders; Muhammad Farooq Ali of
M/s Zaman Traders; Ahmed Hussain Jivani of M/s Ahmed
Hussain Jeevani; Waqar Ali of M/s Karrfour Enterprises;
Muhammad Adil Usman of M/s Adeel Traders; Faisal Hafeez of
M/s Mughal Traders and Muhammad Rafique of M/s Al Rehman
Steel Traders. It is alleged that the PSM officials named above in
collusion with the traders mentioned above fraudulently and
SMC.15/09, etc.
41
dishonestly with ulterior motive sold the Billets and HR to these
consumers dealers on reduced prices as compared to that of
international market. It is to be noted that reportedly some of the
accused in this case are absconding; some are on bail whereas the
Ex-Chairman, PSM is in the judicial custody.
Case FIR No.18 of 2009 is registered against twenty seven
accused persons on the allegation that the consumer/dealers
accused in this case in collusion with top management of the
PSM including Moin Aftab Sheikh, Ex-Chairman, PSM and
others fraudulently and dishonestly with ulterior motives caused
wrongful loss to the PSM and wrongful gain to the companies
accused in the FIR regarding sale/purchase of various finished
products including long and flat products of the PSM on reduced
prices as compared to that of international prices. The accused in
this FIR are Moin Aftab Sheikh, Ex-Chairman, PSM; Sameen
Asgher, Ex-Director Commercial, PSM; Rasool Bux Phulpoto,
MD, PSM; Dewan Abu Obaida Farooqi of M/s Dewaan Steel
Mills; Dewan Muhammad Rehan Farooqi of M/s Dewaan Steel
Mills; Zubair Qayyum But of M/s BBJ Pipe Industries Pvt. Ltd.,
Lahore; Muhammad Hashim of M/s Bashir Pipe Industries Ltd.,
Lahore; Amir Iqbal of M/s AN Industries Pvt. Ltd., Lahore;
Farooq Ahmed of M/s Jamal Pipe Industries Pvt. Ltd., Lahore;
Ch. Jamal Abdul Nasir of M/s Win Pipe Industries, Islamabad;
SMC.15/09, etc.
42
Iftikhar Ali of M/s Hattar Solid Steel Corporation Pvt., Karachi;
Faiz Muhammad Brohi of M/s Indus Steel Pipe Ltd., Karachi;
Munir Ahmed Dogar of M/s Indus Steel Pipe Ltd., Karachi; Brig
(R) Hashmat Ali Shah Bukhari of M/s Indus Steel Pipe Ltd.,
Karachi; Shahnawaz Ishtiaq of M/s Nawab Brothers Steel Mill
Pvt. Ltd., Karachi; Ch. Waheed ud Din of M/s Victory Pipe
Industries Pvt. Ltd., Islamabad; Mehmood Ali Mehkri of M/s
Metropolitan Steel Corporation, Karachi; Syed Asgher Jamal
Rizvi of M/s Metropolitan Steel Corporation, Karachi; Badruddin
Akbar Ali of M/s Amrelli Steel Ltd., Karachi; Muhammad Zafar
Ali Khan of M/s Sarhad Re-Rolling Mills Pvt. Ltd., Karachi;
Sarfraz Hussain of M/s AS Steel Re-Rolling Mills, Karachi;
Aamir Malik of M/s Madina Steel Industries Re-Rolling Mills,
Lahore; Asif Bhagani of M/s Faizan Steel, Karachi; Asif Sohail
of M/s AF Steel Re-Rolling Mills, Lahore; Mian Muhammad
Yasin Suleman of M/s Hajvery Traders, Lahore; Zubair Shoukat
of M/s Ramzan Tube Mill, Lahore and Jamil Akhtar of M/s
Millat Pipe Industries, Gujranwala. In this case as well some of
the accused are absconder; some are on pre-arrest bail, whereas
Ex-Chairman, PSM is in the judicial custody and the trial is under
progress.
33.
The above gist of the FIRs is given just to have a
glance at the progress so made by the FIA in the matter.
SMC.15/09, etc.
43
34.
Due to heavy losses suffered by the PSM in the year
2008-09, the Management of the PSM appointed M/s AHLN
(Avais Haider Liaquat Nauman) Chartered Accountants to
conduct Forensic Audit of the PSM to determine the cause or
causes of such huge loses. They were also given the mandate to
establish responsibility for the loss incurred and provide evidence
to the management of the PSM of any wrong doing.
The firm M/s AHLN carved out the following task while
conducting the Forensic Audit of the PSM:-
i)
To find out and tabulate the break-up of losses
and the reasons behind them.
ii)
To investigate and segregate the losses incurred
due
to
negligence,
mismanagement
and
corruption.
iii)
To find out the people and agencies responsible
for the losses and report their name along with
complete details of loss caused to PSM as a
result of their involvement required.
iv)
To provide the management with the evidence
required for taking any subsequent disciplinary
or criminal proceedings.
v)
Recovery of losses from whosoever is/are
responsible for the losses by tracing their assets
in the Court of Law.
vi)
To suggest corrective measures to facilitate
transparency and avoidance of any such losses
in future.
35.
A careful perusal of the Forensic Audit Report on the
PSM reveals that the Auditors took into account the sales,
SMC.15/09, etc.
44
procurement of bulk raw material, purchases, production, etc.
while compiling their report.
While examining Sales of the PSM it was opined by the
Auditors that prices of the PSM products had not been increased
during the year 2008-2009 specifically from November, 2008
onward despite increase of the local/ international prices; the then
Chairman of the PSM, who was Convener of the Price Fixation
Committee did not take steps as required by Terms of Reference
(TOR); the then Director Commercial (Mr. Samin Asghar) also
did not act as required by the TOR.
Qua allocation of products, the Auditors observed that the
PSM suffered huge losses due to manipulating the process of
allocation of its products to some specific customers; these
deviations in the process of allocation of products have been
noted specifically from November, 2008 to April, 2009 when the
management of the PSM decreased the prices of its products by
30-35%; it was opined that Administrative Head of Marketing
Department i.e. the Chairman PSM acted in collusion with
specific customer and had deliberately manipulated the process of
allocation of material to get the maximum benefit of reduced
prices.
The then Director Commercial/Acting Chairman PSM
approved the extension of free credit scheme on 02.12.2008
SMC.15/09, etc.
45
without prior approval of the Price Fixation Committee and in
this way M/s Amreli Steel and three other customers enjoyed
facilities of Free Credit Scheme (FCS), which resulted in loss of
Rs.13,622,074/- to the PSM.
The report further reveals that priority was given to
traders/dealers as compared to consumers by allocating the
material to specific customers during the said period; non-
implementation of the SOPs of Marketing Department resulted in
losses caused to the PSM. The Board of Directors issued
instructions for constitution of High Power Committee to
negotiate with the suppliers, shipping companies but the then
Chairman never constituted such committee in total disregard of
the instructions of the Board of Directors. The Iron Ore Lump
was approved to be procured at a very high price by the
Chairman against the best interest of the PSM.
While discussing the purchase by the management of the
PSM, the Auditors opined that the Incharge Purchase Department
failed to get approvals from all the concerned departments and
from the Chairman and to place the purchase order within the
validity period of the offer. According to the Audit Report, the
purchase proposals so forwarded by the purchase department to
the Chairman for approval were rejected making the freight cost
as the base of rejection, however, the tender was awarded to the
SMC.15/09, etc.
46
supplier quoting the higher freight rate then quoted previous year.
It was observed by the Auditors that the then Chairman acted
negligently and in complete disregard to the financial
implications of decision to continue the production of Cast
Billets, even when the losses were being incurred on such
production; he even did not take any step to reduce production
level to the minimum.
During the course of audit, it was observed by the Auditors
that some transactions qua sales were carried out in total
contravention of normal business practice; these anomalies were
observed in all of the sales made during the period from
November, 2008 to April, 2009 in all of the PSM products i.e.
Billets, Hot Rolled Product, Cold Rolled Product and Galvanized
Product; it was observed that one or more characteristics in the
contracts of some customers are common like signature of buyer
on the contracts of different customers is of the same person;
likewise contracts of similar quantities and similar products are
entered into by different dealers with same handwritings;
similarly, business addresses were same or very close to each
other; it was observed by the Auditors that these dealerships
belong to one person or closely related group.
36.
In order to examine the above mentioned Audit
Report, the Board of Directors of PSM in their meeting held on
SMC.15/09, etc.
47
30.07.2011, constituted a seven members designated Committee
which examined and reviewed the report and gave its findings as
under:-
a.
The Committee opined that M/s AHLN while elaborating their
assignment methodology in their technical proposals, has
mentioned that the assigned is being taken up jointly in
association with their UK counterpart i.e. RSM Tenon; but the
Committee in this regard has not observed any reflection of the
contribution made by RSM Tenon; the Committee, therefore,
insisted that the contribution of RSM Tenon should be clearly
reflected in the report and the endorsement of the same as
required earlier should also be made part of the Report.
b.
The Committee concluded that the work as per the given TOR is
incomplete with respect to clause 2(e) which, if acknowledged,
will reduce the scope of assignment of M/s AHLN and the basic
objective of this exercise i.e. recovery of the lost money will not
be achieved.
c.
The Committee also opined that the business loss, as indicated in
the preliminary report has not been catered for, as it comprises
of those elements of expenditures and provisions which are
independent of any operational level of activity; the
Committee was of the view that PSM must have suffered a
substantial loss on account of difficult market condition, global
recession and devaluation of Pak Rupee against US$ which was
factors were not accounted for by M/s AHLN in the breakup of
26.5 billion losses.
d.
The Committee observed that the double counting adjustments
as identified in special notes to observations 7.4.1 to 7.4.3 are
also not available in the Report.
e.
The Committee observed that clause 2(c) of TOR which speaks
that the Forensic Consultants are required to pinpoint those who
were responsible for the losses from within the PSM and any
beneficiary outside the PSM is not complied with.
f.
The Committee further observed that the conclusions drawn by
M/s AHLN for many of their observations were made on some
serious matters without the conciliation the management’s point
of view on logical/technical ground.
g.
While the quoting the definition of “Corruption” in legal terms
the Committee observed losses attributed towards the corruption
have not been passed to the individual dealers, suppliers or other
beneficiaries to the extent of benefit drawn by such
individuals/groups/parties; therefore, no one can be charged for
the same and such vague allegations without substantial
evidences/specific charges, may result into a total confusion in
transferring the responsibility on individuals/groups/parties for
recoveries.
SMC.15/09, etc.
48
37.
In view of above findings, the Committee concluded
that the M/s AHLN has not completed the assignment in true
spirit of Forensic Accountancy as generally accepted.
38.
We do realize that this case of mega scam was
entrusted to the FIA by this Court for investigation and we have
been receiving reports from the FIA from time to time but we
have been invariably showing our displeasure and express our
dissatisfaction both as to the manner and pace of the investigation
conducted by the FIA; although the FIA has also filed Audit
Reports but ultimately the auditing of the PSM was entrusted to
M/s AHLN (Avais Haider Liaquat Nauman) Chartered
Accountants, who though did not conclude their work within time
but in reasonable time had conducted Forensic Audit of the PSM
for the year 2008-2009.
39.
It
is
generally
not
advisable
that
pending
investigation, the charge of the same be taken over and entrusted
to another agency but in the given circumstances and for the
reasons, which shall be detailed hereinafter, we are constrained to
hold that the no meaningful results are likely to be achieved
towards the investigation so far conducted by the FIA, in
particular qua the recovery of misappropriated money, which is
not within the power and jurisdiction of the FIA authorities but
under the law, the NAB Authorities can recover the said
SMC.15/09, etc.
49
misappropriated money besides criminally prosecuting the
persons either mentioned in the reports of the FIA so far filed or
to whom the NAB Authorities subsequently will find so involved
in the scam in the PSM for the year 2008-2009.
40.
The reasons for transferring the investigation from
FIA to the NAB Authorities are formulated as under:-
i)
The FIA had been filing either preliminary or
incomplete reports and had never filed any
satisfactory final report;
ii)
We do not find any serious effort on the part
of the FIA towards prosecution of the cases
registered through the FIRs mentioned above;
iii)
Despite observations made by this Court and
although from the FIA, it appears that they
were not happy because of bail-before-arrest
or bail-after-arrest, granted to nominated
accused but no appeal for cancellation of bail
has been filed against the accused involved in
the whole scam of misappropriation of money;
iv)
There are number of accused who have been
shown absconder but no purposeful steps are
taken by the FIA to procure their arrest except
obtaining only their warrants of arrest;
v)
It has been admitted at the bar by the Director
Legal, FIA and other officials that so far as
recovery
of
misappropriated
amount
is
concerned, it cannot be successfully effected
by
the
FIA
authorities,
whereas
they
themselves in their reports have not only
pinpointed the names of those persons, who
were responsible for the said misappropriation
of money but in some matter, they have
specified the mount misappropriated by the
individuals;
vi)
During the course of investigation, the DG
SMC.15/09, etc.
50
FIA including Mr. Tariq Khosa, from whom
there were good expectations, was transferred
and even later on by some of the DGs, we
have noticed no-cooperation towards the
investigation of the case or at times evasive
replies;
vii)
At the first stage of proceedings, the then DG
Mr. Waseem Ahmed openly in Court
disagreed with the reports of his own
subordinates, who were conducting the
investigations;
viii)
The entire investigation appears to be casual
and not final result oriented;
ix)
We do not find any conclusive report prepared
by the FIA.
41.
Above are the few reasons, which persuade us to
conclude that the investigation of the case be transferred and
entrusted to the NAB Authorities.
42.
We may add here that the incumbent Chairman NAB
has been making public statements of his uprightness and
integrity. The Chairman NAB under the National Accountability
Ordinance, 1999 is head of the investigation agency. The very
title of the ‘national accountability’ suggest that the nation expect
from the Chairman and all those who are working under the NAB
Ordinance that no person who has prima facie committed the
offence of corruption and misappropriated the public money to
which every citizen of Pakistan has got a right and claim that the
ownership of the State treasury belong to them, would be taken to
task.
SMC.15/09, etc.
51
43.
We may here highlight the purpose of the
promulgation of the NAB Ordinance, 1999; its very preamble
deals with the subject matter of the instant case; same is
reproduced herein below for the sake of convenience:-
“WHEREAS it is expedient and necessary to provide for
effective measures for the detection, investigation,
prosecution and speedy disposal of cases involving
corruption, corrupt practices, misuse or abuse of power or
authority,
misappropriation
of
property,
taking
of
kickbacks, commissions and for matters connected and
ancillary or incidental thereto;
AND WHEREAS there is an emergent need for the
recovery of outstanding amounts from those persons who
have committed default in the repayment of amounts to
Banks, Financial Institutions, Governmental agencies and
other agencies;
AND WHEREAS there is a grave and urgent need for the
recovery of state money and other assets from those
persons who have misappropriated or removed such money
or assets through corruption, corrupt practices and misuse
of power or authority;
………………………………………………………………
………………………………………………………………
………………………………………………………
AND WHEREAS it is necessary that a National
Accountability Bureau be set up so as to achieve the above
aims;” (emphasis provided)
44.
It is categorically stated by the FIA in para-8 of Civil
Misc. Application No. 417 of 2011 that the commercial audit,
carried out by the FIA was discussed with the Management of the
PSM but the Management did not agree with the same rather
contested the same. It was pursuant to such disagreement of the
Management of the PSM that the FIA and the Chairman PSM
agreed thereby to appoint the forensic audit which was carried
out by M/s AHLN (Avais Haider Liaquat Nauman) Chartered
Accountants. The Management of the PSM was so adamant not
SMC.15/09, etc.
52
to accept its liability by showing account clearance certificate of
its dealers and nominated accused firms, stating therein that no
outstanding amount was recovered from them and it was on such
basis that the nominated accused persons succeeded in getting
relief of bail from the different Courts including from the High
Court of Sindh.
45.
During the course of investigation by the FIA to find
out as to who and how huge losses of over 26 billions rupees was
caused to the PSM, Bank accounts and details of M/s Abbas Steel
Group and its linkage with Mr. Riaz Lallji, the transaction of
lifting of billets below the market price was also obtained and
also to ascertain whether Mr. Riaz Lallji hold any position of
Director, shareholder or Chief Execution in M/s Abbas Steel
Group but the FIA failed to establish any linkage between the
losses caused to the PSM and the involvement or interest of Mr.
Riaz Lallji.
46.
Similarly, as one Mst. Sabin Sakina, who was
reportedly in United Kingdom was served with a questionnaire
by the FIA regarding her contentions in respect of alleged
transaction of the PSM with M/s Abbas Steel Group but till to
date no progress could be made.
47.
It appears from Civil Misc. Application No. 1576 of
2012 that Mr. Riaz Lallji and Mrs. Nazneen Lallji, who were the
SMC.15/09, etc.
53
Directors of M/s Abbas Steel Group and were in the Management
in September, 1996 had apparently resigned from the
Directorship in the year 2004-2005. At the time of investigation
M/s Sabina Sakina, Khalid Khan and Malid Bashir Ahmed were
the Directors for last about three years; strangely enough, the two
later named persons were made accused in case FIR No. 39 of
2009 but connection or otherwise of Ms/ Sabina Sakina does not
surface from the report of the FIA.
48.
We may reiterate here that the investigation by the
FIA so far has failed to pinpoint the real beneficiaries under the
garb of M/s Abbas Steel Group.
49.
The purpose of present proceedings is not to punish
someone but to secure the recovery of looted money, which has
been plundered by the persons prima facie connected with the
commission of the offence and if there cases are sent up for trial
before the Court of competent jurisdiction, they shall be held
responsible but strictly in accordance with law.
50.
The reasons which persuade us to decide that the
investigation be taken over from the hands of the FIA and
entrusted to the NAB are reflected in our order sheets, wherein
we have noted at different times that whenever a DG FIA could
make a headway and was about to lay hands on the culprits, he
used to be posted out on unknown pretext and when Mr. Wasim
SMC.15/09, etc.
54
Ahmed, DG FIA took over the charge, he in open Court had
disagreed with the investigation of his subordinates. We also felt
that attempts to divert the fair and honest investigation were also
made by the Ministry of Interior by appointing Joint Investigation
Team in spite of the fact that the matter was sub judice before
this Court and the FIA was carrying out the investigation under
the directions of this Court.
51.
Even otherwise, as compare to investigation under
the FIA, the investigation that would be carried out by the NAB
would be more purposeful and effective; in this regard we may
refer to Section 12 of the NAB Ordinance, where under the
Chairman NAB or the Court, trying the accused for any offence
under the NAB Ordinance can order freezing of his property or
part thereof, whether in his possession or in possession of his
relative, associate or person on his behalf; similarly Section 25 of
the NAB Ordinance provides for voluntary return and plea
bargain; through such process at least the State money, which
belongs to the people of Pakistan can be recovered/retrieved,
leaving apart the criminal prosecution of the persons involved by
the Trial Court, if reference is sent before it.
52.
We have also noticed from so far submitted reports of
the FIA that many of the nominated accused are still absconding
and their arrest in the near future is not expected but the NAB can
SMC.15/09, etc.
55
press into service Section 31-A of the NAB Ordinance against the
accused persons, who are either absconding or purposely
avoiding being served with the process issued against them either
by the Court or by other authority like investigating agency
because under the NAB Ordinance, such conduct itself is an
offence which is punishable with imprisonment, which may
extend to two years.
53.
Keeping in view all above facts and circumstances,
i.e. undisputedly there is huge loss caused to the PSM in the year
2008-2009, coupled with the fact that in more than one audit
reports the reasons have been highlighted for such losses which
include that major portion of losses is due to misappropriation of
money and at times due to negligence and mismanagement, we
feel that to secure the interest of public at large, the propriety
demands that the investigation so far conducted by the FIA,
which appears to us unsatisfactory, shall now be taken over by
the NAB authorities. Therefore, we direct the DG FIA to
handover all the record so far prepared/collected by the FIA in
this mega scam of the PSM to the Chairman NAB. Consequently,
the Chairman NAB is directed to :-
i)
supervise/appoint a team of honest and upright
officers under his administration to further
probe in the mega scam of losses of more than
SMC.15/09, etc.
56
26 billions rupees to the PSM, which pertains
only to one financial year i.e. 2008-2009;
ii)
determine the accusation against the individuals
responsible
for
such
losses
and
misappropriation including negligence; since
the sufficient material including the Forensic
Audit Report will be before him, his team shall
feel facilitated for further probing in the matter
in its own manner;
iii)
ensure that immediate and stringent steps are
taken for the recovery of looted money from
the persons who are responsible for it;
iv)
also ensure completion of investigation/enquiry
within the shortest possible time;
v)
further ensure the arrest of the accused who
have been declared absconder or who may be
found involved in the case;
vi)
that if in his opinion the bail obtained by some
of the nominated accused is not justified, he
shall direct his prosecution agency to seek
cancellation of the same by filing application
before the Court of competent jurisdiction;
vii) make it sure that after and on completion of
enquiry/investigation,
references
are
filed
against the persons found involved in the
crime;
SMC.15/09, etc.
57
The above exercise shall be completed by the Chairman NAB
within a period of three months and fortnightly report about
progress of the investigation/enquiry shall be filed before the
Registrar of this Court for our perusal in Chambers and for
passing appropriate orders, as may be deemed necessary in the
circumstances.
54.
Simultaneously, we direct our office to transmit a
copy of entire record of the case, compiled during the course of
hearing, along with order sheets to the Chairman NAB for his
information/ guidance.
55.
So far as contempt proceedings initiated against
Mr. A. Rehman Malik, Interior Minister vide order dated
17.12.2009 are concerned, reference of which has been made in
para-19 above, the same be registered independently and notices
be issued for a date after two weeks.
All the titled cases are disposed of in above terms
along with ancillary Misc. Applications.
CJ.
J.
Islamabad,
J.
Announced in Court
On 16th day of May, 2012.
APPROVED FOR REPORTING.
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IN THE SUPREME COURT OF PAKISTAN
( Appellate Jurisdiction )
PRESENT:
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE MANZOOR AHMAD MALIK
MR. JUSTICE SARDAR TARIQ MASOOD
SUO MOTO CASE NO.15 OF 2015
(Suo Moto action regarding acquittal of Mustafa Kanju S/o Siddique
Kanju (Former State Minister) and his four Security Guards due to lack
of evidence)
Attendance
Mr. Razzaq A. Mirza, Addl. AG.Pb.
Mr. Ehtesham Qadir Shah, PG Punjab.
Mushtaq Sukhera, IG Punjab.
Sultan Ahmed Ch. DIG (Inv) Lahore.
Kamran Adil, AIG Legal
Nasir Abbas Panjutha, DSP, (Inv). Lahore.
Khalid Abu Baka Shah, DSP (Inv), CIA/OC
Syed Imtiaz Hussain Shah, Inspector/IO.
Mehboob Alam, ASI
Ejaz Ahmed, HC.
Aamir Hameed, HC
Muhammad Shehbaz, HC.
Muhammad Naseer, HC
Furqan Masih, Constable.
Muhammad Idrees, Constable.
Waseem Abbas s/o Muhammad Yar
Nadeem S/o Muhammad Aslam
Muhammad Ishaq S/o Ahmed Bakhsh
Muhammad Qasim S/o Muhammad Yousaf
Muhammad Yousaf S/o Ameer
Sohail Afzal S/o Muhammad Afzal (Complainant)
Qaiser Afzal S/o Muhammad Afzal (Witness)
Farooq S/o Muhammad Yousaf (Witness)
Waqas Waseem S/o Muhammad Waseem (Witness)
Ghazala Rauf Sd/o Rauf (Mother)
Manahil D/o Rauf (Sister)
Rimsha D/o Rauf (Sister)
Hasnain S/o Zahoor (injured witness)
Zahoor S/o Noor Ahmed.
Raja Shujah (R) Capt.
Col. (R) Ayub Jaffary.
Muhammad Ashraf S/o Ali Muhammad
Sakhawat S/o Bashir Ahmed.
Muhammad Arshad S/o Muhammad Deen.
Date of hearing
16-11-2015
2
O R D E R
On 10.11.2015, the I.G. Police, Punjab, filed his report and this
Court directed appearance of legal heirs of the deceased Zain and the prosecution-
witnesses including the Complainant on 16.11.2015. On 16.11.2015, the L.Rs of
the deceased Zain and prosecution-witnesses of the case appeared in the Court.
The deceased was survived by a mother and two sisters, as his father had died one
and half year before the incident. Mst. Ghazala, mother of the deceased, present in
Court, has stated that she is too weak to fight against the killers of his deceased
son, as the accused party is very powerful. This Court has extended assurance to
her that she is not required to fight herself but it is the duty of the State to ensure
that citizens of this Country enjoy equal protection of law guaranteed under the
Constitution and if any injustice is done, it is the obligation of the State to remedy
it by brining the culprits to book.
2.
In order to understand the view point of the L.Rs of the deceased, the
Court called them in Chambers and heard them individually. Mst. Ghazala, the
mother of the deceased, told us in Chambers that she is a poor lady and after
untimely death of her husband, she is earning the living of her family comprising
of two daughters and a son, who was killed on a footpath/road in the evening of
1.4.2010. She has further informed the Court that her brothers are also from lower
middle class family and hardly make their both ends meet and in this background,
she and her daughters after the incident are scared and disturbed. Out of the two
daughters one namely Manahil stated that she cannot appear in the examinations
because of the apprehensions regarding her safety. Mst. Ghazala further stated that
State should take steps to ensure that those who have killed her son be punished.
She, in so many words, has stated that she has not forgiven the accused persons
nor has entered into any compromise nor was terrorized by any one. According to
her, it was the duty of the State to collect material against culprits and prove their
3
guilt. We have also called brothers of Mst. Ghazala and heard them besides the
injured Muhammad Hasnain, who perhaps was not giving true story.
3.
We, in the given circumstances, are shocked to see the state of
affairs where a mother of a young boy because of her weaknesses and other
shortcomings is being compelled to give up her right to seek justice. The
procedure provided under our present criminal justice system is very cumbersome.
We can understand that the L.Rs of Zain deceased have lost confidence not only in
the police but also in State machinery. They feel insecure and need to be assured
that justice will be done.
4.
Prima facie, the manner in which the police has investigated the case
is not transparent. We have failed to understand that why in a case of this nature
the police had not produced the prosecution witnesses before the Magistrate for
recording their statements under Section 164 Cr.P.C. We inquired from the police
officials, present in Court, as to what prevented them from getting recorded the
statements of the witnesses under Section 164 Cr.P.C, but no plausible explanation
was offered from their side.
5.
The Prosecutor General, Punjab, has informed us that the state has
preferred an Appeal before the Lahore High Court against acquittal of the accused
persons named in the F.I.R, taking all the available grounds. He submits that the
propriety demands that these proceedings be deferred till the pending Appeal of
the State is decided by the learned Lahore High Court, as any finding and/or
observation made in these proceedings may cause prejudice to the case of either
party.
6.
We do not, in the peculiar facts and circumstances of the case, intend
to comment on any aspect of investigation/prosecution at this point of time as it
may influence the outcome of the pending Appeal filed by the State, therefore, we
4
adjourn this case sine die. Once the State Appeal is decided by the learned High
Court, intimation shall be given by the Prosecutor General, Punjab, to this Court
through the Registrar with a copy of the judgment immediately. Upon receipt of a
copy of the judgment of the High Court, this Court may, if deem necessary, revive
the present proceedings. We expect that the learned Lahore High Court shall
decide the Appeal of the State expeditiously, preferably within two months from
the date of communication of this Order. We may observe that if the L.Rs of the
deceased or the injured victim seek protection of the police, then the I.G Police
shall attend to the request.
7.
A copy of this order be faxed to the Registrar of the Lahore High
Court, Chief Secretary, I.G Police, Home Secretary, Prosecutor General, Advocate
General, Punjab, and the L.Rs of the deceased Zain for their information and
compliance. Office is further directed to immediately send back the R&P of the
trial Court so that no delay is caused in hearing of the State Appeal.
8.
Adjourned in terms of para 6 hereinabove.
Judge
Judge
Judge
Announced in open Court on ________________.
Judge
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
S.M.C. NO. 16 OF 2011 ETC
(Suo moto action regarding law and order
situation in Karachi)
In Attendance:
Mr. Salman Aslam Butt, Attorney General
Mr. Waqas Qadeer Dar, DAG
Mr. Aslam Butt, DAG
(On Court Notice)
Mr. Abdul Fateh Malik, A.G. Sindh
Mr. Sher Shah, P.G. Sindh
Mr. Adnan Karim, AAG Sindh
(For Government of Sindh)
Mr. Shahid Hayat, Addl. I.G. Sindh
Mr. Ali Sher Jakhrani, DIG
(For Police)
Mr.
Nazar
Muhammad
Leghari,
Consultant BOR
Mr. Zulfiqar Ali Shah, Member BOR(IT)
Mr. Yawar Ali, ASC
Mr. Ahmed Pirzada, ASC
(For BOR)
Date of Hearing:
24.02.2014
ORDER
REGARDING LAND GRABBING
Mr. Zulfiqar Shah, Member (Technical) Board of Revenue,
Sindh, has submitted a detailed report in CMA No. 834/2013 wherein
he has inter alia submitted that with the assistance of satellite
imagery of GIS Section, illegal occupancy of Government land has
been identified and verified of an area of 52,1032 acres by various
institutions and 7672 acres by private persons. Adds that action is
being taken to remove the illegal encroachments and Anti
Encroachment Police Force headed at present by Mr. Arif Aziz has
been entrusted with the task.
SMC 16/2011 etc
2
2.
Mr. Nazar Muhammad Leghari, Consultant, Board of
Revenue has also submitted a report and adds that there is a law in
place in Sindh called the Sindh Public Property (Removal of
Encroachment) Act, 2010 which provides issuance of notices to illegal
occupants before an action is taken. Adds that notices have been
issued. However, he was not in a position to give details of the
number of notices issued and whether those have been challenged in
courts of competent jurisdiction and a stay order has been issued
against those notices or not.
3.
Let Member, Board of Revenue submitted a detailed
report about the notices issued in terms of the above and the fate of
those notices. Mr. Arif Aziz who heads the Anti Encroachment Police,
Board of Revenue shall also appear and submit a progress report on
the next date. To come up on 26.2.2014.
C.R.P. NO. 2-K/2014 IN CMA NO. 589-K/2013
3.
Let this review petition be fixed before a 5 Members
Bench on 26.2.2014. All other cases of 5 Members Bench shall also
be taken up on 26.2.2014.
4.
Learned Attorney General for Pakistan submits that in
terms of paras 3, 4 & 5 of the order dated 29.11.2013, Attorney
General and Advocate General Sindh had submitted in writing the
names of technical, judicial and accounting members for the
proposed Commission. So far as para 3 is concerned, he submitted
that the PTA was to submit a report. Mr. Ali Akbar appearing for PTA
submits that the report shall be submitted during the course of the
day today. Let this matter be taken up on 26.2.2014 because it is a 5
Members Bench’s order.
CRIMINAL ORIGINAL PETITION NO. 84/2013
SMC 16/2011 etc
3
5.
Petitioner submits that a gruesome incident took place in
Abbas Town as a result of which about 50 persons lost their lives and
this Court while taking suo moto notice of this case had expressed
dismay over the fact that immediately after the incident no police
officer reached the spot rather the media persons reached the spot
before any officer was there. The incident prima facie reflected not
only inaction on the part of the concerned police officers but also
demonstrated their inefficiency. That being so, the Court had directed
that “in the circumstances, we direct the Chief Secretary, Government
of Sindh, being the head of the Executive that immediately suspend
SSP, DSP and SHO and issue such notification during the course of the
day. The also be directed to join interrogation on account of their
criminal negligence in not providing the assistance to the inhabitants.”
Petitioner makes a grievance that though the afore-referred order, Rao
Anwar Ahmed who was then posted as SSP Maleer where the incident
took place was suspended in terms of this Court’s order. However,
without any departmental inquiry he was not only reinstated but
given another posting. Let notice be issued to Inspector General of
Police, Sindh, to personally appear on 26.2.2014 to explain the
factual position.
6.
The rest of the case will be taken up on 26.2.2014.
CHIEF JUSTICE
JUDGE
JUDGE
Karachi, the
24th of February, 2014
Not Approved For Reporting
Khurram
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THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ
MR. JUSTICE AMIR HANI MUSLIM
MR. JUSTICE SH. AZMAT SAEED
Suo Motu case No.17 of 2016.
(Action taken by this Court to examine the vires of Section 25(a) of the NAB Ordinance.
In Attendance:
Mr Ashtar Ausaf Ali, Attorney General for
Pakistan.
Ch. Aamir Rehman, Addl.A.G.
Barrister Asad Rehman, Consultant to A.G
Mr Waqas Qadeer Dar, PG, NAB
Mr. M. Azam, DPG, NAB.
Mr Imranul Haq, Spl. Prosecutor NAB.
Mr Abdul Latif Yousafzai, AG, KPK.
Mr Ayaz Swati, Addl.A.G, Balochistan.
Mr Zamir Hussain Ghumro, A.G, Sindh.
Mr Sheharyar Qazi, Addl.A.G, Sindh.
Akhtar Rehana, Addl.P.G Sindh.
Mr Asjad Javed Ghural, Addl.P.G. Punjab.
Mr Mudassar Khalid Abbbasi, Asstt.A.G,
Punjab.
Mr Asad Kharral, Applicant in CMA
No.6374 of 2016.
Date of hearing
24.10.2016.
ORDER
AMIR HANI MUSLIM, J.- This Court on 02.09.2016, during
hearing of Civil Appeal No.82-K of 2015, noticed abuse of authority by the
NAB while taking cognizance of petty matters in terms of Section 9 of the
National Accountability Ordinance, 1999 (hereinafter referred to as the
Ordinance). The Ordinance was primarily legislated to counter the cases of
mega scandals and initiate proceedings against the accused persons who are
involved in scandals of mega corruption and corrupt practices.
Suo Motu Case No.17/16.
2
2.
The Court also noticed that in terms of Section 25(a) of the
Ordinance, the NAB authorities after issuance of call up notices suggest to
the accused that they may opt to come forward with the offer of voluntary
return of the amounts that have allegedly been acquired or earned illegally
by them. Section 25 (a) (ibid) empowers the Chairman, NAB, to accept such
voluntary returns made by the accused persons, the amount is deposited with
NAB in installments at the discretion of the Chairman, NAB. Alarmingly, on
payment of certain portion of the amount, such person is given clean chit by
the NAB to rejoin his job. The frequent exercise of powers under Section 25
(a) (ibid) by the NAB on one side has multiplied the corruption usurping the
jurisdiction of the F.I.A and Anti-Corruption agencies and defeated the
object of the Ordinance on the other hand. In this regard the matter was
referred by a Bench of this Court to the Hon’ble Chief Justice of Pakistan,
for examining the vires of Section 25(a) (ibid) vis-à-vis un-bridled powers of
the Chairman, NAB to accept the offer of voluntary return from a person
regardless of the size of the amount by any mode adopted at his discretion
which falls within the domain of the judiciary. The matter was placed before
the Hon’ble Chief Justice of this Court, who directed the office to fix the
matter in Court, treating it as a Petition under Article 184 (3) of the
Constitution. On 02.09.2016, the NAB authorities were further directed to
provide the following details
(i)
The list of the cases in which NAB authorities are conducting enquiries and
investigations and or references pending in the NAB Courts, involving an
amount of less than Rs.100 Million;
(ii)
The list of the persons, civil servants and or public servants, to be provided by
relevant departments of the Governments and or State owned organizations, who
entered into Voluntary Return.
(iii)
The action which the Federal/Provincial Governments and or statutory
organizations have taken against their employees after their offer of Voluntary
Return was accepted by NAB in terms of Section 25(a) of the NAB Ordinance.
Suo Motu Case No.17/16.
3
3.
On 28.09.2016, the matter was adjourned at the request of the
learned Law Officers of the Federation and the Provinces as well as the
NAB authorities for today. In response to the order dated 02.09.2016, the
required reports have been submitted by the Federal Government and the
Provincial Governments. The NAB has also filed its report as
C.M.A.No.6376 of 2016, giving details of the persons who have offered
voluntary return of the monetary gains that they acquired through corrupt
practices and such offer was accepted by the Chairman, NAB. From the
reports submitted by the Federal Government and the respective Provincial
Governments, it appears that no departmental action has been taken against
the
officers/employees
of
different
organizations
including
Govt.
departments, who had voluntarily returned illegally acquired monetary
gains, which is very unfortunate. Once a person accused of corruption or
corrupt practices volunteers to offer to return the amount he has pocketed or
gained
through
illegal
means,
prima
facie,
cannot
hold
any
Government/Public Office, as the very act of his offering the voluntary
return falls within the definition of “misconduct” under the service law and
calls for initiation of disciplinary action against the accused person(s). The
report filed by the NAB mentions that hundreds of employees/civil servants
and others who have voluntarily returned the amounts in terms of Section
25(a) (ibid) are still enjoying their office, without being exposed to any
departmental proceedings which has further multiplied the corruption in the
country.
4.
This inaction on the part of the departmental authorities towards
the accused has patronized corruption, by providing a window to the NAB as
Suo Motu Case No.17/16.
4
well to the employees, who plunder public money and after paying back a
portion of the alleged amount of corruption/corrupt practice continue in their
jobs.
5.
Primarily, the concept of voluntary return under the Ordinance,
was confined to those accused against whom the proceedings were yet to
start and they, on their own, had approached the NAB authorities by offering
the voluntary return of the amounts illegally gained or acquired by them.
This concept, however, was side tracked and instead the accused persons
against whom call up notices were issued on the strength of some complaint
or otherwise are extended favours by the NAB under the garb of Section
25(a) which was never intended for.
6.
In the given circumstances, what has further disturbed us is that
the amounts so collected by the NAB in installments or otherwise is not
being deposited in its entirety with the concerned Government/Department
forthwith, instead some of the amount under the garb of Rules or otherwise
is retained by the NAB authorities for distribution to its official towards
award.
7.
We inquired from the Prosecutor General, NAB, to provide us
the details of the amounts of voluntary return recovered from different
accused persons and details of its deposit. The P.G, NAB, states that no
amount is withheld by the NAB authorities for distribution to its officers
who conduct the investigation of the cases as award.
8.
The NAB shall provide us the details of the amounts which they
have collected from accused persons, during the last 10 years and the
Suo Motu Case No.17/16.
5
amounts which they have deposited with the different Governments. These
details should reach this Court by 05.11.2016 positively. Likewise, the
Attorney General for Pakistan as well as the Advocate Generals of the
Provinces shall handover the copies of C.M.A.No.6376 filed by the NAB to
the Secretary, Establishment Division and the Chief Secretaries of all the
four provinces, who in turn shall ensure initiation of departmental
proceedings against the accused persons mentioned therein who have
voluntarily returned the amounts under Section 25(a) of the Ordinance,
besides they shall further provide the details of the amounts which different
departments have received from the NAB in terms of Section 25(a) (ibid).
9.
We, therefore, direct the Secretary, Establishment Division and
all the Chief Secretaries of the Provinces to ensure initiation of departmental
proceedings forthwith against the employees mentioned in C.M.A.No.6376
of 2016 who have voluntarily returned the amounts in terms of Section 25
(a) (ibid), without further loss of time and report compliance.
10.
In the meanwhile, the Chairman, NAB, or any other Officer
authorized by him in this behalf, is restrained from accepting any offer of
voluntary return in terms of Section 25(a) of the Ordinance. The office is
directed to re-list the matter on 07.11.2016.
Chief Justice
Judge
Islamabad the,
24th October, 2016.
Not approved for reporting.
Judge
Sohail/**
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Muhammad Sair Ali
Mr. Justice Ghulam Rabbani
Mr. Justice Khalil-ur-Rehman Ramday
SMC NO. 18 OF 2010
ACTION REGARDING VIOLATION OF PUBLIC
PROCUREMENT RULES, 2004 IN PROCUREMENT
LOSS OF BILLIONS OF RUPEES OF PUBLIC
EXCHEQUER CAUSED BY NATIONAL INSURANCE
COMPANY LTD.
On Court notice:
Moulvi Anwarul Haq
Attorney General for Pakistan
For NICL:
Mr. Abdul Hafeez Pirzada, Sr. ASC
Mr. Tariq Iqbal Puri, CE TDAP
Acting Chairman, NICL
For M/o Commerce:
Mr. Zafar Mehmood, Secretary
For M/o Interior:
Mr. Qamar Zaman Ch, Secretary
For the FIA:
Mr. zafar Iqbal Qureshi, Addl. Director
Mr. M. Azam Khan, Director (Law)
Mr. Moazzam Jah, Director, Karachi
Mr. Basharat Shehzad, Dy. Dir/IO
Mr. Muhammad Ahmad, Asstt.Dir/IO
For Athar Naqvi:
Syed Iftikhar Hussain Gillani, Sr.ASC
For Casa Bella:
Ms. Romaisa Ahmad
For Naveed Zaidi:
Nemo
For Hur Riahi:
Nemo
For NAB:
Mr. Muhammad Akbar Tarar, Acting PG
Mr. Fauzi Zafar, DPGA
Date of hearing
:
25.01.2011
…….
O R D E R
Ch.
Qamaruzzaman,
Secretary,
Ministry
of
Interior,
Government of Pakistan has placed on record the notification dated
SMC 18/2010
2
24.01.2011, issued by the Government of Pakistan whereby Capt.
(Retd.) Zafar Ahmed Qureshi, Managing Director, National Police
Foundation has been appointed as Additional Director General, FIA in
addition to his present assignment with immediate effect till further
orders to supervise investigation of the NICL case at Lahore.
2.
It is to be noted that during the period when he was
supervising the investigation and the investigation was likely to make
effective progress, he was abruptly transferred on the pretext that
after his promotion in Grade 21 he could not continue as a Director
over there, but we feel that this device was adopted with a mala fide
intention otherwise by an identical notification as has now been issued,
the authorities could have allowed him to continue with the
investigation of an important case, involving a huge public money,
which has allegedly been looted.
3.
Mr. Zafar Ahmed Qureshi is present. He has explained the
progress made by him so far in the investigation of the case. When
inquired as to why he is not treating all the accused persons at par
because one of the Directors of NICL, Amin Qasim Dada has not been
arrested whereas remaining Directors have already been taken in
custody of the FIA, he answered that despite his best efforts he was
not allowed to do it. He stated that whenever any person is required
from Lahore where he is posted as a Director, the needful is done, but
when he had gone to Karachi and contacted Moazzam Jah, Director
FIA over there in connection with the arrest of Amin Qasim Dada,
Moazzam Jah told him that Amin Qasim Dada used to sit with DG, FIA
in his camp office, therefore, how he could cause his arrest. On Court
query, the Director FIA, Karachi, who is present, stated that 4-5 days
before the registration of the case and after the order had already
SMC 18/2010
3
been passed by this Court, Amin Qasim Dada was present with the
DG, FIA. Be that as it may, DG, FIA is equally responsible for not
causing his arrest. It seems that instead of allowing his Director to
make progress in the case, he is providing shelter to the accused
persons; therefore, we direct the Additional Director General, FIA,
Zafar Ahmed Qureshi to take all necessary steps for causing his arrest
and if on a further probe he comes to the conclusion that the accused
is being given shelter by the DG, FIA, then he should proceed against
the DG too in accordance with law because no one is above the law.
He further explained that all efforts shall be made to explore the
possibility as to how the Government money was taken out of the
accounts of the NICL, where the same was spent and in whose
accounts the same was deposited. In this behalf, he has particularly
made reference to the case of M/S Al-Tahoor Co., whose Manager
Abdul Maalik has already been arrested and stated during interrogation
that the account was opened in Allied Bank Ltd, Airport Road Branch,
Lahore in the name of one Adil Manzoor whose name/NIC was used
but when said Adil Manzoor was interrogated, he stated that he had no
knowledge of the same, but according to the statement of Manager
Abdul Maalik, an amount of 22 crores of rupees has been given to
Moonis Elahi. According to him, as progress was being made in the
meanwhile, he was transferred and made under orders of DG
(Waseem Ahmed) to relinquish the charge immediately. Be that as it
may, Zafar Ahmed Qureshi has now again been posted as Additional
Director General, FIA, therefore, he would be supervising investigation
of the case pertaining the persons concerned.
4.
Director Moazzam Jah also gave progress report, which
does not seem satisfactory as no step has been taken by him as well
SMC 18/2010
4
to cause arrest of the accused persons, who had left the country
inasmuch as Amin Qasim Dada, who was available in Karachi and
according to his information he was sitting with DG, FIA after passing
of order by this Court, he ought to have taken necessary steps to
cause his arrest. Similarly, he had taken no steps to recover the
amount from the account of Ayaz Khan except making attachment of
the property but making no probe in the matter thoroughly fixing the
responsibility upon the accused persons, which indicates that the
investigation is not being carried out honestly, fairly and properly.
However, we may give him another chance to proceed with the matter
strictly in accordance with law and submit report on the next date of
hearing in this behalf.
5.
The Secretary Commerce has stated that he has sent a
letter to the Auditor General of Pakistan to conduct special audit of the
NICL.
6.
The report submitted by the Secretary Interior is also
placed on record.
7.
Adjourned to 01.02.2011 when the Additional Director
General, FIA, Lahore and Director, FIA, Karachi shall attend the Court
and submit their reports.
CJ.
J.
J.
J.
Islamabad,
25.01.2011
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Present:
Mr. Justice Iftikhar Muhammad Chaudhry, CJ.
Mr. Justice Amir Hani Muslim
Suo Moto Case No.18 of 2011
And C.M.As No.4823-4825, 4916 & 4820/2011
And H.R41939 of 2011
(Irregularities and Non-Payment of Salaries/Pension to
Pakistan Railways employees)
On Court Notice:
Maulvi Anwar-ul-Haq, AGP
For Pakistan Railways:Rai Muhammad Nawaz Kharal, ASC
Mr. M. Naeem Malik, GM, MTS
Mr. Ahsan Mehmood Mian, Addl. G.M,
Mr. Muhammad Tariq Khan, CME/WQ
Mr. Shafiqullah, Secy, Railways Board
Mr. M. Azam Ghafoor, Chief Controller
Mr. M. Ashraf Lanjaar, Director (LA)
For NAB:
Mr. Akbar Tarar, Addl. P.G. NAB
Mr. Fauzi Zafar, ADP, NAB
In C.M.A 4820/2011: Nemo
In CMA 4823/2011: Mr. Salman Akram Raja, ASC
With Sheikh Rashid Ahmed,
Former Minister, Railways
In CMAs 4824,4825/11:
Mr. Zulfiqar Ahmad Butta, ASC
& 4902/2011
In CMA No.4916/11: Syed Zafar Ali Shah, Sr. ASC
In CMA 5088/11:
Mr. Hafeezullah Cheema, ASC
in person
In CMA 5225/11:
Sardar Ayaz Sadiq, MNA/ Chairman
Standing Committee on Pakistan Railways
Date of hearing:
30.11.2011
ORDER
Iftikhar Muhammad Chaudhry, CJ.— Sheikh
Rashid Ahmad, Former Minister for Pakistan Railways
SMC 18/2011
2
pointed out that after commencing hearing of this case, 20
locomotives have been rehabilitated and are being used
with railway trains. Former Minister has also referred the
audit report of current year and read out different portions
therefrom, according to which huge losses have been
caused to the Railways on account of mismanagement,
corruption and corrupt practices, etc. Surprisingly the
concerned authorities have failed to initiate action against
the persons responsible, till date. Mr. Shafiqullah, Secretary
Railways Board stated that in addition to it, 21 locomotives
shall also be rehabilitated on or before 21st December, 2011
2.
It may be noted that identical objections in
regard to corruption were raised on the last date of hearing
in respect of auctioning of the scrape and we had directed
the Chairman NAB to look into this matter and initiate
actions according to law. In respect of the audit report as
well, we direct the Chairman that he should collect the audit
report from the Railways Department and examine the
same
to
ascertain
the
criminal
liabilities
of
the
officers/officials and other persons responsible for the
corruption and corrupt practices. The learned Attorney
General for Pakistan as well
as learned Additional
Prosecutor General, NAB pointed out that in compliance
with the orders of this Court, action has already been
initiated by NAB.
3.
Sardar Ayaz Sadiq, MNA, Chairman Standing
Committee on Pakistan Railways has appeared and stated
that there is no such serious problem with the Railways
except the things are becoming complicated for one or the
other reason. He has pointed out that bailout packages
have been issued and by the time 12 billions have been
received by the Railways Department but on account of
mismanagement,
no
progress
has
been
made
for
rehabilitation of Railways. One of the reasons pointed out
SMC 18/2011
3
by him was the non-functioning of the Railways Board. The
Secretary Railways Board stated that about one year back
Prime Minister of Pakistan had accorded approval of the
Railway Board wherein names of some of the private
persons had been mentioned but despite lapse of a
sufficient time the Board has not been notified. He further
stated that the Government should nominate such persons
to be the members of Board, who have no personal interest
or stake and preference should be given to the persons who
have expertise in the relative commercial business. The
learned Attorney General has stated that he would discuss
these issues with the Secretary Railways and on the next
date of hearing shall inform the reasons for non-issuance of
the notification of the Railway Board.
4.
The Secretary Railways Board further informed
that out of available 494 locomotives 60% have already
lived their lives, therefore, despite spending money on their
repairs, no useful purpose can be obtained from the same.
On the other hand Sheikh Rashid Ahmad has pointed out
that majority of the engines are those, which have been
parked for want of minor repairs, say like; in some of the
cases on account of use of contaminated oil the crank
shafts have been damaged and minimum expenditures for
replacement of crank shaft is required and if this procedure
is adopted, the Railways can rehabilitate a good number of
their engines. We do not have technical expertise, however,
we direct the Chairman that he should prepare a list of each
locomotive, pointing out the defects and the plan for its
rehabilitation
alongwith
approximate
cost
of
each
locomotive. This exercise should be completed within a
period of ten days and copy of the same shall be sent to the
Registrar as well as Sheikh Rashid Ahmad, Former Minister,
Railways. The Registrar shall convene a meeting of Former
Minister and representatives/engineers of HMC, HIT and
SMC 18/2011
4
Risalpure as well as the Railway authorities and after taking
their reaction, on the detail report on the proposed report,
the Registrar shall submit his report on the issue for perusal
of this Court before the next date of hearing.
5.
We are informed by the Secretary Railways that
as far Auditor General of Pakistan is concerned, it has no
expertise for conducting forensic audit, therefore, with the
permission of competent authority some private charted
accountant company of repute shall be involved subject to
payment of the cost etc. to do the needful. Progress report
in this behalf may be submitted on the next date of
hearing. We expect that employees of the railways
represented by the learned counsel shall also show their
interest for the purpose of reactivating the Pakistan
Railways as early as possible.
6.
It is informed by the Mr. Ayaz Sadiq, MNA that
immovable properties of the Railways Department, situated
in different provinces has been encroached by different
agencies including Defence, Rangers, FC and private
persons. Detail report in this behalf be submitted to the
Registrar of this Court within seven days, who shall forward
the same to all the Chief Secretaries for ensuring that the
property belonging to the Railways Department is handed
over to them.
Let case be adjourned to a date in office after three
weeks.
Chief Justice
Judge
Islamabad, the
30th
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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Amir Hani Muslim
Mr. Justice Sh. Azmat Saeed
SUO MOTO CASE NO.18/2016,
CMAs NOs.7067, 7587, 8495-8498/2016 IN SMC NO.18/2016 &
CMA NO.8198/2016 IN CMA NO.7067/2016 IN SMC NO.18/2016,
(Suo Moto Action regarding eligibility of Chairman and Members of
Sindh Public Service Commission and others)
In attendance:
For Government of Sindh
: Mr. Zameer Hussain Ghumro, AG Sindh
Mr.
Ghulam
Ali
Brahmai,
Addl.
Secretary, Services, Sindh
For Chairman & Members
of SPSC
: Mr. Farooq H. Naek, ASC
Raja Abdul Ghafoor, AOR
For Saindad Khan Solangi,
Ghulam Shabbir Shaikh and
Muhammad Hanif Pathan
: Raja Muhammad Ibrahim Satti, Sr. ASC
Syed Rafaqat Hussain Shah, AOR
For the applicant(s)
: Mr. Zulfiqar Khalid Maluka, ASC
(In CMA No.7587/2016)
Nemo
(In CMAs Nos.7067, 8495 to 8498 of
2016)
Date of Hearing
: 03.01.2017.
ORDER
AMIR HANI MUSLIM, J. - These proceedings emanate out
of an Application submitted by Mr. Muhammad Junaid Farooq, a practicing
Lawyer of the High Court of Sindh, addressed to the Hon’ble the Chief
Justice of Pakistan, complaining therein that the Chairman and Members
appointed by the Government in the Sindh Public Service Commission
(hereinafter referred to as the Commission), lack eligibility threshold as
S.M.C.No.18/16.
2
provided in Section 3 of the Sindh Public Service Commission Act, 1989. It
was further averred that the Chairman and Members were involved in
corruption, nepotism and mass mismanagement in the Commission, which
stories were aired/printed in the electronic and print media. He has prayed
that this Court should take suo motu notice of this matter of great public
importance, as it has far reaching effects on the future of youth of the
Province of Sindh. He further prayed that all the recommendations made by
the illegally appointed Chairman and Members for appointments to different
posts should be declared void and of no legal effect.
2.
On this Application, one of us (Amir Hani Muslim, J), made the
following recommendations:-
“Through this Application, the applicant has challenged the
eligibility and qualification of Chairman Public Service
Commission Sindh and the members appointed by the Sindh
Government. This is a matter of public importance and has direct
bearing on the rights of public at large. Public Service
Commission is constituted pursuant to the directions contained
under Article 240 of the Constitution. If the Chairman and the
Members themselves are not eligible to hold office, how can they
allowed to undertake exercise of examining the candidates for
appointments in the government departments. I, therefore, suggest
the office to place this application before the HCJP,
recommending to examine the issue raised in the application on
judicial side under Article 184 (3) of the Constitution.
3.
Accordingly, the Application was placed before the Hon’ble
Chief Justice of Pakistan, who was pleased to pass the following order:-
“It may be treated as suo motu case and fixed at
Islamabad on 28.09.2016 with notice to the A.G Sindh
and the persons named at the bottom of this application.”
S.M.C.No.18/16.
3
4.
Notices were issued to the Applicant, Advocate General, Sindh,
and the Respondents. The matter was fixed in Court on 28.09.2016, and the
Secretary, Services, Sindh, was directed to place before the Court the service
profiles of all the Members of the Commission, indicating the length of
service of the Respondents in departments in each scale, including their
length of service in BS-20. The Secretary, Establishment Division,
Government of Pakistan, was also directed to produce the service profile of
Muhammad Saleem Bhanwar, with details of his length of service in each
scale, including BS-20.
5.
Thereafter the matter was posted on 17.10.2016 and on
03.11.2016, when the following order was passed:-
“The learned Advocate General Sindh has placed a statement in
writing before the Court, which reads thus : -
“The following persons have tendered their resignation to
the Government of Sindh and has such Sindh Public Service
Commission shall be reconstituted in accordance with the
law.
1. Mr. Muhammad Saleem Bhaounr, Chairman, SPSC
2. Syed Jawed Ali Shah Bukhari, Member, SPSC
3. Mr. Shamsuddin Hisbani, Member SPSC
4. Mr. Feroze Mehmood Bhatti, Member SPSC
5. Dr. Baz Muhammad Junejo, Member, SPSC
6. Mr. Ashiq Ali Memon, Member, SPSC”
2.
From the above statement, it is not clear as to whether the
resignations so tendered by the aforesaid officers of the Sindh
Public Service Commission (SPSC) have been accepted or are still
under consideration before the Competent Authority. In case, the
fate of these resignations has not been decided as yet, it shall be
positively decided within three days and relevant material to this
effect be placed on record before the next date of hearing. In
addition to it, the learned Advocate General, Sindh is directed to
place on record the complete list of recommendies of SPSC from
the date when Mr. Muhammad Saleem Bhaounr, Chairman SPSC
was so designated in this office.
3.
The hearing of this case is adjourned to 17.11.2016. In the
meantime, the interim order dated 17.10.2016 shall remain
operative with further clarification that the Government of Sindh
shall not make any appointment on the recommendations of SPSC,
if any, already received by it.”
S.M.C.No.18/16.
4
6.
Today, Mr Farooq H Naek, learned ASC, has appeared and
states that he has been instructed not to contest the case of Ashiq Ali
Memon, one of the Members of the Commission, and that Ashiq Ali would
immediately tender his resignation to the competent authority. On tendering
the resignation, the competent authority shall forthwith accept it.
7.
Mr. Muhammad Ibrahim Satti, Sr. ASC has appeared for
Saindad Khan Solangi, Ghulam Shabbir Shaikh and Muhammad Hanif
Pathan, all three of whom are Members of the Sindh Public Service
Commission and contended that all of them were appointed in accordance
with law. He referred to Section 3 of the Sindh Public Service Commission
Act, 1989 and submitted that two members i.e Saindad Khan Solangi and
Ghulam Shabbir Shaikh were appointed by the Government in terms of
Section 3 (3) of the Act, which provided for the appointment of not less than
half of the Members from the service of Pakistan. However, the Member
namely Muhammad Hanif Pathan was appointed under Section 3 (4) of the
Act of 1989, whereby the remaining Members were to be appointed from the
private sector. He referred to the service profiles of all the three Members
and contended that the matter was taken up by this Court on the application
of one Mr Muhammad Junaid Farooqi, whereby the appointments of the
Chairman and the other Members were challenged but the eligibility of the
Members who are his clients was never challenged.
8.
He referred to the service profiles of the two Members namely
Saindad Khan Solangi and Ghulam Shabbir Shaikh and contended that these
Members fulfill the criteria laid down under Section 3(3) of the Act.
S.M.C.No.18/16.
5
9.
He next contended that the 3rd Member, namely Muhammad
Hanif Pathan, was appointed in pursuance of Section 3(4) of the Act, which
stipulates that the remaining members shall be selected from private sector
from amongst the eminent persons with minimum age of forty five years and
maximum age of sixty five years representing liberal arts and science and
professionals having a Bachelor’s Degree with sufficient practical
experience
in
the
relevant
field.
He
submitted
that
the
said
Applicant/Respondent is from the private sector and has 40 years experience
including 28 years experience of Aviation industry/P.I.A and 12 years in
different Government organizations and is qualified to hold the office as
Member of the Commission.
10.
He lastly contended that the removal of the Chairman and the
Members of the Commission could only be made in accordance with the
procedure laid down in Section 6 of the Act.
11.
We have heard the learned counsel M/s Farooq H. Naek and
Ibrahim Satti besides the Advocate General Sindh and have perused the
record with their assistance. After scanning the service profiles of all the
Respondents, we are of the view that the appointments of two of the
Members namely Saindad Khan Solangi and Ghulam Shabbir Shaikh were
made in accordance with the provisions of Section 3(3) of the Act. However,
Muhammad Hanif Pathan, who is appointed as a Member, does not qualify
the eligibility criteria as laid down in Sub-Section 4 of Section 3 (ibid).
Contrary to the requirements stipulated in the said sub-section, he is not
from the private sector. His experience is based on his 28 years service in the
P.I.A, which is a public sector organization besides he does not qualify the
S.M.C.No.18/16.
6
test of ‘eminent person’, as provided by Section 3 (4) of the Act. We,
therefore, hold that the appointment of Muhammad Hanif Pathan as a
Member of the Commission was not made in conformity with the provisions
of Section 3 (4) of the Act.
12.
While hearing these proceedings, we have noticed that the
Commission created under Article 242 of the Constitution is a constitutional
body responsible for recruitment in public sector. The Act empowers the
Sindh Government to appoint the Chairman and Members of the
Commission, for which no formal mechanism for their selection has been
delineated. Section 10 of the Act provides that the Government should make
rules for carrying out the purposes of the Act, but till date no such rules have
been framed by the Government for determining the mode through which
the Chairman/Members would be selected although there is reference of
qualification under Section 3 of the Act, providing the eligibility of the
Chairman and Members which needs further clarity by the rules stipulating
the mechanism. The wisdom behind the provision of Section 10 empowering
the Government to frame rules appears to be that the posts of Chairman and
Members, which is left at the discretion of the Government under the statute,
has to reach out such a group of eminent and dignified personalities who
would otherwise not apply for these posts. The Chairman/Members of this
constitutional body, who enjoy the constitutional protection, need to be
selected from amongst noble individuals possessing incomparable
competence, exalted caliber, unblemished track record, impeccable integrity
and unquestionable impartiality. They should be the persons who can be
entrusted with the responsibility of selecting the most deserving candidates
S.M.C.No.18/16.
7
who will be holding key positions in the public sector a decade down the
path.
13.
The application of ultimate wisdom in selection of the
Chairman and Members of the Commission is extremely important, as it
should have been a symbol of excellence, which is at the brink of losing its
traditional grace. We have also noticed the controversy recently generated
by the examinations/interviews and recommendations undertaken by the
Commission headed by the Chairman namely Muhammad Saleem Bhanour,
which was talk of the town.
14.
The appointment of the Chairman and Members of the
Commission has far reaching effects as observed by us hereinabove and the
inherent disqualification that we have noticed in their appointments was
willfully overlooked by the relevant forum, as there is no yardstick provided
for scrutinizing the caliber of the persons before their appointment. The
discretion of the competent authority in making the appointments of the
Commission needs to be structured through the rules, which need to be
framed by the Government in terms of Section 10, suggesting a high-
powered permanent committee to examine the service profiles of the
Chairman and Members to be selected under Section 3(3) and the qualifying
standards provided therein. Likewise, the high-powered committee needs to
scrutinize the eminence of the persons in the private sector before the
selection as Member in consonance with the terms used in Section 3(4) of
the Act.
S.M.C.No.18/16.
8
15.
This Court in the case of Muhammad Yasin Vs. Federation of
Pakistan (PLD 2012 SC 132), which view was affirmed in the case of
Muhammad Ashraf Tiwana Vs. Pakistan (2013 SCMR 1159), has
provided the guidelines for appointment to the public office, which read as
follows:-
“(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 [the law]; (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”.
16.
These guidelines should be made basic criteria for appointment
to the office of Chairman and Members of the Commission. The proposed
rules need to be framed in a manner where the selection to the posts of
Chairman and Members should be transparent and confined to the persons
who enjoy high standards of integrity and honesty. The rules should further
provide that the proposed appointee has a clean service record without any
adverse entry in his P.E.Rs throughout his career.
17.
We, for the aforesaid reasons, direct the Government to
immediately take steps to frame rules and thereafter appoint the Chairman
and Members of the Commission against vacancies created by resignations
of the Chairman/Members and by the order of this Court passed today. The
Government shall retain the services of two Members namely Saindad Khan
Solangi and Ghulam Shabbir Shaikh, as their appointments are found to
S.M.C.No.18/16.
9
have been made in conformity with the provisions of Section 3 of the Act.
The C.M.A.No.7066 of 2016 filed by Mr Muhammad Ibrahim Satti, learned
Sr.ASC, is partly allowed in the above terms.
18.
There are complaints received by this Court against Jumo Khan
Chandio, Deputy Controller of the Commission, and Javed Ahmed, Director
I.T. who were ordered to be repatriated to their parent departments, who
have been posted back to the Commission. We direct the Chief Secretary,
Sindh, to place before us the original service profiles of both these officers
with explanation as to how they could come back from their parent
departments to the Commission and why proceedings under contempt law
should not be initiated against them for willful defiance of the orders of this
Court being beneficiaries. Both the officers shall appear in person on the
next date of hearing with explanation.
19.
The next issue raised in these proceedings relates to the
examinations/interviews and recommendations made by the Commission for
appointments of the candidates to different departments in the intervening
period. The Advocate General Sindh and the learned Counsel representing
some of the recommendees shall make their submissions on the next date
and appropriate orders shall be passed after hearing them.
20.
To come up after one week.
Judge
Islamabad the,
3rd January 2017.
Judge
Not approved for reporting.
Sohail/**
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE MIAN SAQIB NISAR
MR. JUSTICE IQBAL HAMEEDUR RAHMAN
S.M.C. NO. 1 OF 2012 & C.M.A. NOs. 49-L/2012, 448-L/2012,
4055/2012, 5186/2012, 926-L OF 2013 & H.R.C. NO. 8634-S
OF 2012
(Regarding death of more than 90 heart patients under treatment in Punjab Institute of
Cardiology on account of spurious drugs)
In Attendance:
Mr. Faisal Zaman Khan, Addl. A.G.
Mr. Muhammad Zikria Sh, DAG
Mr. Khurram Saeed, ASC (for Efroz
Chemicals)
Syed Zia Husnain, Federal Inspector Drug,
DRAP
Mr. Nadir Feroz, in person
Mr. Hamid Khan, Sr. ASC (for Shaikh
Zayad Hospital)
Mr. Mehmood ul Islam, AOR
Mr. Babar Hayat Tarar, Acting Secretary
Health
Mr. Shahid Hussain, Asstt Incharge,
DRAP
Mr. Mazher Sher Awan, Addl. P.G.
Date of Hearing:
26.12.2013
ORDER
THE CASE OF SHEIKH ZAYAD HOSPITAL
Mr. Babar Hayat Tarar, Secretary Health, Government
of Punjab submits that the Provincial Government reiterates its
undertaking to ensure that the autonomous status of the Shaikh
Zayad Hospital would not be compromised rather the same shall
be retained; that the Provincial Government has sent a Reference
to the Federal Government to reconstitute the Board of Trustees of
the Shaikh Zayad Bin Sultan An-Nahyan Trust and adds that the
apprehension of the Members of the Faculty of Shaikh Zayad
Hospital that the salary structure is likely to be adversely affected
is misconceived. On Court query, he submits that the Provincial
Government by way of interim arrangement had constituted a
S.M.C. NO. 1 OF 2012 & C.M.A. NOs. 49-L/2012, 448-L/2012, 4055/2012, 5186/2012, 926-L
OF 2013 & H.R.C. NO. 8634-S OF 2012
2
Managing Committee comprising of eight members and is headed
by Mr. Ishaq Dar, Federal Minister for Finance and the last
meeting of the said Committee took place in March, 2013. The
other Members of the Committee, according to him, are renowned
public figures, Government Servants and two representatives /
Faculty Members from Shaikh Zayad Hospital.
2.
We would not like to comment any further on the
working of the Shaikh Zayad Hospital and the grievances being
agitated by Members of the Faculty in CMA No. 682-L/2013.
However, the very fact that the Managing Committee did not have a
meeting for the last more than nine months may not be a flattering
commentary on the working of the institution. The Court was
inclined to constitute a committee / commission by way of an
interim arrangement to oversee the working of the Institution and
to ensure that the above undertaking of the Provincial Government
is given effect to in letter and spirit. However, on the assurance
held out by the Secretary Health before this Court that the matter
would shortly be resolved and the Reference sent to the Federal
Government would lead to a more permanent arrangement, we
adjourn the case for a date to be fixed by the office in the 2nd week
of January, 2013.
THE CASE OF EFROZ CHEMICALS
3.
Learned counsel for the Efroz Chemicals submits that
petitioner is prepared to pay compensation to each bereaved family
in terms of CMA No. 1624-L/2013. However, he adds that in
deference to the observation of this Court, petitioner is prepared to
increase the amount of compensation to the tune of Rs.400,000/-
to each bereaved family provided the State drops the prosecution of
S.M.C. NO. 1 OF 2012 & C.M.A. NOs. 49-L/2012, 448-L/2012, 4055/2012, 5186/2012, 926-L
OF 2013 & H.R.C. NO. 8634-S OF 2012
3
the criminal cases registered qua the occurrence; requests for
three days time to seek instructions as to how soon the afore-
referred compensation can be paid to the families.
4.
Let notice be issued to the Prosecutor General Punjab
as also to the Advocate General Punjab to appear after examining
the matter and seeking instructions from the Competent Authority.
To come up on 30.12.2013.
CHIEF JUSTICE
JUDGE
JUDGE
Lahore, the
26th of December, 2013
Khurram
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ
MR. JUSTICE ANWAR ZAHEER JAMALI
MR. JUSTICE KHILJI ARIF HUSSAIN
S.M.C. NO. 01 OF 2014 &
CIVIL PETITION NO. 20-K OF 2014
(On appeal from the judgment dated 25.11.2013
passed by the High Court of Sindh, Karachi in C.P.
No. D-2267/2007)
Suo moto action regarding suicide
bomb attack of 22.9.2013 on the
church in Peshawar
(SMC No. 1/2014)
AND
Shree Ratheshawar Maha Dev
Welfare Shewa Mandly
(In CP 20-K/2014)
… Petitioner
VERSUS
Province of Sindh and others
(In CP 20-K/2014)
… Respondents
In Attendance:
Mr. Ramesh Kumar Vankwani, Patron,
Pakistan Hindu Council
Mr. Abdul Fateh Malik, A.G. Sindh
Mr. Adnan Karim, Addl. A.G. Sindh
Mr. Aslam Butt, DAG
Mr. Eijaz Ali Jatoi, A.C. Tando Adam
Mr. Shahid Farooq, Acting Headmaster
Mr. Abdullah Dahri, S.O. Culture
Mr. Bashir Ahmed, Addl. Secretary Culture
Mr. Nadeem A. Sheikh, ASC (Justice
Helpline)
Mr. Roshan Lal, Mr. Sushi Bhai & Mr. Atam
Parkash (Prem Prakash Mandal)
Mr. Salem Micheal (Justice Helpline)
Mr. Ravi Dawani, President, All Pakistan
Hindu Panchayat
Mr. Saleem Javed (for CMS)
Mr. Neil Keshav, ASC & Mr. Mazhar Ali B.
Chohan, AOR (for petitioner in CP No. 20-
K/2014)
Mr. Makhdoom Ali Khan, Sr. ASC & Mr.
K.A. Wahab, AOR (for respondent NAPA in
CP No. 20-K/2014)
Date of Hearing:
27.02.2014
S.M.C. NO. 01 OF 2014 &
CIVIL PETITION NO. 20-K OF 2014
2
ORDER
PREM PRAKASH MANDAL / HINDU ‘ASHARAM’ AT TANDO
ADAM
Learned Advocate General Sindh submits that the
‘Asharam’ within the boundary wall of a primary school in Tando
Adam has already been declared a cultural heritage and that there
is no restriction on Hindu community to come and use it as
‘Asharam’. However, adds on Court query that there is a possibility
that the said ‘Asharam’ could be given access from independent
door instead of the community people using the school gate and
undertakes to have a plan prepared for the proposed access door.
2.
Mr.
Shahid
Farooq
who
is
acting
Incharge
/
Headmaster of the School confirms the existence of ‘Asharam’ but
he adds that it is not in use for the last many years. However, adds
that it is being frequented by members of the Hindu community for
the last two years. To this extent the matter is adjourned for
tomorrow i.e. 28.2.2014.
HINDU GYMKHANA
3.
Learned Additional Advocate General Sindh has filed a
written statement on behalf of the Culture Department regarding
the Hindu Gymkhana which is to the following effect:-
“The Hindu Gymkhana situated opposite to Arts
Council on M.R. Kyani Road, Karachi is a protected heritage
under Sindh Cultural Heritage (Preservation) Act, 1994. This
building is also a protected heritage under Building Control
Ordinance, 1979 and included in the list of “Structure of
Special Architectural and Historical Interest of” Karachi. This
Gymkhana was transferred by Federal Government to
Government of Sindh in 1991 for establishment of a Centre of
Arts and Crafts. The renovation of the building was carried out
in 1994, after taking over by Sindh Culture Department in
1993.
In September 2005, on the directives of the then
President of Pakistan, Hindu Gymkhana was rented out to Mr.
Zia Mohiuddin for a period of thirty (30) years for establishing
National Academy of Performing Arts (NAPA). In violation of
law and terms of the tenancy agreement, NAPA started
S.M.C. NO. 01 OF 2014 &
CIVIL PETITION NO. 20-K OF 2014
3
construction of a Theater / Auditorium within the premises of
Hindu Gymkhana, without seeking permission from the
landlord (Culture Department). NAPA did not even take NOC
from the Advisory Committee of Government of Sindh on
heritage before undertaking the construction activity, within
the premises of a heritage building. Principally, NAPA
administration was morally and legally bound to seek formal
and written permission from both.
The construction of Theater / Auditorium within the
premises of Hindu Gymkhana by NAPA violated the provisions
of Sindh Cultural Heritage (Preservation) Act, 1994 and
infringed the terms of agreements dated 12.10.2004 and
23.09.2005, made between Government of Sindh (Culture
Department) and NAPA. Thus, on the advice of Law
Department and in pursuance of clause 8 of the agreement,
executed between Culture Department and NAPA on 13th
September, 2008, three months notice was served upon NAPA
by Culture Department regarding termination of the said
agreement and vacation of the premises. In response to this
notice, NAPA filed a civil suit No. 1646/2008 in the
Honourable High Court of Sindh, which granted stay in the
matter. The matter is still pending decision of the court.
Notwithstanding the legal position and details of
litigations, as stated above, the said heritage property is
under the legal ownership of Government of Sindh, Culture
Department. According to Sindh Government Rules of
Business (1986), as amended upto December, 2011, ‘heritage
properties’, whether public or private, fall within the official
domain of this department. The Hindu Community of Karachi
and indeed of the whole province, is clamoring for allowing
them the usage of this property at least on their religious
rituals (Holi, Diwali, etc). Ironically, NAPA management has
remained intransigent even to yield to the legal and genuine
demands of the landlord (Culture Department) and of the
Hindu Community.”
4.
Mr. Makhdoom Ali Khan at this stage has entered
appearance to submit that the Hindu Gymkhana was given on 30
years lease to National Academy of Performing Arts; that the latter
has not changed the character of the main building of Hindu
Gymkhana but in the vacant land it has raised construction against
which efforts were made to demolish it by the Government of Sindh
and NAPA had filed a Constitution Petition bearing No. 06/2009
before the High Court of Sindh which is pending decision; that
another petition (bearing No. D2267/2007) was filed by Shree
Ratheshwar Maha Dev and the same stands dismissed vide the
order dated 25.11.2013 against which the said petitioner has filed
S.M.C. NO. 01 OF 2014 &
CIVIL PETITION NO. 20-K OF 2014
4
Civil Petition No. 20-K/2014 which is pending decision. It has
further been pointed out that a civil suit bearing No. 1646/2008
was also filed by NAPA before the High Court of Sindh which is
pending decision.
5.
Learned counsel for the petitioner in Civil Petition No.
20-K/2014 submits that admittedly the Hindu Gymkhana was built
as far back as 1923 on a land allotted by the Municipal Corporation
to Hindu community and in the year 1963 it was declared as an
abandoned
property
by
the
Government
of
Pakistan
but
subsequently it was declared as heritage building. However, in the
year 1996 it was declared as evacuee property. Such a property, he
further adds, could not have been given on lease to NAPA and the
way it has been used and defaced is not only violative of the
fundamental
rights
provision
of
the
Constitution
but
the
Constitutional rights granted to the minorities in the Constitution of
Islamic Republic of Pakistan.
6.
Having heard learned counsel for the parties, we are
persuaded to grant leave to appeal in Civil Petition No. 20-K/2014
to consider whether the Hindu Gymkhana which admittedly is
evacuee property could have been given on lease to NAPA; whether
NAPA could have been used and defaced in the manner it has been
alleged; whether the act of the Government of Sindh of granting
lease to NAPA is violative of the fundamental rights provision of the
Constitution and whether the impugned order is sustainable in law?
7.
Since some of the issues raised in this petition may be
sub-judice before the High Court in Writ Petition No. 06/2009 and
the Civil Suit No. 1646/2008 and as the matter is pending decision
in the High Court of Sindh since long, we are persuaded to direct
the High Court of Sindh to decide both the cases preferably within a
S.M.C. NO. 01 OF 2014 &
CIVIL PETITION NO. 20-K OF 2014
5
month of the receipt of this order. Office shall transmit a copy of
this order to the Hon’ble Chief Justice of the High Court of Sindh for
information.
CMA No. 120-K/2014
8.
In this CMA it is alleged by Hindu community that the
manner in which constructions have been raised around Swami
Narain Temple and the land around Lakshmi Narain Temple has
been leased out to a restaurant has made it difficult for the
members of Hindu community to visit those Temples to offer their
prayers.
9.
We have called learned Advocate General Sindh. A copy
of this application has been given to him. He shall file a written
reply within 10 days and the matter shall be taken up thereafter.
CHRISTIAN MISSION SCHOOL
10.
It has also been brought to our notice that the Christian
Mission School which has a historical significance as the founder of
this country Quaid-e-Azam Mohammad Ali Jinnah had his earlier
education from there has been given to an NGO, which was initially
being run by Church of Pakistan and then was nationalized.
Learned Advocate General Sindh shall also seek instructions about
this and submit a report within 10 days.
CHIEF JUSTICE
JUDGE
JUDGE
Karachi, the
27th of February, 2014
Not Approved For Reporting
Khurram
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SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Umar Ata Bandial
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Sajjad Ali Shah
Mr. Justice Qazi Muhammad Amin Ahmed
S.M.C. 01/ 2020
(SUO MOTO ACTION REGARDING COMBATING THE PANDEMIC OF CORONA VIRUS
(COVID -19)
IN ATTENDANCE:
For the Federation
: Mr. Khalid Javed Khan, Attorney General
for Pakistan
Mr. Sohail Mehmood, DAG
Dr. Tanveer Qureshi, Secretary M/o
National Health
Saeed Ullah Khan Niazi, J.S. (Admn)
Asif Suhail, Director (Lit)
G.M. Jakhrani, Dy. Director (Lit)
(All from M/o National Health)
Mirza Mahsood, J.S. M/o Interior
For ICT
: Mr. Niaz Ullah Khan Niazi, A.G.,
Islamabad
Shafaq Hashmi, D.G.,
(Chief Commissioner Office)
Waseem Ahmed, Asstt. D.C., (I.C.T.A.)
Amer Naveed, A.D., (Lit), (I.C.T.A.)
For Govt. of Punjab
: Mr. Shan Gul, A.G., Punjab
Javed Yaqoob, Addl.AG, Punjab
Cap (R) M. Usman, Secy. Primary &
Secondary Health Deptt. Punjab
M.
Nabeel
Ahmed
Awan,
Secy.
Specialized, Health Care & Medical
Education Deptt
(Via Video link from Lahore Branch)
Ch. Faisal Fareed, Addl.A.G. Punjab
(In Islamabad
Mr. Adnan Younas Butt, Sr. Law Officer,
Punjab
For Govt. of Sindh
: Mr. Salman Talibudin, A.G, Sindh
Zahid Abbasi, Secy. Health
Muhammad Usman Chachar, Addl.
Chief Secy-Home
Dr. Saeed Ahmed Qureshi,
(Focal Person to Chief Secy. Sindh)
SMC.01/20
2
Syed Salman Shah, DG, PDMA
(All via Video link from Karachi Branch)
For Govt. of KP
: Mr. Shumail Butt, A.G. KP
(Via video link from Peshawar
Syed Imtaiz Hussain Shah, Secy.
Health, KP
M.
Abid
Majeed,
Secy.
Relief
Rehabilitation, KP
Mian Shakeel Ahmed, Secy. Local
Govt. KP
Rooh-ul-Amin, Addl. Registrar, PHC
Amir Sultan Tareen P&D, Deptt-
EHSAAS, Programme
(All via Video link from Peshawar Br)
For Govt. of
Balochistan
: Mr. Arbab Muhammad Tahir, A.G,
Balochistan
Mr.
Naimatullah
Battazi,
P.G.
Baluchistan
Cap (R) Fazeel Asghar, Chief Secy:
Cap (R) Zafar Tahir Abbasi, Special
Secretary Health
Imran Zarkhoon, DG, PDMA
(Via Video link from Quetta Branch)
Mr. Ayaz Khan Swati, Addl.A.G.(In
Islamabad)
For Govt. of GB
: Mr. Muhammad Iqbal, AG, G.B.
In CMA.2355/2020:
Mr. Aman Ullah Khan Kanrani, ASC
Dr. Waqar Aftab, In person
Mr. Farhat Nawaz Lodhi, ASC
Dr. Fazal-e-Rabi, In person
Professor
Abdul
Rashid
Mian,
President PMA
Mr. Samuel Payara
Chairman, Implementation of Minority
Rights Forum
Malik M. Shaukat Feroze,
DIG (Prison), Rawalpindi Region, Rwp
(on behalf of Govt. of the Punjab).
Date of Hearing
: 13.04.2020
SMC.01/20
3
O R D E R
We have heard the learned Attorney General for
Pakistan,
the
Advocates
General
of
Punjab,
Sindh,
KP,
Balochistan, Islamabad so also the GB. Some individual lawyers
have also been heard, while few of the people from public have also
appeared and made their respective submissions.
2.
The learned Attorney General for Pakistan, on the
observation of this Court in the Order dated 7.04.2020, regarding
making of emergency legislation on Coronavirus (COVID-19) by the
Federal Government, Provincial Governments, G.B. and ICT, has
stated that as a matter of policy, the session of Parliament is not
being called but the Government is considering such aspect of the
matter. He, however, further stated that today a high level meeting
is taking place between the Prime Minister and the Chief Ministers
of all the Provinces including GB and Chief Commissioner, ICT,
where issues relating to Coronavirus (COVID-19) will be thoroughly
deliberated and measures will be taken, in that, a uniform policy
applicable to all the territories of Pakistan is drawn and it is
ensured that the same is applied across the board and in this
regard no territory of Pakistan, where people of Pakistan are living,
is treated differently.
3.
The Federal Government through the learned Attorney
General has assured the Court that it is taking all steps to deal
with this pandemic and is trying to reduce its effect on the people
by taking various measures on the social welfare side and also on
humanitarian grounds. Further medical supplies are being
SMC.01/20
4
provided
by
the
Federal
Government
to
the
Provincial
Governments, including PPEs and ventilators to the hospitals and
test-kits to the laboratories. Although it is stated that most of the
items of PPE, test-kits and ventilators are imported but now there
seems to be some consensus in Punjab and Sindh, where efforts
are being made to manufacture the same locally in large quantity.
The stage of making a test-kit, apparently, has not been reached
but the learned Attorney General states that such will be achieved
by the Government. The locally manufactured ventilators are being
put to the test and hopefully, if they are found successful, they will
be produced and distributed all over Pakistan.
4.
The learned Advocate General, Punjab has filed a report
giving in detail the steps taken by the Government of the Punjab
with regard to addressing the issue of Coronavirus (COVID-19) in
Punjab. The report as it reads, shows that certain steps have been
taken by the Government of the Punjab, which seems to be in a
positive direction and we hope that they will continue to enhance
their capacity in making available; PPEs, all sorts of other
protection, so also the equipments required by the people fighting
such pandemic.
5.
Mr. Amanullah Kanrani, learned ASC has brought to our
attention that the Governmnet of Punjab has issued some
executive order on the basis of which inter-provincial movement of
the people has been stopped. We have asked the learned Advocate
General, Punjab about the existence of such executive order and
he admitted that such executive order has been passed. When
SMC.01/20
5
confronted with Article 15 of the Constitution, the learned
Advocate General, Punjab conceded that such an order cannot be
passed by the executive authority; rather it has to be done by law
to be made by legislature. The learned Advocate General, Punjab
states that he is going to advise the Government accordingly.
However, until such measure is taken by the legislature, the
executive order of the Governmnet of Punjab, restricting inter-
provincial movement of the people, is struck down and set aside.
6.
The learned Advocate General, Sindh has also informed the
Court about the steps, the Government of Sindh taken to mitigate
the spread of Coronavirus (COVID-19) in the Province of Sindh. We
have, however, noted with concern that yesterday, the Provincial
Government has passed an executive order sealing 11 Union
Councils (UCs) in Karachi. We have asked the learned Advocate
General, Sindh to give justification for such sealing, he stated that
Government of Sindh has found some cases in these 11 UCs
suffering from Coronavirus (COVID-19) but nothing concrete has
been placed before the Court to show that such is correct and well
founded.
7.
Be that as it may, we have asked the learned Advocate
General, Sindh as to what programme the Government of Sindh
has prepared to implement the sealing of 11 UCs, in that, how the
people will be reached for medical testing and screening and if any
such case is found what further steps the Sindh Government will
take to secure the affected person and what about his family and
persons who have been exposed to him. Whether medical team and
SMC.01/20
6
logistics in each of the 11 UCs have been deputed to undertake all
exercises. How basic necessities, including, food, groceries and
other utilities will be made available to the residents of these 11
UCs. The learned Advocate General states that groceries shops in
these 11 UCs have been allowed to remain open but no other
programme has been drawn by the Government of Sindh for these
11 UCs.
8.
We have pointed out to the learned Advocate General,
Sindh that in case a person is unable to purchase groceries, how
he is going to survive. The learned Advocate General states that
the Government of Sindh is going to look into this matter. It has
also been brought to notice of this Court that free Rashan worth
Rs. 8.0 billion has been distributed in Sindh by the Government of
Sindh. We are not sure how far this is true but note that there is
no documentation of purchase of Rashan and its distribution made
available to this Court by the Government of Sindh.
9.
We have also asked the learned Advocate General to
inform us about the persons, who have contracted this pandemic
in the 11 UCs, the learned Advocate General states that no such
information is available with him. This is a very sorry state of
affairs prevailing in the Province of Sindh, where not only in
Karachi but other cities of the Province of Sindh, people are
protesting lack of subsistence to them. Let a comprehensive report
in this regard be submitted by the Government of Sindh well before
the next date of hearing.
SMC.01/20
7
10.
The Governments of KP and Balochistan, have
submitted their reports, the same are taken on record. It seems
that the effect of Coronavirus (COVID-19) is not so much alarming
in these two Provinces, including, GB and things are being kept in
control. Punjab, Sindh and ICT, however, are on different
pedestals, where there is a considerable threat of surge of this
pandemic. In these circumstances, let the Government of Punjab
also give its report to this Court so also the ICT regarding matters
relating to this pandemic and give to the Court all necessary
information, which can show that citizens’ fundamental rights are
fully safeguarded and the State functionaries are all what is
necessary for the survival of the people
11.
The doctors and paramedics, who are working in the
front line in dealing with this pandemic, are especially affected and
are at risk of contracting this disease and it is hoped that the
Federal Government so also the Provincial Governments, the ICT
and GB shall ensure that all necessary needs of the doctors and
paramedics, in such emergency situation, are fully fulfilled. We are
informed that doctors and paramedics are performing duties
beyond their call of duty and at many places, they are not even
being provided with food. This, in our view, is a sensitive issue,
which should immediately be addressed by all the Governments
and grievances, in this regard of the doctors and paramedics are
redressed.
12.
The condition of sanitary staff is also not good and it is
informed that they are exposed to all sorts of diseases, while they
SMC.01/20
8
are working in the hospitals and other places. No effective care is
being provided to them and a request has been made that they be
provided with the requisite protection, so that they may perform
their work without any fear. In the circumstances, the Federal
Government as well as all the Provincial Governments, including,
the ICT and GB shall ensure that sanitary staff are taken care of
and are provided with proper and secure uniforms, so that they
can work without fear of being affected by disease.
13.
The Chairman, PMA has informed that 40,000
applications for registration of doctors are pending because of the
issue prevailing with PMDC. The issue is already pending in the
Courts, including this Court and will be addressed soon in
accordance with law.
14.
The
Federal
Government
shall
also
file
a
comprehensive report, along with the outcome of the high level
meeting which is taking place today.
15.
To come-up on Monday, i.e. 20.04.2020 at 11:30 a.m.
CHIEF JUSTICE
JUDGE
JUDGE
JUDGE
JUDGE
Bench-I
ISLAMABAD
13.04.2020
Nasir Khan*/
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Muhammad Ali Mazhar
SUO MOTO CASE NO.1 OF 2022
(Re: ruling by the Deputy Speaker of the National Assembly under
Article 5 of the Constitution qua voting on No-confidence Motion
against the Prime Minister of Pakistan)
In attendance:
For the Petitioner(s)
: Mr. Khalid Javed Khan,
Attorney General for Pakistan.
Mr. Sohail Mehmood, Addl. AGP.,
Mr. Ahsan Bhoon, ASC/
President, SCBA.
Mr. Farooq H. Naek, Sr. ASC.
Sardar Muhammad Latif Khan
Khosa, Sr. ASC.
Dr. Babar Awan, Sr. ASC.
Mr. Azam Nazeer Tarar, ASC.
Mr. Kamran Murtaza, Sr. ASC.
Date of Hearing
: 03.04.2022
O R D E R
Office has initiated a note stating events that took
place today in the National Assembly and have been widely
reported on electronic and social media that motion of no-
confidence against the Prime Minister of Pakistan was to be
voted upon by the National Assembly today i.e. 03.04.2022.
However, reportedly the (Deputy) Speaker of the National
Assembly has dismissed the said motion in the light of Article 5
of the Constitution of 1973. The following order was passed on
the note in chambers:
“Several Hon. Judges of the Court have met me earlier
today to share their concern about the constitutional
situation following the rejection of the motion of no
confidence against the Prime Minister by the Deputy
Speaker today on the basis of Article 5 of the Constitution.
In view of the above consensus, power under Article 184(3)
of the Constitution is invoked to initiate original
SMC No.1 of 2022
2
proceedings before the Court. To be heard by Bench
comprising CJP, Ijaz-ul-Ahsan, J and Muhammad Ali
Mazhar, J.”
2.
The matter was accordingly registered as SMC No.1
of 2022 and fixed for hearing today.
3.
The hearing was attended by the learned Attorney
General for Pakistan, the President of the Supreme Court Bar
Association along with the other learned counsel representing
different parties noted in the title of the order.
4.
At the outset, notice is issued to the learned
Attorney General for Pakistan under Order XXVIIA CPC on the
constitutionality of the decision of the Deputy Speaker today to
dismiss the motion of no confidence on the basis of Article 5 of
the Constitution. It is contended that, prima facie, there is
neither a finding recorded in the matter nor was a hearing
granted to the affected party. We would also like to examine
whether such action is protected by the ouster contained in
Article 69 of the Constitution.
5.
The matter of concern for this Court is that peace
and public order is maintained in the country. Accordingly, all
the political parties involved in the process of the no confidence
motion in the National Assembly and other political forces are
directed to observe the law and maintain peace and public order.
No state functionaries or bodies shall take any extra-
constitutional measure and shall act strictly in accordance with
Constitution and the law as guided by the principles laid down
by this Court in the case of Sindh High Court Bar Association
vs. Federation of Pakistan (PLD 2009 SC 879). Any order
SMC No.1 of 2022
3
passed by the Prime Minister and the President shall be subject
to the order of this Court.
6.
We have also been informed that Pakistan Peoples
Party as well as the Supreme Court Bar Association have filed
Constitution Petitions under Article 184(3) of the Constitution
on the same subject. Let the office register these and notices be
issued to the respondents therein and to all the political parties
that are already before us in Const. Petition No.2 of 2022 i.e.
Pakistan Tehreek-e-Insaf, Pakistan Muslim League (N), Pakistan
People’s Party, Jamiat Uleme-e-Islam(F), Balochistan National
Party (Mengal) and Awami National Party through their
respective Secretary Generals, who shall be heard only through
their counsel on their behalf. Notice be also issued to the
Federal Secretary Interior and the Secretary Defence to report
the steps being taken to ensure public order, peace and
tranquillity throughout the country. Notice be also issued to
Supreme Court Bar Association and the Pakistan Bar Council to
assist the Court in these Suo Moto proceedings and the
Constitution Petitions filed under Article 184(3) ibid. The
Attorney General for Pakistan be also issued notice under Order
XXVIIA CPC in these matters.
7.
Mr. Azam Nazeer Tarar, ASC has reported that the
proceedings of the Punjab Provincial Assembly were fixed today
for the election of the new Chief Minister of Punjab. These
proceedings have been adjourned by the Deputy Speaker of the
Assembly to another date without citing any reason or cause. A
large number of MPAs are still in the premises of the House of
the Provincial Assembly which is creating an unpleasant
SMC No.1 of 2022
4
situation both inside and outside the House. Notice under Order
XXVIIA CPC be issued to Advocate General Punjab to examine
the vires of the decision by the Deputy Speaker of the Punjab
Assembly and the situation that has arisen as a consequence
thereof. All the political parties involved in the process of
election of the new Chief Minister shall exercise restraint and
maintain peace and public order. It is directed that the state
functionaries and the law enforcement agencies of the Province
shall ensure that peace and public order is maintained in the
Province and they act strictly in accordance with the
Constitution and the law guided by the principle laid down by
this Court in Sindh High Court Bar Association’s case (ibid).
8.
Since these matters relate to an urgent issue,
therefore, office is directed to fix the same tomorrow i.e.
04.04.2022 at 1:00 pm before a larger bench.
Chief Justice
Judge
Judge
Islamabad
03.04.2022
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1
The Office has placed before me a request by a learned two
member Bench of the Court, made in its order dated 16.02.2023 in Civil
Petition No.3988 of 2022 that the suo motu jurisdiction of the Court
under Article 184(3) of the Constitution be invoked. The request is
made in the following terms:
“…7. We note that the Provincial Assembly of Punjab stood
dissolved on 14.01.2023 pursuant to the Advice of the Chief
Minister, Punjab dated 12.01.2023. As such, elections to the
Punjab Provincial Assembly are required to be held within 90
days of the said date in terms of Article 224(2) of the
Constitution. However, no progress appears to have taken
place in this regard and there is a real and eminent danger of
violation of a clear and unambiguous constitutional
command.
8.
In view of the fact that this matter is not before us in
the present lis, we are not inclined to pass any order in this
regard in view of the principle of law laid down by this
Court in its judgment reported as Suo Motu Case No. 4 of
2021: In the matter of (PLD 2022 SC 306). We are, however,
of the view that the matter brought to our notice during these
proceedings raises a serious question of public importance
with reference to enforcement of Fundamental Rights
conferred by Chapter-1 of Part-II of the Constitution.
Considering the fact that unless timely steps are taken to
remedy the situation, there is an eminent danger of violation
of the Constitution which we are under a constitutional, legal
and moral duty to defend. We therefore consider it a fit case
to refer to the Hon’ble CJP to invoke the suo motu
jurisdiction of this Court under Article 184(3) of the
Constitution, who may if he considers appropriate after
invoking jurisdiction under the said Article constitute a
bench to take up the matter. Let the office place this file
before the Hon’ble CJP for appropriate orders.
9.
To the extent of Civil Petition No. 3988 of 2022
alongwith all miscellaneous applications, the matter shall be
taken up tomorrow i.e 17.02.2023.”
2.
The context of the request is that the Punjab and Khyber
Pakhtunkhwa Assemblies were dissolved on 14.01.2023 and 18.01.2023
respectively. In both cases, the then Chief Ministers tendered advice to
their respective Governors under Article 112(1) of the Constitution to
dissolve the Assembly. In the case of the Punjab Province the Governor
chose not to act on the said advice so that the Assembly stood dissolved
on the expiry of 48 hours, on the date mentioned above. In the case of
2
the KPK Province, the Governor did act on the advice and made an
order dissolving the Assembly on 18.01.2023.
3.
Almost immediately after the dissolution of both Assemblies a
question was raised as to who had the constitutional responsibility and
authority to appoint the date of the general election to obtain the
mandate of the electorate and elect fresh Assemblies. It is to be noted
that Article 224(2) requires that a general election be held within a
period of 90 days after the dissolution, and the use of the word “shall”
indicates that this is, prima facie, a constitutional imperative.
4.
In respect of the appointment of the date for the holding of the
general elections to the dissolved Provincial Assemblies there is
Constitution Petition No.1 of 2023 (Islamabad High Court Bar
Association vs. Election Commission of Pakistan) already filed and
pending in this Court prior to the making of the request by the Bench.
Subsequently, Constitution Petition No.2 of 2023 has been jointly filed,
inter alia, by Muhammad Sibtain Khan and Mushtaq Ahmad, Speakers
of
Punjab
and
Khyber
Pakhtunkhwa
Provincial
Assemblies
respectively, seeking the same relief.
5.
Apart from the foregoing, it appears that several petitions were
filed in the Lahore High Court, inter alia, seeking compliance of the
constitutional obligation imposed by Article 224(2). By judgment dated
10.02.2023 a learned Single Judge in Chambers concluded that the
authority lay with the Election Commission of Pakistan and called
upon the same “to immediately announce the date of election of the
Provincial Assembly of Punjab with the Notification specifying reasons,
after consultation with the Governor of Punjab, being the constitutional
Head of the Province, to ensure that the elections are held not later than
ninety days as per the mandate of the Constitution.” Reportedly both
the Governor and the Election Commission have filed Intra Court
Appeals which are pending before a learned Division Bench of the
High Court. It seems to be the Governor’s case that since he did not act
on the advice tendered by the then Chief Minister and made no order
dissolving the Assembly, he does not have the responsibility or
authority to appoint the date for the general election. The Election
3
Commission has, it appears, also taken the position that under the
Constitution it has no authority to appoint the date for a general
election, though it has categorically stated (as reported in the public
media, both print and electronic) that it is fully committed to
conducting the said election in accordance with the Constitution. At the
same time, the Governor of KPK Province has also not appointed a date
for the holding of the general election and a petition in this regard is
pending before the Peshawar High Court.
6.
There is another material development in the last few days. It
appears that subsequent to certain correspondence initiated by the
President of Pakistan with the Election Commission, the President has
taken the position that it is he who has the authority and responsibility
for appointing a date for the general elections, in terms as provided in
section 57(1) of the Elections Act, 2017. By an order made on 20.02.2023
the President has appointed 09.04.2023 to be the date for the holding of
the general elections in both Provinces and has called upon the Election
Commission to fulfill its constitutional and statutory obligations in this
regard.
7.
More than one month has now elapsed since the dissolution of
the Provincial Assemblies and it seems prima facie that even the matter
of appointing the date of the general elections which is the first step
towards the holding of the elections, has still not been resolved.
Constitutional authorities appear to hold divergent, and perhaps even
conflicting, views on the issue. Thus, several Federal Ministers appear
to have contested the authority asserted by the President. Since
Ministers act under the constitutional rule of collective responsibility it
appears, prima facie, that this is the view taken by the Federal Cabinet
as a whole. There is, to put it shortly, a lack of clarity on a matter of
high constitutional importance. It is also to be noted that statements
attributed to the Election Commission have appeared in the public
record to the effect that it is not being provided the requisite assistance
and support, in particular by the provision of necessary funds,
personnel and security, as would enable it to hold the general elections
in accordance with the Constitution.
4
8.
Having considered the above, and the material placed before me,
I am of the view that the issues raised require immediate consideration
and resolution by this Court. Several provisions of the Constitution
need to be considered, as also the relevant sections of the Elections Act.
In particular, the issues involve, prima facie, a consideration of Article
17 of the Constitution and enforcement, inter alia, of the fundamental
right of political parties and the citizens who form the electorates in the
Punjab and KPK Provinces to exercise their right to elect
representatives of their choice to constitute fresh Assemblies and
Provincial Cabinets. This is necessary for government in the two
Provinces to be carried on in accordance with the Constitution. These
matters involve the performance of constitutional obligations of great
public importance apart from calling for faithful constitutional
enforcement.
9.
Accordingly, I hereby invoke the suo motu jurisdiction of the
Court under Article 184(3) of the Constitution and constitute a nine
member Bench to consider, if so deemed appropriate, inter alia, the
questions set out below. The Bench shall comprise of the following
Hon’ble Judges:
Mr. Justice Umar Ata Bandial, CJP
Mr. Justice Ijaz ul Ahsan
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Munib Akhtar
Mr. Justice Yahya Afridi
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
Mr. Justice Jamal Khan Mandokhail
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Athar Minallah
10.
The questions referred for the consideration of the Hon’ble
Bench if so deemed appropriate are, inter alia, as follows:
a)
Who has the constitutional responsibility and authority
for appointing the date for the holding of a general
election to a Provincial Assembly, upon its dissolution in
the various situations envisaged by and under the
Constitution?
b)
How and when is this constitutional responsibility to be
discharged?
5
c)
What are the constitutional responsibilities and duties of
the Federation and the Province with regard to the
holding of the general election?
11.
The Office is directed to register an appropriate Suo Motu Case
in the above terms and fix the same along with the petitions pending in
the Court as noted above, and fix the same before the Hon’ble Bench on
23.02.2023 at 2:00 pm.
Sd/-
Chief Justice
22.02.2023.
Addl. Registrar (Judicial)
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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
SUO MOTU CASE NO.20 OF 2016 AND HUMAN RIGHTS CASES
NO.7094-P, 26591-P, 15518-P/2015, 25917-S AND 26252-
S/2016 AND 3910-K, 3911-S, 3912-P, 3913-G AND 3914-P/2018
AND CONSTITUTION PETITION NO.45/2016 AND C.M.APPEAL
NO.203/2016
IN
CONST.P.NO.NIL/2016
AND
CIVIL
MISC.
APPLICATIONS NO.7394 & 7484/2016 AND 141, 288, 3772,
3374, 892, 1496, 2076, 2655, 2656, 3797, 3912, 3913, 4252,
4253, 4254, 4291, 8234, 9172, 9312, 9313 & 9314/2017 AND
57, 45, 301, 381, 454, 577, 511, 592, 593, 652, 653, 654, 727,
728, 735, 777, 778, 779, 813, 780 & 883/2018
SMC 20/2016:
Suo motu action regarding non-payment of
retirement
benefits
by
the
relevant
departments
HRC 7094-P/2015:
Mehmood-ul-Hassan
Vs.
Secretary
Privatization Commission and another
HRC 26591-P/2015:
Muhammad Hanif (R) District Population
Welfare Officer, Multan Vs. Government of
Punjab etc.
HRC 15518-P/2015:
Muhammad Hanif (R) District Population
Welfare Officer, Multan Vs. Government of
Punjab etc.
HRC 25917-S/2016:
Dr. Khawar Ubaid Alvi Vs. Secretary, Local
Govt. Sindh
HRC 26252-S/2016:
Syed Imtiaz Ali Vs. Local Government
Department, Sindh
HRC 3910-K/2018:
Application by Anwar Khan
HRC 3911-S/2018:
Application by Abdul Shakoor Shaikh
HRC 3912-P/2018:
Application by Muhammad Din
HRC 3913-G/2018:
Application Muhammad Ameer Khan
HRC 3914-P/2016:
Malik Niaz Shami Vs. Malik Fazal Khan
Shamir
Const.P.45/2016:
Saif-ur-Rehman and others Vs. Federation
of Pakistan and others
C.M.Appeal 203/2016:
Khan
Muhammad
Khan
Vs.
Islamic
S.M.C.No.20/2016 etc.
-: 2 :-
Republic of Pakistan through President of
Pakistan and others
CMA 7394/2016:
Application
for
impleadment
by
Muhammad Ayub
CMA 7484/2016:
Application by Mahboob Ahmed Soomro
CMA 141/2017:
Application by Sultan Mehmood
CMA 288/2017:
Application by Rao Nasim Tehsin
CMA 3772/2017:
Application for impleadment by Mian
Muhammad Saleem and others Vs. VC
University of Engineering and Technology
Lahore and others
CMA 3774/2017:
Application
for
Impleadment
by
Mohammad Naseem Tahir & others Vs.
VC. University Engineering and Technology
Lahore & others
CMA 892/2017:
Application by Hazoor ul Islam Abbasi
CMA 1496/2017:
Application for impleadment by Zahid
Amin Khan and others
CMA 2076/2017:
Application for impleadment by Mahmood
Ahmed
CMA 2655/2017:
Application for impleadment by Shafaqat
Hussain
CMA 2656/2017:
Application for impleadment by Nazar
Abbas Shah
CMA 3797/2017:
Application by Bashir Ahmad Lodhi
CMA 3912/2017:
Application for impleadment by Sadiq
Masih and other Vs. President Habib Bank
CMA 3913/2017:
Application
for
impleadment
by
Muhammad Zareen and others Vs. VC
University Engineering and Technology,
Lahore
CMA 4252/2017:
Application by Dildar Muhammad Awan
CMA 4253/2017:
Application by Syed Maqsood Hussain
Kazmi
CMA 4254/2017:
Application by Muhammad Rafique
CMA 4291/2017:
Application by Rehmat Ali and others
CMA 8234/2017:
Application by Muhammad Farooq
S.M.C.No.20/2016 etc.
-: 3 :-
CMA 9172/2017:
Application by Zahid Ahmed Barlas
CMA 9312/2017:
Application by Abdul Jabbar and others
CMA 9313/2017:
Application by Walayat Hussain and others
CMA 9314/2017:
Application by Ghulam Hussain and others
CMA 57/2018:
Application by Mumtaz Ahmed
CMA 45/2018:
Application by Muhammad Farooq
CMA 301/2018:
Application by Muhammad Rafique Sohail
CMA 381/2018:
Application by Mubarik Ali
CMA 454/2018:
Application by Muhammad Rafiq
CMA 577/2018:
Application by Mst. Kali Jan
CMA 511/2018:
Application by Nasir Hussain Shah
CMA 592/2018:
Application by Arshad Ali Khan
CMA 593/2018:
Application by Syed Sajid Ali shah
CMA 652/2018:
Application by Rafiq Ahmed
CMA 653/2018:
Application by Arshad Khan
CMA 654/2018:
Application by Abdullah Khan
CMA 727/2018:
Application by Kausar Parveen
CMA 728/2018:
Application Angori
CMA 735/2018:
Application by Saranjam Khan
CMA 777/2018:
Application by Yasmeen Ayaz
CMA 778/2018:
Application by Mohammad Iqbal Khan
CMA 779/2018:
Application by Muhammad Saeed
CMA 813/2018:
Application by Kalsum Lahkar
CMA 780/2018:
Application by Ali Gohar
CMA 883/2018:
Application by Muhammad Anwar etc.
In attendance:
Mr. Muhammad Waqar Rana, Addl.A.G.P.
Mr. Rashid Hafiz, DAG
Mian Abdul Rauf, A.G. Islamabad
Mr. Shehryar Qazi, Addl.A.G. Sindh
Mr. Ayaz Swati, Addl.A.G. Balochistan
Mr. Farid Dogar, AAG, Balochistan.
Mr. Zahid Yousaf Qureshi, Addl. AG KPK.
S.M.C.No.20/2016 etc.
-: 4 :-
Mr. Tariq Waheed, Dy Accounts Officer for
D.C. RWP
Mr. Nasir Mehmood, LO Finance Dept. Pb.
Syed Afzal Hassan, Accounts Officer AGPR
Mr. Saqib Javed Abbasi, AAO AGPR
Mr. Aziz Ahmed, Director CGA Islamabad
Mr. Sohail Ijaz, AAO
Syed Imtiaz Hussain, AAO CGA
Mr. Fayad Durrani, Accountant General,
Peshawar
Mr. Abid Hussain Channa, SO M/o Finance
Mr. M. Ikram Abbasi, Law Officer, Education
Department, Punjab
Mr. M. Naseem Butt, Accounts Officer Legal
for Accountant General Punjab
Mr. Abdul Razzaq, Asstt. Accountant Officer,
MAG RWP
Mr. Rehan Akhtar, AO for AG Balochistan
Mr. Bakhtiarullah, AO for AG KPK
Rana Amanullah, Dir. (Finance) Local Board
Punjab.
Rana Tariq Shaukat, Dy. Dir. Colleges,
Punjab.
Mr. Tariq Hameed, Dy. Secy. HE Dept.
Punjab.
Mr. Shahid Anwar Bajwa, ASC
(For HBL & ABL)
Mr. Sikandar Bashir Mohmand, ASC
Mr. Tariq Aziz, AOR
(For UBL)
Mr. Hashmat Ali Habib, ASC
(In CMA 288/2017)
Mr. Farrokh Niaz, in person
(In CMA 8404/2016)
Mr. Abdul Raheem Bhatti, ASC
Syed Rifaqat Hussain Shah, AOR
(In CMA 1496/2017, CMA 558/18)
Ms. Ayesha Hamid, ASC
Raja Muhammad Sarfraz, in person
(For retired UBL employees)
Syed Ali Zafar, ASC
Mr. Zahid Nawaz Cheema, ASC
(For HBL)
Mr. Salman Aslam Butt, Sr. ASC
Mr. Mehr Khan Malik, AOR.
(For UBL/Resp.4 in Const.P.45/2016)
Mr. Babar A. Khilji, ASC
(CMA 883/18)
S.M.C.No.20/2016 etc.
-: 5 :-
Mr. Shoaib Shaheen, ASC
(in CMA 3797/17)
Mr. Javed Iqbal, ASC
(For PPCBL)
Mr. Umer Aslam Khan, ASC
(In CMA 7394/2016)
Rai M. Nawaz Khan Kharal, ASC
(In CMA 9172/2017)
Mr. Tariq Mehmood Khokhar, ASC.
Syed Rifaqat Hussain Shah, AOR.
(for Allied Bank employees In CMA 8234, 9312-
9314/2017)
Raja M. Farooq, ASC
Syed Rifaqat Hussain Shah, AOR
(In CMA 892/2017)
Mr. Ahmed Awais, ASC
Mr. Tipu Salman Makhdoom, ASC
Mr. Mehmood A. Sheikh, AOR
(In Const.P.45/2016)
Syed Rifaqat Hussain Shah, AOR
(In CMA 45/2018)
Raja Muhammad Sarfraz (UBL)
Nazar Abbas (UBL) (CMA 2656/2017)
Muhammad Naseem Qazi (UBL) (CMA 1459/2017)
Mr. Khan Muhammad (WAPDA)
(In C.M. Appeal 203/2016)
Sultan Mahmood
(CMA 141/2017)
Shafqat Hussain
(CMA 2655/2017)
Hazoorul Islam Abbasi (HBL)
Mehboob Ahmed Soomro (HBL)
Dildar Awan, Maqsood Hussain Kazmi, M.
Rafique (ZTBL)
Muhammad Farooq (CMA 8234/2017)
Mian Muhammad Aslam (CMA 3772/2017)
Dr. Khawar Ubaid Alvi (HRC 25917-S/2016)
Dr. Surraya Khawar (HRC 25917-S/2016)
Syed Imtiaz Ali (HRC 26252/2016)
Mian Muhammad Saleem (UET)
M. Ishaque, in-person. (HRC 26252/2016)
Amicus Curiae:
Mr. Makhdoom Ali Khan, Sr. ASC
S.M.C.No.20/2016 etc.
-: 6 :-
On Court’s notice:
Ms. Seema Kamil, President UBL
Mr. Aamir Karachiwala, CFO UBL
Mr. Raymond H. Kotwal, President HBL
Mr. Jamal Nasir, Head HR
Mr. Tahir Hassan Qureshi, President ABL
Mr. Atif Izhar, SVP/Head of HR Deptt. ABL
Date of Hearing:
14.12.2017, 16.01.2018, 17.01.2018,
18.01.2018, 06.02.2018 & 13.02.2018
JUDGMENT
MIAN SAQIB NISAR, CJ.- These Suo Motu proceedings
initially arose when a large number of complaints were submitted to
the Human Rights Cell of this Court, wherein retired employees of
various departments complained about non-payment of their
pensionary benefits. We took notice of the same and the case was
first heard as SMC No.20/2016 on 14.11.2016.
2.
On
the
said
date
some
of
the
present
applicants/petitioners, retirees of United Bank Limited (hereinafter
the “UBL”) and Allied Bank Limited (hereinafter the “ABL”) also
approached this Court with the grievance that they were receiving
meagre amounts by way of pension from the banks and the latter
were not granting increases in the pensionary benefits for many
years. On the very next date of hearing they were joined by
applicants/pensioners of Habib Bank Limited (hereinafter the
“HBL”); they cited similar grievances. Whilst a whole gamut of
grievances to do with pensionary benefits were dealt with separately,
we heard the matters relating to the pensioners of the aforesaid three
banks together as the facts are so similar as to be almost
interchangeable and in all material particulars the three banks and
their respective pensioners are similarly placed. Nevertheless, we will
give a brief synopsis of the admitted facts pertaining to the three
banks.
S.M.C.No.20/2016 etc.
-: 7 :-
UBL
3.
The UBL was originally a private bank. It was
nationalized in 1974 pursuant to the Banks (Nationalization) Act,
1974 (hereinafter the “Act 1974”), and came to be wholly owned by
the Government of Pakistan. The pensioners of the UBL may be
broadly divided into three categories; namely, the ‘original retirees’,
the ‘recently retired’ and the ‘retrenched employees’. The ‘original
retirees’ may be typified by the petitioner in CMA No.1686/2017 who
joined UBL on 11.10.1973 and served for 25 years, 1 month, 17 days
before retiring on 28.11.1998. His basic pay drawn as on 28.11.1998
was Rs.4,530/- per month. Fifty percent of the gross pension was
commuted and paid to him at the time of retirement whereas
Rs.1,321/- was held to be payable to him on monthly basis as his
pension. Thereafter, 18 years later his monthly pension remains
Rs.1,321/-. The pension of ‘original retirees’ (in clerical cadres) of the
bank was calculated on the basis of Memorandum # F:6(1)-REV-I/75,
dated 07.01.1977, issued by the Finance Division, Government of
Pakistan. It provided that the liberalized pension rules for civil
servants were also applicable to employees of nationalized banks.
UBL informed its employees in clerical and non-clerical cadres
through Staff Circular No.158 dated 25.02.1977 that the aforesaid
Memorandum dated 7.1.1977 would be applicable to them. The
grievance of these petitioners is that the UBL has illegally withheld
increases in their pensionary benefits which ought to have been
granted in parity with those given to civil servants over the years.
4.
The ‘recently retired’ category of pensioners may be
represented by the likes of petitioners in CMA No.2825/2017 wherein
the petitioner No. 1 joined UBL on 09.08.1976, and after thirty-seven
(37) years in service retired on 31.10.2013 as Vice President. His last
S.M.C.No.20/2016 etc.
-: 8 :-
drawn basic pay on 31.10.2013 was Rs. 93,207/-. However the
monthly pension being paid to him in the sum of Rs. 3,823/- has
been calculated on the basis of his basic salary as on 30.06.2001 (11
years earlier) in the sum of Rs. 9,930/- . The other five petitioners
whose service history with UBL is presented in the said CMA also
variously served the bank for 36, 40, 38, 41 and 38 years and all
retired when they were drawing handsome salaries between 2011 and
2014. They are however receiving pensions which are linked to the
salaries drawn on 30.06.2001. For the ‘recently retired’ category the
pensionary benefits were governed by the Notification No. 17 (9)-IF,
XI/77 dated 30.11.1977 addressed to the Chairman, Pakistan
Banking Council, the Government of Pakistan, Finance Division
(Internal Finance Wing) whereby a scheme of pensions and
retirement benefits for bank employees similar to that applicable to
civil servants was introduced. In order to give effect to the
instructions of the Federal Government, UBL issued Staff Circular
No. 192 dated 24.12.1977, informing its officers and executives of the
change in the scheme of pension and retirement benefits applicable
to them; pursuant to paragraph 3(f) of the Circular No. 192/1977,
the pension payable to a retired employee of UBL was to be
calculated on the basis of the “average monthly basic pay plus
dearness allowances drawn … during the last three years of
service”
(hereinafter
the
“Original
Pension
Scheme”).
On
18.07.2001, the Human Resource Development department of UBL
issued Staff Circular No. 943/2001, to notify the management of an
across the board 40% average increase in the gross salaries as on
30.06.2001. At the same time the pensionary benefits were curtailed
and it was ordained that henceforth for those employees continuing
with
the
Original
pension
scheme,
“In
such
cases,
on
S.M.C.No.20/2016 etc.
-: 9 :-
retirement/death, they will get their pension benefits calculated on the
basis of their frozen basic pay admissible to them as on 30th June
2001.”. The grievance of these petitioners is two-fold; firstly that UBL
could not have illegally pegged their pensionary benefits to the
‘frozen’ pay as on 30.06.2001 and secondly, that they have received
no increases in the pension since 2001.
5.
The category of ‘retrenched employees’ are typified by the
petitioners in CMA No.2424/2017. Petitioner No.1 in the said CMA
joined UBL on 5.06.1982. Vide Letter Ref: LOR/375128/97 dated
10.10.1997
(hereinafter
“UBL’s
Retrenchment
letter”)
UBL
terminated his services with immediate effect, after he had served the
bank for 15 years. He was paid a total amount of Rs.4,42,682/- as
benefits under the Retrenchment Scheme. He was paid no pension.
In this category those retrenchees who had served more than 30
years were also given pension. The grievance of these petitioners is
two-fold; firstly that the UBL could not have illegally withheld their
pensionary benefits once they had qualified for the same upon ten
years’ service and secondly, in case of those who did receive one,
that they did not receive any increases in the said pensions.
ABL
6.
At that time of enactment of Act, 1974, four (4) banks
namely Australasia Bank, Sarhad Bank, Pak Bank and Lahore
Commercial Bank were merged into one entity. It was renamed
initially as the Allied Bank of Pakistan Ltd. (hereinafter the “ABL”).
ABL came to be wholly owned by the Government of Pakistan. It was
subsequently privatized on 09.09.1991. ABL through Circular no.P-
INST-77/47
dated
15.04.1977
informed
all
employees
that
Memorandum # F:6(1)-REV-I/75, dated 07.01.1977 and # F.6(1)-
REV-I/75 dated 25.01.1977, issued by the Finance Division,
S.M.C.No.20/2016 etc.
-: 10 :-
Government of Pakistan, which set out the liberalized pension rules
for civil servants were also applicable to employees of nationalized
banks. The ‘original retirees’ of ABL are typified by the petitioner in
CMA No.8404/2016 [Farrokh Niaz] who joined ABL on 21.05.1971
and after serving for 26 years, 7 months retired on 28.12.1997. His
basic pay drawn on 28.12.1997 was Rs.13,935/- per month. Fifty
percent1 of the gross pension was commuted and paid to him at the
time of retirement. Thereafter Rs.5,500/- was held to be payable to
him on monthly basis as his pension. In 1991 it was increased to
Rs.6,054.75 on the basis of a letter of the President of ABL, 18 years
later his monthly pension is still Rs.6,054.75 per month. The
grievance of ABL pensioners is the same as that of UBL pensioners.
HBL
7.
HBL was nationalized in 1974 pursuant to the Act 1974
and came to be wholly owned by the Government of Pakistan. The
Finance Division’s Circular # 17(9)-F.XI/77 dated 30.11.1997
introduced a new scheme of pension and retirement benefits for the
officers and executives of nationalized banks and financial
institutions along the same lines as those pertaining to civil servants.
Letter/circular # GN/280 dated 22.02.1978 the Finance Division
1977 Circular ibid was circulated to the employees of the HBL. In
terms thereof, at the time of retirement the pension of the employees
of the HBL was to be calculated @ 70% of the average emoluments on
completion of 30 years of qualifying service. However, vide Bank’s
Circular # STF/98/90 dated 30.12.1998 [hereinafter “HBL 1998
Circular”] the Board of HBL introduced a new pension regime
whereby the aforesaid pensionary benefits were reduced from 70% to
33% whereas gratuity and Provident Fund contribution (own plus
1 Rs.16,23,663/- paid in 1997.
S.M.C.No.20/2016 etc.
-: 11 :-
bank) was also reduced by almost 50% of the basic pay. Thereafter
vide Circular # STF/2005/16 dated 04.03.2005 [hereinafter “HBL
2005 Circular”] the Board of HBL once again curtailed the
pensionary benefits and ordained that pension would be henceforth
calculated on the basis of the salary of the employees as on
31.03.2005. In addition, the option of commutation of the pension
was discontinued and medical facilities were curtailed. Thereafter
vide Circular # STF/20/2/30 dated 31.03.2012 [hereinafter “HBL
2012 Circular”] the Board of HBL once again revised the pensionary
benefits such that the gross pension would again be calculated on
the basis of the last drawn basic salary. Vide Circular #
STF/2014/063 dated 26.09.2014 [hereinafter “HBL 2014 Circular”]
the Board of HBL again revised the basis for calculating pensionary
benefits such that they would be calculated on the basis of last
drawn salary as on 31.03.2014 and the number of years of service for
the purposes of calculation would be till 31.03.2005. The pensioners
of the HBL who were originally governed by the terms of the Finance
Division’s 1977 Circular ibid and subsequently found their
pensionary benefits curtailed under successive HBL circulars joined
common cause with the ‘original retirees’ and the ‘recently retired’
categories of pensioners of UBL.
8.
Ms. Ayesha Hamid, ASC represented the first three
categories of UBL pensioners set out hereinabove. She argued that
Notification No. 17 (9)-IF, XI/77 dated 30.11.1977 issued by the
Government of Pakistan, Finance Division (Internal Finance Wing)
[hereinafter the “1977 Notification”] introduced a scheme of
pensions and retirement benefits for bank employees similar to that
introduced for civil servants. It was given effect by the UBL Staff
Circular No. 192 dated 24.12.1977, informing its officers and
S.M.C.No.20/2016 etc.
-: 12 :-
executives of the change in the scheme of pension and retirement
benefits applicable to them. This 1977 Notification pertained to the
officers/executives of the bank. With respect to the bank employees
in clerical and non-clerical cadres a similar regime obtained whereby
Memorandum # F:6(1)-REV-I/75, dated 07.01.1977, issued by the
Finance Division, Government of Pakistan was given effect by the
UBL Staff Circular No. 158 dated 25.02.1977, informing its clerical
and non-clerical staff of the change in the scheme of pension and
retirement benefits applicable to them. Circular Nos. 158 &
192/1977 were therefore statutory instruments with the backing of
the 1977 Notifications which were also statutory. In this regard she
relied on a recent judgment rendered by this Court in the case of
Bahadur Khan and others Vs. Federation of Pakistan through
Secretary M/o Finance, Islamabad and others (2017 SCMR 2066)
in which this Court held that the 1977 Notification is a statutory
instrument. She stated that the pensioners devoted the best years of
their lives in the service of the banks. The purpose of pension is, in
consideration of their past services, to enable employees who are past
their working lives to be maintained in a dignified and a comfortable
manner. A pension therefore is an instrument of socio-economic
justice and economic security2. It is self-evident that the pensioners
cannot possibly maintain themselves on the pensions of e.g.
Rs.1321/- per month which are illusory and offend against the
dignity of man promised to them in terms of Article 14 of the
Constitution of the Islamic Republic of Pakistan (Constitution). She
argued that whilst a right to pension may not be a fundamental right
per se, once an employee has worked for a number of years and
fulfilled the requisite criteria for obtaining pension then the right to a
2 D.S. Nakara v Union of India (AIR 1983 SC AIR 130) = [1983 (2) SCR 165]
S.M.C.No.20/2016 etc.
-: 13 :-
reasonable pension becomes perfected and such right once having
accrued becomes a vested right and cannot be abridged by UBL as
later done through decisions that set at naught the pensionary
benefits earned under the 1977 Notification. She argued that
pensioners are entitled to pension which ought to have been
increased in terms of the cost of living to ensure that they received a
minimum living wage; to deny them increases in their pension is to
deny them a right to a livelihood which constitutes denial of their
right to life in terms of Article 9 of the Constitution. She stated that
vide Declaration of Trust dated 13.06.1995 (hereinafter the “Trust”)
the UBL established a trust for the purposes of managing and
distributing the Pension Fund created by UBL for the benefit and
welfare of its employees. Clauses 3 and 14 of the Trust provided that,
the privatization of the UBL would not in any way affect the objects of
the Trust, and entitlement of employees to receive pensionary
benefits from the Fund. The pensioners, according to her, are entitled
to the monies held in the Pension Fund. Despite the fact that the
UBL was privatized through Agreement for Sale dated 19.10.2002
[“Privatization Agreement”] whereby the Privatization Commission
and State Bank of Pakistan agreed to sell, and the Bestway Group
agreed to purchase the shareholding of 51% of the total issued and
paid up capital of UBL, for the total sum of Rs.12.35 billion, upon the
terms and conditions stipulated in the Agreement; UBL remained
liable for the pensions due to the pensioners. They (the private
owners) bought UBL after a process of due diligence and on “as is,
where is” basis. Therefore UBL cannot be allowed to walk away from
its responsibilities to the pensioners. With respect to ‘retrenched
employees’ she stated that there was no element of voluntariness to
their retrenchment which was simply imposed on the 5416
S.M.C.No.20/2016 etc.
-: 14 :-
employees who were retrenched. This was an unconscionable
contract imposed upon them by an all-powerful employer and was
liable to be set aside on this count too. She relied on Ora Lee
Williams v Walker Thomas Furniture Company [350 F .2d 445
(1965)], Marybeth Armandariz v Foundation Health Psychcare [99
Cal.Rptr.2d 745 (2000), Supreme Court of California], Cresswell v
Potter [(1978) 1 WLR 255 (note)], The Port Caledonia and The Anna
[(1903) P 184 Probate Division], Fry v Lane [(1888) 40 Ch D 312,
322], Portman Building Society v Dusangh [(2000) 2 All ER (Comm)
221, Court of Appeal] and Boustany v Pigott [(1995) 69 P & CR 298
Privy Council]. When questioned about maintainability of the petitions
she argued that a writ could issue to UBL in terms of Article 199(1)(c)
of the Constitution as it was a matter of enforcement of fundamental
rights but that her primary argument was that the increase in the
pensionary benefits of the pensioners was the bank’s liability in terms
of the Privatization Agreement whereby they stepped into the shoes of
the Federal Government. And the question of public importance arose
out of the fact that the Federal Government had made a sovereign
commitment to the pensioners in the form of the 1977 Notification and
this Court was liable to enforce the same. In this regard she relied
upon Dewan Salman Fibre Ltd. and others Vs. Federation of
Pakistan, through Secretary, M/O Finance and others (2015 PTD
2304).
9.
Mr. Ahmed Awais, ASC also appeared for pensioners of
UBL in Constitutional Petition No.45/2016. He stated that he had
appended with his petition the complete list of those employees of the
‘recently retired’ category whose pensions were pegged to their salaries
as frozen on 30.06.2001. Petitioner No.1 (in CP 45/2016) retired when
he was earning Rs.150,000/- per month but his pension per month
S.M.C.No.20/2016 etc.
-: 15 :-
today is only Rs.4,400/; which is below even the minimum wage. The
40% increase in salaries given at the same time as the ‘freezing’ of the
pension was not unusually generous as it was given after a period of
8.5 years and was the result of a bank-wide strike in 2001. At the time
of the privatization it was the Government which failed to protect the
rights of the employees.
10.
Mr. Hashmat Ali Habib, ASC appeared on behalf of some
of
the
HBL
Retired
Executive
Officers
Association
in
CMA
No.288/2017. He stated that pension was a right of the persons who
had rendered services in banks and that the 1977 Notification was still
in force. As the petitioners retired before privatization of HBL in 2004,
the bank was liable to honour commitments made by it under the 1977
Notification. He adopted the arguments of Ms. Ayesha Hamid, ASC.
11.
Rai
M.
Nawaz
Kharal,
ASC
appearing
in
CMA
No.9172/2017 on behalf of Mr. Barlas, pensioner of HBL adopted the
arguments of Ms. Ayesha Hamid, ASC.
12.
Mr. Abdul Rahim Bhatti, ASC appeared in CMA
No.1496/2017 on behalf of HBL pensioners. He apprised us of the
family pension being paid to one Khushal Bibi in the sum of
Rs.243.72/- per month. Another pensioner Mst. Manzoor Fatima was
being paid the “handsome” amount of Rs.360/- per month by way of
pension. He stated that as per the provisions of the 1977 Notification
an employee became eligible for pension after service of 10 years in the
bank. As per this Notification a valid contract existed between the
employees and the then nationalized HBL. On 30.12.1998 HBL
arbitrarily and unilaterally changed the terms and conditions provided
under the statutory 1977 Notification. This was illegal and could not
have been done to the detriment of the employees. He referred to I.A.
Sharwani and others Vs. Government of Pakistan through
S.M.C.No.20/2016 etc.
-: 16 :-
Secretary, Finance Division, Islamabad and others (1991 SCMR
1041), and Ms. Shehla Zia and others Vs. WAPDA (PLD 1994 SC
693).
13.
Mr. Mahboob Ahmad Soomro, petitioner in person in CMA
No.7484/2016 stated that a different criterion for calculation of
pensions of officers and clerical staff was being used which was
discriminatory. [However, on reading his CMA it appears that the
petitioner had not even retired at the time of filing the same and
therefore he does not fall the category of pensioners that we are
considering. As and when he retires, his pensionary benefits will be
determined and affected by this judgment, in terms of his class wise
entitlement and not on the basis of his individual petition].
14.
Mr. Tariq Mehmood Khokar, ASC appeared for the
pensioners of ABL in CMAs No.8234, 9312, 9313 and 9314/2017. He
made three allegations against the bank, that it failed to grant
increases in pension, the pension fund was worth Rs.5.6 billion at the
time of privatization and the bank has ‘reversed’ this amount and
illegally misappropriated this money and, lastly, when ABL was
privatized in 2004 it was required to make contributions to pension
fund but it did not do so.
15.
Mr. Salman Butt, ASC appeared on behalf of the UBL. He
stated that UBL was established in 1959 as a private bank and a Trust
Deed was executed to set up a Provident Fund on 27.8.1960. The Staff
as well as UBL were to contribute to this Provident Fund. He referred to
Article 260 of the Constitution and the definition of “pension” given
therein to argue that this was the definition which would apply in this
case. He argued that as certain pensioners had taken a major portion
of their pension in commuted form this too would count as pension
and it would be simplistic to say that the UBL was only paying, for
S.M.C.No.20/2016 etc.
-: 17 :-
example only a sum of Rs.4000/- per month to a pensioner. Coming to
the 1977 Notification he stated that it was NOT a statutory instrument
as it was never notified in the official gazette: at best it was a policy
guideline. In this regard he relied on Saghir Ahmed through Legal
Heirs Vs. Province of Punjab through Secretary, Housing and
Physical Planning Lahore and others (PLD 2004 SC 261 @ 266),
Muhammad Suleman etc. Vs. Abdul Ghani (PLD 1978 SC 190),
Government of Sindh through Secretary Agriculture and
Livestock Department and others Vs. Messrs Khan Ginners
(Private) Limited and 57 others (PLD 2011 SC 347) and Chief
Administrator Auqaf Vs. Mst. Amna Bibi (2008 SCMR 1717). He
also submitted a comparative chart and stated that the 1977
Notification in the case of UBL was slightly different in its terms and
conditions. The Notification upheld as statutory in the Bahadur Khan’s
case (supra) was different. He argued that all banks were nationalized
in terms of the Act 1974 which was to have overriding effect in terms of
Section 16 thereof. He categorically stated that privatization also took
place under the same Act 1974. The Act 1974 was amended in 1991
and Sections 5A and 5B were added. In terms whereof once UBL was
privatized the Act 1974 ceased to apply to it and no obligations under
the said law would continue to operate against UBL. The Act 1974 was
amended through Banks (Nationalization) (Amendment) Act XVIII 1997
and the Pakistan Banking Council stood dissolved. Thereafter the
Board of the UBL was authorized to take decisions with respect to the
pensionary benefits of the pensioners. It validly did so in the form of
Staff Circular 943 dated 18.07.2001 (when UBL had not yet been
privatized) whereby the employees were given an unprecedented 40%
increase in gross salary as on 30.06.2001 which they accepted and
benefited from, that the revision of pensionary benefits was a part of
S.M.C.No.20/2016 etc.
-: 18 :-
this overall package. With respect to pension, the employees could have
opted for ‘Option II’ i.e. joining the Provident Fund and the Gratuity
Scheme and opting out of the Original Pension Scheme altogether. But
as the employees/pensioners did not do so they were deemed to have
opted for ‘Option I’ whereby they remained in the Original Pension
Scheme but their pensionary benefits were to be calculated on the
basis of the ‘frozen’ pay due to them as on 30.06.2001. The UBL’s
pensioners were therefore estopped from claiming additional benefits.
At this juncture it is also pertinent to mention that the learned counsel
also mentioned a number a petitioners who had originally opted to
remain in the 1960 Provident Fund scheme and on that count were not
liable to be treated under the 1977 Notification in any event. He also
cited the principles of waiver and acquiescence as operating against the
aggrieved petitioners. He made submissions with respect to lack of
maintainability of the petitions, and stated that Article 184(3) would be
regulated by Article 175(2) of the Constitution. The learned counsel
stated that the UBL being a private bank was not amenable to issuance
of a writ. It did not even remotely pass the function test to qualify as a
person performing functions in connection with the affairs of the
Federation or the Provincial Government and therefore no action
against UBL could be taken in exercise of constitutional jurisdiction.
He relied on the case of Abdul Wahab & others Vs. HBL & others
(2013 SCMR 1383) to state that this Court had already held that a
matter involving the benefits of 310 employees of HBL was not a matter
of public importance. Theirs was a private grievance and the bank
being a private entity was not amenable to writ jurisdiction. In this
case the relationship inter se the pensioners and the UBL was one of
master and servant and our entire jurisprudence has developed to hold
that the petitioners cannot invoke the jurisdiction of this Court. He
S.M.C.No.20/2016 etc.
-: 19 :-
provided a detailed chart to aid a comparison of Articles 184 and 199
with similar provisions of the Indian Constitution. He also relied on
Muhammad Ashraf and others Vs. United Bank Limited and
others (2015 SCMR 911), The Commissioner of Income-Tax,
Rawalpindi Zone, Rawalpindi Vs. Messrs Haji Maula Bux
Corporation Limited Sargodha (PLD 1990 SC 990 @ pg. 1006 &
1024), Regarding Pensionary Benefits of the Judges of Superior
Courts from the date of their respective retirements, irrespective
of their length of service as such Judges (PLD 2013 SC 829 @ pg.
944 & 1002), State Life Insurance Employees Federation of
Pakistan, Karachi Vs. Federal Government of Pakistan through,
Secretary Commerce, Islamabad and 2 others (1994 SCMR 1341),
Ardeshir Cowasjee and 10 others Vs. Karachi Building Control
Authority (KMC), Karachi and 4 others (1999 SCMR 2883 @ pg.
2912), All Pakistan Newspapers Society and others Vs. Federation
of Pakistan and others (PLD 2004 SC 600@ pg. 621), Syed Zulfiqar
Mehdi and others Vs. Pakistan International Airlines Corporation
through M.D., Karachi and others (1998 SCMR 793 @ pg. 801),
S.M. Waseem Ashraf Vs. Federation of Pakistan through
Secretary, M/o Housing and Works, Islamabad and others (2013
SCMR 338 @ pg. 345). He concluded his arguments by stating that
the revised composite scheme introduced in 2001, as implemented in
2003, acted upon and benefited from, cannot be challenged by the
petitioners. In this behalf he relied on State Bank of Pakistan Vs.
Khyber Zaman and others (2004 PLC (CS) 1213), State Bank of
Pakistan through Governor and another Vs. Imtiaz Ali Khan and
others (2012 SCMR 280), M.C.B. Bank Ltd., through Authorized
Representative Vs. State Bank of Pakistan through Governor and
2 others (2010 CLD 338), Trustees of the Port of Karachi Vs.
S.M.C.No.20/2016 etc.
-: 20 :-
Organization of Karachi Port Trust Workers and others (2013
SCMR 238), Pakistan International Airlines Corporation Vs. Aziz-
ur-Rehman Chaudhry and another (2016 SCMR 14) and Wali-ur-
Rehman and others Vs. State Life Insurance Corporation and
others (2007 PLC (CS) 836).
16.
Mr. Ali Zafar, ASC appeared on behalf of the HBL. He
stated that HBL was owned by the Agha Khan Foundation which was
at the forefront of charitable work and would like to help the
pensioners but within the law. There is no legal basis to foist the
responsibilities of the Government onto HBL in a post-privatization
scenario. His submissions with respect to the 1977 Notification were
that it was issued by the Finance Division to the Pakistan Banking
Council who would in turn instruct the bank. Therefore it has to be
read with Section 9 of the Act 1974. When the Pakistan Banking
Council
stood
dissolved
through
the
Banks
(Nationalization)
(Amendment) Act XVIII 1997 in terms of Section 11 of the Act 1974 the
powers previously vesting in the Council now came to vest in the Board
of HBL. HBL’s Board consequently offered a new ‘deal’ to its’ employees
whereby they benefitted by receiving enormous increases in their
salaries while the pensionary benefits were changed. He submitted that
after 1998 no employee was given any benefits under the original
dispensation of the 1977 Notification and after HBL was privatized in
2004 the pension scheme was abandoned altogether in favour of more
beneficial Provident and Gratuity Funds. He stated that pension is not
a fundamental right, but at best a contractual right and therefore the
grievance of the pensioners is a private grievance. When questioned, he
conceded that pension may be a statutory right too. The learned
Counsel stated that the pensioners’ demand for increase in their
pensions is not maintainable in terms of Article 184(3) of the
S.M.C.No.20/2016 etc.
-: 21 :-
Constitution. HBL is not owned/controlled by the Government and the
functions test does not apply. The relationship inter se the HBL and
the pensioners is of master and servant. Therefore relying on the ratio
of the Abdul Wahab case (supra) the jurisdiction of Article 184(3) of the
Constitution would not be attracted. He stated that even if, without
conceding, the 1977 Notification is taken as a statutory instrument
then it would not apply in perpetuity and certainly not after dissolution
of the Pakistan Banking Council. If at all this Court decides that the
pensioners are entitled to increase in their pensions it would be for the
Government to make good on its commitments and on no account
could a private bank such as HBL be burdened with the liabilities of
the Government in a post privatization scenario. The government could
fund such a liability through deficit financing funding and borrowing.
However the bank required its capital for generating further income
through giving out loans. He pointed out that particular petitioners
being habitual litigants were disentitled to relief. He relied on
Muhammad Zaman and others Vs. Government of Pakistan
through
Secretary,
Finance
Division
(Regulation
Wing),
Islamabad and others (2017 SCMR 571).
17.
Mr. Sikandar Bashir Mohmand, ASC on behalf of UBL
submitted a detailed written note and chose not to make oral
submissions on account of the fact that he would be repeating himself
as Mr. Salman Butt, also appearing on behalf of UBL had earlier made
the same arguments. His contentions will be reflected at relevant
points of this opinion.
18.
Mr. Shahid Anwar Bajwa, ASC appeared on behalf of ABL
in CMA No.8200/2016. He stated that ABL was originally established
as the Australasia bank in 1942 having its head office in Shah Chiragh
Building in Lahore. It was nationalized in 1974 and denationalized on
S.M.C.No.20/2016 etc.
-: 22 :-
9.9.1991. Before nationalization there was a Contributory Provident
Fund available for the employees of the bank to which they contributed
8.33% of their salaries. The bank matched these contributions. There
was also gratuity equal to one month’s salary for each year of
completed service. When the 1977 Notification (which he referred to as
the 1977 “Letter”) came about there was no longer any contribution by
the bank. It introduced a pension and a General Provident Fund
scheme, with no contribution by the bank. Employees were repeatedly
given the choice of joining the later schemes. This “Letter” is addressed
to the Pakistan Banking Council. The “Letter” was not a statutory
instrument notwithstanding Bahadur Khan case (supra). This Court
had according to him, failed to consider certain provisions of the Act
1974; it failed to consider section 11 and also the position that the
government had 100% control of the bank and could anyway issue this
Letter by way of instructions. When confronted with the fact that there
was a judgment in the field (Bahadur Khan’s case), he adopted a novel
approach. He stated that since this Court had failed to consider certain
provisions of law in deciding the case, even a Civil Judge, 3rd Class
would be entitled to ignore the same. We will not dignify this argument
with so much as a rebuttal other than to say that we expect a better
standard of arguments from counsel of this Court. Mr. Bajwa further
stated that assuming, the “letter” was statutory it was repealed once
the bank was privatized. In view of Section 5A of the Act 1974 the
“letter” would cease to have any effect. No rights would accrue to the
pensioners after privatization in 1991. In ABL’s case the freezing of
salaries for pensions took place in 2002 (post-privatization). He referred
to Muhammad Tariq Badr and another Vs. National Bank of
Pakistan and others (2013 SCMR 314) as well as Saeed Ahmad Vs.
The State (PLD 1964 SC 266 @ 290) to submit that repeal and
S.M.C.No.20/2016 etc.
-: 23 :-
amendment have the same effect. He also relied on Federation of
Pakistan Vs. Muhammad Siddiq (PLD 1981 SC 249 @ 261) in this
regard. He maintained that those who accepted VSS (Voluntary
Separation Scheme) were not entitled to pensionary benefits on the
basis of the ratio of State Bank of Pakistan through Governor and
another Vs. Imtiaz Ali Khan and others (2012 P L C (C.S.) 218 @
para 28). Besides, according to him, the right to pension only accrues
at retirement and not after ten years’ service. The learned counsel took
similar grounds as the other counsels representing UBL and HBL with
respect to lack of maintainability of the claims of the pensioners by
urging that receiving pension was not a fundamental right.
19.
We had appointed Mr. Makhdoom Ali Khan, Senior
Advocate Supreme Court as Amicus Curiae in these matters to assist
this Court and he very kindly agreed. He argued that there appeared to
be consensus between both sides with respect to the fact that the
jurisdiction of this Court would only be attracted in terms of Article
184(3) of the Constitution if and when a matter involved both a
question of fundamental rights and a question of public importance.
The Abdul Wahab judgment (supra) calls these the two foundational
principles. He then drew our attention to different fundamental rights
enshrined in Chapter II of the Constitution. He stated that certain
fundamental rights impose a duty on the state to do something or
abstain from doing something (as defined in Article 7). These are
therefore by their very nature enforceable against the State. As an
example of this category of fundamental right he cited Article 8(2)
which imposes upon the State a duty not to make any laws that may
take away or abridge the rights of its citizens. Were the State to make
such a law, this fundamental right would be enforceable against the
State. Similarly the duty to ensure that citizens are afforded due
S.M.C.No.20/2016 etc.
-: 24 :-
process of law, or not subjected to double punishment; are duties
which by their very nature are imposed on the State. This may be
contrasted and compared with Article 9 or 14, where no person,
including an individual and not just the State alone is barred from
infringing a citizen’s right to life and liberty or dignity. The learned
Amicus stated that this subtle difference may be better appreciated by
comparing our Constitution with that of the US. In their system it is
the Congress which is responsible for granting/ensuring fundamental
rights. This means that in certain cases their Supreme Court has had
to come up with novel and inventive ways to increase the amplitude of
their reach. When we speak of right to life, is the only remedy available
to a citizen lies under Article 199 or 184 for enforcement of the same?
If it not available the court will not say that the right is not available, it
will only say that the forum is wrong, approach the right forum. The
question whether the person has locus standi to put the machinery of
law into motion has never been a question of jurisdiction since the case
of Col. Lt. Col. Nawabzada Muhammad Amir Khan Vs (1) the
Controller of Estate Duty etc. (PLD 1961 SC 119 @ 127), followed
by The Murree Brewery Co. Ltd. Vs. Pakistan through the
Secretary to Government of Pakistan, Works Division and 2
others (PLD 1971 SC 279 @ 287), this Court said that the clauses
relating to who is entitled to bring the case do not oust jurisdiction of
the Court. Such clauses are procedural in nature and used by courts
to regulate their own jurisdiction.
20.
Referring to the Wattan Party through President Vs.
Federation
of
Pakistan
through
Cabinet
Committee
of
Privatization, Islamabad and others (PLD 2006 SC 679 @ 717), Mr.
Makhdoom Ali Khan stated that in that matter he had argued that
when a larger bench of this Court had heard a matter relating to a
S.M.C.No.20/2016 etc.
-: 25 :-
large number of people it would by itself be treated as a matter of
public importance. Mr. Makhdoom Ali Khan then turned his attention
to the language of Articles 199 (1) (a) (i) and 199 (1) (c) and stated that
in terms of the latter there is no restriction per se on the power of this
Court to issue a writ, only to a person performing functions in
connection with the affairs of the Federation, Province etc. The writs of
mandamus and prohibition can only be issued to a person performing
functions in connection with the affairs of the Federation, Province or a
Local Authority. A writ of declaration is similarly limited in its scope.
But this is in marked contrast to the “person” envisaged in Article 199
(1)(c) where there is per se no apparent restriction on the power of
Court to issue a writ only to a person performing functions in
connection with the affairs of the Federation , a Province or a Local
Authority. In terms of Article 199 (1) (b) the Court does not require an
aggrieved person to relate to the Court that a person is being held in
illegal custody where a writ of habeas corpus is contemplated. The
same rule applies to a writ of quo warranto. He has pointed out the
language of each of the sub-articles is different, in keeping with what is
to be achieved.
21.
Mr. Makhdoom Ali Khan, referred to Human Rights
Commission of Pakistan and 2 others Vs. Government of
Pakistan and others (PLD 2009 SC 507 @ 527), relating to bonded
labour being detained by a private party. Relying on the said judgment
he stated that Article 199 and 184 confer a special jurisdiction on the
High Court as well as this Court regarding enforcement of fundamental
rights. Article 199 (1) (c) allows the Court, according to this judgment
to issue a writ, even to a private person where another’s fundamental
rights may otherwise be violated. He then referred to the definition of
person as given in Article 199 (5) to argue that the words ‘body
S.M.C.No.20/2016 etc.
-: 26 :-
corporate’ are to be read disjunctively with the words ‘authority under
the control of the government’. He maintained that natural person was
not excluded from this definition. With respect to whether pension is a
fundamental right he submitted that the question before this Court
was not whether pension is or is not a fundamental right. According to
him it was an admitted position that all the respondent banks were
paying a pension were obviously doing so because they recognized the
right of the employees to receive pension. Therefore the question then
arises that once it is accepted that the pension is to be paid after an
employee has put in a particular period of service, can the employer
pay him a pension which denies him a right to life and livelihood? If
pensioner can establish that the pension being given to him falls below
a minimum threshold then a case for enforcement of fundamental
rights is made out. He apprised us of the concept of minimum, fair and
living wages and how these concepts may relate to pension. He went on
to point out that as per a 2014 Notification by the Federal Government
the minimum pension for a civil servant is Rs. 6000 per month
whereas the minimum pension paid by EOBI to retired workers who
are registered with the Employees Old-Age Benefits Institution (EOBI)
is Rs. 5,500 per month. Similarly the norm in most other departments
is that after commutation about 60% of the pension is paid to a retiree
and therefore 60% of the minimum wage established by the Federal
government may be taken as another benchmark of the minimum
threshold of pension to be set by the Court. The cases of termination
from service were however distinguished by the learned counsel as
being those where the nature of the grievance was a personal one. He
pointed out the Abdul Wahab case (supra) may be distinguished on
this basis. He stated that the matter of payment of pensions was a
national issue, and it needs to be determined if an employer can freeze
S.M.C.No.20/2016 etc.
-: 27 :-
pension at a level which denies the employee the right to life? If the
answer is in the negative, then the matter crosses both thresholds of
being a matter of fundamental rights and being one of public
importance.
22.
The learned Amicus submitted that in this particular case,
this Court may not need to go as far as the area covered in Human
Rights Commission of Pakistan and 2 others Vs. Government of
Pakistan and others (PLD 2009 SC 507). This is for the reason that
if at all new parameters have to be determined, it may be more
appropriate for a larger bench to do so. He further submits that this
matter may be decided without taking an overly expansive view of
Article 199 (1)(c). He maintains that in suitable and appropriate cases
this Court may apply the functions test even to a private
person/entity who performs a public function. He submits that in
applying the function test the court can take into consideration the fact
that the current majority shareholders, at the time of signing the
privatization agreement with the State, purchased the shares of the
government at a price which they were or should have been aware
(being savvy businessmen), factored in the value of the assets as well
as the possible liabilities. Having made the offer at that time, they took
over the pubic liabilities/obligations of the State which included
obligations with respect to payment of pensions in terms of the 1977
Notification. Having taken over all rights and liabilities they cannot now
be allowed to keep the assets but walk away from the liabilities and
obligations. He argues that another possible test is that where a private
person takes over a public obligation/duty/liability to which the State
was committed, such private person cannot later on say when it is true
to discharge the obligation that it should be treated as a private person
and hence beyond the scope of writ jurisdiction of the court. When the
S.M.C.No.20/2016 etc.
-: 28 :-
privatization agreements were examined, it was apparent that the
banks took over assets and assumed the liabilities as well; had
liabilities been excluded perhaps the government would have priced the
shares differently. He relied on Shri Anandi Mukta Sadguru Shree
Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak
Trust and others Vs. V.R. Rudani and others (AIR 1989 SC 1607)
to support his contention. Relying on the Bahadur Khan case (supra)
he argued that the 1977 Notification was statutory in nature; but even
if it is taken as non-statutory, it was still a solemn commitment by the
employer (the State) to its employees for nearly twenty years. Since
then the employer (Limited Company) has not changed. Only the
shareholders have changed. The sovereign shareholder has sold its
shareholding to private shareholders. Had the government sold only
the assets a case could have been made out that the liability remained
with the government which is clearly not the case. Referring to the
concept of judicial engagement, the learned counsel submitted that the
instant set of cases, in their peculiar set of facts and circumstances
provided a perfect opportunity for judicial engagement. The court can
and should exercise jurisdiction and engage with the respondent banks
to ease the genuine miseries of the petitioners. He submits that a
reasonable formula can be agreed upon with mutual consultation to
ameliorate the miseries of the petitioners. He however stated that any
increase (if) granted to the pensioners ought to be prospective.
23.
Mr. Waqar Rana, Additional Attorney General, addressed
us briefly and stated that the government remains a shareholder in
these banks and its liability is limited only to the extent of its
shareholding. The claim to a pension is a right to property in terms of
Article 23 and 24 in addition to right to life in terms of Article 9.
S.M.C.No.20/2016 etc.
-: 29 :-
Therefore the petitions are maintainable in law. However, he states that
the Federation takes no stance with respect to the merits of the case.
24.
We heard the learned counsels at great length and
perused the voluminous record. During the course of the hearing of the
case we called the presidents/chief executives of the banks who
appeared before us: they independently apprised us that all the banks
are before us engaged in many separate charitable endeavors and take
their corporate social responsibility very seriously. They sought time to
come up with a scheme to address the grievances of the pensioners.
25.
The question is once pension is being paid, whether
under statutory provision, common law or contract, can it be in an
amount so modest that it denies the pensioner a decent living,
thereby denying him/her the right to life? Article 14 of our
Constitution provides protection to the citizens of our country.
Dignity of man shall be inviolable as envisaged in Article 14 of the
Constitution. If a man serves his employer for a number of years,
during the prime of his life and gives of his honest labour to his
employer and where he is promised pension, whether under statute,
common law or contract then he should be able to plan his financial
future for his declining years keeping in mind such promises of a
pension. When that pension is given but is of a sum which is illusory
and by no amount of prudent budgeting can it be used to sustain a
man independently, and forces him to turn to his children or other
relatives/sources for ‘help’, offends against his dignity. To subject a
pensioner to a life of penury and impoverishment, is a clear violation
of his fundamental rights to life and dignity as enshrined in Articles 9
and 14 respectively. The entitlement to pension is not a fundamental
right but must be duly earned. Once that right has been perfected
and earned, as has been by the petitioners, it is no longer a question
S.M.C.No.20/2016 etc.
-: 30 :-
whether they are entitled to the pension or not. The fundamental
right that is to be enforced is that the pension given to such
pensioners must be of a level which allows them to keep body and
soul together.
26.
We are happy to note that on being called upon and
encouraged by us the boards of the banks showed generosity,
magnanimity, great sense of corporate social responsibility to come up
with a scheme whereby there will be an immediate and substantial
increase in the minimum pension paid to the pensioners. The
minimum amount voluntarily offered by the banks was Rs.5,250/- per
month. The offer is without prejudice to the legal stance taken by the
banks in this case and without prejudice to their objections as to the
maintainability etc. of the present petitions. We therefore refrain from
recording any finding on the merits of the case or the question of
maintainability or the question whether a writ can be issued against a
private/privatized bank/party/entity leaving these matters to be
examined in some appropriate case. However, using our discretion in
the matter, we enhance the aforesaid amount voluntarily offered by the
banks and we direct as follows:
1.
With immediate effect the minimum pension paid to any
pensioner (including their widows, where applicable) of
UBL, HBL and ABL will be Rs. 8,000 (rupees eight
thousand) per month.
2.
The payments will be prospective, that is, from the date
of this judgment.
3.
There will be an increase of 5% in the aforesaid pension
every year, effective on the 1st of January every year.
4.
The aforesaid pension will be paid to all three categories
of pensioners mentioned above, i.e. the “original retirees”,
those whose pensions were linked to basic pay “frozen” in
past years, and in the case of UBL to retrenched
employees including those who had served the bank for
more than ten years on the date of retrenchment. For
S.M.C.No.20/2016 etc.
-: 31 :-
avoidance of doubt it is clarified that the pension of
employees who are receiving sums in excess of
Rs.8,000/- shall continue to do so, and those whose
pension would fall below the minimum pension (after 5%
annual increase, effective on the 1st of January) they
shall be paid the minimum pension with 5% annual
increase. However, those who have availed the benefit of
VSS (Voluntary Separation Scheme) or Golden Handshake
Scheme will not be benefitted by this judgment.
27.
We would like to take this opportunity to express our
heartfelt gratitude to Mr. Makhdoom Ali Khan, Sr. ASC for his able
assistance and valuable input which greatly helped us in deciding
this matter.
28.
In view of the above, the matter stands disposed of.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
13th of February, 2018
Approved for reporting
Waqas Naseer
| {
"id": "S.M.C.20_2016.pdf",
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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 Muhammad Sair Ali
Mr. Justice Asif Saeed Khan Khosa
Mr. Justice Ghulam Rabbani
SUO MOTU CASE 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:
Moulvi Anwar-ul-Haq
Attorney General for Pakistan
Ch. Khadim Hussain Qaiser,
Addl. AG, Punjab
Syed Arshad Hussain Shah,
Addl. AG, KPK
Mr. Azam Khattak, Addl. AG Balochistan
Mr. Muhammad Mir Qasim Jat, ASC
(on behalf of AG, Sindh)
Raja Abdul Ghafoor, AOR
For Members of Committee
Nemo
of Parliamentarians:
Former Minister S&T:
Senator Muhammad Azam Khan
Sawati in person
For former Minister
Mian Khalid Habib Elahi, ASC
Religious Affairs:
Mr. Mehmood A. Sheikh, AOR
For M/o Religious Affairs:
Mr. Shaukat Hayat Durrani, Secretary
For former Secretary
Mr. Ahmar Bilal Soofi, ASC
Religious Affairs:
For Establishment Division:
Mr. Abdul Hafeez Pirzada, Sr. ASC
Mr. Abdur Rauf Ch, Secy.
Mr. Khalid Akhlaq Gillani, Addl. Secy.
Mr. Muhammad Hafeez, J.S.
Mr. Afzal Latif, J.S.
Mr. Muhammad Arshad Khan, Dy. Secy.
SMC 24/2010 [HAJJ SCAM]
2
For NAB:
Mr. Muhammad Akbar Tarar, Addl. PGA
Mr. Fauzi Zafar, ADPGA
For FIA:
Syed Jawed Ali Bukhari, Addl.DG
Incharge Investigation
Mr. Hussain Asghar, Director
Mr. M. Azam Khan, Director (Law)
Mr. Muhammad Niaz, S.I. Police with
Rao Shakeel, former DG Hajj (in
custody)
In C.M.A No.218/2011:
Nemo
For Tour Operators:
Nemo
For Contract Officers:
Raja Muhammad Irshad, Sr. ASC
Raja Abdul Ghafoor, AOR
Mr. M. Ilyas Khan, Sr. ASC
Col. (R) Abdul Wahid Khan, SSP, ATC
Karachi
Date of hearing:
01.03.2011
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, CJ – Syed Jawed Ali
Bukhari, Addl. DG, FIA has submitted progress report, a perusal
whereof indicates that no effective progress has been shown as is
also evident from the reports, which were being sent on daily basis
for perusal of one of us (Raja Fayyaz Ahmed, J. in Chambers). On
perusal of these reports, it has been concluded that –
“Plainly, it is reflected from the progress reports
referred to above that deliberate delay has been and is
being caused for reaching to the truth and in taking the
pieces of incriminating material brought so far on record
linking the accused persons to its logical conclusion.
These reports lack necessary particulars and details,
which lead to no where.
It is also apparent from the steps taken during the
course of investigation that in a way protection is being
extended to the offenders so that eventually they can
get rid of the offences to which they appear to have
SMC 24/2010 [HAJJ SCAM]
3
been
exposed
and
to
be
escaped
from
lawful
punishments likely to be awarded after trial.
Also, it does not transpire that the accused
persons prima facie involved in the case have been
interrogated and if so whether during the course of
interrogation
all
the
substantial
and
material
incriminating points/material remained in the mind of
the investigator or otherwise.
It seems quite evident that investigation in the
case is not being conducted independently and in a
transparent manner, as well as; it can hardly be
believed that in presence of the present D. G. FIA
effective and impartial investigation in the case can be
conducted in respect of whom specific observations have
also recorded by this Court in its order dated 10.2.2011
and
in
the
subsequent
order
dated
15.2.2011
expressing dissatisfaction on the investigation being
conducted in the case.”
2.
It is important to note that Syed Imran Ali Shah, who
had made an allegation that out of the misappropriated/defrauded
amount of Hajj scam, one bullet proof vehicle was purchased by
Abdul Qadir Gillani through his friend Zain Iftikhar Sukhera at UAE,
which was brought to the latter’s residence at Sahiwal, when called
upon to furnish evidence to substantiate allegation, failed to do so,
as it is mentioned in the report in clear terms. We may observe here
that on the basis of a bald and baseless allegation, such statement
should not have been made by Syed Imran Ali Shah. However, the
Addl. DG may look into the matter and proceed against him if he
considers that false information was furnished.
3.
It is informed by the Addl. DG that efforts are being
made to cause the arrest of the accused persons, but they are
SMC 24/2010 [HAJJ SCAM]
4
getting bails from the courts of law. However, it has been pointed
out to him that they should approach the same court or the higher
court and provide them assistance to pass appropriate orders under
the law.
4.
It is also complained by the Addl. DG that about four
letters have been sent to the State Bank of Pakistan for the purpose
of furnishing details of bank accounts of accused Abdullah Khokhar,
Syed Hamid Saeed Kazmi, Aftab-ul-Islam Raja and others, but so
far no cooperation has been extended. The Governor State Bank is
hereby directed to cooperate with the FIA and issue instructions to
the concerned authorities to do the needful.
5.
Mr. Shaukat Hayat Durrani, Secretary Religious Affairs
has submitted a report, which is quite satisfactory as payment of
Pak Rupees equal to SR 700 per pilgrim has already been made to
99 % affected pilgrims. We appreciate the task, which has been
completed by the Secretary and he may take further steps to
distribute the left over amount to the remaining one percent
pilgrims.
6.
Mr. Abdul Hafeez Pirzada, Sr. ASC has stated that a
Committee has already been constituted to look into the cases of
persons who were appointed on contract basis. We may observe in
loud and clear terms that appointments on contract basis are not
allowed to be continued in terms of section 14 of the Civil Servants
Act, 1973, and the Policy unless the conditions specified therein are
satisfied. Apparently, it seems that the Government is not interested
in obeying the order of the Court because so far the contract
appointments of only 9 officers have been terminated whereas there
is a list of more than 100 persons serving on contract basis in
SMC 24/2010 [HAJJ SCAM]
5
different capacities, including Secretaries awaiting orders thereon. It
is also to be noted that this Court has more than once observed that
incumbent DG, FIA who himself is holding this post on contract basis
in a disciplined force, is responsible for not allowing the investigation
of the instant case to proceed in a transparent manner, however,
despite these observations, no action has been taken against him.
Mr. Pirzada has stated that the fate of DG, FIA will be decided within
3 days and report shall be submitted to the Registrar of this Court
for perusal in Chambers.
8.
Let the main case be adjourned for a period of two
weeks. In the meanwhile, as already directed, the Addl. DG shall
continue submitting report for perusal by one of us (Raja Fayyaz
Ahmed, J in Chambers).
IFTIKHAR MUHAMMAD CHAUDHRY, C.J.
JAVED IQBAL, J.
RAJA FAYYAZ AHMED, J.
MUHAMMAD SAIR ALI, J.
ASIF SAEED KHAN KHOSA, J.
GHULAM RABBANI, J.
ISLAMABAD
1st March, 2011
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT:
MR. JUSTICE TASSADUQ HUSSAIN JILLANI
MR. JUSTICE MIAN SAQIB NISAR
Suo Moto Case No. 25 of 2009
(Cutting of Trees for Canal Widening Project Lahore).
In Attendance:
Ms. Imrana Tiwana, Convener LBT (Lahore
Bachao Tehrik / Save Lahore Movement)
Ms. Iram Aftab, LBT
Ms. Ayesha Batool
Mr. Ali Hassan for WWF, Pakistan.
Ms. Naumana Amjad, Assistant Professor of
Psychology, Punjab University.
Mr. Kamil Khan Mumtaz, (Architect).
Ms. Saima Ameen Khawaja
Lt. Col. (R) Ijaz Nazim. NGO Shajardost.
Mr. Alexander Uvidine
For Govt of Punjab:
Ch. Hanif Khatana, Addl.A.G. Pb.
Mr. Jawwad Hassan, Addl. A.G. Pb.
Mr. Salman Aslam Butt, ASC
Nasim ur Rehman, Dy: Director, Environmental
Protection Authority
Court Mediator:
Dr. Parvaiz Hassan, Sr. ASC
Date of Hearing:
15.08.2011.
JUDGMENT
Tassaduq Hussain Jillani, J. –Any city gets what it admires and
what it pays for and ultimately deserves. And we will probably be judged not for
the monuments we build but the monuments we destroy. Echoing the spirit behind
this powerful quote (by Ada Louise Hustable, Pulitzer Prize Winning Architecture
Critic), the petitioner Lahore Bachao Tehrik (‘LBT’) has challenged the project of
Suo Moto Case No. 25 of 2009
2
Government of Punjab for widening of the 14 Km long Canal Bank Road
(“Canal Road”) Section falling between Dharampura Underpass and Thokar Niaz
Baig in Lahore (“Canal Road Project”) which, according to it, would not only
destroy the green belt/park on both sides of the Bambawali-Ravi-Bedian (BRB)
Canal, but also fail to solve the problem of traffic congestion at Canal Road for
which the Canal Road Project has purportedly been designed. It is contended by
the petitioner that the issues of traffic congestion can be resolved by complying
with Urban Town Planning and sustainable urban transport which include
alternatives based on public transportation instead of private transportation. The
petitioner has also prayed that the Canal Park/Green Belt along the Canal Road be
notified as a heritage site. The petition reflects a strong passion for issues of
environmental and ecological concern.
2.
Petitioner is statedly an umbrella organization consisting of
members from other organizations such as Institute of Architects Pakistan,
Pakistan Council of Architects and Town Planners, the World Wide Fund for
Nature-Pakistan, the Pakistan Medical Association, the Pakistan Environmental
Lawyers Association, Simorgh, Shirkatgah, Shehri-CBE, the Lahore Conservation
Society, Shajar Dost, Subh-e-Nau, Lahore Chitrkar, the Office of Conservation
and Community Outreach, the Punjab Urban Resource Center, other NGOs,
professionals, architects, town planners, environmentalists, doctors, lawyers,
historians, economists, the academics and students of schools, universities,
colleges as well as the citizens of Lahore. It was formed in 2006 with the object to
protest against the proposal framed by the Traffic Engineering and Planning
Agency (“TEPA”) to widen the Canal Road.
3.
Initially this petition was a letter from LBT addressed to the
Honorable Chief Justice of Pakistan in which LBT claimed that the Canal Road
Project was a violation of fundamental rightof life guaranteed under the
Suo Moto Case No. 25 of 2009
3
Constitution. The Hon’ble Chief Justice converted it into a petition and issued a
suo moto notice under Article 184(3) of the Constitution to the respondent-
authorities. In compliance of the suo moto notice, the Government of Punjab filed
its comments/written statement.
4.
In support of this petition, it was submitted and argued by the
petitioners as follows:-
(i)
that the declared objectives of the Canal Road Project i.e. (i)
the facilitation of fast and efficient traffic movement; (ii)
overcoming traffic congestion and bottlenecks, and (iii) to
provide easy traveling conditions between the northern and
southern parts of the city of Lahore would not be achieved by
widening of the road.
(ii)
that Environmental Impact Assessment carried out and the
report (EIA Report) so submitted approving the Canal Road
Project is flawed because it does not consider the following
alternatives to alleviate traffic congestion which are (i)
investment in public transport including taxi services; (ii)
rationalization of parking fees, (iii) congestion charging; (iv)
soft traffic management; (v) demand management; (vi) better
use of existing facilities; (viii) avoiding VIP traffic congestion
and (ix) enforcement and implementation of traffic regulations.
(iii)
that the three traffic bottlenecks along the Canal Road which
have been cited as justification for widening the said road are
not caused by the width of the road but by the fact that traffic
must “crisscross” on account of underpasses’ position on
alternate sides of the road. The EIA Report failed to point out
that this cause of traffic disruption would be further
Suo Moto Case No. 25 of 2009
4
confounded by widening of the road and allowing more traffic
unto it.
(iv)
that both the EIA Report and the TEPA have not considered
the impact of Lahore Ring Road Project as well as of proposed
public transport initiative of the Government of Punjab i.e.
Lahore Rapid Mass Transit Project and the Lahore Bus
Company Project which have taken place after the grant of
environmental approval. The Precautionary Principle in
environmental regulations warrants that a separate EIA of
Canal Road Project should include consideration of the afore-
referred new developments.
(v)
that according to the Precautionary Principle of environmental
regulations, enshrined in our jurisprudence by the Shehla Zia
Case (PLD 1994 SC 693), it is imperative “to first consider the
welfare and safety of the human beings and the environment
and then to pick up a policy and execute the plan which is more
suited to obviate the possible dangers or make such alternate
precautionary measures which may ensure safety”, it is argued
that the Government of Punjab should adhere to the
Precautionary Principle and have EIAs conducted of Canal
Road Project. The Precautionary Principles enjoins decision
makers to err on the side of caution when it comes to project
likely to cause an adverse environmental effect.
(vi)
that the environmental approval granted to the Canal Road
Project is illegal, void and of no legal effect because the
Environmental Protection Agency, Punjab (“EPA-Punjab”)
unlike the Pakistan Environment Protection Agency (the “Pak-
Suo Moto Case No. 25 of 2009
5
EPA”) set up under section 5 of the Pakistan Environmental
Protection Act, 1997 (“PEPA”), is not an independent agency.
The EPA-Punjab is very much part of the Government of
Punjab and, to date, no clear demarcation has been made of
between its functions and the functions of the Environment
Protection Department of the Government of Punjab. As such,
it is a violation of the principles of natural justice that EPA-
Punjab presided over the determination/consideration of the
Canal Road Project when the main financer of the said project
was the Government of Punjab. In the afore-referred
circumstances, it was contended that EIA of the TEPA Project
ought to have been carried out by the Pak-EPA, which is the
only unbiased institution within the scope of PEPA that can
conduct reviews of EIAs submitted by Provincial or Federal
Government agencies.
(vii)
that the environmental impact of the Canal Road Project should
be taken into account before commencing it.
(viii) that the World Wide Fund for Nature-Pakistan conducted an
ecological assessment of flora, fauna and wildlife along the
Canal Road. This area has immense ecological importance with
a lot of wild life specie of birds, trees and small animals. With
the proposed widening of the road, the centuries old ecological
linkages would be broken resulting in habitat destruction for
birds and small animals.
(ix)
that the habitat of Lahore Canal Bank has different types of
trees and shrubs. As per WWF-Pakistan 2008 Report, there are
14,873 trees and 6,557 shrubs in the area. Major trees include
Suo Moto Case No. 25 of 2009
6
Eucalyptus, Poplar, Jaman, Mango, Banyan, Pipal, Amaltas
and Bottle Brush etc. All these trees and shrubs were
thoroughly identified and counted.
(x)
that the trees and plants contribute significantly towards
purification. They make their own food from Carbon Dioxide
and release Oxygen for us to breath. They also help to settle
out, trap and hold particulate pollutant (dust, ash, pollen and
smoke) that can damage human lungs. Particulates are trapped
and filtered by leaves, stems and twigs, and washed to the
ground on rainfall. The loss of trees in our urban areas not only
intensifies the urban heat-island effect from the loss of shade
and evaporation but we lose a principal absorber of carbon
dioxide and the trappers of air pollutants as well. A single tree
can absorb as much as 330 lbs of carbon dioxide, 4 lbs of
ground level ozone and 3 lbs of particulate matter.
(xi)
that the Lahore Canal through its distributaries has played a
pivotal role in nurturing the city landscape in the growth of
gardens and other green areas.
(xii)
that the canal with the passage of time, however, has lost its
original role of supplying water to the city but has assumed a
new role as a roadway and a continuous belt of green space that
stretches from one end of the city to the other. The widening of
the road project is likely to adversely affect the said green
belt/park.
(xiii) that the well known “Doctrine of Public Trust” as recognized
and reiterated in various judgments of the High Court and of
this Court enjoins city fathers to maintain guardianship and
Suo Moto Case No. 25 of 2009
7
stewardship of the people’s priceless and historic natural
resources as they transform their utility, over the course of
time, to meet the needs of people of a city.
5.
In the concise statement submitted by the Government of Punjab,
it has been averred as follows:-
(i)
that the Canal Road Project was designed and approved in
public interest and with a view to improve the drastically
deteriorating traffic conditions on the Canal Road. The total
cost of Canal Road Project is Rs.800 Million.
(ii)
that the Canal Road Project contemplates addition of 18 feet
wide lane to the already existing two lane Canal Road along
with earthen shoulder of 6 feet on both sides of the canal as
well as bus bays and shelters, traffic control and service level
improvements, development of green areas along the Canal
Road and plantation of trees thereon.
(iii)
Explaining the background and justification of the project, it
was further averred that according to Economic Survey of
Pakistan for the year 2008-09 conducted by the Ministry of
Finance, Government of Pakistan, the current population of
Pakistan is 163.76 Million which is estimated to grow to 197
Million by the end of 2020 and 55% of the population lives in
the Province of Punjab.
(iv)
that Lahore besides being the socio-economic and cultural
capital of the Province of Punjab is the second largest city in
Pakistan and its current population is estimated to be in excess
of 9 Million. In addition thereto, the city accommodates an
Suo Moto Case No. 25 of 2009
8
additional one million visitors from the adjoining areas/districts
as well as from across Pakistan.
(v)
that on account of the population explosion and demographic
changes in the city of Lahore, following factors have led to
increase in volume of traffic in general and on the Canal Road
in particular:-
(a)
In order to accommodate the ever growing population of
Lahore, after 1978, a number of housing schemes like
Awan Town, Campus Colony, Canal View Cooperative
Housing Society, Hamid Park Housing Scheme (HS),
Rehmanabad, Township etc. got approval from the
Government of Punjab. As the demand for housing further
increased at an exponential rate, there was a boom of
housing schemes in Lahore from early 1990’s onwards.
The major schemes developed in this period were West
Wood Colony, Ittefaq Town, Campus View Town, Tech
Society, Pakistan International Airline (PIA) Housing
Scheme Phase I & II, Ghousia Town, Pakistan Council of
Scientific and Industrial Research (PCSIR) Cooperative
Housing Society Phase I & II, National Fertilizer
Corporation Housing Scheme, Punjab Govt. Employees
Housing Scheme Phase-II, WAPDA Town, Beharia Town,
Eden Housing Scheme to name but a few (collectively the
Southern Residential Areas) wherein reside hundreds of
thousands of people from all socio-economic backgrounds.
It may be noted that most, if not all, of these housing
schemes are situated south/south-west of Lahore and are
Suo Moto Case No. 25 of 2009
9
accessible from various points within the city mainly via
the Canal Road.
(b)
Lahore also witnesses rapid industrialization due to the
phenomenal success of the textile industry in Pakistan. As
a consequence whereof, at present there are currently
hundreds
of
industrial
units
operating
on
the
southern/south-western side of Lahore, particularly along
the Multan Road and Raiwind Road which employ
hundreds of thousands of people from Lahore. In this
regard, it is pertinent to point out here that both Multan
Road and the Raiwind Road are accessible from various
points within the city mainly via the Canal Road.
(c)
The Multan Road, being situated at the tip of the southern-
most section of the Canal Road, also serves as Lahore’s
main entry/exit point for millions of people annually.
(d)
The Canal Road is the main artery and the spine of
Lahore. It is also the longest double road connecting areas
lying to the north of the City (for example Dharampura,
the Mall Road etc) to those in the south (for example the
southern residential areas, the Multan Road and Raiwind
Road). In addition thereto, as the Canal Road cuts across
the city, it also serves as the main feeder/link road to all
the major inner-city roads such as the Link Road,
Ferozepur Road, Jail Road, the Mall Road etc.
(e)
The traffic conditions on the Canal Road have been
gradually deteriorating over the past many years on
account of the fact that over the past two decades (1981-
Suo Moto Case No. 25 of 2009
10
2000) the number of vehicles in the city have increased
from 13 vehicles per 1000 inhabitants to 35 vehicles per
1000 inhabitants and are likely to grow even further in the
coming years. Furthermore, in the years leading up to
2006, traffic volumes on the Canal Road have grown to
more
than
twice
the
existing
road
capacity
of
approximately 100,000 vehicles per day, making it one of
the busiest roads in Lahore.
(vi)
that on account of immense increase in volume of traffic, the
successive Provincial Governments have been taking steps to
improve the traffic conditions in Lahore especially along the
Canal Road which included construction of nine underpasses
and inter-sections at major junctions along the Canal Road.
There has also been widening of other roads along the length of
underpasses/inter-sections to a certain extent i.e. several roads
including Jail Road, Ferozepur Road, Wahdat Road and Bund
Road were widened.
(vii)
that the Provincial Government also took steps to promote
public transport by setting up Lahore Transport Company,
acquisition of more than 2000 environmental friendly CNG
busses, phasing out of existing diesel busses, conversion of
existing diesel busses to CNG buses, phasing out of pollution
causing two stroke auto rickshaws and replacing it with
environmental friendly four stroke CNG rickshaws in the city
and the rickshaws drivers have been given loans on easy
installments to purchase the afore-referred four stroke CNG
Suo Moto Case No. 25 of 2009
11
rickshaws. Besides the above, the Government has also decided
to introduce Rapid Mass Transit System in the city.
(viii) that despite the measures taken by the Provincial Governments
from time to time to which reference has been made above,
traffic load on the Canal Road has been ever increasing and
many traffic related problems/issues necessitated the need for
widening Canal Road. Some of these issues are as follows:-
(ix)
that before commencement of the project, it was deemed
imperative to conduct Environmental Impact Assessment (EIA)
for approval of the Punjab Environmental Protection Agency in
terms of section 12(1) of PEPA read with Pakistan
Environmental Protection Agency (Review of IEE and EIA)
Regulations, 2000 (“Review of IEE and EIA Regulations”).
For the said purpose a public notice was given through English
Daily ‘Pakistan Times’ and Urdu Daily ‘Nawa-e-Waqt’ and
tenders were called from reputable companies having requisite
skill and experience to carry out the EIA of the Canal Road
Project. Two consulting firms applied and ultimately National
Engineering Services of Pakistan (“NESPAK”) was chosen as
consultants for carrying out the EIA of the Canal Road Project.
(x)
that EIA of the Canal Road Project was duly prepared by the
NESPAK in January 2007 in accordance with PEPA, the
Review of IEE and EIA Regulations as well as the Guidelines
for Preparation of and Review of Environmental Report.
(xi)
that EIA Report explained in depth the rationale of the Canal
Road Project, its benefits and also cautioned against its
negative impact as it required cutting down of trees growing
Suo Moto Case No. 25 of 2009
12
along the right of way of the Canal Road. It also conducted a
tree count along the Canal Road in order to determine type and
number of trees required to be removed. For the said purpose,
the Canal Bank is divided into three sections. According to the
said report, approximately 60% of trees on the road are
eucalyptus (Sufaida) which according to it is not a native tree
of the country and is rather hazardous because it consumes
much quantity of water and thereby lowering the water table; it
causes soil erosion of the adjoining areas; the oil released from
the roots of the eucalyptus plant is known to contaminate
underground water reservoirs; it does not have any significant
impact in removing air pollution. It does not support nestling
for local as well as migratory birds and because of its negative
environmental impact, the Government of Punjab had banned
its plantation except in water-logged areas. The EIA Report
concludes that cutting of eucalyptus trees would in fact have
positive impact on environment. Nevertheless, cutting of trees
in general was found to have overall adverse effects on
environment and the EIA Report recommended certain
mitigation measures during the construction phase as well as
the operation phase of the Canal Road Project. Among other
measures, it suggested that TEPA in coordination with the
Punjab Parks and Horticulture Authority should initiate a
program for plantation of four type of indigenous tree specie
along the Canal Road for every tree felled/removed. EIA
concluded that new plantation of indigenous tree species would
not only improve the ecological habitat of the Canal Road, but
Suo Moto Case No. 25 of 2009
13
would also minimize excess noise, vehicular and dust
pollution. This suggestion qua tree plantation, according to
EIA, is being implemented forthwith.
(xii)
that EIA Report was duly submitted by TEPA to the EPA-
Punjab for approval pursuant to S.R.O. 1251(1)/98 dated
27.10.1998 of the Ministry of Environment, Local Government
and Rural Development, Government of Pakistan. Prior to its
approval in terms of Regulation 10 of Regulations read with
section 12(3) of PEPA, a public hearing was done through
public notice appearing in two daily newspapers. The public
hearing took place and various objections and suggestions were
considered. Some of the objections raised concern that the
number of trees to be cut down would be approximately
30,000; that the project would entail conversion of 50 acres of
green belt/park running along the Canal Road and thereby
resulting in change of land use; that since both EPA and
respondent No.1 are under control of Government of Punjab,
the EIA should have been submitted to Federal Environmental
Protection Agency and that NESPAK was not competent to
undertake EIA of the project. Respondent made the afore-
referred objections by filing a detailed statement before the
Environmental Protection Agency and among other things, it
was pointed out that the number of trees to be cut down would
not be 30,000 but only 1850 and that the apprehended adverse
effects on environment resulting from the project after removal
of trees stand negated by complying with the Environment
Mitigation Plan recommended in the EIA by NESPAK.
Suo Moto Case No. 25 of 2009
14
(xiii) that the EPA-Punjab after receipt of written reply from TEPA
constituted a Committee of experts in terms of Regulation 11
of the IEE and EIA Regulations with a view to assist it in
assessing the environmental impact of the Canal Road Project.
The recommendations of said Committee of Experts were
considered by EPA-Punjab whereafter it approved the Canal
Road
Project
vide
approval
bearing
No.
DDEIA/F-
22/Cir/EIA/3725 dated 19.7.2007 (Environmental Approval).
The said Environmental Approval laid down stringent
conditions for TEPA in undertaking the construction phase of
the Canal Road Project wherein some of the measures which
were directed to be undertaken are as follows:-
(a)
strict adherence to the Environmental Management
Plan in order to minimize any negative impacts on
soil, ground water, air and biological resources of the
project area;
(b)
strict compliance with the National Environmental
Quality Standards;
(c)
the carrying out of extensive tree plantation,
especially indigenous species in and around the
project area in consultation with the PHA and to make
all arrangements for the transplantation of existing
trees; and
(d)
the plantation of four (4) trees having 6-7 feet height
for every single uprooted tree.
(xiv) that on account of delay in its implementation, the cost of the
Canal Road Project has increased significantly, the traffic
Suo Moto Case No. 25 of 2009
15
conditions on the said road have been worsening/deteriorating
in line with the traffic forecast of EIA Report submitted by
NESPAK and the Government of Punjab has to inject an
additional sum of Rs.2.00 billion for initiation/completion of
the Canal Road Project.
6.
On 14.2.2011, a Bench of this Court headed by the Hon’ble Chief
Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry with the consent of
the convener of LBT Ms. Imrana Tawana and respondent-Provincial Government
nominated Dr. Pervez Hassan (who has an expertise in environmental law and has
illustrious background of public service in the said field both at international and
domestic levels) as a mediator. The order further stipulated that he may associate
any other person or expert or official of the Government of Punjab for the purpose
of such mediation and for finding suitable resolution of the matter.
7.
Dr. Pervez Hassan submitted a detailed report to the Court on 14th
of May, 2011 which indicates that he in consultation with learned counsel for the
petitioner Mr. Ahmer Bilal Soofi and counsel for the Provincial Government Mr.
Salman Butt formed a Committee of eights members having illustrious
background of public service in various fields. The members of Committee were:-
(i)
Syed Babar Ali, former President, WWF International and
WWF Pakistan.
(ii)
Mr. Sartaj Aziz, Vice Chancellor, Beaconhouse National
University.
(iii)
Sardar Ayaz Sadiq, Member, National Assembly.
(iv)
Mr. Javed Jabbar, Vice President, IUCN.
(v)
Mr. Arif Hassan, urbanist and planner.
(vi)
Dr. Abid Qaiyum Suleri, Executive Director, Sustainable
Development Policy Institute Islamabad.
(vii)
Mr. Nadeem Hassan Asif, Commissioner Lahore.
(viii) Dr. Mira Phailbus, former Principal, Kinnaird College for
Women.
Suo Moto Case No. 25 of 2009
16
8.
One of the petitioners namely Mr. Ahmad Rafay Alam was
appointed as Secretary of the Committee. The committee held several meetings,
made visits of the Canal Road, solicited the opinions of experts, carried out public
hearings, considered the stand of LBT and also of the Government of Punjab and
barring one exception (Dr. Arif Hassan) made recommendations with consensus
which are as follows:-
Consensus of the Committee
Based on the information presented to it, the Committee notes
the rapid increase in the number of automobiles registered in
Lahore from 702,734 in 2004 to 1,747,600 in 2011. This rate
of increase in the number of automobiles registered in Lahore
is greater than the rate of population increase, which is a fact
that points to the widening social and income disparities. The
Committee also noted that, at the current rate, the number of
automobiles registered in the city of Lahore could double every
six (6) to seven (7) years.
The mushroom increase in automobiles has also led to an
increase in automobile emissions (which are greenhouse gases
that contribute to climate change) and to a detrimental effect on
the quality of air in Lahore. The Committee noted with some
concern that the recorded air quality in Lahore was in excess of
National Ambient Air Quality Standards and was classified as
unhealthy in some areas.
The urbanization of Lahore has also been unprecedented. The
population of the city was less than 900,000 at the time of
Partition and has since grown to about 10 million today.
Future demographic projections estimate that, by 2020, the city
will have a population of 15 million. This increase in
population has placed – and will continue to place –
considerable stress on available housing stock, the sewage and
sanitation infrastructure, healthcare facilities, education
institutions and recreational spaces. The Committee noted with
concern that the rapid growth of the city has not been helped by
the unplanned mushrooming of private housing societies,
industrial units and hospitals.
The Committee is of the view that societies that do not anchor
their growth on long term plans are afflicted with the on-going
urban issues the city of Lahore is currently facing. The
Committee examined the salient features of the Master Plan for
Greater Lahore, 1966, the Master Plan of Greater Lahore
1980, the Comprehensive Study on Transportation System in
Lahore prepared by the Japan International Cooperation
Agency (“JICA”) in 1991 and the integrated Master Plan for
Lahore 2021 prepared by the NESPAK and approved by the
Suo Moto Case No. 25 of 2009
17
Lahore Zila Council in 2004 (for a detailed analysis of these
previous plans, reference may be had to presentation by Mr.
Umar Farooq attached as Annexure D/10 and for a quick
reference to the 1991 JICA Plan and Lahore Mass Transit
Project, reference may be had to Annexure G. The Committee
was also informed of the Lahore Rapid Mass Transit Project
and the ongoing Lahore Urban Transport Master Plan study
being jointly conducted by the Transport Department of the
Government of Punjab and JICA. It was also informed of the
various road engineering projects underway and planned by
the Government of Punjab.
The Committee is of the view that the cumulative effect of the
forces affecting the city of Lahore has been to remove and
exclude its residents, especially the common man, from the
growth and development of their city. The Committee
recognizes that every citizen of the city has, at some level, a
right to the city and that this right, in its essence, is one of
meaningful participation in the growth and development of the
city. The Committee is of the opinion that its proceedings are
atleast one example of the exercise of such a right and has
proceeded with the intent and purpose of giving the city of
Lahore back to the people. It appears imperative to move
towards public transportation and mandatory school/college
bus transportation to achieve these goals of social equity and
thereby reducing traffic congestion.
G. Recommendations
There was a general consensus at the hearings that the present
design and engineering of the Canal Road has serious flaws
that contribute in no small measure not only to traffic
congestion but also to road safety hazards.
Even if one were inclined to support the plea of the Punjab
Government for the widening of the road on the ground of
increasing traffic congestion, the most revealing admission
before the Committee was that this widening would, in the
absence of other required mitigating measures, serve the traffic
needs only for the next 4-5 years. In effect, we would need more
lanes in the future. This way, most of the green belt of the Canal
Bank Corridor, a valuable part of Lahore’s legacy and
heritage, could be lost for future generations. The Committee
cannot, in all good conscience, be a party to the disappearance
of the Canal and its green belt.
Based on the opinions and weighty engineering data provided
by
experts,
the
Committee
makes
the
following
recommendations:
1. Declare the Lahore Canal Area to be a Heritage Urban Park
The green belt along the Lahore Canal and on either side of the
Lahore Canal Road, from where it begins near (Jallo) the BRB-
Suo Moto Case No. 25 of 2009
18
Link Canal till Thokar Niaz Beg should be declared a heritage
urban park under special legislation drafted specifically for this
purpose. Declaring the Canal Road area a heritage urban park
would be to protect its ecosystem from further degradation,
make it accessible to the public and common man as well as for
the purposes of controlling traffic along the Canal Road and
for taking measures to clean the water that flows in the Lahore
Canal. A proposed draft of the Lahore Canal (Heritage Urban
Park) Act, 2011 is attached as Annexure H. The Government of
the Punjab is requested to initiate the implementation of this
recommendation.
2. Correct the “Incorrect Underpasses” on the Canal Road
During the proceedings of the Committee, it became clear that
the design of the underpasses at Jail Road and Ferozepur Road
(the “Incorrect Underpasses”), the first two underpasses built
in Lahore and designed by NESPAK, were not in accordance
with appropriate traffic engineering solutions and that these
Incorrect Underpasses constitute a serious traffic safety
hazard.
The Incorrect Underpasses are incorrectly situated in the
slower/left lanes. International design standards and
conventions stipulate that underpasses are to be located in the
fast lane. Due to this flaw, the through traffic movement
towards the Incorrect Underpasses is suddenly diverted to the
left lane instead of flowing straight in the right lane as is the
case with all the other underpasses later correctly constructed
along the Lahore Canal Road. A diagrammatic representation
of the design flaw in the Incorrect Underpasses is given below:
2
20 April 2011
Lahore Bachao Tehreek
It can be seen that for the through traffic moving in the
right/fast lane, electing to use an underpass (red lines) requires
an abrupt change in lanes and a move to the slower/left lanes.
This “weaving” creates a direct conflict with the traffic moving
in the slow lane, which is forced to dangerously traverse on to
the right lane towards the at-grade-junction/intersection.
Fast-moving traffic moving through and out of the Incorrect
Underpasses also meets with slower vehicular movement
coming from the at-grade-junction / intersection (green line).
Resultantly, the fast-moving traffic going through and coming
out of the Incorrect Underpasses criss-crosses with slow
Suo Moto Case No. 25 of 2009
19
moving traffic and creates direct conflict points (red circles)
instead of smooth weaving and merging. This raises serious
road/traffic safety issues and destructs the smooth flow of
traffic. As Mr. Karamat Ullah Chaudhry, former Managing
Director, NESPAK, explained, in an email to the Committee
dated 3 May 2011:
The reason I said the design was wrong was based on the fact
that in these two underpasses at Jail and Ferozepur Road, the
traffic from the slow lane not wishing to enter the underpass
has to cross the fast lane if it wants to exit. Secondly, on the
other side the traffic entering the main flow coming out of the
underpass enters the fast lane. … [I]f the vehicle is a rickshaw
how it can manage this…. Traffic wishing to leave or enter a
main flow should always do so from/to slow lane, or the lane on
the left. If traffic enters the fast lane, it is downright dangerous.
The Incorrect Underpasses, therefore, need to be re-aligned
and reconstructed in accordance with internationally accepted
design standards and parameters.
Similarly, the Committee noted that the bypasses at the Jinnah
and Doctor’s Hospital intersections required geometric
improvements as the fast and slow-moving traffic do not
smoothly weave and merge. This causes traffic conflict points
and creates traffic safety hazards. A representation of the
problem is given below:
22
20 April 2011
Lahore Bachao Tehreek
3. Re-engineer the Junctions along the Canal Road
There are, broadly, two (2) categories of intersections along the
Canal. These are:
(1) Roads traversing through the Canal Road
With respect to these types of intersections, the Committee
noted the fact that, in all, there were twelve (12) such
intersections over the Lahore Canal and that several of these
intersections carried significantly higher traffic volumes across
the Canal Road than the traffic that flowed on the Canal Road.
Suo Moto Case No. 25 of 2009
20
The straight and turning traffic movement along the Canal
Road that does not go through the underpasses also uses these
intersections. It was observed by the Committee that the
designed capacity of these intersections is not sufficient to
accommodate the large traffic volumes and that as a result,
there are bottlenecks on these intersections. It is recommended
that these intersections are re-modelled after a traffic capacity
analysis and designed in accordance with standard geometric
design. This will help to have a smooth flow of traffic at these
intersections and will reduce congestion. In addition, signals
along the corridor and at intersections over the Canal Road
should be gully actuated and traffic signage should be of
international standard.
(2) Roads and streets connecting to the Canal Road
These roads and streets connect the Canal Road and
predominantly emanate from housing schemes and individual
houses. The Committee noted that these were unplanned access
routes built for a variety of reasons, which provide connectivity
to the housing schemes or private residences along the Canal
Road. The traffic entering and exiting from these intersections
slows traffic movement along the Canal Road. This leads to
undue stoppages and causes congestion.
The Committee is of the opinion that there should not be direct
connections of the Canal Road to housing schemes and private
residences. Traffic generated and attracted by these housing
schemes and residences requires the construction of a network
of service roads, preferably in a one-way loop system, with
proper geometrics to enable smooth weaving and merging of
traffic from and onto the Canal Road.
Also, bus bays constructed along the length of the Canal Road
require redesigning in order to facilitate the smooth entry and
exit of vehicles and to minimize traffic turbulence.
4. Construct Service Roads along Certain Parts of the Canal
Road
The Committee specially notes that there is no service road
along the stretch of the Lahore Canal from the Doctor’s
Hospital intersection to Thokar Niaz Beg. The absence of a
service road along this stretch of the Canal road corridor has
resulted in numerous direct access roads, connecting the
various housing schemes and private residences. The direct
traffic entry and exit from these developments on to the Canal
Road results in traffic conflict points, disrupts smooth flow of
traffic and causes congestion, delays and accidents.
The Committee is of the opinion that there is an immediate
requirement to provide a one-way loop service road system
along the entire length of the Canal Road (except the Punjab
University premises between the Campus underpass and the
Suo Moto Case No. 25 of 2009
21
Jinnah Hospital underpass) with appropriately designed
smooth entry and exit points to avoid traffic turbulence and
congestion. In addition, the Committee recommends that
housing schemes and academic institutions that have absorbed
service lanes within their boundaries or in violation of zoning
laws should be approached to rectify this mistake. However, the
Committee also noted that some of these measures are already
being undertaken by the Punjab Government.
The service lanes can also serve as an alternative route for
emergency vehicles during traffic congestion as pointed out by
Dr. Rizwan Naseer (Annexure D/8).
5. Implement Traffic Management Programs
The Committee noted with some concern that the TEPA, LDA
and Government of Punjab had no medium term traffic
management programs for the city of Lahore. Such programs,
which are in contrast to the road development and
infrastructure projects being pursued elsewhere in the city, are
for the management of traffic. Such programs treat the existing
road network as a resource and generate management plans
geared to maximizing the usage of the resource. Management
proposals could include restricting the usage along certain
parts of the Canal Road to certain categories of vehicles. For
example, goods vehicles should be required to use the Ring
Road to access the M2 or N5, private vehicles can be
discouraged at certain times and along certain places and so
on. Incentives/disincentives can be created to influence traffic
frequency on the Canal Bank Road. These can, inter alia, be
congestion charges during certain hours, staggering the school
hours of educational institutions, requiring minimum number of
passengers in a car at peak hours to encourage pooling
arrangements.
6. Public Transportation
The Punjab Government has announced a dedicated commitment to
public transport. In the first phase, it plans to put 400 new buses on
the road by December 2011. This number should be increased.
Apart from increasing the number of buses, the Punjab Government
should require all major educational school and college systems to
provide mandatory bus services for all their students and staff. This
would drastically reduce congestion of cars on the Canal Bank
Road and other roads. Public transportation systems should be
supported by state of the art maintenance and servicing facilities.
There is need for a rapid mass transit system. This would be
planning in the right direction for a major urban metropolis. A
pictorial representation of the effect of potential public transport on
reduction of traffic congestion is given below:
Suo Moto Case No. 25 of 2009
22
7. Divert the Through-Traffic on the Canal Road onto New Traffic
Corridors
The Committee noted that the main entry and exit traffic hub for the
city of Lahore was towards its northern side from Shahdara along
the G.T. Road (N-5). This is due to the up and down country traffic
movement and the heavy influx from nearby Gujranwala and
Sheikhupura cities.
The traffic congestion on the Canal Bank Road is already being
relieved by recent completion/construction/planning of the
Northern Loop of the Ring Road and Multan Road. It is imperative
that the Southern Bypass connecting Ferozepur Road be completed
soonest.
A pictorial representation of the diversion to other/new traffic
corridors is given below:
N5 – Multan Road
2
20 April 2011
Lahore Bachao Tehreek
Lahore Ring Road
M2
Lahore Canal
A detailed description of the broad overall planning guidelines for
the city of Lahore can be seen in Mr. Umar Farooq’s presentation
(Annexure D/10) and to a summary of the same provided for in
Annexure G.
Suo Moto Case No. 25 of 2009
23
8. Declare the Punjab University New Campus area as a “Go-
Slow” Area
The Committee noted the fact that the present site of the New
Campus of the Punjab University was selected, befitting an
educational institution, because of its tranquil and serene nature
removed from the bustle of the city and perfect for academic
reflection. The unplanned growth of the city, however, has placed
the New Campus in the middle of the city and along an increasingly
congested and noisy Canal Road. The Committee is of the view
that the length of the Lahore Canal through the New Campus of the
Punjab University is of a particularly significant nature and that
efforts to reduce traffic congestion along this length of the Canal
Road was most important. Accordingly, given the status of the
educational institution, the Committee recommends that the length
of the Lahore Canal and Canal Road along and through the New
Campus of the Punjab University should be declared a special
traffic calming zone where a much lower speed limit, coupled with
speed breakers and other traffic calming devices, should be
enforced.
9. Treat the Lahore Canal in a Holistic Manner
The Committee was mindful that its terms of reference extended
along the Lahore Canal only from the Dharampura underpass to
the Thokar Niaz Beg overpass. However, the Committee was of the
opinion that the traffic management and urban planning issues of
Lahore were such that the Canal Road should be considered in its
entirety from where it begins near the BRB-Link Canal through the
Thokar Niaz Beg overpass. A holistic view of the city was
necessary and this could only be done if the Lahore Canal is
perceived within the overall comprehensive future of Lahore and its
surroundings.
10. Noise Pollution
The Committee also recognized that the increasing traffic on the
Lahore Canal Road would create huge noise and air pollution in
the years to come. The present noise levels already require some
mitigation measures such as the use of noise pads for adjoining
residential colonies, hospitals, and schools. But the trend to keep
adding more traffic lanes to meet increasing traffic over years
would reduce the Lahore Canal corridor to an unacceptable noisy
and polluted part of Lahore. The Committee’s recommendations
are shaped by this vision of the future.
11. Ecosystem Preservation
In his presentation, Study of Some Tree Species in Canal Bank Area
– The Long Green Corridor of Lahore (Annexure D/5), Dr. Khalid
Hamid Sheikh concluded, on a study of twenty four (24) species of
randomly selected trees, that the trees along the Canal were “well
developed”.
Suo Moto Case No. 25 of 2009
24
The WWF-Pakistan, in its Study of Ecology and Ecological
Linkages of Lahore Canal Bank from Mustafabad Bridge to Thokar
Niaz Beg found that there were some 21,430 trees and shrubs along
the Canal and some forty-four (44) bird species were identified.
The study also found that birds were ecologically linked to the tree
species growing along the Canal. Also, cavity nesters such as rose-
ringed parakeets, common mynas, spotted owl and coppersmith
barbets were observed nesting in the poplar, eucalyptus and pipal
trees along the Canal. A copy of the WWF-Pakistan ecological
survey is attached as Annexure I.
The Committee was of the opinion that the ecological heritage
represented by the Canal should be preserved for future
generations of Lahoris to enjoy.
12. Cleaning and Improving Water Quality of Canal
The sources of effluent, sewage and waste into the Lahore Canal
should be identified. Civil society as well as government agencies
should team up to clean the Lahore Canal so that exposure to its
water is not harmful or dangerous to health and with an aim of
bringing the quality of the water of the Lahore Canal to the
minimum guidelines determined by the World Health Organization
for recreational water use. The Committee was inspired by the
examples of civil society and government initiatives in cleaning up
the Boston Harbour in the USA and the Cheonggyecheon Stream in
Seoul, South Korea.
The Cheonggyecheon Stream before and after its greening
13. People-Centric Planning
The Committee noted that the urban planning agenda currently in
place is heavily in favour of automobile induced urban sprawl.
Sprawl is resource inefficient and takes away from what the
Committee believes should be the inspiration for urban planning
and development: the people of the city. The Committee would like
to recommend a change in the urban agenda to include a more
people-friendly and people-centric development. Pedestrians and
Suo Moto Case No. 25 of 2009
25
cyclists are routinely ignored in road planning. This orientation
needs to be balanced.
14. Restoring Communal Life on Canal
With reference to Recommendation 13 above, the Committee
appreciated the efforts of Mr. Abdul Jabbar Shaheen in creating
people-friendly environments along the Canal Road particularly
near Dharampura. The sight of the common man enjoying
recreational facilities, so ably put in place by Mr. Jabbar, is a great
example of how small efforts can restore communal life in our
cities. The Committee recommends the addition of such recreation
spots along the entire length of the Canal so as to promote and
protect democratic social interaction. In addition, and in
furtherance of Recommendations 12 and 13, the Committee
recommends the introduction and implementation of a monthly
“car free day” along the Canal Road. Such an event can be
organized in selected sectors of the Canal Bank Road, on a
rotational basis, with the assistance of the local administration and
would involve declaring the Lahore Canal a “car free” pedestrian
zone between given times of the day, promoting various sports and
recreational activities along the Canal and encouraging residents
and citizens to participate. This needs to be planned around
available parking facilities. The cleaner waters of the Canal would
be reclaimed as the largest urban swimming pool and a monthly
Lahore Canal “Carnival”/Meena Bazaar developed around the
“car free day” would soon develop into the city’s most used park.
Example of the PHA’s work along the Canal Road near Dharampura/Shalimar Underpasses
15. Public Participation in Lahore Canal Governance
The Committee is of the view that active communities and civil
society are necessary conditions for good governance and that, the
commitment of the members of the LBT in campaigning for the
preservation of the Lahore Canal displays an enormous goodwill.
The Committee is of the view that this enormous goodwill should be
harnessed for the greater good of this and future generations of
Lahoris and that, to this end, an Advisory Committee should be
established for the purposes of implementing and overseeing the
Suo Moto Case No. 25 of 2009
26
recommendations of the Committee. This is included in Chapter III
of the proposed Lahore Canal (Heritage Urban Park) Act, 2011
(Annexure H).
16. Ambulance/Medical Emergencies
The officials of Rescue 1122 emergency services repeatedly
stressed the importance of removing encroachments along the
Canal Road and ensuring a smooth flow of traffic at all times for
the purpose of facilitating emergency vehicles taking patients to
hospitals. The officials were of the view that while it was
acceptable that alternative routes to hospital and healthcare
facilities should be identified and developed in the long term, there
was a strong need for a short term solution to the congestion along
the Canal Road such as selected widening of the Road.
17. Limited Widening of Road
The total distance on one side of the Canal Road from Dharampura
to Thokar Niaz Beg is 14.5 KM. Out of these different sections, 6.59
KM road has already been widened before the reference of this
matter to mediation.
The congestion on the remaining about 8 KM is particularly acute
in certain locations, leading not only to prolonged delays but also
causing safety hazards because ambulances and rescue vehicles
are caught up in traffic and unable to move swiftly.
The Committee, after a detailed site visit to these stretches of the
Canal Road and discussion with the concerned officials,
recommends that this short-term congestion can be relieved to
some extent if the third lane is allowed to be added at the following
locations on both sides of the Canal:
? Mall Road to Jail Road …
525 M
(Eastern)
460 M
(Western)
? Jail Road to F.C. College…
550 M
(Eastern)
…
550 M
(Western)
? University Campus to Jinnah Hospital…
1,700 M
(Eastern)
…
1,700 M
(Western)
? Jinnah Hospital to Doctors Hospital…
700 M
(Eastern)
…
750 M
(Western)
These stretches totalling a maximum of 3.525 KM on each side, as
shown in Annexure J/1 to J/4, have 642 trees. And 60% (about 385)
of these trees are of eucalyptus specie. Every effort should be made
to build the third lane in these stretches on the edges of the existing
road to reduce to a minimum the area taken from the green belt on
both sides of the Canal Road.
The last stretch from Doctors Hospital to Thokar Niaz Beg (2.6
KM) is getting increasingly congested because of the volume of
traffic generated from housing colonies like M.A. Johar Town and
Suo Moto Case No. 25 of 2009
27
a large number of other colonies beyond Thokar Niaz Beg and
areas on and around Raiwind Road. However, with the
construction of service roads, as per Recommendation No. 4, the
flow on the Canal Road can be reduced. In addition, some
improvement can be achieved without encroaching on the green
belt, if the trees on the edges of the road causing bottlenecks (about
460 trees including about 310 eucalyptus) (Annexure K), are
removed to improve earthen shoulders and bus bays are provided
at suitable points. The Committee does not recommend the
widening of the Canal Road through a third lane in this stretch.
For each tree felled in any sector of the Lahore Canal Road, the
Punjab Government will plant at least a hundred (100) mature
trees in replacement.
18. Sector-Specific Recommendations
Although the mandate of the Committee from the Supreme Court
was only for the Canal Bank Road from Dharampura to Thokar
Niaz
Beg,
our
recommendations
cover,
because
of
the
interdependence of urban planning issues, the area upstream of
Dharampura as well as downstream from Thokar Niaz Beg in the
following, sector-specific recommendations:
(1) Jallo Mor to Dharampura Underpass
The Committee recommends a moratorium on all new commercial
activity and draws attention to the ongoing unplanned development
and encroachment (of green belt) activity in this sector. Service
roads in this sector deserve special attention.
The Punjab Government has no proposal for the Canal Bank Road
or an underpass in this sector but its future planning should be
guided by the Recommendations of the Committee.
(2)
Dharampura Underpass to Mall Road Underpass
The Committee is of the opinion that this sector is working well but
indicates that the encroachments and restrictions along the service
road should be removed in order to facilitate a smooth flow of
traffic.
The Punjab Government has no proposal for the Canal Bank Road
or an underpass in this sector but its future planning should be
guided by the Recommendations of the Committee.
(3)
Mall Road Underpass to Jail Road Underpass
The Committee is of the opinion that entry and exit points along
this sector may be streamlined to promote smooth entry and exit
from the Canal Road and to minimize traffic turbulence.
Suo Moto Case No. 25 of 2009
28
(4)
Jail Road Underpass to F.C. College Underpass
In addition to its Recommendation No. 2 above, the Committee
recommends the enforcement of land-use and zoning laws in the
areas adjacent to the Lahore Canal in this sector.
(5)
Campus Underpass to Jinnah Underpass
As per the recommendation of the Committee, this sector of the
Canal will be subject to traffic diversions to Multan Road on the
north of the Canal and Usmani Road on the South of Canal.
Appropriate signage will also be necessary to announce these
diversions. These diversions will also benefit from the signal free
corridor being constructed at Kalma Chowk for traffic flowing from
Garden Town to Liberty Market.
(6)
Jinnah Underpass to Thokar Niaz Beg
The Committee reiterates its Recommendation No. 7 above, namely
that traffic to the Old CBD and New CBD should be diverted from
the Canal Road and onto the Multan Road and the Southern Bypass
respectively. The Committee also recommends the construction of
radial/arterial roads along a northwest-southeast axis as proposed
by the 1991 JICA Lahore Urban Transport Master Plan. These
radial/arterial roads will also assist in diverting traffic from the
Canal Road as envisaged in Recommendation No. 4 above.
The Committee is also of the view that the results of the current
Lahore Urban Transport Master Plan study being conducted by the
Transport Department of the Government of the Punjab will be
instructive in this regard.
(7)
Beyond Thokar Niaz Beg
The Committee recommends a moratorium on new commercial
development as well a check on unplanned development along this
sector of the Lahore Canal just as it recommended in No. (1)
above.
H. Conclusions
In conclusion, the Committee points out that its
Recommendations form a complete package with each
component interlinked and complementing each another.
The Committee is of the opinion that the strength and
weight of its recommendations will be diluted if there is any
“cherry
picking”
of
its
recommendations.
The
implementation of the Recommendations should be owned
by the Government of the Punjab at the outset so that these
recommendations are implemented holistically both in
letter and spirit, through a detailed and co-ordinated work
Suo Moto Case No. 25 of 2009
29
plan, as a “compact” of the Government of the Punjab with
the city of Lahore.”
9.
Copies of the Mediation Committee Report were given to the
petitioner and all concerned. Petitioners mostly agreed with the recommendations
but have raised written objections mainly qua clause 17. Some of the objections
related to the procedure adopted by the Committee and some related to inclusion
of three members who according to petitioner, have political affiliations with the
Provincial Government and which may have affected their neutrality. It was
averred that out of eight committee members only two professional experts were
included. During course of arguments, on Court query, the Convener of the LBT,
Ms. Imrana Tiawana however, candidly stated that she agreed with 95% of the
recommendations made by Mediation Committee but took serious exception to
Clause 17 of the recommendations wherein the widening of road has been
increased from initial 1.5 KM to 3.5 KM without any reason. This widening was
opposed by the petitioner as according to her, after adoption of the proposed
Heritage Park Act and the recommended policy for the Canal Road as suggested
by the Mediation Committee, there would be no need for widening of the road
because the alternate measures proposed by the Mediation Committee would
solve the traffic congestion and other related issues. The recommended measures
include improvement of junctions, better traffic management systems, better
utilization of service roads, completion of other traffic related projects such as the
ring road and southern bypass, and the improvement of public urban transport,
creation of “go slow” areas and the improvement of the secondary and tertiary
road network etc will obviate the need of widening the Canal Road.
10.
Mr. Arif Hassan who represented the petitioners in the Mediation
Committee also objected only to the proposed widening. He was of the view as
follows:-
Suo Moto Case No. 25 of 2009
30
“I fully endorse the conceptual framework of mediation
report and recommendations 1 to 16. However, I do not
endorse recommendation 17 and feel the recommendations
in item 18 should be subservient to concept of not widening
any length of Canal Bank Corridor……..
The loss of 3.525 kilometers of exceptionally beautiful
landscape and flora should, in my opinion, not be permitted
simply because of automobile pressure. I would go a step
further and say that the some of the areas lost to automobile
along the Canal Bank can be reclaimed without increasing
traffic congestion.”
11.
Having considered the submissions made by petitioners, learned
counsel for the parties, the report submitted by the Mediation Committee and the
precedent case law relied upon, the issues which crop up for consideration
broadly speaking are as follows:-
i)
Whether the Canal Road Project is violative of the Pakistan
Environmental Protection Act (PEPA) and the regulations framed
thereunder?
ii)
Whether the approval granted by the Environmental Protection
Authority-Punjab (EPA-Punjab) was mechanical at the asking of
the Government of Punjab and does not reflect conscious
application of mind?
iii)
Whether the Canal Road Project is in consonance with the concept
of sustainable urban development?
iv)
Whether the precautionary principles of ecological protection as
reiterated in Shehla Zia’s case have been ignored in designing and
approving the Canal Road Project?
v)
Whether having consented to the referral of the matter to the
mediation, can the petitioners join issue with the recommendations
made by the Mediation Committee?
Suo Moto Case No. 25 of 2009
31
vi)
Whether the policy making domain in which the Canal Road
Project falls, is the exclusive preserve of Executive Authority and
can this Court, in these proceedings, interfere in the said domain?
vii)
Whether the project entailing widening of the road on both sides of
the Canal, which would have the effect of reducing the area of
green belt, is violative of the Doctrine of Public Trust? and
viii)
Whether the Canal Road Project, if implemented, is likely to cause
environmental degradation and thereby would be violative of the
fundamental rights of Right to life (Article 9 of the Constitution)
and Right to human dignity (Article 14 of the Constitution)?
Issues No. (i)
Whether the Canal Road Project is violative of the Pakistan Environmental
Protection Act (PEPA) and the regulations framed thereunder?
12.
Before dilating on the legality of the Canal Road Project, it would
be in order to refer to some of the relevant provisions under which it was
examined and approved. Section 12 of the PEPA mandates that initial
environmental examination and EIA would be carried out by concerned
government agency which in the instant case is Provincial Government of Punjab.
Section 12 reads as follows:-
“12.
Initial
environmental
examination
and
environmental impact assessment.--(I) No proponent of a
project shall commence construction or operation unless he
has filed with the Federal Agency an initial environmental
examination or, where the project is likely to cause an
adverse environmental effect, an environmental impact
assessment, and has obtained from the Federal Agency
approval in respect thereof.
(2) The Government Agency shall subject to standards fixed
by the Federal Environmental Protection Agency---
(a) …….
(b) review the environmental impact assessment and accord
its approval subject to such conditions as it may deem fit to
impose, require that the environmental impact assessment
be re-submitted after such modifications as may be
Suo Moto Case No. 25 of 2009
32
stipulated or reject the project as being contrary to
environmental objectives.
(3) Every review of an environmental impact assessment
shall be carried out with public participation and no
information will be disclosed during the course of such
public participation which relates to--
(i) ……..
(ii) ……..
(iii) …….
(4) The Federal Agency shall communicate its approval or
otherwise within a period of four months from the date the
initial environmental examination or environmental impact
assessment is filed complete in all respects in accordance
with the prescribed procedure, failing which the initial
environmental examination or, as the case may be, the
environmental impact assessment shall be deemed to have
been approved, to the extent to which it does not contravene
the provisions of this Act and the rules and regulations
made thereunder.
26. Power to delegate.--(.1) The Federal Government may,
by notification in the official Gazette, delegate any of its or
of the Federal Agency's powers and functions under this Act
and the rules and regulations made thereunder to any;
Provincial Government any Government Agency, local
council or local authority.
(2) The Provincial Government may, by notification in the
official Gazette, delegate any of its or of the Provincial
Agency's powers or functions under this Act and the rules
and regulations made thereunder to any Government
Agency of such Provincial Government or any local council
or local authority in the Province.”
13.
The powers of the Federal Government to carry out the EIA under
the law were delegated to the Provincial Government under the afore-referred
provision vide Notification No. SRO.1251(I)/98 dated 27.10.1998 which reads as
follows:-
“S.R.O. 1251 (I)/98.---In exercise of the powers conferred
by sub-section (1) of section 26 of the Pakistan
Environmental Protection Act, 1997 (XXXIV of 1997), the
Federal Government is pleased to delegate to the
Provincial Government, Province of the Punjab, the powers
Suo Moto Case No. 25 of 2009
33
and functions of the Pakistan Environmental Protection
Agency under the provisions of the said Act specified in
column (2) of the table below subject to the conditions and
limitations specified in column (3) of that table.”
14.
To give effect to PEPA, the Federal Government issued the
Review of IEE and EIA Regulations. A reference to some of these regulations
would be in order:-
“3. Projects requiring an IEE. A proponent of a project
falling in any category listed in Schedule I shall file an IEE
with the Federal Agency, and the provisions of section 12
shall apply to such project.
4. Projects requiring an EIA. A proponent of a project
falling in any category listed in Schedule II shall file an EIA
with the Federal Agency, and the provisions of section 12
shall apply to such project.
8. Filing of IEE and EIA. (1) Ten paper copies and two
electronic copies of an IEE or EIA shall be filed with the
Federal Agency.
(2) Every IEE and EIA shall be accompanied by---
(a) an application, in the form prescribed in Schedule IV;
and
(b) copy of receipt showing payment of the Review Fee.
10. Public participation---(1) In the case of an EIA, the
Federal Agency shall, simultaneously with issue of
confirmation of completeness under clause (a) of sub-
regulation (1) of Regulation 9, cause to be published in any
English or Urdu national newspaper and in a local
newspaper of general circulation in the area affected by the
project, a public notice mentioning the type of project, its
exact location, the name and address of the proponent and
the places at which the EIA of the project can, subject to the
restrictions in sub-section (3) of section 12, be accessed.
(2) The notice issued under sub-regulation (1) shall fix a
date, time and place
for public hearing of any comments on the project or its
EIA.
(5) All comments received by the Federal Agency from the
public or any Government Agency shall be collated,
tabulated and duly considered by it before decision on the
EIA.
11. Review
(1) The Federal Agency shall make every effort to carry out
its review of the IEE within 45 days, and of the EIA
Suo Moto Case No. 25 of 2009
34
within 90 days, of issue of confirmation of completeness
under Regulation 9.
(2) In reviewing the IEE or EIA, the Federal Agency shall
consult such Committee of Experts as may be
constituted for the purpose by the Director-General,
and may also solicit views of the sectoral Advisory
Committee, if any, constituted by the Federal
Government under subsection (6) of section 5.
(3) The Director-General may, where he considers it
necessary, constitute a committee to inspect the site of
the project and submit its report on such matters as may
be specified.
(4) The review of the IEE or EIA by the Federal Agency
shall be based on quantitative and qualitative
assessment of the documents and data furnished by the
proponent, comments from the public and Government
Agencies received under Regulation 10, and views of
the committees mentioned in sub-regulations (2) and (3)
above.
12. Decision
On completion of the review, the decision of the Federal
Agency shall be communicated to the proponent in the form
prescribed in Schedule V in the case of an IEE, and in the
form prescribed in Schedule VI in the case of an EIA.
13. Conditions of approval
(1) Every approval of an IEE or EIA shall, in addition to
such conditions as may be imposed by the Federal Agency,
be subject to the condition that the project shall be designed
and constructed, and mitigatory and other measures
adopted, strictly in accordance with the IEE/EIA, unless
any variation thereto have been specified in the approval by
the Federal Agency.
(2) Where the Federal Agency accords its approval subject
to certain conditions, the proponent shall –
(a) before commencing construction of the project,
acknowledge acceptance of the stipulated conditions by
executing an undertaking in the form prescribed in
Schedule VII;
(b) before commencing operation of the project, obtain
from the Federal Agency written confirmation that the
conditions of approval, and the requirements in the
IEE/EIA relating to design and construction, adoption of
mitigatory and other measures and other relevant
matters, have been duly complied with.”
Suo Moto Case No. 25 of 2009
35
15.
An examination of the material placed before this Court reveals
that the afore-referred provisions of the Act and the Regulations framed
thereunder were strictly complied with. Admittedly, the project designed by
TEPA was initially approved by the Provincial Government and then was referred
to EPA-Punjab which in terms of Sub-section (3) of Section 12 read with Rule 4
of the Regulations carried out public hearing. It also constituted a committee
consisting of ten experts in terms of Regulation No. 11 (2) of Review of IEE and
EIA Regulations who were consulted before the grant of approval and in terms of
Rule 13. The EPA-Punjab also laid down stringent conditions/precautionary
measures as also ameliorative steps to minimize the effect of cutting of some trees
and damage to the green belt on both sides of the road. In the light of the afore-
referred facts, we find that the approval was granted by strictly complying with
PEPA and the regulations framed thereunder and there was no illegality
whatsoever.
Issues No. (ii), (iv) & (viii)
(ii) Whether the approval granted by the Environmental Protection Authroity-
Punjab (EPA-Punjab) was mechanical at the asking of the Government of Punjab
and does not reflect conscious application of mind?
(iv) Whether the precautionary principles of ecological protection as reiterated in
Shehla Zia’s case have been ignored in designing and approving the Canal Road
Project? and
(viii) Whether the Project, if implemented, is likely to cause environmental
degradation and thereby would be violative of the fundamental rights of Right to
life (Article 9 of the Constitution) and Right to human dignity (Article 14 of the
Constitution)?
16.
This Court took suo moto notice of the letter addressed to the
Hon’ble Chief Justice of Pakistan because it was canvassed that the project under
challenge would result in de-forestation and depletion of the green belt; would
give fatal blow to the Flora and Fauna on both sides of the Canal Road and
Suo Moto Case No. 25 of 2009
36
thereby lead to an ecological and environmental disaster. This fallout, it was
contended, would be violative of the Fundamental Right to Life (Article 9 of the
Constitution) and may also have the effect of degrading human existence
(violation of Article 14 of the Constitution). The Courts in almost all liberal
democracies have given an expanded meaning to the Fundamental Right to Life in
the wake of growing urbanization and the environmental changes that it brings.
Dilating on the ambit of fundamental right of right to life, this Court in Shehla Zia
v. WAPDA (PLD 1994 SC 693) held as follows:-
“Article 9 of the Constitution provides that no person shall
be derived 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 or omission or commission of a third person in the
neighborhood or at a far off place, is entitled to seek an
injunction and also claim damages, but the Constitutional
rights are higher than the 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 and this has happened so in the present case.
According to Oxford dictionary, `life' meant state of all
functional activity and continual change peculiar to
organized matter and specially to the portion of it
Suo Moto Case No. 25 of 2009
37
constituting an animal or plant before death and animate
existence."
In Black's Law Dictionary, `life' means "that state of
animals, humans, and plants or of an organized being, in
which its natural functions and motions are performed, or
in which its organs are capable of performing their
functions. The interval between birth and death. The sum of
the forces by which death is resisted………."Life" protected
by the Federal Constitution includes all personal rights and
their
enjoyment
of
the
faculties,
acquiring
useful
knowledge, the right to marry, establish a home and bring
up children, freedom of worship, conscience; contract,
occupation, speech, assembly and press".
The Constitutional Law in America provides an extensive
and wide meaning to the word `life' which includes all such
rights which are necessary and essential for leading a free,
proper, comfortable and clean life. The requirement of
acquiring knowledge, to establish home, the freedoms as
contemplated by the Constitution, the personal rights and
their enjoyment are nothing but part of life. A person is
entitled to enjoy his personal rights and to be protected
from encroachments on such personal rights, freedom and
liberties. Any action taken which may create hazards of life
will be encroaching upon the personal rights of a citizen to
enjoy the life according to law. In the present case this is
the complaint the petitioners have made. In our view the
word `life' constitutionally is so wide that the danger and
encroachment complained of would impinge fundamental
right of a citizen. In this view of the matter the petition is
maintainable.”
17.
The Canal Road Project is neither a plant omitting hazardous
gases nor releasing pollutants in the canal water. It aims at widening the road on
both sides of the Canal Bank which of necessity would cause some damage to the
green belt and thereby affect environment. The apprehended change or damage
which has neither been quantified nor ascertained per se may not be violative of
Fundamental Right of Right to Life (Article 9 of the Constitution) unless it is
shown by placing incontrovertible material before this Court that it would lead to
hazardous effects on environment and ecology to an extent; that it would seriously
affect human living. A close perusal of Canal Road Project indicates that before
its approval, TEPA referred the matter to NESPAK which carried out the requisite
studies and after detailed analysis came to the conclusion that the Canal Road
Suo Moto Case No. 25 of 2009
38
Project is environmentally viable; that only 1800 trees would be cut as against the
apprehension that it would lead to cutting of 33000 trees; that 60% of the trees
which are likely to be affected are eucalyptus which are even otherwise not
beneficial to the soil and environment. The EIA Report also reflects that
feasibility of other alternative solutions suggested to combat traffic congestion
were considered by it and it was found that the project prepared by TEPA was
most feasible. It also suggested mitigative measures and precautions to ensure that
there was minimum damage to ecology and environment of the area. The
argument that the widening of roads on both side of the Canal would be
devastating and would have irreparable effects on ecology has been attended to,
both while granting environmental clearance by the competent authority and also
by the report of the Mediation Committee. Every project of this kind would have
some adverse impact on environment but that would be negligible as compared to
the ameliorative effects it is expected to have on traffic congestion and
convenience of commuters and on improvement in traffic safety levels. When
challenge is thrown to such projects, the Courts have to take into consideration the
issues and problems that would remain unresolved and the resultant hardship of
the people if the road is not widened and project is stayed. The ecological and
environmental concerns, on the one hand, and hardship of the city commuters, on
the other, faced with traffic congestions pose a dilemma. A balance needs to be
struck between these two competing issues. The Courts may not be ideally suited
for striking such a balance because such an exercise would entail factual enquiry,
research work and expert knowledge of specialists in the relevant field. The Court
noted that when NESPAK carried out the requisite EIA, it held public hearing,
considered the objections of the petitioners, examined the alternative solutions
suggested and found that the project in hand was preferable to all other solutions
suggested. The report submitted by NESPAK in turn was placed before the EPA-
Suo Moto Case No. 25 of 2009
39
Punjab, which granted approval and environmental clearance to the Canal Road
Project. This approval was neither mechanical nor without conscious application
of mind, rather the precautionary principles of environmental regulations
reiterated by this Court in Shehla Zia (Supra) were fully kept in view.
18.
Conscious of some change which may be caused in environment,
some of the measures/conditions recommended by EPA-Punjab while granting
environment clearance are as follows:-
(a)
strict adherence to the Environmental Management
Plan in order to minimize any negative impacts on
soil, ground water, air and biological resources of the
project area;
(b)
strict compliance with the National Environmental
Quality Standards;
(c)
the carrying out of extensive tree plantation,
especially indigenous species in and around the
project area in consultation with the PHA and to make
all arrangement for the transplantation of existing
trees; and
(d)
the plantation of four (4) trees having 6-7 feet height
for every single uprooted tree.
19.
In the afore-referred circumstances, in our judgment, the approval
of the Canal Road Project was granted with conscious application of mind
considering all relevant material and the attending circumstances. The Canal Road
Project neither contravenes Fundamental Right of Right to Life (Article 9) nor the
Right to Human Dignity (Article 14).
Issue No. (vii)
(vii) Whether the project entailing widening of the road on both sides of the
Canal, which would have the effect of reducing the area of green belt, is violative
of the Doctrine of Public Trust?
20.
The concept of Public Trust is as old as the organized human
living and the advent of State. This concept appeared in codified law for the first
Suo Moto Case No. 25 of 2009
40
time during the Roman Empire. Roman Emperor Justinian codified the law in
Corpus Juris Civilis about 1500 years ago. The genesis of this concept was laid
by Justinian in 529 BC in a section of the said Code in these words: “By the law of
nature these things are common to all mankind, the air, running water, the sea
and consequently the shores of the sea”. Much after the fall of the Roman Empire,
the Corpus Juris Civilis was rediscovered in Pisa and the concept spread
throughout Europe. In England this concept was codified in the Magna Carta and
in 1225 King John was forced to revoke his cronies’ exclusive fishing and hunting
rights, because this violated the public’s right to access these common resources.
Thereafter, it became a part of the Common Law and traveled to U.S. during its
founding years. As part of the Common Law tradition, it became a concept of
judicial comment for the first time in 1821 in U.S. in the case of Arnold v. Mandy
(6N.J.L.1, 53 (1821) wherein it as held:-
“…….the government could not, “consistently with the
principles of the law of nature and the constitution of a well
ordered society, make a direct and absolute grant of the
waters of the state, divesting all the citizens of their
common right.”
21.
This was followed by another case Illinois Central Railroad v.
Illinois (146 U.S. 387 (1892) wherein the Supreme Court thwarted the attempt of
the executive to give the entire lakeshore to a private railroad. The Supreme Court
held that:
“…….a title held in trust for the people of the State that
they may enjoy the navigation of the waters, carry on
commerce over them, and have liberty of fishing therein
freed from the obstruction or interference of private
parties.”
22.
According to Professor David Takacs (“The Public Trust
Doctrine, Environmental Human Rights, and the Future of Private Property”
(http://www.ielrc.org/content/a0804.pdf), the afore-referred case is seminal as it
Suo Moto Case No. 25 of 2009
41
played a pivotal role in the evolution of Public Trust Doctrine in American
jurisprudence and its three elements are: (i) the sovereign holds certain resources
in trust for the common good; (ii) the public has some kind of right to protection
of these resources: and (iii) while democracy may seem subverted when a court
overrules the acts of elected officials, such judicial acts in fact serve democracy
by preserving rights invested in all the people.
23.
The academic debate on this concept was laid by Professor Joseph
Sax and according to one estimation, it was he who revived a dormant area of law
which now continues to be relied upon by the courts in several jurisdictions. Over
the years it has come to serve two purposes: first, it mandates affirmative State
action for the effective management of natural resources, and, second, it enables
the citizen to question the decision making in the management of those resources.
It guarantees public access to public trust resources and also adds an element of
accountability in how the State treats these resources.
24.
The concept of public trust has given birth to new area of
jurisprudence i.e. to treat environmental rights as Fundamental Human Rights.
Professor Joseph L. Sax in his Article titled as “The Public Trust Doctrine in
Natural
Resource
Law:
Effective
Judicial
Intervention”
(http://www.uvm.edu/~gflomenh/PA395-CMN-ASSTS/articles/sax.pdf) justified
the doctrine by holding that, “some public interests in the environment are
intrinsically important, the gifts of nature’s bounty ought not be constrained for
private use, and some uses of nature are intrinsically inappropriate”. The
advocates of environmental human rights canvass that clean water or clean air or
functioning ecosystems are rights because human life cannot exist without them;
these gifts of nature’s bounty ought not be traded away for the use of private
entities at the expense of what is essential to every single human’s life.
Suo Moto Case No. 25 of 2009
42
25.
Courts in many jurisdictions have sanctified the environmental
human rights by raising environmental concerns and by equating them with other
Fundamental Rights. The innovative approach gave an extended meaning to the
Fundamental Right of Right to Life. For instance, in India the Fundamental Right
of Right to Life (Article 21 of the Indian constitution) which declares that no
person shall be deprived of his life or personal liberty except according to
procedure established by law was interpreted to include the right to healthy
environment and ecosystem as they ultimately effect to the Right to Life. In Rural
Litig. & Entitlement Kendra v. State of Uttar Pradesh (AIR 1985 SC 652, 656),
the Supreme Court of India stopped unauthorized mining causing environmental
damage by observing that said order was imperative for protecting and
safeguarding the rights of the people to live in a healthy environment with
minimal disturbance of ecological balance.
26.
In Charan Lal Sahu v. Union of India (Bhopal Disaster case) (AIR
1990 SC 1480), this view was reiterated. In M.C. Mehta v. Kamal Nath (1997 1
S.C.C. 388), the Court stopped a developer to build a motel at the mouth of a river
by propounding the public trust doctrine and held that:-
“[t]he notion that the public has a right to expect certain
lands and natural areas to retain their natural characteristic
is finding its way into the law of the land.”
27.
In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999 S.C.C.
464), the Supreme Court of Indian for the first time hitched the Public Trust
Doctrine to the constitutionally guaranteed right to life.
28.
In Th. Majra Singh v. Indian Oil Co. (AIR 1999 J&K 81), the
Court granted a manufacturing plant to be constructed conditionally only if the
Government observed its Public Trust Doctrine duties to ensure that all possible
pollution safeguards were implemented.
Suo Moto Case No. 25 of 2009
43
29.
In Pakistan, the Supreme Court as early as 1994 in Shehla Zia’s
case (PLD 1994 SC 693), interfered with the construction of an electricity grid
station where it was apprehended that it would cause damage to the safety of
human beings and to the environment by extending the meaning of Fundamental
Right of Right to Life.
30.
In Moulvi Iqbal Haider v. Capital Development Authority (PLD
2006 SC 394), the Supreme Court stopped the conversion of a public park into a
commercial project (Mini Golf Course) by giving an extended meaning to yet
another Fundamental Right i.e. the right to have access to public places without
discrimination under Article 26 of the Constitution. Speaking for the Court, Mr.
Justice Iftikhar Muhammad Chaudhry, Hon’ble Chief Justice of Pakistan
observed as under:-
“Now we will examine whether in view of the given facts
and circumstance of the case, any of the fundamental rights
guaranteed to the citizens of Pakistan have been denied.
Islamabad, being a capital city, attracts representation
from all over Pakistan in different capacities. Thus it is
their right to enjoy access to the places of entertainment
like the Jubilee Park, etc. under Article 26 of the
Constitution. The same is the position of the inhabitants of
the area where the Park is situated. As it has been stated
herein above that necessary documents have been withheld
by the C.D.A. from the Court for which, observation have
been smade herein above. Thus, it is held that Jubilee Park
was earmarked in the original scheme of Sector F-7, as it
was meant for low income group, who are deprived of the
benefits of having their own private gardens, comparing to
higher income groups, therefore, converting such Parks for
commercial activity with the collaboration of multinational
companies, would deny the rights guaranteed to them.”
31.
South Africa is one of those few centuries where the
Environmental Rights have been protected as Fundamental Human Rights in the
Constitution. In terms of section 24 of the Bill of Rights, it has been
unequivocally declared that everyone has the right: a) to an environment that is
not harmful to their health or well-being; and b) to have the environment
Suo Moto Case No. 25 of 2009
44
protected, for the benefit of present and future generations, through reasonable
legislative and other measures that: i) prevent pollution and ecological
degradation; ii) promote conservation; and iii) secure ecologically sustainable
development and use of natural resources while promoting justifiable economic
and social development.
32.
The afore-referred survey of the academic, judicial pronouncements
and Constitutional provisions indicate that the concept of Public Trust Doctrine is
increasingly becoming part of the jurisprudence in several jurisdictions and
Environmental Human Rights are being classified as Fundamental Human Rights.
But what are the parameters of this concept? How far the public or private project can
be stalled by invoking this concept and to what extent the public use of a trust
resource can be converted to private use or for a different public purpose? This aspect
has also been a subject of academic comment. Prof. Serena A. Williams in his article
titled as “Sustaining Urban Green Spaces: Can Public Parks be Protected under the
Public Trust Doctrine?” (http://works.bepress.com/serena_williams/2/) lays down
two broad approaches: the legislative approach which prohibits the alienation or
diversion of resource without plain and explicit legislation to that end and second the
substantive test approach. The latter approach consists of five factors to be considered
by a Court while determining whether diversion or alienation of public trust property
violates the said test. These factors are as follows:-
“(1) that public bodies would control use of the area in
question; (2) that the area would be devoted to public
purposes and open to the public; (3) the diminution of the
area of original use would be small compared with the
entire area; (4) that none of the public uses of the original
area would be destroyed or greatly impaired; and (5) that
the disappointment of those wanting to use the area of new
use for former purposes was negligible when compared to
the greater convenience to be afforded those members of
the public using the new facility.”
Suo Moto Case No. 25 of 2009
45
33.
According to Professor Williams if alienation of a parkland is
allowed, courts must rigorously scrutinize the alienation from public use to a
private entity to ensure that the transfer continues to serve a public use and is
carried out with minimum possible harm to the remaining parkland. He further
observed that:
“Diversions in the use of public trust land should be approved
only when three factors are met: (1) the area would continue to
be devoted to a broad public purpose which is either consistent
with the public uses of the original area or is one that outweighs
the public use of the area as a park; (2) a public body would
retain control over the use of the area in question; and (3) the
diverted use would be one open to the public. These three factors
are the crux of the five-criteria balancing approach. If the park
use must succumb to a new public use that is determined to be
paramount to the park use, the public must maintain control over
the new use and continue to have easy access to it for a general
public purpose.”
34.
He adds that “Courts generally find such a change in purpose
valid when the diversion is from one broad public purpose to another,
particularly when the area diverted is relatively small compared to park area
preserved. For example, a road widening project that would require the diversion
of one half acre of park space was upheld under the public trust doctrine as
‘merely a diversion of a minimal quantum of public land from one public purpose
to another public purpose.” (Emphasis is supplied).
35.
The case in hand, if examined, in the light of the Doctrine of
Public Trust as explained by the academics and construed by the Courts including
the Pakistan Supreme Court leads to an inescapable conclusion that the green belt
around both sides of the Canal is a Public Trust resource; that it cannot be
converted into private use or any other use other than a public purpose; that
widening of the road as proposed is a public purpose; that a minimum area is
being affected and the remaining green belt/public park is much larger; that the
same has been recommended by the Mediation Committee to be declared as
Suo Moto Case No. 25 of 2009
46
Heritage Park and the recommendations of the said Committee have been
accepted by the Province of Punjab in totality. In these circumstances, the
Doctrine of Public Trust cannot be said to have bee n compromised.
Issue No. (iii)
(iii) Whether the Canal Road Project is in consonance with the concept of
sustainable urban development?
36.
The concept of “Sustainable Development” was given recognition
for the first time in Stockholm Declaration of 1972 and its definition given in the
Brundtland report was accepted i.e. ‘development that meets the needs of the
present without compromising the ability of the future generations to meet their
own needs.’ In Pakistan this concept though referred to in some of the earlier
judgments of this Court (Shehla Zia Supra) was defined for the first time in
section 2 of PEPA which is as under:-
“(2)(xlii) ‘sustainable development’ means development
that meets the needs of the present generation without
compromising the ability of future generations to meet their
needs.”
37.
This is an evolving concept and the definition given in section
2(xlii) above appears to have been inspired by the Stockholm Declaration 1972.
In the preparatory meeting for the URBAN21 Conference (Berlin July 2000) a
more comprehensive definition of sustainable urban development was adopted
which lays down as under:-
“Improving the quality of life in a city, including
ecological, cultural, political, institutional, social and
economic components without leaving a burden on the
future generations. A burden which is the result of a
reduced natural capital and an excessive local debt. Our
aim is that the flow principle, that is based on an
equilibrium of material and energy and also financial
input/output, plays a crucial role in all future decisions
upon the development of urban areas.”
Suo Moto Case No. 25 of 2009
47
38.
Yet another definition focuses more on communities, on human
spirit, on goals and visions of sustainable development and participatory
dimension of social, economic and ecological development of a society.
According
to
the
Institute
for
Sustainable
Communities
(http://www.iscvt.org/FAQscdef.html) , sustainable communities are defined as
under:-
“Sustainable communities are defined as towns and cities
that have taken steps to remain healthy over the long term.
Sustainable communities have a strong sense of place. They
have a vision that is embraced and actively promoted by all
of the key sectors of society, including businesses,
disadvantaged
groups,
environmentalists,
civic
associations,
government
agencies,
and
religious
organizations. They are places that build on their assets
and dare to be innovative. These communities value healthy
ecosystems, use resources efficiently, and actively seek to
retain and enhance a locally based economy. There is a
pervasive volunteer spirit that is rewarded by concrete
results. Partnerships between and among government, the
business sector, and nonprofit organizations are common.
Public debate in these communities is engaging, inclusive,
and
constructive.
Unlike
traditional
community
development
approaches,
sustainability
strategies
emphasize:
the
whole
community
(instead
of
just
disadvantaged
neighborhoods);
ecosystem
protection;
meaningful and broad-based citizen participation; and
economic self-reliance.”
39.
Examining the project under challenge, in the light of concept of
sustainable development, as defined in section 2(xlii) of the Act, we note that
given the resource constraint, the values of sustainable development were kept in
view while designing and approving the Canal Road Project which is evident,
inter alia, from the following measures. It has been assured to this Court:
(a)
that the green belt on both sides of the Canal Road
would be retained and the entire area would be
declared/notified as Heritage Park, through an Act of
the Legislature;
Suo Moto Case No. 25 of 2009
48
(b)
that minimum possible area from the green belt be
affected on account of the widening of the Canal
Road;
(c)
that the widening of the road was necessitated to cater
to the needs of the current and future generations;
(d)
that the existing traffic flow and the likely increase in
the volume of traffic on the road was kept in view
while designing the project;
(e)
that stringent conditions were attached by the EPA-
Punjab while granting environmental approval to the
project which included strict adherence to the
Environmental Management Plan in order to
minimize any negative impacts on soil, ground water,
air and biological resources of the project area;
(f)
that
strict
compliance
with
the
National
Environmental Quality Standards would be observed;
(g)
that carrying out of extensive tree plantation,
especially indigenous species in and around the
project area in consultation with the PHA (Parks and
Horticulture Authority) and to make all arrangement
for the transplantation of existing trees; and
(h)
that the plantation of four (4) trees having 6-7 feet
height for every single uprooted tree.
40.
In the afore-referred circumstances, the contention that the Canal
Road Project approval is violative of the concept of sustainable development
would not be tenable.
Suo Moto Case No. 25 of 2009
49
Issue No. (v)
Whether having consented to the referral of the matter to the mediation, can the
petitioners join issue with the recommendations made by the Mediation
Committee?
41.
The matter was referred for mediation in terms of this Court’s
order dated 14.2.2011 which reads as follows:-
“Mr. Salman Butt, learned ASC stated that the case
required to be disposed of expeditiously in view of the rush
of traffic on the Canal Road as due to pendency of matter
the project has already been delayed. On the other hand
Ms. Imrana Tawana stated that there are so many other
alternate options available to the Punjab Government to
manage the traffic flow instead of cutting off the trees on
the Canal Road, Lahore. Dr. Parvez Hassan who was
appearing in another case admittedly enjoys the expertise
in law and has vast experience in the field of environmental
management, offered to intervene between the petitioner i.e.
Lahore Conservation Society and the Government of
Punjab for finding a viable solution for the critical issue
herein raised. Accordingly, both the parties agreed to the
mediation of Dr. Parvez Hassan who is thus nominated as
the mediator and submit a report on the next date of
hearing. Adjourned to a date in office after one month. Dr.
Parvez Hassan may associate any other persons or experts
or officials of the Government of Punjab for the purpose of
such medication and for finding suitable resolution of the
matter.”
42.
Although Dr. Parvez Hassan was the sole Mediator appointed to
mediate with agreement of both the parties, however, it was stipulated in the order
that he could “associate any other persons or experts or officials of the
Government of Punjab for the purpose of such mediation and for finding suitable
resolution of the matter”. In accord with canons of propriety and to keep the
petitioners on board at each stage, he constituted a Committee of eight members
to be called the Mediation Committee in consultation with learned counsel for the
petitioners Mr. Ahmer Bilal Soofi and respondents’ counsel Mr. Suleman Butt.
One of the petitioners namely Mr. Ahmad Rafay Alam who has the reputation of
being a dedicated environmentalist was made Secretary of the Committee. The
Suo Moto Case No. 25 of 2009
50
Mediation Committee comprised of people of eminence from various fields and
they arrived at a consensus barring one dissent in terms of which the report was
submitted which has been reproduced in Para-11 above. The only dissenting
report opinion is of Dr. Arif Hassan whose note of dissent was placed on record
along with the report which has been reproduced in para 10 above.
43.
As noted earlier, in the written objections to the report of the
Mediation Committee, the petitioner did not join issue with most of the
recommendations made except clause 17 of the report i.e. widening of road on
both sides of canal. On Court query, Miss Imrana Tiwana candidly conceded that
she agrees with 95% of the report submitted by the Mediation Committee but
reiterated that arguments/suggestions given by her would effectively tackle the
issue of traffic congestion and the widening of road besides being hazardous to
environment is unnecessary. This Court in detail has considered the report of the
NESPAK with reference to alternate suggestions as also the approval report of the
EPA-Punjab and finds that the exercise carried out by the concerned agency and
authority under the law is well reasoned and do not call for review in these
proceedings. Even otherwise, in absence of any cogent material, it would not be
possible for this Court in these proceedings to hold that the alternative solutions
suggested by the petitioners should be preferred to the project designed by
competent authorities under the law.
44.
In a case decided by the International Court of Justice in not
distant past (The Gabcikovo-Nagymaros Project dispute between Hungary and
Slovakia decided on 25.9.1997), the construction of a barrage system at Danube
River was challenged and Hungary contended that it was violative of a treaty to
which both Hungary and Slovakia were party and that it would adversely affect
the rights of the former as it would divert the waters of Danube thereby causing
loss and damage to the country and its nationals. Despite taking note of the
Suo Moto Case No. 25 of 2009
51
environmental concerns of Hungary with regard to apprehended loss to the
nationals and damage to environment, the Court restrained itself from interfering
in the ongoing project and advised the parties to settle the dispute through mutual
negotiations. The Court did not interfere, inter alia, for the reason that the issue
mooted entailed factual enquiry and left the matter to be resolved through
negotiation in the spirit of mediation. The Court observed as follows:-
“The Court is mindful that, in the field of environmental
protection, vigilance and prevention are required on account
of the often irreversible character of damage to the
environment and of the limitations inherent in the very
mechanism of reparation of this type of damage.
Throughout the ages, mankind has, for economic and other
reasons, constantly interfered with nature. In the past, this
was often done without consideration of the effects upon
the environment. Owing to new scientific insights and to a
growing awareness of the risks for mankind –for present
and future generations - of pursuit of such interventions at
an unconsidered and unabated pace, new norms and
standards have been developed, set forth in a great number
of instruments during the last two decades. Such new norms
have to be taken into consideration, and such new standards
given proper weight, not only when States contemplate new
activities but also when continuing with activities begun in
the past. This need to reconcile economic development with
protection of the environment is aptly expressed in the
concept of sustainable development.
For the purposes of the present case, this means that the
Parties together should look afresh at the effects on the
environment of the operation of the GabCikovo power
plant. In particular they must find a satisfactory solution for
the volume of water to be released into the old bed of the
Danube and into the side-arms on both sides of the river. It
is not for the Court to determine what shall be the final
result of these negotiations to be conducted by the Parties. It
is for the Parties themselves to find an agreed solution that
takes account of the objectives of the Treaty, which must be
pursued in a joint and integrated way, as well as the norms
of international environmental law and the principles of the
law of international watercourses. The Court will recall in
this context that, as it said in the North Sea Continental
Shelfcases:
"[the Parties] are under an obligation so to conduct
themselves that the negotiations are meaningful,
which will not be the case when either of them
insists upon its own position without contemplating
any modification of it" (I.C.J. Reports 1969, p. 47,
para. 85).
Suo Moto Case No. 25 of 2009
52
45.
In the instant case as well, the Court referred the matter for
mediation on similar considerations and with consent of both the parties.
Petitioner’s attempt to resile from the said mode of resolution may not warrant a
flattering comment. Because the Mediation Committee was constituted in
consultation with petitioner’s learned counsel, Mr. Ahmer Bilal Soofi and the
allegation that two members of the Committee had affiliation with the Provincial
Government is too general and vague to shake their credibility. In S.E. Makudam
Mohammad v. T.V. Mahommad Sheik Abdul Kadir (1936 Madras 856), a party
agreed for decision of the matter in the light of the report to be submitted by the
Commission, subsequently when the report was submitted, the party wanted to
resile but the Court relying on an earlier judgment of Privy Council Burgess v.
Morton (1896) A.C.136, held as follows:-
“When a party invites the Court to adopt a procedure
which is not contemplated by the Civil P.C., and is in fact a
procedure extra cursum curiae, he cannot turn around and
say that the Court is to blame for adopting the very
procedure which he invited the Court to follow. There is
such a thing as estoppel apart from the question of
adjustment and the doctrine of estoppel would apply to a
party who attempts to blow hot and cold in this fashion. As
was held in (1896) AC 136(1), where with the acquiescence
of the parties the Judge departed from the ordinary course
of procedure and decided upon a question of fact, it was
incompetent for the parties afterwards to contend that they
have an alternative mode of proceeding with the trial as if it
had been heard in due course. Lord Watson observed in
that case that there were several decisions of the House of
Lords which affirmed that the judgment of the Court below
pronounced extra cursum curiae, is in the nature of an
arbiter’s award and that as a general rule at least no
appeal from it will lie.”
46.
The maxim extra cursum curiae which underpins the afore-
referred judgment was reiterated by this Court in Mst. Sharif Bibi v. Muhammad
Nawaz Shah (2008 SCMR 1702) wherein the judgment of the learned High Court
was upheld and appeal dismissed.
Suo Moto Case No. 25 of 2009
53
47.
For afore-referred reasons, it would not be open for the petitioner
to challenge Mediation Committee’s report, particularly when they have agreed to
95% of the recommendations made by the said Committee.
Issue No. (vi)
Whether the policy making domain in which the Canal Road project falls, is the
exclusive preserve of Executive Authority and can this Court, in these
proceedings, interfere in the said domain?
48.
One of the foundational values enshrined in the Constitution of
Islamic Republic of Pakistan is principle of trichotomy of powers i.e. the
Legislature would legislate, the Executive would administer law and Judiciary
would interpret the law. In Sindh High Court Bar Association v. Federation of
Pakistan (PLD 2009 SC 879), this Court highlighted the principle of trichotomy
of powers as follows:-
“167. At this stage, it is necessary to elucidate through our
own jurisprudence and that of other jurisdictions the
principle of trichotomy of powers and the power of judicial
review vested in the superior Courts. Case-law from the
Indian jurisdiction is particularly instructive on account of
common origins of constitutionalism springing from the
Government of India Act, 1935 read with the Indian
Independence Act, 1947. The Supreme Court of India, in the
case of Minerva Mills Ltd v. Union of India (AIR 1980 SC
1789) held that the judiciary was the interpreter of the
Constitution and was assigned the delicate task of
determining the extent of the power conferred on each
branch of the government, its limits and whether any action
of that branch transgressed such limits.”
49.
By according an expanded meaning to the Fundamental Rights
provisions of the Constitution, the Courts under Article 199 and 184(3) of the
Constitution have taken notice of public interest issues which has led to the
development of public interest litigation. The public interest litigation was given
new dimension by successive Chief Justices of this country by developing the
Human Rights cases jurisprudence whereunder petitions filed by less privileged
class of society on issues of public concern have been entertained and decided
Suo Moto Case No. 25 of 2009
54
where contravention of fundamental rights was proved. Mr. Suleman Butt, ASC
placed on record an article by Dr. Parvez Hassan titled as “Role of Commissions
in Public Interest Environmental Litigation in Pakistan” wherein he referred to a
judgment (2000 CLC 471 Lahore) authored by one of us (Tassaduq Hussain
Jillani, J.) where the genesis of public interest litigation in the developing world
has been commented upon. It was observed:-
“The rationale behind public interest litigation in
developing countries like Pakistan and India is the social
and educational backwardness of its people, the dwarfed
development of law of tort, lack of developed institutions to
attend to the matters of public concern, the general
inefficacy and corruption at various levels. In such a socio-
economic and political milieu, the non-intervention by
Court in complaints of matters of public concern will
amount to abdication of judicial authority.”
50.
This Court does not interfere in every issue of public concern
under Article 184(3) of the Constitution but only where the action/order of the
executive authority raises the question of enforcement of a Fundamental Right. In
Pakistan Tobacco Company Ltd. v. Federation of Pakistan (1999 SCMR 382), this
Court candidly held as follows:-
“maintainability of a petition under Article 184(3) of the
Constitution is to be examined not on the basis as to who
has filed the same but if the controversy involves question
of public importance with reference to enforcement of any
of the fundamental right, petition will be sustainable.”
51.
Again in Javed Ibrahim Paracha v. Federation of Pakistan (PLD
2004 SC 482), this view was reiterated as follows:-
“a person can invoke the Constitutional jurisdiction of the
superior Courts as pro bono publico but while exercising
this jurisdiction, he has to show that he is litigating, firstly,
in the public interest and, secondly, for the public good or
for the welfare of the general public. The word `pro bono
publico' as defined in Black Law Dictionary, Chambers
Dictionary and Oxford Dictionary generally means `for the
public good' or `for welfare of the whole' being or involving
uncompensated legal services performed especially for the
public good. `Public interest' in the Black Law Dictionary,
Suo Moto Case No. 25 of 2009
55
has been defined as the general welfare of the public that
warrants recognition and protection. Something in which
the public as a whole has a stake; esp., an interest that
justifies governmental regulation. It thus signifies that in
case of public interest litigation, one can agitate the relief
on his own behalf and also on behalf of the general public
against various public functionaries, where they have failed
to perform their duties relating to the welfare of public at
large which they are bound to provide under the relevant
laws. Viewing the bona fide of petitioner in the above
contest, we are of the opinion that the petitioner has not
been able to show that he was aggrieved person within the
meaning of Article 199 of the Constitution and can agitate
his grievance as `pro bono publico.”
52.
Explaining the ambit of Article 199 of the Constitution, this Court
in Muhammad Bashir v. Abdul Karim (PLD 2004 SC 271), laid down as follows:-
“This power is conferred on the High Court under the
Constitution and is to be exercised subject to Constitutional
limitations. The Article is intended to enable the High Court
to control executive action so as to bring it in conformity
with the law. Whenever the executive acts in violation of the
law, an appropriate order can be granted which will relieve
the citizen of the effects of illegal action. It is an omnibus
Article under which relief can be granted to the citizens of
the country against infringement of any provision of law or
of the Constitution. If the citizens of this country are
deprived of the guarantee given to them under the
Constitution, illegally or, not in accordance with law, then
Article 199 can always be invoked for redress". (Ghulam
Mustafa Khar v. Pakistan and others PLD 1988 Lah. 49,
Muhammad Hussain Khan v. Federation of Pakistan PLD
1956 Kar. 538(FB), S.M. Yousuf v. Collector of Customs
PLD 1968 Kar.599 (FB). It is to be noted that "paramount
consideration in exercise of Constitutional jurisdiction is to
foster justice and right a wrong". (Rehmatullah v. Hameeda
Begum 1986 SCMR 1561, Raunaq Ali v. Chief Settlement
Commissioner PLD 1973 SC 236). There is no cavil with
the proposition that "so long as statutory bodies and
executive authorities act without fraud and bona fide within
the powers conferred on them by the Statute the judiciary
cannot interfere with them. There is ample power vested in
the High Court to issue directions to an executive authority
when such an authority is not exercising its power bona fide
for the purpose contemplated by the law or is influenced by
extraneous and irrelevant considerations. Where a statutory
functionary acts mala fide or in a partial, unjust and
oppressive manner, the High Court in the exercise of its
writ jurisdiction has ample power to grant relief to the
aggrieved party". (East and West Steamship Co. v. Pakistan
PLD 1958 SC (Pak.) 41). In our considered view,
Suo Moto Case No. 25 of 2009
56
technicalities cannot prevent High Court from exercising its
Constitutional jurisdiction and affording relief which
otherwise respondent is found entitled to receive.”
53.
Many a time, policies/actions of executive authorities are
challenged and issues are brought before the Court which have socio-political or
economic dimensions; issues of lopsided policies being pursued, issues which
have polarized the nation, issues which have bled & divided the nation and issues
which reflect immoral or unwise use of public funds. Judges are humans. It is
painful to sit back and watch the successive marches of folly. However, the
Constitutional constraint reflected in the trichotomy of powers obliges the Court
to observe judicial restraint. It intervenes only when the policy/action of the State
authority reflects violation of any law or a Constitutional provision or when it
relates to the enforcement of a Fundamental Right which inter alia includes
Environmental Human Rights. The people/Constitution makers did not vest this
Court to sit over judgment on a purely policy decision taken by the competent
executive authority unless of course it violates the law of the land. In the U.S.
Constitution as well, the principle of separation of powers is one of the
foundational values. In deference to the Constitutional Scheme, the U.S. Supreme
Court observes self-restraint in such matters. In Trop vs. Dulles (356 U.S. 86, 120
(1958), this approach is candidly reflected where the Court held as follows: -
“It is not easy to stand aloof and allow want of wisdom to
prevail, to disregard one’s own strongly held view of what
is wise in the conduct of affairs. But it is not the business
of this Court to pronounce policy. It must observe a
fastidious regard for limitations on its own power, and this
precludes the Court’s giving effect to its own notions of
what is wise or politic. That self-restraint is of the essence
in the observance of the judicial oath, for the Constitution
has not authorized the judges to sit in judgment on the
wisdom of what Congress and the Executive Branch do.”
54.
When an order of governmental authority is challenged before the
Court raising an environmental issue, the Court would examine as to whether the
Suo Moto Case No. 25 of 2009
57
authority which passed the order was conscious of the relevant considerations;
whether it deliberated over those and whether it took the decision after having the
expert opinion and complying with the mandate of law? The issues which
underpin the project under challenge related to traffic congestion, the widening of
the Canal Road and the apprehended damage to ecology and environment. The
Court would have intervened if the issues of rising traffic flow and congestion had
not necessitated remedial measures; if feasibility of other alternative proposals
had not been examined by the concerned department; if it had not got conducted
Environmental Impact Assessment from a consultant and if the Environmental
Protection Authority had not given environmental clearance after taking into
consideration the relevant factors; if the doctrine of Public Trust or of
Precautionary Principle for environmental protection was being violated or if the
respondent-Provincial government had not whole heartedly accepted the
Mediation Committee’s report which inter alia recommend declaring the
greenbelt on both sides of the Canal as Heritage Park and had recommended only
a partial widening of the road in question. These concerns, in our view, have been
adequately addressed by the competent bodies under the law. It is for the
concerned department of the government to examine how best to meet traffic
congestion and in this exercise it can solicit consultation from another agency or a
body of experts to study the feasibility which in the instant case was initially
carried out by NESPAK and thereafter the matter was placed before the EPA-
Punjab which again having solicited the opinion of experts granted approval with
certain conditions. In such cases the Court may not have the requisite expertise to
adjudicate. This is why the Court seeks the assistance of experts or experts’
committee. The advantage of the experts’ committees is that it enables the Court
to receive technical expertise while the Judges are left to decide questions of law.
Such committees reduce the chances of judicial arbitrariness and adds legitimacy
Suo Moto Case No. 25 of 2009
58
to the judgments. The only aspect the Court would examine is whether the
policy/act under challenge is violative of any provision of the law or the
Constitution or any of the Fundamental Rights guaranteed under the Constitution
and as interpreted by the Courts from time to time. In Narmada Bachao Andolan
v. Union of India (AIR 2000 SC 3751), the Indian Supreme Court came to a
similar conclusion when it observed as follows:-
“Whether to have an infrastructural project or not and
what is the type of project to be undertaken and how it has
to be executed, are part of policy making process and the
Courts are ill equipped to adjudicate on a policy decision
so undertaken. The Court, no doubt, has a duty to see that
in the undertaking of a decision, no law is violated and
people’s fundamental rights are not transgressed upon
except to the extent permissible under the Constitution.
Even then any challenge to such a policy decision must be
before the execution of the project is undertaken. Any delay
in the execution of the project means over run in costs and
the decision to undertake a project, if challenged after its
execution has commenced, should be thrown out at the very
threshold on the ground of latches if the petitioner had the
knowledge of such a decision and could have approached
the Court at that time. Just because a petition is termed as a
PIL does not mean that ordinary principles applicable to
litigation will not apply. Latches is one of them. Public
Interest Litigation (PIL) was an innovation essentially to
safeguard and protect the human rights of those people who
were unable to protect themselves. With the passage of
time, the PIL jurisdiction has been ballooning so as to
encompass within its ambit subjects such as probity in
public life, granting of largess in the form of licences,
protecting environment and the like. But the balloon should
not be inflated so much that it bursts. Public Interest
Litigation should not be allowed to degenerate to becoming
Publicity Interest Litigation or ‘Private Inquisitiveness
Litigation’.”
55.
Respectfully reiterating the earlier view taken by this Court in the
precedent case law to which reference has been made above and in view of the
report of the Mediation Committee which has been accepted in entirety by the
Provincial Government, we are of the view that no intervention is called for.
56.
In passing the Court may add that it is conscious of the historic
and emotional appeal of the Canal which was built initially by the last Muslim
Suo Moto Case No. 25 of 2009
59
Ruling Dynasty, the Mughals and extended in 1861 by the British. It is indeed an
environmental asset. The greenery around it adds beauty and romance to the city.
In times gone by there must have been flourishing fields, meadows and green
valleys. Much later when the road on both sides of the Canal was metalled, there
would hardly have been a few residential colonies. But slowly and gradually, as
the population increased, residential colonies were built to cater to the needs of
the populace. The mushroom growth of residential colonies is a post
independence phenomenon. It assumed a greater momentum in the last 3/4
decades. This caused massive damage to the flourishing fields, the orchards and to
the habitats. The ill-conceived commercialization of residential areas had its toll
as well. Industrialization on the outskirts of the city further confounded the
situation and this resulted in traffic flow to multiply manifolds. The loss of those
green valleys evokes a natural lament and nostalgia. But this is what happens to
environment and ecology when human needs increase and the cities expand
bringing in their wake pains, issues & Thomas Hardy’s “Madding Crowd”. The
famous German Philosopher Frederick Engels (1820-1895) who belonged to the
same period when the canal was built, was alluding to this paradox when he said:-
“Let us not, however, flatter ourselves overmuch on
account of our human victories over nature. For each such
victory nature takes its revenge on us. Each victory, it is
true, in the first place brings about the results we expected,
but in the second and third places it has quite different,
unforeseen effects which only too often cancel the first. The
people who, in Mesopotamia, Greece, Asia Minor and
elsewhere, destroyed the forests to obtain cultivable land,
never dreamed that by removing along with the forests the
collecting centres and reservoirs of moisture they were
laying the basis for the present forlorn state of those
countries. When the Italians of the Alps used up the pine
forests on the southern slopes, so carefully cherished on the
northern slopes, they had no inkling that by doing so they
were cutting at the roots of the dairy industry in their
region; they had still less inkling that they were thereby
depriving their mountain springs of water for the greater
part of the year, and making it possible for them to pour
still more furious torrents on the plains during the rainy
seasons. Those who spread the potato in Europe were not
Suo Moto Case No. 25 of 2009
60
aware that with these farinaceous tubers they were at the
same time spreading scrofula.”
(The Part Played by Labour in the
Transition From Ape to Man)
57.
This however, is the flip side of human saga. It has a positive
dimension too. If humans had shunned reason and the civilizational impact or had
taken their love of nature too far, they would still have been living in caves, eating
insects and raw meat and mating like animals. The discovery and development of
the bounties and beauties of nature are partly attributable to human perception,
ingenuity, struggle and its harnessing. John Keats, the poet of nature and beauty
was referring to these human virtues, when he said:-
Who, of men, can tell
That flowers would bloom, or that green fruit would swell
To melting pulp, that fish would have bright mail,
The earth its dower of river, wood, and vale,
The meadows runnels, runnels pebble-stones,
The seed its harvest, or the lute its tones,
Tones ravishment, or ravishment its sweet
If human souls did never kiss and greet?
Endymion, bk.i, I. 835
58.
The beauty of the canal and of the greenbelt on both sides of the
Canal Road lie partly in beholder’s eye i.e. human aesthetics, imagination, design
and engineering. It is the human needs which require widening of the road.
59.
Before parting with this judgment, we would like to acknowledge
the admirable spirit demonstrated by petitioners’ organization, by those
individuals, architects, urban planners, academics and students for protection of
city’s ecological and environmental horizons. During hearing of this case, the
Court was touched by the rainbow of idealism, of intellect, of architectural ability,
Suo Moto Case No. 25 of 2009
61
of urban development and mental health expertise of graces and youthful
exuberance. This was a living testimony to a vibrant civil society. This vibrance,
vigilance and zeal must have acted as a watchdog for those entrusted with design
and planning of the Canal Road Project and those who accorded environmental
clearance. The widening of the road which is now confined to only a part of the
Canal Road and the conditional approval granted by EPA, Punjab attaching
stringent conditions to allay the environmental concerns is a vindication of the
object for which the petitioners brought this issue before this Court. As long as
this spirit is alive, we are sanguine, the authorities and the leadership would
continue to be guided by the values of sustainable human and urban development.
We would also place on record our deep appreciation for the Mediation
Committee in general and for Dr. Parvez Hassan in particular for developing a
broad consensus reflected in the report of the Mediation Committee. For Mr.
Babar Ali (who has the distinction of succeeding the Duke of Edinburgh as
President of World Wide Fund for Nature) one of the eminent city fathers, who
responding to the ecological and environmental concerns, made his valuable
contribution as Member of the Mediation Committee. The able assistance
rendered by Mr. Suleman Butt also deserves a word of commendation.
60.
In view of what has been discussed above and keeping in view the
stance of the Government of Punjab that they have accepted the report of the
Mediation Committee in entirety, we hold and direct as under:-
(i)
The Bambawali-Ravi-Bedian (BRB) Canal and the green belt
on both sides of the Canal Road (from Jallo Park till Thokar
Niaz Beg) is a Public Trust. It shall be treated as Heritage
Urban Park forthwith and declared so by an Act to be passed
Suo Moto Case No. 25 of 2009
62
by the Assembly as undertaken by the respondent-Provincial
Government;
(ii)
Widening of the road on both sides of the Canal Bank shall be
in accord with the report submitted by the Mediation
Committee;
(iii)
Necessary corrections/modification of some of the underpasses
on the Canal Road shall be carried out as suggested in the
report of the Mediation Committee;
(iv)
Proper Traffic Management Program shall be made and given
effect to;
(v)
Further improvement in public transport system shall be
ensured;
(vi)
Where needed and as recommended by the Committee,
re-engineering of the junctions along the Canal Bank would be
undertaken;
(vii)
The service roads along certain parts of the Canal Road shall
be constructed/improved;
(viii) Report of the Mediation Committee shall be implemented as
agreed by the respondent-Provincial Government in letter and
spirit;
(ix)
Respondent-Provincial Government and TEPA shall ensure
that minimum damage is caused to green belt and every tree
cut would be replaced by four trees of the height of 6/7 feet and
this replacement when commenced and completed shall be
notified through press releases for information of general
public, copies of which would be sent to the Registrar of this
Court for our perusal; and
Suo Moto Case No. 25 of 2009
63
(x)
Elaborate measures / steps be taken to ensure that the Canal is
kept clean and free of pollution. The steps should inter alia
include throwing of liter and discharge of any pollutant in the
Canal a penal offence. The Chief Secretary, Government of
Punjab shall ensure that a comprehensive action plan is
prepared in this regard by the concerned department and report
is submitted to the Registrar of this Court within six weeks of
the receipt of this judgment.
61.
For what has been discussed above, since most of the prayers and
concerns have been taken care of in the Mediation Committee Report, the petition
to the extent of those prayers is disposed of as having fructified and the petition is
allowed in terms of the Report of the Mediation Committee which stands accepted
even by the respondent Provincial Government. The petition in so far as it
challenged the Project of widening of road is dismissed.
JUDGE
JUDGE
Announced in Open Court at Islamabad on 15.9.2011
JUDGE
Khurram Anees
APPROVED FOR REPORTING
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IN THE SUPREME COURT OF PAKISTAN
(ORIGINAL JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE MUNIB AKHTAR
S.M.C. NO. 26 OF 2007, H.R.C. NOs. 2698/2006, 133/2009, 778-
P/2009, 13933/2009, 14072-P/2009, C.M.A. NOs. 4662/2011,
302/2010, 4249/2018 & CONSTITUTION PETITION NO. 64/2009
(Deadbeats got loans 54 billions written off)
In Attendance:
For the Petitioner:
Barrister Zafarullah Khan, ASC
(In Const.P.64/2009)
For Federation:
Mr. Khalid Jawed Khan, Attorney Gen
Syed Nayyar Abbas Rizvi, Addl. AGP.
For NAB
Mr. Jehanzeb Khan Bharwana, P.G. NAB.
For PIDB:
Raja Abdul Ghafoor, AOR
For IDBL
Mr. Zarghoon Shah, Chief Manager, IDBL.
For ZTBL, SME, Pak
Libya Holding Co
Mr. Muhammad Rasheed Qamar, ASC
For HBL & Kraf Kitput
Ltd
Nemo
For Utility Store
Mr. Kashif Farooq, GM+ Mr.Masood Alam
Niazi, Sr.G.M.HR., Mr. Liaqat Hussain, G.M.
Accounts
For Saudi Pak Industrial
Investment Co.
Mr. Iftikhar Ahmed, Manager Law
For State Bank
Raja Abdul Ghafoor, AOR. a/w
Mr. Asad Ahmad Gani, Advocate on behalf of
Dr. Pervez Hassan Sr. ASC.
For NBP:
Kh. M. Farooq, Sr. ASC
For FBR:
Mr. M. Habib Qureshi, ASC
On Court’s notice:
Mr. Farooq H. Naek, Sr. ASC
For Orient Rice Mills, Rizek Industries, Abbas
Steel, Misto Industries, Petro Commodities,
Abbas Engineering (CMA 5048-5053/18)
Mr. M. S. Khattak, AOR. For Ahmed Food
Industries
Mr. Nadeem Ahmed Sheikh, ASC for Afghan
Gheen industrieis, Hakim Textile Mills
Mr. Zafrullah Khan Cheema, ASC for SCHON
SMC No. 26/2007 etc
2
Industries.
Mr. Farhat Nawaz Lodhi, ASC. For Paksitan
National Textile Mills, Kurdistan Trading Co.
Agha Muhammad Ali, ASC.
Mr. Nawaz Khan, CEO, A-lAbas Fabrico.
Mr. Tariq Aziz, AOR. For Tutripax Foods Ltd. ,
Taha Spinning Mills, Alaji Ismail Mills. Ltd.
Syed Qalb-e-Hassan, ASC in CMA 5409/2018
Sardar M. Aslam, ASC for Langar Sulemani
Food Ltd.
Mr. Fazal ur Rehman, in person for Latif
Shakil Textile Mills
Mr. Umar Alvi, ASC for Prodential Textile Mills
Ltd, M/s Rubicon Industries. (CMA 5033-
5034/18)
Sh. Muhammad Akram, ASC for Footcare Pvt.
Ltd. And its directors. (CMA 5035-5039/18
Nemo for Jam Jafees Ali s/o Jam Sher Ali
Mr. Mehr Khan Malik, AOR for Irum Textile
Mills
Mr. Shahid Ikram Siddiqi, ASC for Kashif Steel
Mills
Ch. Akhtar Ali, AOR. (CMA 5195/18)
Mr. Shehzad Ata Elahi, ASC (CMA 5014/18)
(For Mubarik Textile Mills, Shafiq Textile Mills, Chaudhry
Electrodes Ltd, Siraj Steel Ltd, Techno Agriculture Ltd, Al-
Asif Sugar Mills, National Bulbs Pvt Ltd, Icepack Ltd)
Syed Moazzam Ali Shah, ASC
(For Choti Textile Mills Ltd)
(CMA 5040/18)
Malik Muhammad Ahmad Qayyum, Sr. ASC
Mr. Abbas Mirza, ASC
(For Chohan Vegetable Mills/CMA 5421/2018)
Mr. Fauzi Zafar, ASC (CMA 5362/18)
(For Farooq Habib Textile Mills Ltd)
Mr. Ahmed Qayyum, ASC for Ibex Textile
Mian Tariq Manzoor, ASC.
Mr. Abdul Haleem Paracha, for Zamir Textile
Mills
Mr. Shah Khawar, ASC for Sooraj Mukh Co.
Mr. Hamid Ali Shah, ASC
SMC No. 26/2007 etc
3
Mr. Ayaz Aslam Ch. For Salar Textile Mills ad
Munarak Knitwear Ltd.
Mr. Rab Nawaz Khichhi, Trantice Ltd.
Mr. Khurram Raza, ASC. For SS Oil Mills Ltd.
Mr. Asif Jabbar Khan, for Spectrum Chemicals
Ch. Akhtar Ali, AOR (CMA 5556, 5557/18)
for Ayaz Textile Mills (HBL), Dascon Pvt. Ltd.
(HBL), Pak Pattan Dairies Ltd (ZTBL), Punjab
Propylene Industries Ltd Service Fabrics &
Monnoo Dairies
Mr. Azid Nafees, ASC. For Sinsas Pvt. Ltd.,
Azeem Foods Industries, Electronic
Information & Energy System (CMA 5396/18)
Mr. Jahangir Jadoon, ASC for Kashmir Poultry
Mills.
Mr. Haq Nawaz Chatha, ASC for Compact
Particle Board Ltd., Expo International Pvt.
Ltd. And Continental Rice Mills Ltd.
Syed Mudassar Ameer ASC for mala Ghee Pvt.
Ltd.
Mr. Zulfiqar Chohan, Director Chohan Ghee
Mills Ltd
Agha Muhammad Ali, ASC for Al-Abbas
Fabrics Ltd.
Mr. Hasan Akbar, ASC. For Taha Spinning
Mills Ltd. & Haji M. Ismail Mills
Mr. Irfan Bannu for Bannu Dairies
Mr. Zafarullah Cheema, for Shan Knitwear
Ltd.
Mr. Mudasir Khalid Abbasi, ASC for Pak Green
Fertilizers Co & Multan Edible Oil Ltd.
Mr. Wajid Jawad, Associated Industries Ltd.
(CMA 5406/2018)
Mr. Shehryar Kasuri, ASC for Lion Steel
Industries Pvt Ltd.
Mr. Shabbir Hussain Dir. Batala Ghee Mills
Raja Qasit Nawaz, Advcoate for Ghulam
Muhammad & Co.
SMC No. 26/2007 etc
4
Mr. Saalim Saleem Khan, ASC for Ahmad
Foods Pvt. Ltd. (CMA 5047/2018)
Barrister Haris Azmat, ASC for Kotri Textile
Mills Ltd.
Mr. Shakil Jamil Anjum for Continental
Beverages Ltd.
Nemo for Gadoon Synthetic Mills Ltd. & Attock
Textile Mills Ltd.
Syed Rifaqat Hussain Shah, AOR for Mian
Muhammad Sugar Mills, Oberio Textile Mills
Ltd.
Mr. Abid S. Zuberi, ASC (CMA 5403/18)
Mr. Tariq Aziz, AOR for Kiran Sugar Mills Ltd,
Pak Land Cement, Saudi Cement, Sarbaz
Traders, Kiran Enterprises Ltd. Dewan
Cement
Mr. Zahid Minhas, ASC for Haye Sons
Raja Muhammad Shafqat Abbasi, ASC for
Mehr Dastagir Spinning Mills, Dastagir
Leather & Foot wear industries Ltd (CMA
5394-5395/18)
Mr. Shahid Anwar Bajwa, ASC for Kakashian
Oil & Kakashian Feed Mills Ltd
Malik Qamar Afzal, ASC for Spectrum Pvt Ltd
Chemicals (CMA 5411/18)
Mr. Abdul Rauf, Director Shariq International Ltd
Mr. Imtiaz Ahmed, Director Jaiguar Mating Pvt
Ltd
Mr. Aleem Baig Chughtai, ASC for Novalty
Fabrics Pvt Ltd
Mr. Khalid Mehmood Khan, ASC for Frontier
Dextroz Ltd (CMA 5408/18)
Mr. Arif Khan, ASC in CMA 5005, 5207, 5208,
3210/2018
Mian Javed Iqbal Arain, ASC for Ali Knitwear
Mr.
Hasan
Nawaz
Makhdoom,
ASC
for
Taimoor Spinning Mills (CMA 5558/2018)
Mr. Hafeez ur Rehman, ASC for Ravi Dairy
Products Ltd
Mr. Tariq Aziz, AOR for AM Pak Dairies Pvt Ltd
SMC No. 26/2007 etc
5
Raja
Inaam
Minhas,
ASC
(CMA
5168,
5172/2018)
Mr. Tariq Aziz, AOR for Aslam ginning & Press
Factory Pvt Ltd
Mr. Zahid Ibrahim, ASC in CMA 5205, 5208,
5209, 5210/2018
Mian Abdul Rauf, ASC
Ch. Muhammad Akram Nat, in person for
Rani Agro Dairy Products Ltd.
Mr. Haider Waheed, ASC (Shan Foods CMA
5361/18)
Sardar Abdus Sami, ASC (CMA 5397-
5399/18).
Mr. Adam Malik, Advocate in person for
Pasban Soap
Mr. Umar Aslam, ASC (CMA 5404-5405/18)
Mr. Ahmad Qayyum, ASC (CMA 5044/18).
Mr. Abdur Rauf Rohaila, ASC (Salala Industries)
Mr. Shahzada Mazhar, ASC Harrpa Textile
Mills
Sardar Qasim Farooq Ali, ASC
(For Aziz Spinning Mills & Sheikhoo Mills)
Date of hearing:
4.7.2018
ORDER
Learned counsel for the borrowers (the ones whose loans have been
written off) seek time to consult their clients about accepting the option
given by this Court. Let the needful be done by 17.7.2018 which
acceptance shall be submitted in the office. No option shall be accepted
after 17.7.2018. After such date, the Court will pass an order for the
recovery of or initiation of the process as to how these matters have to be
dealt with. Re-list thereafter.
CHIEF JUSTICE
JUDGE
Islamabad, the
4th of July, 2018
Waqas Naseer/*
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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
SUO MOTU CASE NO.28 OF 2018
(Regarding Discussion in TV Talk Show
with regard to a Sub-judice Matter)
In attendance:
Mr. Sohail Mehmood, DAG
Mr. Faisal Fareed Hussain, ASC a/w
Mr. Arshad Sharif in person.
Mr. Faisal Siddiqui, ASC
(For PBA)
Mr. Saleem Baig, Chairman PEMRA
Date of hearing:
12.9.2018
JUDGMENT
MIAN SAQIB NISAR, CJ.- While conducting a talk show titled
‘Power Play’ on 28.08.2018 on ARY News, the anchor Mr. Arshad Sharif
made certain comments and raised queries about a matter pending
adjudication before this Court. Despite the fact that the panelists on the
show repeatedly advised him that his comments may amount to
encroachment upon the proceedings before this Court, Mr. Sharif insisted
that the Chief Justice of Pakistan should call him before the Court in order
for him to point out the contradictions in the affidavit filed by Former
President, Mr. Asif Ali Zardari, and to further respond to his queries. In the
above background, this Court initiated the instant suo motu proceedings
against Mr. Arshad Sharif. A summary/excerpt of this program is
reproduced below (as provided in pages 3 to 6 of the main paperbook):-
SUO MOTU CASE NO.28 OF 2018
-: 2 :-
SUO MOTU CASE NO.28 OF 2018
-: 3 :-
SUO MOTU CASE NO.28 OF 2018
-: 4 :-
Notice was issued to Mr. Sharif vide order dated 29.08.2018 to explain his
position in this regard, particularly considering the fact that the content of
his show could potentially cause prejudice to a matter sub judice before this
Court, not only in the minds of the public at large but also the Bench seized
of the matter. Mr. Sharif appeared and tendered an unconditional and
unqualified apology before the Court.
2.
Apart from the foregoing, vide order dated 29.08.2018, this
Court also issued notice to the Pakistan Broadcasters Association (PBA) to
explain whether there exists any code of professional ethics for the media
and whether the same was being followed and if not, what kind of action
should be initiated against the delinquents. Pursuant thereto, the learned
Deputy Attorney General, learned counsel for PBA and the Chairman,
Pakistan Electronic Media Regulatory Authority (PEMRA) appeared. At the
outset, this Court was informed that about 24 other television (TV)
programmes were aired the same day, i.e. 28.08.2018, with similar content
although the prejudicial remarks made therein were not as serious as those
made in ‘Power Play’. When questioned whether the conduct of Mr. Sharif
and other media persons conducting their programmes on any sub judice
matters was acceptable under international standards of responsible
journalism, a significant number of media personnel present in Court were
unable to justify the same. When questioned, Mr. Sharif agreed that as a
SUO MOTU CASE NO.28 OF 2018
-: 5 :-
journalist he lacked the legal acumen to analyze a document submitted as
evidence in the matter pending before this Court. He admitted that he lacked
expertise and knowledge of the law of evidence, etc., and in discussing a
purely legal issue, he risked causing serious prejudice to the case. Mr. Faisal
Fareed learned counsel for Mr. Sharif also agreed that there was a need for a
code of conduct for the print and broadcast media relating to matters
pending before Courts. At this juncture, Mr. Faisal Siddiqi, learned counsel
for PBA, pointed out that in fact a statutory code of conduct already exists
namely, the Electronic Media (Programmes and Advertisements) Code of
Conduct, 2015 (the Code of Conduct), which was notified by the Federal
Government vide S.R.O. No.1(2)/2012-PEMRA-COC on 19.08.2015 in
exercise of its powers under Section 39 of the Pakistan Electronic Media
Regulatory Authority Ordinance, 2002 [the Ordinance, as amended by the Pakistan
Electronic Media Regulatory Authority (Amendment) Act, 2007]. He submitted that the
Code of Conduct came into being on the basis of consensus reached between
PBA, other stakeholders and the Federal Government pursuant to a case
before this Court titled Hamid Mir and another Vs. Federation of Pakistan
and others (Const. P. No.105 of 2012, etc.) and enjoys the force and
blessings of an order of this Court dated 18.06.2015. He pointed out that
Clause 4(3) of the Code of Conduct (reproduced below) prohibits airing of
subjective commentary on sub judice matters by media licensees. He also
stated that if implemented in its letter and spirit, the Code of Conduct
enjoins upon licensees the duty to strictly monitor implementation and
compliance therewith. Be that as it may, the learned counsel present and the
Chairman, PEMRA agreed that despite existence of the Code of Conduct
since 2015, and the punitive measures available in Section 33 of the
Ordinance for violations of its provisions, sub judice matters are being openly
discussed in talk shows thereby acting as de facto Courts, announcing what
they deem would and should amount to justice. A prime example of such
SUO MOTU CASE NO.28 OF 2018
-: 6 :-
conduct is the episode of the programme ‘Power Play’ hosted by Mr. Sharif
from which these suo motu proceedings were initiated.
3.
In light of the above, it is deemed appropriate to scrutinize the
issue of commentaries on sub judice matters as it has become a recurring
problem and professional standards (national and international) of media reporting
on such matters are being disregarded. First and foremost, it is important to
lay out the essential elements of the particular programme presently under
consideration which triggered the risk of causing serious prejudice to the
relevant sub judice case:-
i)
Documents/affidavits which are or may be relevant to a
pending proceeding were deliberated upon;
ii)
Two affidavits of the former President, Mr. Asif Ali Zardari
were placed before the guests in the programme and the
fate of the pending trial was discussed by asking them to
determine which of the two was the correct affidavit,
insisting that the two were mutually contradictory and
implying that at least one did not reflect the truth;
iii)
A shadow of doubt was cast on the veracity of statements
made and documents submitted by the person involved in
the ongoing proceedings; and
iv)
Despite being told that his leading questions amounted to
a ‘media trial’ in a sub judice matter, the anchor, Mr.
Sharif, repeatedly insisted on grounds of his mistaken
belief that it was his duty as a journalist to inquire from
experts
to
determine
the
veracity
of
these
documents/affidavits.
It is in the light of the above circumstances and the absolutely flawed belief
of the anchor regarding his responsibility as a journalist which leads us to
the conclusion that the journalist community and media at large is either
misinformed or if not misinformed have silently tolerated such demeanor for
so long that the internationally accepted standards for responsible
journalism are so far from their line of sight that they fail to see its limits
SUO MOTU CASE NO.28 OF 2018
-: 7 :-
that they so carelessly and recklessly exceed without so much as a speck of
remorse.
4.
At the heart of the debate is the need for a balance to be struck
between freedom of expression and the administration of justice. In the
context of International law and Pakistan’s international commitments in
this regard, lies the International Covenant on Civil and Political Rights
(ICCPR) to which Pakistan is a signatory since 2008. While Article 19 of the
ICCPR protects, inter alia, the right to hold opinions without interference, the
right to freedom of expression and right to impart information (although Pakistan
has made reservations to Article 19 ibid stating that it shall be so applied to the extent that it is not
repugnant to the provisions of the Constitution of the Islamic Republic of Pakistan, 1973 and Sharia
laws), Article 14 thereof protects the administration of justice, particularly the
right to a fair trial and the principle of presumption of innocence until
proven otherwise, and provides in part that:-
“(1) All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of
his rights and obligations in a suit at law, everyone shall be
entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The
press and the public may be excluded from all or part of a trial
for reasons of morals, public order (ordre public) or national
security in a democratic society, or when the interest of the
private lives of the Parties so requires, or to the extent strictly
necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice; but
any judgement rendered in a criminal case or in a suit at law
shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern
matrimonial disputes or guardianship of children.
(2) Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according to
law.”
[Emphasis supplied]
Pursuant to the above Article, to the extent of international commitments of
Pakistan, the right of presumption of innocence under Article 14(2) of the
ICCPR and the power of the Courts to exclude the press and public from all
SUO MOTU CASE NO.28 OF 2018
-: 8 :-
or part of the trial in the interest of justice and in order to protect a person’s
right to a fair trial by an impartial judiciary, trumps the right of expression
under Article 19 of the ICCPR in the light of the fact that Pakistan has
specifically made reservations to Article 19 ibid to the extent that it conflicts
with the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution)
and Shariah laws.
5.
For a closer perusal of the international standards laid down for
reporting or commentary on sub judice matters in other countries, the laws
prevailing in the United Kingdom (UK), United States of America (USA),
Australia and India have been touched upon in this judgment. However at
the very outset, we find it pertinent to mention that under the law prevailing
in Pakistan as well as the other jurisdictions examined below, there are two
means of dealing with prejudicial comments on sub judice matters: (1)
imposing prior restraints on discussions/comments by the media or any
other form of publication; and/or (2) imposing sanctions in the form of sub
judice contempt, for interference in the administration of justice. It is also
worthy to note certain distinctions between the prevailing laws in these
countries and the law in Pakistan with regard to freedom of information and
the protection of the right to a fair trial. In USA, after the First Amendment
to the US Constitution, freedom of press and right to information is
recognized as an absolute right, as can be gauged from the language thereof
reproduced below:-
“Article [I] (Amendment 1 – Freedom of expression and
religion).
Congress shall make no law…abridging the freedom of speech,
or of the press…”
This is in stark contrast to the fundamental rights of freedom of speech and
information guaranteed under Article 19 and 19A of our Constitution, the
SUO MOTU CASE NO.28 OF 2018
-: 9 :-
language used in which specifically subjects both these rights to ‘reasonable
restrictions’ imposed by law:-
“19.
Freedom of speech, etc. Every citizen shall have the
right to freedom of speech and expression, and there shall be
freedom of the press, subject to any 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 foreign States, public order, decency or
morality, or in relation to contempt of court, commission of or
incitement to an offence.
19A. Right to information. Every citizen shall have the right
to have access to information in all matters of public
importance subject to regulation and reasonable restrictions
imposed by law.”
[Emphasis supplied]
The aforementioned difference in the constitutional provisions of the USA
and Pakistan need to be kept in mind when considering American cases
such as Bridges Vs. California [314 US 252 (1941)] in which it was held
that any restrictions on the press prior to a trial or proceeding or during its
pendency are prima facie unlawful. Nevertheless, in light of the Fourteenth
Amendment to the US Constitution and the due process and equal
protection clauses contained therein, in certain cases where a display of
irresponsible journalism has led to tainting the presumption of innocence of
a person prior to trial, it has been deemed necessary to ‘neutralize’ the effect
of prejudicial comments on sub judice matters through neutralizing
techniques/procedural safeguards which broadly fall into three categories:
(1) the availability of procedural protections during trial to the concerned
individual; (2) placing of limitations on statements made by lawyers, court
officers and law enforcement officers; and (3) Bench-Bar agreements. The
first category includes procedural safeguards, such as, where the Court
deems it necessary, it may adjourn the case till the threat of prejudice abates
or transfer the case to another jurisdiction, or if the need arises the Court
SUO MOTU CASE NO.28 OF 2018
-: 10 :-
may on its accord, order sequestration of jury or the judge may issue certain
instructions to the jury or caution the press against reporting certain
matters etc., or it may place a limit on the number, position and activity of
the press in the Courtroom {Sheppard v. Maxwell [348 US 333 (1966)]}. In this
category of neutralizing methods, where a person involved in a sub judice
matter apprehends prejudice during a trial due to the media attention on it
he may request for in-camera hearing, alternatively, where he feels that the
Court has failed to place adequate procedural protections to protect his right
to a fair trial, he may move for a new trial or appeal against the conviction.
The second category entails placing certain standards for regulating
information which may be released to the press by attorneys, court officers
and law enforcement officers prior to the proceedings, for example,
prohibiting the release of prior criminal record of the accused, prohibiting
any opinion with regards to the guilt of the person involved or prohibiting the
release of an opinion on the merits of the case, although the first two
categories of these safeguards differ from State to State. The third category
entails agreements between the Bench, Bar and broadcasters such as radio,
newspapers or television channels etc. which places on them voluntary
regulations and the responsibility of safeguarding certain information with
regards to the trial or prevent discussion thereof. However, these safeguards
to ‘neutralize’ the effect of prejudicial comments are not available to every
sub judice matter and may be imposed on a case to case basis where the
same is deemed necessary {Near v. Minnesota Ex Rel. Olson, County Attorney [283 US 697
(1931)]}.
6.
In the absence of a written constitution, there exists no
constitutional provision for the protection of the right to speech or
information in the UK, and it is the Courts and the Parliament that carve out
the permissible protections and limits to the same through judgments and
legislation including, for instance, common law principles that have evolved
over the years, the Freedom of Information Act, 2000 and the Contempt of
SUO MOTU CASE NO.28 OF 2018
-: 11 :-
Court Act, 1981 (Act of 1981). A brief historical background of the common law
principles in this regard is essential in order to comprehend as to how the
law of sub judice contempt has evolved in the UK. The approach of the UK
Courts as well as the Legislature has been to promote the protection of the
administration of justice, while striking a fair balance with the protection of
right of expression and information. One of the most lauded judgments
which prompted the debate of the unacceptability of a simultaneous ‘media
trial’ in a pending proceeding as well as the common law rule of ‘sub judice
contempt’ in the UK was that of Lord Denning in the case of Attorney
General v. Times Newspaper ([1973] 1 All ER 815) wherein he laid down
the outer ambit of the sub judice contempt rule in the following words:-
“It is undoubted law that, when litigation is pending and
actively in suit before the court, no one shall comment on it in
such a way that there is a substantial danger of prejudice to the
trial of the action, as for instance by influencing the judge, the
jurors or the witnesses, or even by prejudicing mankind in
general against a party to the cause…Even if the person making
the comment honestly believes it to be true, still it is contempt of
court proceedings…To that rule about fair trial, there is this
further rule about bringing pressure to bear on a party, none
shall, by misrepresentation or otherwise, bring unfair pressure
to bear on one of the parties to a cause so as to force him to
drop his compliant, or give up his defense, or to come to a
settlement on terms which he would not otherwise have been
prepared to entertain…We must not allow trial by newspaper or
‘trial by television’ or trial by any medium other than the courts
of law.”
The learned Judge had strong reservations on trial by any medium besides
the Courts of law. This translated into his belief in a complete prohibition on
any discussions by the press/media during the time when a proceeding is
‘active’ before any Court, i.e. not only when the Court has taken cognizance
of the matter, but when proceedings have commenced therein. Evidently
therefore, according to the principles enunciated by him, while a mere risk
SUO MOTU CASE NO.28 OF 2018
-: 12 :-
or potential danger was sufficient to trigger protection by the law, a “real or
substantial danger of prejudice to the trial of the case or to the settlement of it” could only
exist when a proceeding is actively ongoing before the Court and hence only
in such circumstances could complete prohibition on publication with
regards to it be justifiably placed. He strongly maintained that the Court
should simultaneously also not be oblivious of the interest of the public in
matters of national concern and freedom of press to make fair comment on
such matters, adding that:-
“Our law of contempt does not prevent comment before the
litigation is started, nor after it has ended. Nor does it prevent it
when litigation is dormant and is not being actively pursued. If
the pending action is one which, as a matter of public interest,
ought to have been brought to trial long ago, or ought to have
been settled long ago, the newspapers can fairly comment on
the failure to bring it to trial or to reach a settlement. No person
can stop comment by serving a writ and letting it lie idle; nor
can he stop it by entering an appearance and doing nothing
more. It is active litigation which is protected by law of
contempt, not the absence of it.”
Hence, he clarified that before such proceedings become ‘active’, and after a
final decision has been announced by the Court(s), the press is free to
discuss or comment on the matter concerned. To put it simply, dormant
proceedings
are
free
for
comment
or
discussion
by
the
media/publications/press, but ongoing proceedings are not. Although this
decision of the Court of Appeal was unanimously overturned by the House of
Lords for an even narrower view by five Law Lords (Lord Reid, Lord Morris of Borth-
Y-Gest, Lord Diplock, Lord Simon of Glaisdale and Lord Cross of Chelsea);1 the latter view too
was overturned on appeal to the European Court of Human Rights2 which,
in a decision increasingly in favor of public interest and freedom of
expression held that the law of contempt may be used for “maintaining the
1 ([1973] 3 W.L.R. 298).
2 The Sunday Times v. United Kingdom [(1979) 2 EHRR 245].
SUO MOTU CASE NO.28 OF 2018
-: 13 :-
authority and impartiality of the judiciary”. Lord Reid’s opinion in the House of
Lords judgment holds importance with regard to the matter before us since
he held that what was regarded as most objectionable was “that a newspaper or
television programme could seek to persuade the public, by discussing the issues and
evidence in a case before the Court, whether civil or criminal, that one side is right and the
other is wrong.” In 1974, the Phillimore Committee submitted its report on
contempt of Court, inter alia, on account of prejudicial comments on sub
judice matters wherein it concluded that it was “necessary to preserve the principle
of the law of contempt, as a means of preventing or punishing conduct which tends to
obstruct, prejudice or abuse the administration of justice.”
7.
Several years after this report, the law of sub judice contempt
was codified in the Act of 1981 and in line with the abovementioned
principles, the rule of strict liability was created in Section 2 thereof whereby
any conduct, regardless of intent, which tended to interfere in the course of
justice, constituted contempt. The prohibited conduct in this rule included
any publication (speech, writing, broadcasting or any other communication to the public at
large) which creates a substantial risk that the course of justice in the
concerned pending proceedings will be seriously impeded or prejudiced. In
other words, under UK law the protection afforded to sub judice matters
against publication in the form of speech, broadcasted content or any other
widely circulated publication, extends to any proceeding wherein the mere
danger of substantial prejudice exists and where the concerned pending
proceedings are active [Section 2(3) of the Act of 1981], i.e. they had not remained
dormant for a considerable period of time. The only defense to this was if the
publisher or broadcaster despite having taken reasonable care was not
aware of the fact that the relevant proceedings were ‘active’. In Odhams
Press Ltd., ex p. Attorney-General ([1956] 3 All ER 494), the Divisional
Court stated that “The test is whether the matter complained of is calculated to interfere
with the course of justice, not whether the authors and printers intended that result.” In the
UK, prejudicial comments which amount to interference with the right to fair
SUO MOTU CASE NO.28 OF 2018
-: 14 :-
trial or constitute ‘trial by media’ in a civil or criminal proceeding fall in the
category of criminal contempt, as opposed to civil contempt where an
individual disobeys a court order. It is given the same weightage as that of
scandalizing the Court, which also constitutes criminal contempt as both
these result in undermining public confidence in the Courts and lack of faith
in the judiciary to protect their lawful rights, including the right of
presumption of innocence unless proven guilty. The same has been
emphasized by Lord Diplock in Attorney General v. Leveller Magazine Ltd.
([1979] AC 440) in the following words:-
“[A]lthough criminal contempts of court may take a variety of
forms they all share a common characteristic: they involve an
interference with the due administration of justice, either in a
particular case or more generally as a continuing process. It is
justice itself that is flouted by contempt of court, not the
individual court or judge who is attempting to administer it.”
8.
In Australia, although no constitutional provision for protection
of the right of freedom of speech or information exists nor is there any
statutory law with regards to sub judice matters, much uncertainty has
prevailed in the Courts with regards to the balancing of the right to
information in public interest matters and the right to fair trial and thus to
cure this ambiguity, certain measures were identified in the 2003 report of
the New South Wales Law Reform Commission (NSWLRC), which focused
specifically on issues arising within contempt by publication and rules
regarding sub-judice contempt. These measures largely consisted of adopting
a ‘substantial risk’ rule similar to that in the UK, however emphasis was
maintained on using the right to information in public interest as a defense
although the burden of proving the same lies on the publisher. Applying the
traditional common law rule, in the New South Wales Court of Appeal
judgment of John Fairfax Publications Pty. Ltd. v. Doe [(1995) 37 NSWLR
81], Kirby P. stated:-
SUO MOTU CASE NO.28 OF 2018
-: 15 :-
“[I]t would be a complete misreading of the recent development
of constitutional law in Australia to suggest that the implied
constitutional right of free communication deprives courts such
as this of the power and, in the proper case, the duty to protect
an individual’s right to a fair trial where it is, as a matter of
practical reality, under threat. Whatever limitations may be
imposed by the constitutional development protective of free
communication upon certain matters upon the law of
contempt…I could not accept that the constitutional implied
right has abolished the longstanding protection of fair trial from
unlawful or unwarranted media or other intrusion. Fair trial is
itself a basic right in Australia.”
Thus, as evident from the above paragraph, to uphold the right of fair trial
the Australian Courts impose publication bans through the exercise of their
inherent jurisdiction to regulate their own proceedings.
9.
The law in India regarding protection of the right to fair trial and
protection from prejudicial comments with regards to sub judice matters, in
some ways is similar to the law in Pakistan since in the Indian Constitution
as well, the right to freedom of speech has been made subject to reasonable
restrictions by law in terms of Article 19(2) thereof. In In Re: Harijai Singh
and others [1996 (6) SCC 466] the Indian Supreme Court held that
journalists do not hold any special freedom of expression or immunity from
the law and their right to expression is also a qualified one:-
“9.
…It, therefore, turns out that the press should have the
right to present anything which it thinks fit for publication.
10.
But it has to be remembered that this freedom of press is
not absolute, unlimited and unfettered at all times and in all
circumstances as giving an unrestricted freedom of the speech
and expression would amount to an uncontrolled licence. If it
were wholly free even from reasonable restraints it would lead
to disorder and anarchy. The freedom is not to be mis-
understood as to be a press free to disregard its duty to be
SUO MOTU CASE NO.28 OF 2018
-: 16 :-
responsible. Infact, the element of responsibility must be present
in the conscience of the journalists. In an organised society, the
rights of the press have to be recognised with its duties and
responsibilities towards the society. Public order, decency,
morality and such other things must be safeguarded. The
protective cover of press freedom must not be thrown open for
wrong doings…It is the duty of a true and responsible journalist
to strive to inform the people with accurate and impartial
presentation of news and their views after dispassionate
evaluation of the facts and information received by them and to
be published as a news item. The presentation of the news
should be truthful, objective and comprehensive without any
false and distorted expression.”
The High Court of Orissa in the case of Bijoyananda Patnaik Vs.
Balakrushna Kar and another (AIR 1953 Orissa 249) observed that “[i]t is
not necessary that the mind of the Judge should be affected”, rather anything that “has
a reasonable tendency to prejudice and obstruct the orderly administration of justice” could
constitute contempt. Furthermore, the High Court of Punjab in the judgment
reported as Rao Harnarain Singh Sheoji Singh Vs. Gumani Ram Arya
(AIR 1958 Punjab 273) held that:-
“20. …It is little realised that improper news items and
comments regarding causes which are either pending or about
to be taken up before Courts of law, very often hamper and
hinder the proper functioning of the Courts. Taking of sides in
criminal cases, suggesting innocence or guilt of accused
persons can cause grave prejudice, by either influencing the
minds of Judges, Jurors, witnesses, or by creating a climate of
sympathy for, or prejudice against the accused. It is but
essential, that those, who are engaged in the administration of
justice, should be free from outside influence, and the judicial
machinery should be left unaffected by popular feelings as to
guilt or innocence of persons being tried or awaiting trial on a
criminal charge. The legal machinery, according to our law for
adjudging the culpability of accused persons, or in civil causes,
for determining the rights of the parties, carefully excludes from
consideration facts and circumstances, other than those which
SUO MOTU CASE NO.28 OF 2018
-: 17 :-
are presented in a formal manner, according to the rules of
procedure and evidence. The decision rests on the material on
the record, and extraneous matters, howsoever palpable, or
seemingly important, are kept severely outside the judicial
purview. Any outside comment upon a pending case, and any
criticism of the parties or the witnesses, which is calculated to
influence the decision, has to be placed under a legal ban.
Journalists, whether out of good or evil intentions, who intrude
themselves on the due and orderly administration of justice, are
guilty of contempt of Court and can be subjected to summary
punishment. The Courts do not countenance any interference
which is calculated to impede, embarrass or obstruct the
administration of justice. Any publication, which has a tendency
to foil or thwart a fair and impartial trial, or any conduct,
which in any manner prejudices or prevents judicial
investigation, whether by intimidation of or by reflection on the
Court, counsel, parties or witnesses, in respect of a pending
cause, constitutes contempt of Court.”
Therefore, like the approach of the Courts in the UK and the USA, the Indian
Courts too hold the view that judges are not immune from influence when
prior to the proceedings the judges seized of the matter come across any
publication that promotes the perspective of one of the parties involved
therein. In the case of Sahara India Real Estate Corporation Limited and
others Vs. Securities and Exchange Board of India and another [(2012)
10 SCC 603] the Supreme Court of India held that excessive prejudicial
publicity leading to usurpation of functions of the Court not only interferes
with the administration of justice which is sought to be protected under
Article 19(2) of the Indian Constitution, it also interferes with legal
proceedings by encroaching upon the right to be presumed innocent until
proven otherwise and therefore, superior courts are duty-bound under their
inherent jurisdiction to protect the presumption of innocence which is now
recognized by them as a human right. One method of protecting this right by
the Courts is by imposing ‘prior restraint’, i.e. limitations be put in place
prior to the proceedings or placing a ban or delaying publication of
SUO MOTU CASE NO.28 OF 2018
-: 18 :-
prejudicial publications for the duration of the trial/proceeding, although
such prior restraints are imposed only where there exists a substantial
danger or risk of causing prejudice to the proceeding sub judice at the time
and this is not a blanket protection available to all sub judice matters but is
imposed on a case to case basis. The concept of prejudicing a sub judice
matter was recently given hype in the case relating to the airing of a
controversial documentary titled as ‘India’s Daughter’ regarding the
infamous 2012 gang rape in India wherein, in relation to placing a ban on
the documentary ‘India's Daughter’ it was held that while the proceedings
against the accused in the Delhi gang rape were sub judice, the said
documentary which reflected that the accused showed no remorse for their
conduct, amounted to substantial danger of influencing the judges seized of
the matter as it explored an aspect of the matter which should otherwise be
determined during the proceedings.3 In the case of State of Maharashtra
Vs. Rajendra Jawanmal Gandhi [(1997) 8 SCC 386] it was held that “A trial
by press, electronic media or public agitation is the very antithesis of rule of law.” Thus,
similar to the view of the Courts in the UK and the USA, it is strongly
opposed to ‘trial by media’ in a sub judice matter, as also observed in R. K.
Anand Vs. Registrar, Delhi High Court [(2009) 8 SCC 106]:-
“…What is trial by media? The expression "trial by media" is
defined to mean:
The impact of television and newspaper coverage on a person's
reputation by creating a widespread perception of guilt
regardless of any verdict in a court of law. During high
publicity court cases, the media are often accused of provoking
an atmosphere of public hysteria akin to a lynch mob which not
only makes a fair trial nearly impossible but means that,
regardless of the result of the trial, in public perception the
accused is already held guilty and would not be able to live the
rest of their life without intense public scrutiny…”
3 As referred to and described by the Delhi District Court in a case titled Satyaveer Singh Rathi Vs. M/s. Zee
Television Ltd. (judgment dated 23.01.2016 passed in CS No. 324/2013).
SUO MOTU CASE NO.28 OF 2018
-: 19 :-
While we may not share the strong views in the above quoted paragraph
entirely, it is not uncommon for the media to sensationalize issues of public
importance and deduce guilt before any substantial finding has been
recorded regarding the person undergoing trial/investigation/inquiry, and
where this results in the mere risk of a substantial danger of the judges
seized of the matter no longer remaining impartial, the right to fair trial of
the person facing trial/investigation is irreparably lost.
10.
The foregoing discussion of the law in various other jurisdictions
with regards to sub judice contempt as well as the common law principles on
the protection of right to fair trial in sub judice matters reveals that the
international community at large gives the right to fair trial the highest
priority and that measures have been taken either vide statutory law or
common law principles to ensure that the right to freedom of speech and
expression is safeguarded so long as it does not encroach upon any person’s
right to be treated in accordance with the law without any extraneous
influences. At the heart of this sub judice rule lies the view that an essential
element of fair trial is an impartial judiciary and one simply cannot turn a
blind eye to the fact that comment on a sub judice matter in the media or
any other widely circulated publication has at least the potential of having
an indirect effect on the minds of the judges seized of a matter. Although
judges have the ability to ignore any irrelevant considerations while
adjudicating a matter, the mere risk or danger of causing prejudice to a
pending matter is sufficient for the law to step in to protect the right of the
one being adversely affected. While public interest may at times require that
information be provided regarding a certain case, strict guidelines with
regards to such publication are necessary to be imposed so as to ensure that
the fundamental rights of all persons are given equal weightage including the
accused or those involved in such proceedings. The International community
in terms of Article 14 of the ICCPR as well as the law in their respective
SUO MOTU CASE NO.28 OF 2018
-: 20 :-
jurisdictions on sub judice contempt is in consensus to the extent that
anything in the nature of pre-judgment of a case or specific issues thereof is
objectionable and although it is believed that the mass media and
broadcasters would do their best to be fair in their comments but there is
always the possibility of ill-informed, inconsiderate or careless comments
that may prejudice sub judice proceedings and this potential or risk of
substantial danger of pre-judgment is sufficient to trigger the protection of
the law with regards to the right of a person to an impartial judiciary, due
process and right to put forth his defense before anyone else gives his
subjective opinion on the same. Therefore, we deem it expedient that strict
guidelines be implemented to prevent any prejudicial comments on pending
cases; believing that this will in no manner take away from the freedom of
the press/mass media/broadcasters and will only aid in upholding the rule
of law and fair and impartial trials in the larger interest of justice.
11.
Under Pakistani law, prejudicial comments on sub judice
matters are dealt with through prior restraint and/or contempt of Court
proceedings. The latter is rooted in the provisions in the Constitution which
read as under:-
“204. Contempt of Court. – (1) In this Article, “Court” means
the Supreme Court or a High Court.
(2)
A Court shall have the power to punish any person who,
(c)
does
anything
which
tends
to
prejudice
the
determination of a matter pending before the Court.”
The above constitutional provision is similar to the provisions on sub judice
contempt in the Act of 1981 of the UK, except that the said statute requires
further that these pending proceedings be ‘active’ and a ‘substantial danger’
must exist with regards to prejudicing the pending trial/proceedings.
However, in light thereof, while we reserve our inherent jurisdiction under
the above constitutional provision (which shall be elaborated below), the approach of
imposing prior restrictions on the media and other publications with regards
SUO MOTU CASE NO.28 OF 2018
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to all sub judice matters is the more logical approach. This is because
contempt laws cannot erase the prejudice caused to a sub judice case nor
can it erase the damage caused to the case of the person involved in such
proceedings, particularly, since the Code of Conduct already exists which is
in consonance with Article 14 of the ICCPR which promotes the right of
presumption of innocence until proven guilty and the right to a fair trial
before an impartial judge/judiciary. With regards to imposing prior
restraints on the media, it must be clarified that while in the UK there is a
complete ban on discussions on sub judice matters and in the USA and India
publications may be banned or delayed, the Code of Conduct in fact takes a
relatively more lenient approach by allowing the media to provide
information about sub judice matters and only subjective and prejudicial
commentary is prohibited as is elaborated upon later in this judgement. No
doubt, Article 19 of the Constitution ensures to every citizen the right to
freedom of speech and expression and that there shall also be freedom of the
press, however these rights and freedoms have been specifically made
subject to reasonable restrictions imposed by law. The same is the case with
Article 19A of the Constitution which guarantees every citizen the right to
have access to information in all matters of public importance but subject to
regulation and reasonable restrictions imposed by law. At this juncture, we
find it appropriate to reproduce various extracts from the judgment reported
as Pakistan Broadcasters Association and others Vs. Pakistan Electronic
Media Regulatory Authority and others (PLD 2016 SC 692) which are
germane to the instant matter:-
“11. No doubt freedom of speech goes to the very heart of a
natural right of a civilized society to impart and acquire
information about their common interests. It helps and
individual in self accomplishment, and leads to discovery of
truth, it strengthens and enlarges the capacity of an individual
to participate in decision making and provides a mechanism to
SUO MOTU CASE NO.28 OF 2018
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facilitate achieving a reasonable balance between stability and
social change.
12. The concept of freedom of media is based on the premise
that the widest possible dissemination of information from
diverse and antagonistic sources is sine qua non to the welfare
of the people. Such freedom is the foundation of a free
government of a free people. Any attempt to impede, stifle or
contravene such right would certainly fall foul of the freedom
guaranteed under Article 19 of the Constitution of Pakistan.
13. However even the core free speech, which propagates
social, political or economic ideas, promotes literature or
human though, though fully protected, is subject to reasonable
restrictions
contemplated
under
Article
19
of
the
Constitution…”
However, this Court went further and elaborated upon the phrase
‘reasonable restriction’ and held as under:-
“16. Undoubtedly no one can be deprived of his fundamental
rights, such rights being incapable of being divested or
abridged. The legislative powers conferred on the State
functionaries can be exercised only to regulate these rights
through reasonable restrictions, and that too only as may be
mandated by law and not otherwise. The authority wielding
statutory powers conferred on it must act reasonably (emphasis
supplied) and within the scope of the powers so conferred.
18. However, in examining the reasonableness of any
restriction on the right to freedom of expression it also should
essentially be kept in mind as to whether in purporting to
exercise freedom of expression one is infringing upon the
aforesaid right of others…”
12.
This indicates that the rights provided in Articles 19 and 19A of
the Constitution are in no manner unqualified rights and may be made
subject to regulation and reasonable restrictions. Therefore, while they are to
be safeguarded, they cannot be used as a casual excuse to trample on other
fundamental rights of another, particularly those which guarantee citizens
SUO MOTU CASE NO.28 OF 2018
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the right to be dealt in accordance with law and the right to fair trial and due
process enshrined in Articles 4 and 10A of the Constitution:-
“4. Right of individuals to be dealt with in accordance with
law, etc. (1) To enjoy the protection of law and to be treated in
accordance with law is the inalienable right of every citizen,
wherever he may be, and of every other person for the time
being within Pakistan.
10A. Right to fair trial. For the determination of his civil rights
and obligations or in any criminal charge against him a person
shall be entitled to a fair trial and due process.”
[Emphasis supplied]
13.
A balance therefore must be struck between the right to freedom
of speech and information on one hand and the right to fair trial, to be dealt
with in accordance with law and of due process on the other. No person
must be deprived of his fundamental right to be tried by an impartial
judiciary and unbiased judge and an objective and fair trial unless a certain
allegation is proved against him strictly in accordance with the law. We find
that the Code of Conduct, particularly Clause 4(3) thereof (reproduced later in this
opinion), encompasses these principles. In Clause 4(3) ibid a balance has been
struck with regards to programmes on sub judice matters. While on one
hand such programmes are allowed to be aired thereby protecting the
freedom of speech and the right to information; the requirement that they
ought to be aired in an informative and objective manner and that no
content should be aired which tends to prejudice the determination by a
court, tribunal or any other judicial or quasi-judicial forum, ensures that the
right to fair trial, to be dealt with in accordance with law and of due process
are duly safeguarded. In fact, the Code of Conduct aids the broadcast media
and distribution services in compliance of their responsibility under the
Code of Conduct by providing pragmatic measures to ensure that they stay
within the permissible boundaries of freedom of speech prescribed in the law
when it comes to reporting sub judice matters. In order to regulate the rights
SUO MOTU CASE NO.28 OF 2018
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under Articles 19 and 19A of the Constitution, PEMRA has, under Section 4
of the Ordinance, been entrusted with the responsibility to regulate the
establishment and operation of all broadcast media and distribution services
in Pakistan. Section 39 of the Ordinance empowers PEMRA to make rules,
with the approval of the Government, to carry out the purposes of the said
Ordinance while Section 19(5) thereof states that PEMRA shall devise a Code
of Conduct for programmes and advertisements for compliance by the
licensees. Pursuant thereto, PEMRA has issued the PEMRA Rules 2009 (the
Rules) and the Code of Conduct (incorporated as Schedule A). According to Section
20(f) of the Ordinance, a person who is issued a license under the Ordinance
shall, inter alia, comply with the codes of programmes and advertisements
approved by PEMRA. Furthermore, Rule 15(1) of the Rules provides that the
contents of the programmes and advertisements which are broadcast or
distributed by the broadcast media or distribution service operator shall
conform to the provisions of Section 20 of the Ordinance, the Rules, the
Code of Conduct and the terms and conditions of the license. This Code of
Conduct to which reference is made multiple times in the Ordinance and the
Rules that admittedly exists, was made with the blessings of the Supreme
Court of Pakistan and the consensus of all the stakeholders and PEMRA,
was duly notified by the Federal Government and incorporated in the Rules.
The language of the Code of Conduct reflects that primary responsibility to
comply therewith lies with the licensees which covenant with PEMRA that
such compliance shall be ensured.
14.
Clause 4 the Code of Conduct is relevant for the purposes of the
instant matter which reads as follows:-
“4.
News and current affairs programmes: - the licensee
shall ensure that:
(3)
Programmes on sub-judice matters may be aired in
informative manner and shall be handled objectively:
SUO MOTU CASE NO.28 OF 2018
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Provided that no content shall be aired, which
tends to prejudice the determination by a court,
tribunal or any other judicial or quasi-judicial forum;
(4)
News shall be clearly distinguished from commentary,
opinion and analysis;
(6)
Content based on extracts from court proceedings,
police records and other sources shall be fair and
correct;
(9)
News or any other programme shall not be aired in a
manner that is likely to jeopardize any ongoing
inquiry, investigation or trial.”
[Emphasis supplied]
While Clause 4(3) of the Code of Conduct allows programmes on sub judice
matters to be aired, thereby guaranteeing the rights enshrined in Articles 19
and 19A of the Constitution mentioned above, the regulation and reasonable
restrictions imposed are that such programmes are aired in an informative
manner, are handled objectively [Clause 4(3) of the Code of Conduct], and that no
content is to be aired which would tend to prejudice the determination by a
Court, Tribunal or any other judicial or quasi-judicial forum [Proviso to Clause
4(3) of the Code of Conduct]. Furthermore, Clause 4(6) of the Code of Conduct
states that content based on extracts from court proceedings, police records
and other sources shall be fair and correct, while Clause 4(9) thereof
prohibits news or any other programme from being aired in a manner that is
likely to jeopardize any ongoing inquiry, investigation or trial. Therefore, the
foregoing clauses ensure that the freedom of speech and right to information
(Articles 19 and 19A of the Constitution) are protected, and at the same time provide
that the discussion of sub judice matters must be conducted in a manner
which does not negatively affect another person’s fundamental right to be
dealt with in accordance with the law (Article 4 of the Constitution) and the right to
fair trial and due process (Article 10A of the Constitution).
15.
It is imperative to clarify that there is a difference between
causing prejudice to a sub judice matter as opposed to merely providing
SUO MOTU CASE NO.28 OF 2018
-: 26 :-
information regarding the case without going into its merits. In this regard,
we find it expedient to discuss the meaning of ‘tend’ and ‘prejudice’ as
provided in various treatises. The term ‘tend’ means “to serve, contribute or
conduce in some degree or way…to have a more or less direct bearing or effect...to…have a
tendency to an end, object or purpose” (as per Black’s Law Dictionary, 9th Edition) whereas
the term ‘prejudice’ on the other hand is defined as follows:-
Chambers 21st Century Dictionary (June 1996):-
“bias, injury, hurt, disadvantage.”
Words and Phrases (Permanent Edition, Vol. 33):-
“to the harm, to the injury, to the disadvantage of someone.
Com. v. DeBellas, Pa., 9 Bucks 87, 91.”
““Prejudice” imports formation of a fixed anticipatory
judgment as contra-distinguished from those opinions which
may yield to substantial evidence, and it includes the forming of
an opinion without due knowledge or examination, though it
does not necessarily indicate any ill feeling. In re Adoption of
Richardson, 59 Cal. Rptr. 323, 251 C. A.2d 222.”
Black’s Law Dictionary (9th Edition):-
“damage or detriment to one’s legal rights or claims.”
Corpus Juris Secundum, Volume 72:-
“As a noun, “prejudice” is defined as meaning a bias or
leaning toward one side or the other of a question from
considerations other than those belonging to it; an
unreasonable predilection prepossession for or against
anything, especially an opinion or leaning adverse to anything,
formed without proper grounds or before suitable knowledge;
an opinion or judgment formed beforehand, or without due
examination;
As a noun “prejudice” has been held synonymous with
“prejudgment”.”
[Emphasis supplied]
From the above definitions, it is clear that the phrase ‘tend to prejudice’ in
the context of sub judice matters would mean that a sub judice matter is
SUO MOTU CASE NO.28 OF 2018
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discussed in a manner which is likely to, or has a mere tendency to result
in a pre-judgment or forming of an opinion to the disadvantage of any
person involved therein, without proper grounds or knowledge with regards
to such proceedings/investigation/inquiry. As observed in the above
paragraphs, the mere tendency to cause substantial prejudice has been
deemed sufficient in the UK for placing a complete ban on commentary by
the press on sub judice matters throughout the period of its active pendency,
while in the USA and India the same has been deemed as a sufficient ground
to place prior restraints on case to case basis. The law in Pakistan by virtue
of the Code of Conduct in fact places greater trust in its media and journalist
community by trusting that they will provide objective information about
pending proceedings while taking precautions that they do not pass
subjective or prejudicial comments in such regard.
16.
The identical phrase ‘tends to prejudice’ contained in Clause 4(3)
of the Code of Conduct is reflected in Article 204(2)(c) of the Constitution and
therefore in our view, such phrase has the same meaning and parameters as
discussed above. We find that the said powers of the Supreme Court or any
High Court which have been conferred thereupon by the Constitution and
therefore superlative to, and shall apply notwithstanding, the powers granted
to PEMRA under the relevant statute, rules, and codes of conduct, etc.,
whenever the Supreme Court or any High Court is of the opinion that it is
appropriate in the facts and circumstances of the case for such Court to take
cognizance of the matter and exercise its powers under Article 204 ibid.
17.
The oft-used term of ‘media trial’ is a real phenomenon and
cannot be allowed. Where the fate of sub judice matters is being decided on
public forums, not only the minds of the public are being influenced, but
also potentially the minds of the judges seized of the sub judice matter, and
lawyers and investigators, etc. involved in such matter, this would obviously
tend to prejudice the sub judice matter. Most alarmingly, as had happened in
the particular episode of ‘Power Play’ that caused this Court to take notice of
SUO MOTU CASE NO.28 OF 2018
-: 28 :-
the instant issue, evidence brought on the record in a sub judice case was
critically examined and experts were invited to express their opinions on the
veracity of such evidence and the possible fate of the case. Drawing
assumptions, inferences and conclusions from evidence or the documents
filed in a case and stepping into the shoes of a judge on broadcasted
programmes may not only convict the accused in the eyes of the public
regardless of whether he is ultimately exonerated by a Court, but certain
comments or opinions may be voiced which could potentially instill bias and
prejudice in the minds of the judges, particularly to those who are dealing
with the sub judice matter, thereby violating the fundamental rights under
Articles 4 and 10A of the Constitution of the persons involved in such
matter. Taking support from Lord Diplock’s words, it is fair to state that
prejudicial comments which interfere in the administration of justice, in a
way amount to the flouting of justice itself, and must be treated as such by
the society in the spirit of upholding the rule of law. Notwithstanding the fact
that the alleged contemnor, Mr. Sharif has tendered an unqualified apology,
we find it absolutely necessary to explicitly state that considering the
pending proceedings before this Court, inter alia, regarding the inquiry by
FIA against the former President, Mr. Asif Ali Zardari, the comments made
on this particular episode of the programme ‘Power Play’ led to a substantial
danger of prejudicing his case and thus potentially trampled upon his right
to a fair trial and due process guaranteed under Article 4 and Article 10-A
respectively of the Constitution.
18.
The Ordinance and the Code of Conduct mandate that licensees
maintain a strict check on the programmes being conducted and periodically
update PEMRA as to whether they are duly discharging this duty. The
relevant provisions of the Ordinance are reproduced below:-
“20. Terms and conditions of license.– A person who is issued
a license under this Ordinance shall.–
SUO MOTU CASE NO.28 OF 2018
-: 29 :-
(f)
comply
with
the
codes
of
programmes
and
advertisements approved by the Authority and appoint an in-
house monitoring committee, under intimation to the Authority,
to ensure compliance of the Code;
26. Council of Complaints.– (5) The Councils may recommend
to the Authority appropriate action of censure, fine against a
broadcast or CTV station or licensee for violation of the codes
of programme content and advertisements as approved by the
Authority as may be prescribed.”
The relevant clauses of the Code of Conduct read as under:-
“4(10). Editorial Oversight: the licensee shall ensure that its
representatives, hosts and producers shall discuss and review
the contents of the programme prior to programme going on
air/being recorded and ensure that its contents conform to, in
letter and spirit, this Code of Conduct.”
17. Monitoring committee:- Licensee shall comply with this
Code and appoint an in-house monitoring committee under
intimation to the PEMRA to ensure compliance of the Code.
19. Facts and opinion:- The licensee shall ensure that:- (1) If
during a talk show or news show a guest makes or asserts an
opinion that is presented as a fact, on a serious issue, the
channel and or its representative must intervene and protect the
audience by clarifying this is an opinion and not a fact.
(2)
If the host/moderator is giving his or her own opinion,
he or she must also clarify that this is a personal opinion and
not a fact.
20. Responsibility for compliance and training of employees:-
(1) It shall remain the sole responsibility of the Licensee to
ensure that the content aired by it complies with the Code.
(2)
Licensee shall arrange for regular training of its
employees that may be helpful in performing their duties better.
24. Standards of behavior:- (1) This Code presents the
standards to be complied with by all the licensees and it shall
always be the sole responsibility of the licensee to ensure the
content aired by it is in compliance with the Code of Conduct.
SUO MOTU CASE NO.28 OF 2018
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(2)
This Code represents an affirmative declaration of
understanding and compliance with the basic values and
objectives that licensees, including its employees and officials
shall adhere to, and these shall be observed in letter and
spirit.”
Clause 4(10) of the Code of Conduct is very important because by discussing
and reviewing the contents of a programme prior to the time it is aired or
recorded, the licensee can ensure that the contents of such programme
conform to the Code of Conduct. Therefore, licensees can make certain that
programmes on sub judice matters are aired in an informative manner and
are handled objectively [Clause 4(3) of the Code of Conduct] and that content based
on extracts from court proceedings, police records and other sources are fair
and correct [Clause 4(6) of the Code of Conduct], and that no programme is aired or
recorded which contains content that tends to prejudice the determination
by a court, tribunal or any other judicial or quasi-judicial forum [Proviso to
Clause 4(3) of the Code of Conduct] or that is likely to jeopardize any ongoing
inquiry, investigation or trial [Clause 4(9) of the Code of Conduct]. Section 20(f) of
the Ordinance mandates licensees to comply with the codes of programmes
and advertisements approved by the Authority. A plain reading of Clauses 20
and 24 of the Code of Conduct makes it crystal clear that the responsibility
of ensuring compliance with the Code of Conduct is primarily that of the
licensee, including its employees and officials. Licensees are also required to
arrange regular training of its employees to ensure that they perform their
duties better [Clause 20(2) of the Code of Conduct]. Section 20(f) of the Ordinance
read with Clause 17 of the Code of Conduct requires the licensee to appoint
an in-house monitoring committee (Monitoring Committee) under intimation to
PEMRA to constantly ensure compliance of the Code of Conduct, while
Clause 19 places on the licensee, the responsibility to ensure that any
opinion expressed in a broadcasted programme is distinguished and
presented in a manner that it is not mistaken as a fact by the average
SUO MOTU CASE NO.28 OF 2018
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viewer/audience. Finally, Section 26(5) of the Ordinance provides that the
Council of Complaints may recommend to PEMRA appropriate action of
censure or fine against a broadcast station or licensee for violation of the
Code of Conduct. The foregoing appears to be an adequate mechanism to
prevent violations of the Code of Conduct by the media so long as such
measures are practically and effectively adopted and enforced.
19.
There remains no ambiguity in our minds with regards to the
laxity of the licensees in ensuring compliance with the Code of Conduct and
of PEMRA as a regulatory authority in penalizing licensees on account of any
violations of the Code of Conduct. If voluntary violations of the Code of
Conduct or even negligence by the licensees to ensure adherence thereto is
not penalized by PEMRA, the Code of Conduct will be reduced to a mere
paper tiger and be rendered absolutely redundant. We therefore issue a writ
of mandamus to PEMRA to ensure that the following parameters laid down
in the law and the Code of Conduct are adhered to in letter and spirit and
that no violations thereof shall be tolerated by PEMRA:-
i)
The Code of Conduct ensures that the freedom of speech and the
right to information (Articles 19 and 19A of the Constitution) are
protected, and at the same time provide that the discussion of
sub judice matters must be conducted in a manner which does
not negatively affect another person’s fundamental right to be
dealt with in accordance with the law (Article 4 of the Constitution) and
the right to fair trial and due process (Article 10A of the Constitution).
ii)
All licensees should be sent a notice/reminder of their basic
ethics and objectives, standards and obligations under the Code
of Conduct, particularly Clause 4(10) thereof, in that, editorial
oversight should be observed prior to the airing of all
programmes and any programme, the subject or content of
which is found or deemed to be in violation of the Code of
Conduct in its true letter and spirit, should not be aired by the
licensee;
iii)
Any discussion on a matter which is sub judice may be aired but
only to the extent that it is to provide information to the public
SUO MOTU CASE NO.28 OF 2018
-: 32 :-
which is objective in nature and not subjective, and no content,
including commentary, opinions or suggestions about the
potential fate of such sub judice matter which tends to prejudice
the determination by a court, tribunal, etc., shall be aired;
iv)
While content based on extracts of court proceedings, police
records and other sources are allowed to the extent that they are
fair and correct, any news or discussions in programmes shall
not be aired which are likely to jeopardize ongoing inquiries,
investigations or trials;
v)
In compliance with Clause 5 of the Code of Conduct, all
licensees should strictly ensure that an effective delaying
mechanism is in place for broadcasting live programmes to
ensure stern compliance with the Code of Conduct and Articles
4, 10A and 204 of the Constitution;
vi)
In compliance with Clause 17 of the Code of Conduct, an
impartial and competent in-house Monitoring Committee shall
be formed by each licensee, with intimation to PEMRA which
shall be duty bound to ensure compliance of the Code of
Conduct;
vii)
With regards to the Monitoring Committee, we direct that
licensees include (for each of its meetings) at least one practicing
lawyer of at least 5 years or above practice, with adequate
understanding of the law to advise the licensee regarding any
potential violations of the Code of Conduct by programmes to be
aired in the future;
viii)
In compliance with Clause 20 of the Code of Conduct, each
licensee shall be required to hold regular trainings of its officers,
employees, staff, anchors, representatives etc. with regards to
ensure compliance with the Code of Conduct with the schedule
and agenda of these regular trainings to be intimated to PEMRA
through the Monitoring Committee;
ix)
If any licensee is found to have violated or failed to observe the
Code of Conduct in its true letter and spirit, particularly Clause
4 of thereof, and/or Articles 4, 10A and 204 of the Constitution,
strict and immediate action should be taken against such
licensee in accordance with Section 33 of the Ordinance. The
SUO MOTU CASE NO.28 OF 2018
-: 33 :-
Supreme Court or any High Court retains the power to take
cognizance of the matter and shall exercise its powers under
Article 204 ibid where such Court is of the opinion that it is
appropriate in the facts and circumstances of the case for it to
do so; and
x)
The unconditional and unqualified apology tendered by Mr.
Sharif is accepted in view of the fact that in our opinion it has
been tendered sincerely and he has expressed remorse and
regret promising not to repeat such reckless and irresponsible
behaviour in the future. Mr. Sharif is also warned to be
extremely careful in the future.
In light of the foregoing, this matter is accordingly disposed of.
CHIEF JUSTICE
Islamabad, the
12th of September, 2018
Approved For Reporting
JUDGE
JUDGE
M. Azhar Malik/*
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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
SUO MOTU CASE NO.2 OF 2018 AND
CONSTITUTION PETITION NO.72 OF 2011
S.M.C.2/2018:
Suo motu action regarding maintaining of
Foreign
Currency
Accounts
by
Pakistani
Citizens without disclosing the same/paying
taxes
Const.P.72/2011: Senator
Muhammad
Ali
Durrani
Vs.
Government of Pakistan and others
In attendance:
Syed Nayyar Abbas Rizvi, Addl. A.G.P.
Mr. Muhammad Ali Durrani, petitioner
(In Const.P.72/2011)
Mr. Tariq Mehmood Bajwa, Governor, State
Bank of Pakistan
Mr. Tariq Mehmood Pasha, Chairman FBR
Mr. Arif Ahmed Khan, Federal Secretary
Finance
Mr. Bashir Ahmed Memon, D.G. FIA
Dr. M. Rizwan, Director Immigration FIA
Dr. Usman Anwar, Director FIA
Mr. Ali Sher Jakhrani, Director Law FIA
Mr. Imran Ahmed Khan, Sr. Joint Secy. M/o
Finance
Mr. Fazal Mehmood, Director, State Bank
of Pakistan
Mr. Sanaullah Gondal, Deputy Legal Advisor,
Mr. Zahid Khokhar, Member Customs, FBR,
Dr. Iftikhar Ahmed, Director Law, FBR,
Mr. Mehmood Mandviwala, ASC,
Syed Shabbar Zaidi, Sr. Partner, A.F. Ferguson
& Co.,
On Court’s Call:
Ch. Aitzaz Ahsan, Sr. ASC
Mr. Hamid Khan, Sr. ASC
SMC NO.2 OF 2018 ETC.
-: 2 :-
Date of hearing:
12.6.2018
ORDER
By order of the Court dated 26.03.2018, a
Committee of 12 Experts (“Committee”) having insight into
the process of accumulation of undeclared foreign movable
and immovable assets by Pakistani citizens was appointed by
this
Court.
They
were
tasked
with
deliberating
and
recommending legislative and executive measures for tracing
and retrieving such assets held abroad. The members of the
Committee are named below:
1.
Mr. Tariq Bajwa, Governor, State Bank of Pakistan.
2.
Mr. Arif Ahmed Khan, Secretary, Finance Division.
3.
Mr. Tariq Pasha, Chairman, Federal Board of Revenue.
4.
Mr. Khalid Anwer, Sr. ASC.
5.
Mr. Mehmood Mandviwalla, Barrister at Law, Senior
Partner Mandviwalla and Zafar.
6.
Dr. Ikramul Haq, ASC and Partner Huzaima and Ikram.
7.
Mr. Muhammad Waqar Rana, Additional Attorney General.
8.
Syed Shabbar Zaidi, Senior Partner, AF Ferguson and Co.
9.
Mr. Bashir Ali Muhammad, Business Leader.
10. Mr. Tariq Paracha, Business Leader.
11. Mr. Atif Bajwa, Senior Banker.
12. Mr. Nisar Muhammad Khan, Former Chairman, FBR.
2.
A final report of the Committee was submitted on
13.04.2018 to the Court. During the course of hearing before
us today, the Governor State Bank of Pakistan explained the
Terms of Reference of the Committee. These primarily revolve
around the object expressed in item No.II thereof as follows:
“II. Examine
existing
legal
regime
and
practices
(especially
related
to
foreign
exchange and taxation), bilateral treaties
and multilateral conventions that can be
used to stem the unregulated outflow of
foreign
exchange
from
Pakistan,
trace
undeclared assets held abroad by Pakistani
SMC NO.2 OF 2018 ETC.
-: 3 :-
citizens and retrieve such assets especially
the ones generated with proceeds of crime.”
3.
The Terms of Reference accordingly invite the
identification of the administrative actions and amendments
in the legislative framework that are necessary for achieving
the purpose and object reproduced above. In the first
instance, the Committee delineated ten factors that have
caused substantial foreign exchange outflows from Pakistan
for creating liquid, movable or immovable assets in foreign
jurisdictions. Briefly these are:
1.
Cash feeding of foreign currency accounts and the
immunity of such transactions under the provision of the
Protection of Economic Reforms Act, 1992 (“PERA”) from
scrutiny of the source and the movement of funds deposited
in foreign currency accounts.
2.
Free cash movement of foreign currency of any amount
within and out of Pakistan under, PERA without check or
scrutiny; thereby assisting its smuggling to foreign
jurisdictions.
3.
Misuse of retained foreign exchange by exporters. Laxity in
the regulatory framework for the retained portion of export
proceeds has facilitated its leakage and the accumulation of
undeclared assets abroad.
4.
Under invoicing and over-invoicing in foreign trade
transactions. The weaknesses of the information and
regulatory systems for the valuation of goods/services by
the FBR and the SBP have fostered unauthorized retention
of foreign exchange abroad.
5.
Section 111(4)(a) of the Income Tax Ordinance, 2001
provided an opportunity for misuse of the immunity to
inward remittances brought through normal banking
channels; as such black money stashed abroad could be
whitened without payment of tax.
6.
The Hundi and Hawala means of foreign currency transfers
have remained available in the market as illegal channels
for transfer of ill-gotten or tax evaded funds.
7.
Short limitation periods in tax laws for initiating legal
action against tax evaders and defaulters have blocked
assessment and recovery of tax on global income and
wealth of citizen.
8.
Scant bilateral tax treaties with other countries for mutual
cooperation and exchange of information have hampered
detection of foreign assets accumulated by citizen.
SMC NO.2 OF 2018 ETC.
-: 4 :-
9.
Lacunae in tax laws and regulations have enabled
avoidance of tax on technical grounds. These lacunae
include vague or insufficient definition of key concepts like
“resident”,
“non-resident”,
“foreign
company”,
“trust”,
“settlor” and “beneficiary” of a trust.
10.
Failure of the present income and wealth tax declaration
forms to require disclosure of foreign assets and income of
citizen.
4.
Recommendations
have
been
made
by
the
Committee to deal with the said deficiencies in foreign
exchange regulation and tax collection. The recommendations
note the experience of incentive schemes floated in other
jurisdictions to encourage voluntary disclosure of foreign
assets. These include schemes initiated in the recent past in
Italy, India and Indonesia. It is stated that the Tax Amnesty
Scheme, 2016 offered in Indonesia was highly successful and
the Committee supported its emulation in Pakistan.
5.
The Committee’s report has highlighted that
during the financial year 2016-17 a staggering amount,
US$15.253 billion, was transferred abroad by individual
account holders in Pakistan through normal banking
channels. It is also suggested that during the said period a
substantial amount of transfers took place from Pakistan
under unauthorized and undocumented Hundi and Hawala
mechanisms. Clearly, both types of outflows have a huge
impact on the stability of the foreign exchange reserves of the
country and adversely affect the exchange rates of the
Pakistani Rupee. Also as a result, the national economy can
become vulnerable to pressure due to foreign currency
obligations of the State; can suffer undue and disruptive
SMC NO.2 OF 2018 ETC.
-: 5 :-
inflation and can drain the exchequer of substantial amounts
of tax on account of escaped income and wealth.
6.
In the above circumstances, the Committee has
recommended that a scheme for voluntary disclosure of
foreign assets owned by Pakistani citizens be announced by
the Federal Government. This would provide such declarants
with an opportunity to declare and/or transfer their foreign
assets to Pakistan in lieu of payment of tax. In this regard, we
were informed that after our order dated 26.03.2018, the
Federal Government had promulgated the Foreign Assets
(Declaration
and
Repatriation)
Ordinance,
2018.
The
Committee has impliedly supported its provisions.
7.
Before us today, several Committee members have
reiterated their support for the voluntary disclosure scheme
announced by the Federal Government. This scheme has in
May, 2018 been re-enacted as the Foreign Assets (Declaration
and Repatriation) Act, 2018. (“Act, 2018”). The significant
feature of the Act, 2018 is the promised immunity from
taxation and penal action in respect of undeclared foreign
assets subject to payment of tax at the following rates:
1. Liquid foreign assets that are not repatriated, 5% of
the value of the foreign assets.
2. Immovable assets outside Pakistan, 3% of the value
of foreign assets.
3. Liquid assets repatriated and invested in Pakistan
government securities, 2% of the value of the foreign
assets.
4. Liquid assets repatriated to Pakistan, 2% of the value
of the foreign assets.
SMC NO.2 OF 2018 ETC.
-: 6 :-
8.
It is also informed that the government has made
legislative amendments in the relevant laws for curtailing and
regulating the cash feeding of foreign currency accounts by
restricting that privilege to tax filers only. A regulatory check
in cash movement of foreign currency above US$100,000/-
within Pakistan has been imposed. Likewise, immunity from
taxation of inward remittances under Section 111(4)(a) of the
Income Tax Ordinance, 2001 has been limited to a maximum
US$100,000/- per annum. It is acknowledged by the
Governor State Bank and the Members of the Committee
present in Court today that these Suo Motu proceedings have
encouraged the review by the Federal Government of its policy
on the subject leading to the above mentioned legislative and
regulatory changes. With respect to the remaining factors
identified by the Committee for unauthorized foreign currency
outflows from Pakistan, we are informed that no legislative or
regulatory provisions have so far been made by the Federal
Government.
9.
This Court is not an expert in economic, fiscal or
financial matters. It was persuaded to initiate these Suo Motu
proceedings for the grave public interest concerns: firstly,
regarding the declining foreign exchange reserves of the
country, the depreciating exchange rate of the Rupee and the
corresponding
inflationary
trend
of
imported
essential
commodities; and secondly, by the governmental indifference
towards the unhindered outflows of valuable foreign exchange
from the economic wealth and resources of the country
SMC NO.2 OF 2018 ETC.
-: 7 :-
encouraged by immunities from scrutiny and from taxation
granted to foreign currency transfers abroad that were also
depriving the exchequer of vital tax revenue.
10.
Accordingly, these proceedings have aimed to
draw the attention of the Federal legislative and regulatory
bodies toward the key issues pertaining to the aforementioned
matters of national priority. The fact that the Federal
Government has brought legislation on the subject is a good
start to curtail misuse of privileges granted by the law and
executive regulation. No challenge to the provisions of the
different legislative and regulatory initiatives undertaken in
the matter by the government is presently before the Court.
Also we are not prescient about subtle technicalities of foreign
exchange and balance of payment stabilization nor about
fiscal or other economic matters so as to anticipate
deficiencies in the Federal Government’s actions. Likewise, in
the absence of a concrete challenge, the Court is not inclined
to unilaterally sit in academic judgment on the legality or
propriety of the provisions of the scheme of voluntary
disclosure of foreign assets under the Act, 2018.
11.
Having said that, it is observed that any measures
taken by the Federal Government in the public interest to
protect the foreign exchange reserves of the country and to
bring the hitherto undeclared foreign assets within the tax net
are welcomed by the Court. Nevertheless, there are other
deficiencies of the current tax laws and in the regulatory
framework for the holding and transfer of foreign exchange
SMC NO.2 OF 2018 ETC.
-: 8 :-
that promote the accumulation of undeclared foreign assets
and corresponding income. These have been highlighted by
the Committee but remain unaddressed by the Federal
Government. They require careful attention and deliberation
by the concerned authorities. Let the Federal Government,
FBR and the State Bank of Pakistan state their respective
positions about these matters pointed out by the Committee
and indicate if any reform is proposed to correct or remedy
the same.
12.
Relist after one month at the Principal seat of this
Court.
Chief Justice
Judge
Judge
Lahore
12.06.2018
Naseer
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IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Ijaz ul Ahsan
Mr. Justice Munib Akhtar
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
Mr. Justice Muhammad Ali Mazhar
SUO MOTO CASE NO.2 OF 2022
(Re: Apprehension of Undermining the Criminal
Justice System by Persons in Authority. Prima Facie
Violation of Article 10A, 25 and 4 of the Constitution).
In attendance:
Mr. Ashtar Ausaf Ali,
Attorney General for
Pakistan
Date of Hearing
: 19.05.2022
ORDER
Notice is issued to the Secretary, Ministry of
Interior, the Director General, FIA, the Chairman/Regional
Directors, NAB, the Prosecutor Generals and Advocates
Generals in the Provinces and the ICT and the Head of
Prosecution Branch in FIA and NAB. The said officers shall
file their statements in writing, answering to the extent
relevant to them, the allegations, the facts and the material
that are contained in the order of 18.05.2022 and the
opinion
of
the
learned
recommending
Judge
for
commencement of these proceedings. The points that are
SMC 2 OF 2022
2
involved for response and explanation by the said officers
are:
(i).
The names of such officers and their
successors in the Investigating Branch and the
Prosecution Branch of FIA and NAB in High profile
cases who have been transferred, posted, removed
from their positions in the last six weeks.
(ii)
The names of persons who have been
removed from ECL during the said period and the
process employed in distinguishing their cases for
the relief granted. The description of the process
now adopted for dealing with the ECL affectees
and whether the previous process has been
amended or abandoned as a result. Status quo
shall be maintained till the next hearing.
(iii)
The steps taken for the preservation of the
case
files
and
the
case
record
with
the
Investigating Branch, the Prosecution Branch and
the Record of the concerned Trial Court whether a
Special Court (Central) or an Accountability Court.
(iv)
The Investigation and Prosecution record in
respect of high profile cases pending with both the
FIA and the NAB shall, unless required for
submission in Court, be checked, verified and kept
in safe custody of the head of the concerned
department and a report stating compliance to the
SMC 2 OF 2022
3
said effect shall be presented to the Court on the
next date of hearing.
(v)
No prosecution case shall be withdrawn
until the next date of hearing.
2.
Notice shall also be issued to the Registrars of
the High Courts of the Provinces and ICT for conveying this
order to the Courts of Special Judge (Central) and
Accountability Courts functioning within the jurisdiction of
the respective High Courts.
3.
The Court is concerned with the guarantees
provided by the Constitution to the peoples of Pakistan in
Article 4 for the rule of law, Article 10 for compliance with
due process and Article 25 of the Constitution for equal
protection of and equal treatment of all persons in
accordance with law. These guarantees serve to assure the
integrity, sanctity and fairness of the Criminal Justice
System; and to secure that alone is the object of these
proceedings.
4.
Transfers, postings and removals of persons
involved in the investigation of or prosecution of high
profile cases falling within charge and jurisdiction of the
Courts of Special Judge (Central) and the Accountability
Courts shall not be removed, transferred or posted till
further orders.
SMC 2 OF 2022
4
5.
The learned Attorney General for Pakistan seeks
leave to file documents that to his mind shall be of
assistance in the matter of securing, promoting and
ensuring the integrity, sanctity and the fairness of the
Criminal Justice system in the Investigation, Prosecution
and trial of high profile cases before the above mentioned
Courts.
6.
Adjourned to 27.05.2022
CHIEF JUSTICE
JUDGE
JUDGE
JUDGE
Islamabad
19.05.2022
Naseer
JUDGE
SMC 2 OF 2022
5
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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
S.M.C. NO. 03 OF 2014 AND H.R.C. 17126-G/2013 & H.R. MISC. 27/2013,
H.R.C. 17891-G/2013, H.R.M.A. 120/2013 IN H.R.C. 17126-G/2013 &
CONSTITUTION PETITION 40/2013 & C.M.A. NO. 5369/2013 AND C.M.
APPEAL NO. 37 OF 2014 IN CONSTITUTION PETITION NO. NIL OF 2014
AND CONSTITUTION PETITION NO. 05 OF 2014
S.No. Case No.
Parties name
1.
S.M.C. NO. 03/2014
Suo moto action upon an
incident of indiscriminate
firing and suicide attack in
District Courts, Islamabad
2.
HRC 17126-G/2013 & H.R.
MISC. NO. 27/2013
For arrest of the accused
involved in cases of torture
and
murder
of
the
Advocate
3.
HRC 17891-G/2013
Regarding
torture
on
lawyers in Rawalpindi
4.
H.R.M.A.
120/2013
IN
H.R.C. 17126-G/2013
News
clipping
of
Daily
Express
Tribune
dated
4.5.2013 regarding arrest
of the accused
5.
CONSTITUTION
PETITION
NO.
40/2013
&
C.M.A.
5369/2013
(For
security
of
lawyers
community
and
the
members of the judiciary)
Pakistan Supreme Court
Bar
Association
Vs.
Federation of Pakistan
6.
C.M. APPEAL NO. 37/2014
IN
CONSTITUTION
PETITION NO. NIL OF 2014
(Misc appeal against the
order of Registrar)
M.
Tariq
Asad
Vs.
Federation of Pakistan and
others
7.
CONSTITUTION
PETITION
NO. 05/2014
Riaz
Hanif
Rahi
vs.
Federation of Pakistan and
others
In Attendance:
Mr. Mohsin Akhtar Kiyani, President, IHCBA
Mr. Mustafa Ramday, A.G. Punjab
Mr. Zahid Yousaf, A.G. KPK
Mr. Muhammad Farid Dogar, AAG Balochistan
Ms. Shireen Imran, Gen Secretary, IHCBA
Mr. Jawad Paul, Commissioner, Islamabad
Mr. Jamil Hashmi, SP, CIA
Mr. Azhar Hussain Shah, DSP/L, ICT
Mr. Ghulam Mustafa, Inspector Legal, ICT
Mr. Muhammad Riaz, S.I, P.S. Industrial Area
Mr. Muhammad Imtiaz, S.I, P/s Civil Lines
Mr. Allah Yar, Inspector/SHO, Sadiqabad, Rawalpindi
Malik Arshad, SHO, Warish Khan, Rwp
Mr. Sajid Ilyas Bhatti, DAG
Mr. Dil Muhammad Khan Alizai, ASC
Date of Hearing:
07.04.2014
ORDER
The inquiry report from the Islamabad High Court which was
conducted by Mr. Justice Shoukat Aziz Siddiqui has been received. President of
the High Court Bar Association seeks permission to examine that and make his
submissions. He may inspect the report in the office but would not make it
public during the pendency of these proceedings. To come up on 9.4.2014.
CHIEF JUSTICE
JUDGE
JUDGE
Islamabad, the
7th of April, 2014
Not Approved For Reporting
Khurram
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